In Brilliant v. Outback Steakhouse of Fla., LLC, No. CV 23-20307 (RMB-SAK), 2025 WL 1319240, (D.N.J. May 7, 2025), the New Jersey District Court dismissed the plaintiff’s complaint for failing to serve an expert report opining that the defendant deviated from accepted safety standards. The court also rejected the plaintiff’s claims that an adverse inference was required due to the defendant’s purported discovery violations.
In Brilliant, as a restaurant hostess led the plaintiff and her friend to their table, the plaintiff slipped and fell, sustaining injuries. The plaintiff testified during her deposition that she did not notice any substance on the floor that caused her to slip. The plaintiff “guessed” that the floor was slippery because it had a wax residue on it that made it feel like a sheet of ice. The plaintiff denied seeing or feeling any such residue though. The plaintiff’s friend testified during her deposition that the floor always seemed to be slippery, but like the plaintiff, the friend was unaware of any particular condition that made the floors slippery other than noticing that the floor had a “shiny” and “glazed” quality. The friend claimed that during a prior restaurant visit, she alerted an employee about the floor slipperiness. By chance, the plaintiff’s sister had also dined at the restaurant earlier that day and also observed that the floor was slippery, but like her sister, testified that she was unaware of any particular condition that caused the plaintiff to fall. She testified only that the floor was “smooth” “like ice” and felt “greasy” to walk on, but she could not discern any actual substance coating the floor. She testified that she may have told a waitress that the floor was slippery, but she had no specific recollection of same.
The court found that the plaintiff could not survive summary judgment pursuant to FRCP 56 because she failed to present evidence outside of her and her witnesses’ own subjective characterizations that the defendant maintained its floor negligently. The court detailed a number of cases in support of that opinion, all of which detailed the requirement that a plaintiff must show that the subject floor departed from generally accepted standards by way of expert opinion. General allegations of unsafe flooring will not be sufficient to defeat a meritorious summary judgment motion.
The plaintiff also argued that summary judgment should be denied because the defendant failed to produce during discovery completed opening and closing inspection checklists as well as a completed facilities inspection checklist, all of which were supposed to be completed by restaurant staff each day. The defendant only produced a blank version of the opening checklist. The plaintiff argued that based on the defendant’s failure to preserve its records, a negative inference must be drawn that it either never created the records or that the records were destroyed because they were harmful to the defendant. The court disagreed. The plaintiff never objected during discovery to the defendant’s failure to produce those documents. The plaintiff cannot create a genuine issue of material fact by failing to object to the defendant’s discovery responses and productions. Moreover, the production of those documents would not create a triable dispute of fact because the documents, at most, would only establish that inspections were conducted, not what, if anything, was observed during the inspections or whether any hazardous conditions should have been detected.
This case emphasizes the need for expert testimony when a plaintiff cannot explain what specific condition caused them to fall. If the plaintiff is unable to detail some transient condition such as a spill or debris that caused them to fall, and instead makes general allegations of unsafe flooring, always argue that an expert is needed to opine on the relevant generally accepted standard of care. The case also emphasizes the need for a plaintiff to pursue alleged discovery violations during the discovery period. A plaintiff cannot claim that there is an issue of fact warranting the denial of a summary judgment motion when the plaintiff failed to pursue discovery during the discovery period.