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March 13, 2026 Get Citation Alerts Download PDF Add Note

Peter Krassner v. Walmart

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-1500-24

• Precedential Status: Non-Precedential

• Opinion

• Authorities (23)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.8K)

• PDF

Combined Opinion

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1500-24

PETER KRASSNER,

Plaintiff-Respondent,

v.

WALMART,

Defendant-Appellant,

and

JASON CUZZO,

Defendant.

Argued January 29, 2026 – Decided March 13, 2026

Before Judges Marczyk, Bishop-Thompson, and
Puglisi.

On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0839-18.

Matthew D. Vodzak argued the cause for appellant
(Fowler Hirtzel McNulty & Spaulding, LLC, attorneys;
Matthew D. Vodzak, of counsel and on the briefs).
Brett R. Greiner argued the cause for respondent
(Levinson Axelrod, PA, attorneys; Brett R. Greiner, on
the brief).

PER CURIAM

Defendant Walmart Stores East, L.P. 1 (Walmart) appeals from the trial

court's January 7, 2025 judgment in favor of plaintiff Peter Krassner following

a jury trial. The primary issues on appeal are whether the trial court: (1) erred

in denying Walmart's motions for a directed verdict and a judgment

notwithstanding the verdict (JNOV) based on plaintiff's purported failure to

establish notice or constructive notice; and (2) erred by instructing the jury with

Model Jury Charges (Civil), 5.20F(9), "Notice Not Required When Condition is

Caused by Defendant" (rev. Nov. 2022). Following our review of the record

and applicable legal principles, we affirm.

I.

This matter stems from plaintiff sustaining a personal injury at a Walmart

store when he backed into a fire extinguisher that fell off its mounting and

landed on his foot, resulting in plaintiff developing complex regional pain

syndrome. This is the second time this matter has come before us on appeal. In

May 2022, this case was previously tried remotely over six days. Thereafter,

1
Plaintiff incorrectly named Walmart Stores East, L.P., as Walmart.
A-1500-24
2
the jury returned a $1,754,135 verdict for plaintiff, finding Walmart to be

seventy-four percent at fault and plaintiff to be twenty-six percent at fault.

Accordingly, the court molded the jury's verdict to $1,317,299.90.

Walmart appealed from the trial court's August 10, 2022 order denying its

motions for a new trial and a remittitur and denying reconsideration of its motion

for a directed verdict. It also appealed from the court's September 1, 2022 order

of judgment. This court affirmed in part, reversed in part, and remanded the

matter for a new trial. Krassner v. Walmart, No. A-0065-22 (App. Div. Mar. 6,

2024) (slip op. at 1).

We found the first trial court erred in instructing the jury with Model Jury

Charges (Civil), 5.20F(10), "Notice Not Required Under Certain

Circumstances" (rev. Nov. 2022), "because it was, in substance, a mode-of-

operation charge" that "had the clear capacity to impact the outcome of the

verdict on liability." Id. at 11. We reasoned that charge was not applicable to

the facts because it "ha[d] never been expanded beyond the self-service setting."

Id. at 14 (quoting Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 262

(2015)).

We also affirmed the trial court's denial of Walmart's motion for

reconsideration for a directed verdict and for a new trial on the issue of

A-1500-24
3
constructive notice, stating "plaintiff presented sufficient evidence to raise a fact

issue as to whether the fire extinguisher was a dangerous condition and whether

Walmart had constructive notice." Id. at 20, 22. We explained:

[An employee] acknowledged the fire extinguisher
encroached into the side aisle where plaintiff
encountered it. He further stated that it would not have
been appropriate to move it to the side of the beam
facing the main aisle because Walmart generally tries
to keep those aisles as "free from obstructions as
possible."

Based on these facts, a jury could conclude this
suggests that a hazardous condition could be created if
the fire extinguisher, encroaching as it does into the
walkway, were placed in any aisle, particularly a
narrower side aisle. This, coupled with the testimony
that plaintiff dislodged the extinguisher by "lightly
brush[ing]" against it, when Walmart's employees
indicated that it should not have fallen under such
circumstances, is sufficient evidence to raise a fact
issue for the jury as to whether this was a dangerous
condition.

We are further satisfied that when viewing the
facts here in a light most favorable to plaintiff along
with all reasonable inferences, there was sufficient
evidence presented to raise a fact issue as to whether
Walmart had constructive notice of the condition.
Walmart acknowledged that upon inspection following
the incident, the fire extinguisher's metal harness was
warped and therefore was not in the typical round
configuration so that it could sit flush against the
cylinder of the extinguisher. [Another employee] also
testified the latch on the mount for the extinguisher
easily disengaged. Plaintiff acknowledged there was no

A-1500-24
4
direct evidence of the condition of the harness before
the accident, but we agree the circumstantial evidence
raises a reasonable inference that the apparatus
securing the extinguisher to the beam was damaged
before the accident and could have been discovered by
a reasonable inspection. Moreover, although Walmart
argued there were no prior similar incidents involving
a fire extinguisher being knocked off a beam, the
evidence also showed Walmart kept back-up brackets
in the store.

[Id. at 20-22 (emphasis added).]

Additionally, we affirmed the jury's verdict on damages and remanded for a new

trial on liability only.

At the second trial, plaintiff testified that on February 23, 2018, he was

shopping at a Walmart in Hamilton. He entered the personal care aisle, where a

roof support column was located at the aisle's junction with a larger, sixteen-

foot-wide main aisle—"Action Alley." The personal care aisle was considerably

narrower. A fire extinguisher was mounted on the side of the column facing the

personal care aisle, protruding into and partially obstructing a portion of the

aisle. It was mounted with a single strap around the fire extinguisher and was

held in place by a clasp. The decision to place the fire extinguisher in that

location was made by Walmart's corporate office and the store's planning

department, likely with the involvement of the local fire department.

A-1500-24
5
While in the personal care aisle, plaintiff began backing up with his

shopping cart to allow another customer to pass him. As plaintiff backed up, he

came into contact with the mounted fire extinguisher, which fell from its harness

onto his left foot. 2 He had not seen the fire extinguisher prior to bumping into

it and was not looking behind him.

Walmart's surveillance system captured the incident. Its customer service

manager at the time, David Ferguson, 3 testified he did not observe plaintiff do

anything wrong based on his review of the surveillance footage and plaintiff's

actions were "very natural." Walmart's store manager, Jason Cuzzo, similarly

testified he "wouldn't consider any of [plaintiff's] activities viewed in the video

inappropriate."

After the incident, plaintiff moved the fire extinguisher from the middle

of the personal care aisle to the floor next to the beam and filed an incident

report with Walmart. Ferguson completed his own report and later examined

the extinguisher. He testified he closed the latch to the fire extinguisher

2
Plaintiff testified he "brushed" against the fire extinguisher. Walmart,
however, contends the testimony from its witnesses and the surveillance footage
of the incident showed plaintiff leaning to his left against the fire extinguisher
prior to it falling.
3
Ferguson was no longer a Walmart employee at the time of the retrial.
A-1500-24
6
following his examination of it and left it in place without making any repairs

to its harness. Ferguson tried to recreate plaintiff's description of the incident

by putting the fire extinguisher back in its mounting strap. He found the harness

for the fire extinguisher was "exceedingly easy to undo" based on his

observations following the incident, explaining "the latch immediately

disengaged" upon the side of the harness being bumped. Ferguson also noted

the "bend of the [mounting] strap[] w[as] warped" and not "sitting flush against

the cylinder" of the extinguisher. However, he did not know what caused the

warped condition or how long the straps had been warped. Ferguson was not

responsible for inspecting fire extinguishers nor trained to do so.

Cuzzo explained the fire extinguisher's placement was intended to keep

Action Alley free from obstructions because it was a high-traffic area. However,

neither he nor the store's asset protection manager, Barbara Laytham, could

explain why the fire extinguisher was placed on the side of the column facing

the personal care aisle rather than another side, where it would not have

obstructed any aisles. Cuzzo could not recall whether any other fire

extinguishers were similarly mounted on the side of a pole that encroached into

an aisle. Laytham testified not all mounts used for its fire extinguishers were

the same, explaining some fire extinguishers were mounted on hooks and must

A-1500-24
7
be "lift[ed] up" to be removed. Ferguson acknowledged customers walking

through the store "bump[ed]" into beams, aisles, and merchandise "on a fairly

regular basis." It was noted there was diamond plating at the bottom of the

column holding the fire extinguisher, which plaintiff's counsel argued in his

summation indicated Walmart believed "people [we]re going to hit that column

with their carts."

Walmart presented an exemplar of the fire extinguisher and its mounting

strap at trial to demonstrate how the clasp holding the extinguisher in place

worked. Upon ruling on Walmart's application for a directed verdict, the trial

court noted the clasp "was quite easily opened" based on its viewing of the

demonstration. The jury was able to inspect the exemplar fire extinguisher and

strap during deliberations.

Laytham further testified Walmart employees conducted monthly

inspections of its fire extinguishers and documented the inspections on a

checklist. She also explained employees were supposed to check for hazards in

the store on a daily basis, however, those inspections were not documented.

Laytham stated a notation would not be made on the checklist if an employee

observed an unbuckled strap on the fire extinguisher and, rather, they would just

close the strap. She asserted she was not aware of any repairs being made to the

A-1500-24
8
fire extinguisher following the incident and Ferguson's inspection but prior to

her own. Laytham also explained the fire extinguisher had been inspected a few

days after the incident, and the straps had not been documented as warped.

However, she noted documentation would only be made on the monthly

checklist if the condition was observed that day, and no documentation would

be made if the fire extinguisher fell from its mount without injuring anyone.

Laytham also noted Walmart kept extra mounting straps. Cuzzo testified

replacement mounting brackets were kept in the asset protection manager's

office, explaining extra safety equipment was maintained because of "wear and

tear" resulting from the extensive activities occurring in the store.

During the charge conference, plaintiff requested the court instruct the

jury with Model Jury Charges (Civil), 5.20F(9). Walmart objected, arguing the

dangerous condition was limited to the condition of the harness attaching the

fire extinguisher to the column, not the fire extinguisher's placement, and

plaintiff had offered no evidence Walmart had damaged that harness. It asserted

plaintiff needed to prove it "had notice that there was a damaged bracket."

The court determined Model Jury Charges (Civil), 5.20F(9) should be

given to the jury based on the record. It noted plaintiff's argument regarding the

dangerous condition was "two-fold," as plaintiff contended, "not only the strap

A-1500-24
9
. . . [but] also the placement of the fire extinguisher . . . caused or created the

hazardous condition." The court explained, "[p]laintiff backed into [the

extinguisher] and apparently . . . came in contact with the strap which easily

opens." Alternatively, it also explained: "Or if [the strap] had been previously

opened, [plaintiff] touched it so that it released itself from the . . . bracket that

was holding the fire extinguisher [in place]." The court specified, "the first part"

of plaintiff's argument was that "the strap [wa]s easily opened with the slightest

touch," and "[t]he second part . . . [wa]s the placement of th[e] fire extinguisher

. . . in th[e personal care] aisle, rather than in the main aisle [(Action Alley)], or

on the other side of the pole [(in the personal care aisle)]." The court further

explained:

[I]f [the jury] . . . find[s] . . . there was a hazardous
condition existing before . . . [p]laintiff walked down
that aisle, by the [fire extinguisher's] placement, and
that his backing up and brushing it slightly caused . . .
the reaction falling on his foot, well the jury can find
. . . the charge indicates that there's no need for notice
of this condition since [Walmart] created it by placing
the fire extinguisher there.

And it doesn't take an expert to put that in front
of the jury. That's already in front of the jury without
an expert.

Yes, they placed it [t]here; yes, it's easily opened.
Yes, they knew it would obstruct that aisle.

A-1500-24
10
The court noted Walmart "carefully" chose where to place the fire

extinguisher as it "wanted to avoid the obstruction of the main aisle, so they put

it in a side aisle," and "[i]nstead of putting it on the other side of that post,

[Walmart] put [the extinguisher] on th[e] side of the post where it's in the

[narrower] aisle." It explained Walmart made that decision despite "know[ing]

people come in contact with things in the store all the time." The court also

stated it was not required to confine itself to the issue of whether the clasp was

a dangerous condition.

Accordingly, the court instructed the jury using Model Jury Charges

(Civil), 5.20F(9). It also instructed the jury with Model Jury Charges (Civil),

5.20F(8), "Notice of Particular Danger as Condition of Liability" (rev. Nov.

2022). In pertinent part, it instructed the jury:

If you find that the premise was not in reasonably
safe condition, then in order to recover, . . . [p]laintiff
must show either actual notice for a period of time
before [p]laintiff's injury to permit the owner, in the
exercise of reasonable care, to have corrected that
condition; or constructive notice.

When the term actual notice is used, we know
that the owner or the owner's employees actually knew
about the unsafe condition.

When we talk about constructive notice, we mean
that the particular condition existed for such a period of
time that an owner of the premise, in the exercise of

A-1500-24
11
reasonable care, should have discovered its existence.
That is to say constructive notice means that the person
having a duty of care to another is deemed to have
notice of such unsafe condition which exists for such a
period of time that a person of reasonable diligence
would have discovered the dangerous condition.

If you find that the premise was not in a
reasonably safe condition, and that the owner, or
occupier, or agent, or servant, or employee of the owner
or occupier created the condition through their own acts
or omissions, then in order for [p]laintiff to recover, it's
not necessary that you find that the owner/occupier had
either actual or constructive notice of that particular
unsafe condition.

However, the court denied plaintiff's request for the jury to be instructed

with Model Jury Charges (Civil), 5.10D, "Res Ipsa Loquitur" (approved Oct.

1990). It reasoned plaintiff's own voluntary act or negligence contributed to the

fire extinguisher falling, which foreclosed him from arguing a res ipsa loquitur

theory of negligence.

At the close of evidence, both parties moved for a directed verdict. The

trial court denied both motions, reasoning there was "sufficient evidence for the

jury to draw conclusions with regard to the negligence of both parties."

Following deliberations, the jury returned a verdict in favor of plaintiff,

finding Walmart to be eighty percent at fault and plaintiff to be twenty percent

at fault. Both parties moved for a JNOV, which the trial court denied.

A-1500-24
12
Accordingly, on January 7, 2025, the court entered a judgment in favor of

plaintiff in the amount of $1,740,610.34, representing the previously affirmed

damages award apportioned per the new jury verdict, plus stipulated past

medical expenses and pre-judgment interest. This appeal ensued.

II.

Walmart argues the trial court erred by failing "to grant judgment" in its

favor because plaintiff neither proved Walmart had notice of a dangerous

condition nor presented any evidence Walmart created a dangerous condition.

It further contends the court erred by instructing the jury Walmart could be liable

for creating a dangerous condition because Model Charge 5.20F(9) improperly

absolved plaintiff from proving notice, "just as in the first trial."

A.

Walmart principally argues the trial court erred in denying its motion for

a directed verdict and its subsequent motion for JNOV because plaintiff neither

proved it had notice of, nor created, a dangerous condition associated with the

fire extinguisher at issue.

Acknowledging a business can be liable without notice if it negligently

created a dangerous condition, Walmart contends plaintiff failed to prove it

created a dangerous condition by placing the fire extinguisher "where patrons

A-1500-24
13
might bump into it." Rather, it asserts the relevant issue is the condition of the

mounting straps that secured the fire extinguisher to the beam. Walmart posits

that even if the extinguisher's placement caused plaintiff to bump into it,

plaintiff was not injured "merely" because he made contact with the extinguisher

but because such contact caused the extinguisher to fall out of its mount and

onto his foot.

Walmart distinguishes the facts of this case from others in which

landowners were held liable for directly creating dangerous conditions, asserting

there is no evidence establishing its conduct created the alleged dangerous

condition of the extinguisher's mounting straps. It claims plaintiff's theory of

the case improperly bypasses the notice requirement, because, under his theory,

a business could be held liable for a spill simply by virtue of having constructed

the store or laid the flooring, which it avers is why this court vacated the first

judgment. Walmart asserts the "only evidence" regarding the condition of the

mounting straps that supports plaintiff's claim came from Ferguson's post-

incident observations, which it argues is insufficient to establish the straps were

warped or loose prior to the accident or that it had notice of, or created, such a

dangerous condition. It reasons plaintiff's reliance on Ferguson's "lay opinion"

requires "impermissible speculation."

A-1500-24
14
Next, Walmart also reprises its argument plaintiff failed to prove it had

actual or constructive notice the fire extinguisher was a dangerous condition

such that it was likely to fall upon contact. It asserts plaintiff produced no

evidence showing Walmart "actually knew" the fire extinguisher would fall if

"bumped." It also claims plaintiff failed to prove constructive notice because he

not only offered no evidence showing how long the extinguisher had allegedly

been dangerous but also provided no evidence, "beyond [the] speculation or

conjecture" of Ferguson's post-accident observations, establishing the

extinguisher's mounting bracket was ever dangerous or warped. Walmart

theorizes plaintiff's own negligence in backing into the extinguisher could have

caused the damage to the mounting bracket.

Walmart notes the trial court barred plaintiff from arguing Walmart should

have used a different design to secure the fire extinguisher to its mount because

plaintiff lacked an expert establishing an alternative mounting system was

available at the time of the accident and ruled any evidence of a design change

post-incident was inadmissible as a subsequent remedial measure under N.J.R.E.

1. It also claims the fact it kept spare mounting brackets "proves nothing"

and asserts evidence of its numerous inspections only demonstrates its efforts to

ensure the safety of its patrons, not—contrary to plaintiff's assertion during

A-1500-24
15
closing argument—that it was on notice of a dangerous condition. Thus,

Walmart maintains the jury had no basis to find it was negligent because it was

never presented with any evidence proving Walmart knew, or should have

known, the fire extinguisher was likely to fall if contacted.

The challenges Walmart raised before the trial court were contained in its

motions for a directed verdict under Rule 4:37-2(b) and for JNOV pursuant to

Rule 4:40-2(b). Rule 4:37-2(b) allows a defendant to move for dismissal of an

action or claim after the plaintiff rests and provides such a motion "shall be

denied if the evidence, together with the legitimate inferences therefrom, could

sustain a judgment in [the] plaintiff's favor." The standards under Rule 4:37-

2(b) and Rule 4:40-2(b) for JNOV are identical. Verdicchio v. Ricca, 179 N.J.

1, 30 (2004).

Motions under Rule 4:37-2(b) and Rule 4:40-2(b) require the court to deny

the motions if reasonable minds could differ after "accepting as true all the

evidence which supports the position of the party defending against the motion

and according [that party] the benefit of all inferences which can reasonably and

legitimately be deduced therefrom . . . ." Smith v. Millville Rescue Squad, 225

N.J. 373, 397 (2016) (quoting Verdicchio, 179 N.J. at 30). The court should

only grant the motions where no rational juror could find the plaintiff made a

A-1500-24
16
prima facie case of the cause of action. Ibid. We review de novo a trial court's

decision on these motions, applying the same standard as the trial court. Ibid.

A cause of action for negligence "requires the establishment of four

elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate

causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util.

Co., 212 N.J. 576, 594 (2013). The plaintiff "bears the burden of establishing

those elements[] 'by some competent proof' . . . ." Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citation omitted) (quoting Overby

v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953)).

"[A] proprietor's duty to his invitee is one of due care under all the

circumstances." Prioleau, 223 N.J. at 257 (quoting Bozza v. Vornado, Inc., 42

N.J. 355, 359 (1964)). "The duty of due care to a business invitee includes an

affirmative duty to inspect the premises and 'requires a business owner to

discover and eliminate dangerous conditions, to maintain the premises in safe

condition, and to avoid creating conditions that would render the premises

unsafe.'" Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super.

596, 601 (App. Div. 2016) (quoting Nisivoccia v. Glass Gardens, Inc., 175 N.J.

559, 563 (2003)).

A-1500-24
17
Thus, "an invitee seeking to hold a business proprietor liable in negligence

'must prove, as an element of the cause of action, that the defendant had actual

or constructive knowledge of the dangerous condition that caused the accident.'"

Prioleau, 223 N.J. at 257 (quoting Nisivoccia, 175 N.J. at 563). "A defendant

has constructive notice when the condition existed 'for such a length of time as

reasonably to have resulted in knowledge and correction had the defendant been

reasonably diligent.'" Troupe, 443 N.J. Super. at 602 (quoting Parmenter v.

Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957)).

Constructive notice may be inferred from "[t]he characteristics of the dangerous

condition." Ibid.

We determine the trial court did not err in finding plaintiff presented

sufficient evidence to establish an issue of fact as to whether the condition and

placement of the fire extinguisher was a dangerous condition and whether

Walmart had constructive notice. As in the first trial, Cuzzo acknowledged the

support beam to which the fire extinguisher was attached encroached into the

personal care aisle where plaintiff was injured and was not placed on the side of

the beam facing Action Alley so as to keep that aisle free from obstructions. See

Krassner, slip op. at 20-21. As we previously determined, "these facts" are

sufficient for a jury to conclude "a hazardous condition could be created if the

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18
fire extinguisher, encroaching as it d[id] into the walkway, were placed in any

aisle, particularly a narrower side aisle." See id. at 21. These facts, coupled

with plaintiff's testimony he dislodged the fire extinguisher merely by

"brush[ing]" against it and Ferguson's testimony regarding the "exceedingly

easy" manner in which the extinguisher could be disengaged, are sufficient

evidence to raise a fact issue for the jury as to whether plaintiff encountered a

dangerous condition.

Moreover, viewing the facts here in a light most favorable to plaintiff , as

we must do for the purposes of these motions, along with all reasonable

inferences in plaintiff's favor, we conclude there was sufficient evidence

presented to raise a fact issue as to whether Walmart had constructive notice of

the condition. Ferguson testified he observed the extinguisher's mounting straps

to be "warped" and not "sitting flush against the cylinder" of the extinguisher

following the incident. He also testified the harness for the fire extinguisher

was "exceedingly easy to undo." Additionally, the testimony at trial revealed

Walmart recognized customers bumped into beams on a "fairly regular basis,"

and plaintiff argued diamond plating was installed on the column at issue to

protect against such incidents.

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19
The evidence presented at trial was also sufficient to raise a reasonable

inference that the condition of the harness attaching the fire extinguisher to the

column was damaged prior to plaintiff bumping into it and could have been

discovered through a reasonable inspection given how easily it dislodged upon

inspection after the accident. See id. at 22. Additionally, although Ferguson

testified he knew of no prior problems involving fire extinguishers at that

Walmart location, the evidence presented at the retrial, as in the first trial,

showed Walmart maintained replacement mounting brackets in its asset

protection manager's office because of "wear and tear" issues. See ibid.

Thus, viewing the evidence in a light most favorable to plaintiff and all

inferences therefrom, a rational jury could conclude the fire extinguisher was

not safely mounted on the column that encroached into the aisle thereby

allowing it to be easily dislodged when plaintiff came into contact with it.

Walmart has not demonstrated the evidence was so one-sided that it was entitled

to a judgment as a matter of law. Accordingly, we conclude the trial court did

not err in denying Walmart's motions for a directed verdict and JNOV.

B.

Walmart argues the trial court erred by instructing the jury with Model

Jury Charges (Civil), 5.20F(9), thus allowing the jury to find it liable without

A-1500-24
20
plaintiff proving Walmart had actual or constructive notice of a dangerous

condition as the improper mode-of-operation charge provided in the first trial,

which it avers contradicts this court's instruction in the first appeal that plaintiff

must prove constructive notice. It suggests the court's use of Model Jury

Charges (Civil), 5.20F(9) essentially functioned as the res ipsa loquitur charge,

which plaintiff requested and the trial court rejected.

Walmart notes we previously concluded, in the first appeal, the use of both

Model Jury Charges (Civil), 5.20F(8) and 5.20F(10) was improper, and it

asserts instructing the jury with both Model Jury Charges (Civil), 5.20F(8)—

which requires notice—and Model Jury Charges (Civil), 5.20F(9)—which does

not require notice, so long as the defendant created a dangerous condition—was

similarly contradictory and confusing for the jury. It contends Model Jury

Charges (Civil), 5.20F(9) is more prejudicial than Model Jury Charges (Civil),

5.20F(10) because it does not require a hazardous condition created by a

defendant's employees to be linked to the defendant business's particular manner

of operation. Walmart also avers a note to Model Jury Charges (Civil), 5.20F(8)

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"suggests . . . a trial court should not charge a jury with both (8) and (9)" because

they are "two different theories of recovery." 4

Walmart contends the trial record did not support the court instructing the

jury with Model Jury Charges (Civil), 5.20F(9), which it notes uses similar

"created" language to Model Jury Charges (Civil), 5.20F(10), because the record

contained no evidence Walmart created the purported dangerous condition

related to the allegedly defective mounting for the fire extinguisher at issue.

Rather, it asserts the 5.20F(9) charge would only have been appropriate had

plaintiff been injured solely due to the extinguisher's location. It highlights no

evidence was presented of another such incident occurring, despite the number

of patrons passing through that area and its numerous safety inspections around

the time of the incident. Walmart reiterates plaintiff's owner-created danger

theory fails for the same reasons.

Finally, Walmart maintains the trial court's erroneous jury charge was not

harmless error because it went to the key issue being retried—notice—and may

4
The applicable note provides the charge applies to "cases where the defendant
[was] not at fault for the creation of the hazard o[r] where the hazard [was] not
to be reasonably anticipated as an incident of defendant's mode of operation."
Model Jury Charges (Civil), 5.20F(8), note 1 (citing Maugeri v. Great Atl. &
Pac. Tea Co., 357 F.2d 202 (3d Cir. 1966) (dictum)). However, contrary to
Walmart's contention, nothing in the note or cited case suggests Model Jury
Charges (Civil), 5.20F(8) and 5.20F(9) cannot be given together.
A-1500-24
22
have affected the trial's outcome. It asserts the court committed the same

reversible error as in the first trial, which this court found "completely negate[d]

the need for notice, even . . . coupled with 5.20F(8)." See Krassner, slip op. at

14-15. Walmart contends Prioleau is "almost directly on point," because there,

as here, the jury could have come to a different conclusion had the court

provided proper instruction to the jury.

Plaintiff, in turn, argues the trial court did not err in giving Model Jury

Charges (Civil), 5.20F(9), because the trial record supported a finding Walmart

created the hazardous condition that caused his injuries by placing the fire

extinguisher so that it obstructed the aisle and securing it with a strap that could

easily come undone. He highlights Walmart's corporate office was responsible

for the fire extinguisher's placement, asserting Walmart's choice to place the

extinguisher on the side of the beam that encroached into the "narrow" personal

care aisle, rather than on a side of the column not facing any of the aisles, despite

its knowledge customers regularly bump into things while shopping, made

plaintiff's incident foreseeable.

Plaintiff further argues the trial court was not prohibited from instructing

the jury with Model Jury Charges (Civil), 5.20F(9) based on this court's prior

decision. He reasons the jury was not instructed with Model Jury Charges

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(Civil), 5.20F(9) in the first trial and, thus, its applicability was not at issue

there. Plaintiff asserts Model Jury Charges (Civil), 5.20F(9) addresses "a

separate and distinct" theory of liability from Model Jury Charges (Civil),

5.20F(10), reasoning 5.20F(9) is "an alternative theory of liability" from the

mode-of-operation charge under 5.20F(10) this court found to be inapplicable

in the prior appeal because it dealt with self-service business operations. He

cites Prioleau for the proposition Model Jury Charges (Civil), 5.20F(9) can be

properly given when a mode-of-operation charge would be improper. Plaintiff

also avers he was not precluded from requesting that jury charge "simply

because" he did not request it at the first trial.

Plaintiff also asserts the trial court did not err in instructing the jury with

both Model Jury Charges (Civil), 5.20F(8) and 5.20F(9) because, contrary to

Walmart's contention, it was neither confusing nor misleading. He reasons the

court's instruction did not compel the jury to disregard the requirement of notice

or suggest notice did not need to be established at all. Rather, plaintiff contends

the trial court "simply" instructed the jury it was not necessary to find Walmart

had notice of an unsafe condition "if" it found the premises to be in an unsafe

condition and that Walmart created the condition through its own acts or

omissions. He further contends it was not improper to assert Walmart created

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the unsafe condition of the fire extinguisher's placement that led to his injuries

as "alternative grounds" to establishing Walmart's liability.

In Washington v. Perez, our Supreme Court articulated the standard of

review for challenging jury instructions in civil cases. 219 N.J. 338 (2014). The

court explained:

Appellate review of a challenged jury instruction
entails not only scrutiny of the charge itself, but an
inquiry as to whether an erroneous charge may have
affected the trial's result. Notably, "in construing a jury
charge, a court must examine the charge as a whole,
rather than focus on individual errors in isolation."
Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002). "As
a general matter, [appellate courts] will not reverse if
an erroneous jury instruction was 'incapable of
producing an unjust result or prejudicing substantial
rights.'" Mandal v. Port Auth. of N.Y. & N.J., 430 N.J.
Super. 287, 296 (App. Div. 2013) (quoting Fisch v.
Bellshot, 135 N.J. 374, 392 (1994)). However,
erroneous jury instructions "constitute[] reversible
error where the jury outcome might have been different
had the jury been instructed correctly." Velazquez ex
rel. Velazquez v. Portadin, 163 N.J. 677, 688 (2000).
Generally, "'erroneous instructions on material points
are presumed to be reversible error.'" McClelland v.
Tucker, 273 N.J. Super. 410, 417 (App. Div. 1994)
(quoting State v. Martin, 119 N.J. 2, 15 (1990)).

[Id. at 351 (citations reformatted).]

Review of jury instructions is a two-step process. First, we must

determine whether an error actually occurred. "In civil matters, the trial court

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should give an instruction that appropriately guides the jury on the legal basis

of a plaintiff's claim or a defendant's affirmative defense, so long as there is a

reasonable factual basis in the evidence to support that claim or defense."

Walker v. Costco Wholesale Warehouse, 445 N.J. Super. 111, 120 (App. Div.

2016). "Jury charges 'must outline the function of the jury, set forth the issues,

correctly state the applicable law in understandable language, and plainly spell

out how the jury should apply the legal principles to the facts as it may find

them . . . .'" Velazquez, 163 N.J. at 688 (quoting Jurman v. Samuel Braen, Inc.,

47 N.J. 586, 591-92 (1966)). Second, we must determine whether that error

"may have affected the trial's result." Walker, 445 N.J. Super. at 120 (quoting

Washington, 219 N.J. at 351). Importantly, we have noted "an improper jury

instruction is a poor candidate for application of the harmless error rule, [and] a

charge which misleads a jury will require a reversal and a new trial." Vallejo

by Morales v. Rahway Police Dep't, 292 N.J. Super. 333, 342 (App. Div. 1996)

(internal citations omitted).

Model Jury Charges (Civil), 5.20F(9), "Notice Not Required When

Condition is Caused by Defendant," provides:

If you find that the land (or premises) was not in a
reasonably safe condition and that the owner/occupier
and/or an agent, servant[,] or employee of the
owner/occupier created that condition through their

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own act or omission, then, in order for plaintiff to
recover, it is not necessary for you also to find that the
owner/occupier had actual or constructive notice of the
particular unsafe condition.

[(Emphasis added).]

In the first appeal, we held the trial court charging the jury with Model

Jury Charges (Civil), 5.20F(10) was reversible error "because it was, in

substance, a mode-of-operation charge." Krassner, slip op. at 11. Explaining

the mode-of-operation doctrine "ha[d] never been expanded beyond the self-

service setting," we reasoned there was "no basis" for the trial court to instruct

the jury with 5.20F(10) as there was "no suggestion plaintiff's contact with the

fire extinguisher occurred in the context of a self-service operation." Id. at 14.

Moreover, we concluded charging the jury with Model Jury Charges (Civil),

5.20F(8) did not negate the prejudice of issuing the 5.20F(10) charge "because

5.20F(10) completely negates the need for notice, even if it is coupled with

5.20F(8)." Id. at 14-15.

Accordingly, the trial court was prohibited from giving a mode-of-

operation charge at the second trial based on our holding in the first appeal.

However, plaintiff was not precluded from advancing a new theory of liability

on retrial. We have held:

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Where a new trial has been granted "the case stands as
if there had never been a trial; the court has the same
power with reference to matters connected with the trial
of the case as it had before the first trial was had, and it
is the duty of the court to proceed as in the first
instance. The new trial is had as if there had never been
a previous one." New claims and defenses may be
asserted in the subsequent trial.

[Murphy v. Implicito, 392 N.J. Super. 245, 256 (App.
Div. 2007) (emphasis added) (quoting Franklin Disc.
Co. v. Ford, 27 N.J. 473, 492 (1958)).]

Thus, in the second trial, the parties were "not limited to the same proofs and

theories of liability that [they] offered in the first trial." See id. at 257. This

underscores the principle that a new trial effectively resets the litigation,

allowing the parties to present new evidence, claims, and defenses as if the prior

trial had not taken place.

We did not address the propriety of utilizing Model Jury Charges (Civil),

5.20F(9) in the first appeal because the issue was not raised there and, thus, only

determined the court erred in using the mode-of-operation charge under Model

Jury Charges (Civil), 5.20F(10). Although we remanded for the jury to decide

the disputed fact of whether Walmart had constructive notice of the condition of

the fire extinguisher, we did not foreclose either party from advancing additional

arguments. In short, plaintiff was permitted to argue another jury charge should

be given based on the facts presented at trial.

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We conclude the trial court did not err in giving Model Jury Charges

(Civil), 5.20F(9) substantially for the reasons set forth on the record by the trial

court during the charge conference and add the following. Contrary to

Walmart's arguments, Model Jury Charges (Civil), 5.20F(9) is not akin to a res

ipsa loquitur charge because it does not require an inference of negligence.

Moreover, it is not analogous to Model Jury Charges (Civil), 5.20F(10) because

it does not involve Walmart's mode-of-operation or dispense with notice based

on a hazardous condition created by its customers.

In Prioleau, our Supreme Court addressed the applicability of Model Jury

Charges (Civil), 5.20F(9) as an alternative theory of liability to the 5.20F(10)

mode-of-operation charge. 5 See 223 N.J. at 255-56. There, the plaintiff argued

the jury was properly instructed under the 5.20F(9) charge as an alternative

theory of liability obviating the need to prove notice "even if the trial court

erroneously charged the jury to consider the mode-of-operation rule." Id. at 255.

The Court noted the trial court "properly" charged the jury with 5.20F(9) , given

5
The Court refers to the mode-of-operation charge as Model Jury Charges
(Civil), 5.20F(11) in its decision but notes it had been renumbered in 2014 as
5.20F(10), subsequent to the trial at issue there. Prioleau, 223 N.J. at 253 n.4.
In the first appeal, we noted Model Jury Charges (Civil), 5.20F(10) was renamed
in 2022, but the text of the charge remained the same. Krassner, slip op. at 13-
14.
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the plaintiff's contention the defendants' employees tracked oil and grease from

a restaurant kitchen into a restroom supported a finding the defendant s created

a dangerous condition. Id. at 265 n.7, 266. However, it held the trial court "did

not properly" give the 5.20F(10) mode-of-operation charge because no evidence

in the trial record established the location of the plaintiff's accident bore "the

slightest relationship to any self-service component of [the] defendants'

business." Id. at 253 n.4, 264. Thus, given it was "undisputed that there was no

evidence of actual or constructive notice," the Court remanded the matter for a

new trial on the issue of liability as the erroneous mode-of-operation charge may

have impacted the jury's verdict on the question of liability. Id. at 266-67.

The trial court here likewise properly found there was sufficient evidence

presented at trial to support giving Model Jury Charges (Civil), 5.20F(9).

Walmart's corporate office was responsible for the fire extinguisher's placement.

Cuzzo testified the fire extinguisher's placement was chosen to keep Action

Alley free from obstructions as it was a high-traffic area. None of Walmart's

employees, however, could explain why the fire extinguisher was placed on the

side of the column facing the personal care aisle rather than on one of its other

sides where it would not have obstructed any aisles. Walmart placed the fire

extinguisher there despite knowing customers walking through the store

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"bump[ed]" into beams, aisles, and merchandise "on a fairly regular basis."

Moreover, in the prior appeal, this court observed "a jury could conclude . . . a

hazardous condition could be created if the fire extinguisher, encroaching as it

does into the walkway, were placed in any aisle, particularly a narrower side

aisle." Krassner, slip op. at 21 (emphasis added).

We are unconvinced by Walmart's argument the jury was "wrongly

instructed that notice did not matter." It is undisputed the court gave the

appropriate charge under Model Jury Charges (Civil), 5.20F(8). The court

additionally gave the charge under Model Jury Charges (Civil), 5.20F(9).

Importantly, the court did not advise the jury it did not have to find notice. The

court only noted that "if" the jury found Walmart created the unsafe condition,

then it was not necessary for it to find Walmart had either actual or constructive

notice "of that particular unsafe condition." (Emphasis added). The only unsafe

condition plaintiff suggested Walmart created was the placement of the fire

extinguisher. Therefore, we determine plaintiff was permitted to advance

separate theories of liability against Walmart, and there was ample evidence

justifying the court's instructing the jury on Model Jury Charges (Civil),

5.20F(9).

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To reiterate, the only evidence at trial Walmart created a dangerous

condition involved the placement of the fire extinguisher. Model Jury Charges

(Civil), 5.20F(9) was given regarding the placement of the fire extinguisher, not

because of the purported "exceedingly easy" manner in which the harness could

be dislodged from the column. Moreover, plaintiff's counsel did not argue in

his summation Walmart created the dangerous condition regarding the fire

extinguisher readily dislodging from the mounting. Rather, he argued Walmart

had notice of the allegedly defective mounting of the fire extinguisher. We

conclude the charge, when considered in the context of the proofs presented and

arguments of the parties, did not mislead the jury and was not capable of

producing an unjust result. Accordingly, we are unpersuaded there was any

potential confusion for the jury.

To the extent we have not specifically addressed any remaining arguments

Walmart raised, we conclude they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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