On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0843-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Hayden.
Based on a slip and fall injury that occurred on September 24, 2008, a jury returned a verdict of $75,000 in favor of plaintiff Jung Kyung, and apportioned fifty-one percent of the liability to defendant Neiman Marcus Group. Defendant appeals from the February 10, 2011 final judgment and from several pre-trial orders entered in the case. For the reasons that follow, we affirm.
This was the most pertinent trial evidence. Plaintiff testified that on September 24, 2008, sometime between 4:00 p.m. and 4:30 p.m., she was shopping in Neiman Marcus at the Garden State Plaza in Paramus. She recalled at the time she was wearing "white leather" sneaker-type shoes. According to plaintiff, she went into the Dior handbag section of the store, where she tripped on an uneven section of carpet and was injured*fn1
My friend wanted to purchase a handbag, so we were just looking around to see what was there and it's during that time [between 4:30 p.m. and 5:00 p.m.] . . . I tripped on a carpet. And . . . I didn't want to fall so I was making fast steps not to lose balance and I noticed that there was a showcase [that had] legs and it was made of metal. I struck my knee . . . against the leg of that showcase and I tried to keep my balance and I used my left arm.
Plaintiff testified that at first she did not realize she was seriously injured, and she walked around for a few more minutes and did more shopping. At some point, however, she realized that her knee was becoming painfully swollen and she needed to sit down.
On cross-examination, plaintiff testified that she "actually fell to the ground." She said she "felt disoriented" and was in "a lot of pain." Plaintiff recalled "[o]ne of the employees came over to me and helped" her up. Plaintiff testified the employee who initially helped her up was a "young, Caucasian woman" with "light colored hair," possibly "blonde." She testified that "someone told me to sit down" in a chair that was brought to her. According to plaintiff, she observed that the carpet area where she tripped "had a different feel . . . it was flusher" and caused her to lose her balance.
After the fall, plaintiff did not leave the handbag department until she reported the incident to the store's security guard, a "Hispanic" man named "Josh" who offered to call her an ambulance, which she declined. She testified that, at the time, she did not realize her "condition was so severe." Plaintiff made out a report and left the store with the help of a friend.
Dolores Dunnigan, a former Neiman Marcus employee whom defendant subpoenaed to testify at the trial, recalled that on the late afternoon of September 24, 2008, she was working in the accessory department, and she sold plaintiff a hat. She identified herself and plaintiff in a segment of the store's security video dated September 24 at 5:07 p.m. Notably, Dunnigan identified a woman named "Alex" who was working in the same area. She later confirmed that the woman's full name was Alexandra.
Dunnigan testified that she left the accessory department at some point and was gone until 5:23 p.m. while she went to the alterations department, probably looking for a box for the hat plaintiff had purchased. Looking at the video, Dunnigan recalled that when she returned with some boxes, she noticed that "something was wrong" with plaintiff. She "remember[ed] clearly" seeing that plaintiff "had a bump on her knee." Dunnigan recalled seeing plaintiff's injury, "because I had fallen the week before and gotten the same kind of bump on my leg" but recovered completely. Plaintiff told Dunnigan that she hit her knee on the metal leg of a table next to the cash register. Plaintiff did not mention falling, but Dunnigan explained that in the video, she can be seen comforting plaintiff and "probably just telling her how that had happened to me and . . . probably you don't need to be concerned."
Dunnigan asked the other sales woman, "Alex," to call security. Watching the video as she testified, Dunnigan recalled that "Josh" from security arrived in response to Alex's phone call and he spoke to plaintiff and Alex. She identified Josh in the video, "asking Alex what happened." ...