govinfo:USCOURTS-njd-3_23-cv-11081-0

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NOT FOR PUBLICATION 
 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
JALISKA MARTE, 
 
Civil Action No. 23-11081 (ZNQ) (JTQ) 
 
OPINION 
 
 
Plaintiff, 
 v. 
WALMART, INC., 
 
Defendant. 
 
QURAISHI, District Judge 
THIS MATTER comes before the Court upon a Motion for Summary Judgment filed by 
Defendant Walmart, Inc. (“Defendant”). (“Def.’s Mot.,” ECF No. 32.) Defendant submitted a 
brief in support of its Motion. (“Def.’s Moving Br.,” ECF No. 32- 1.) Plaintiff Jaliska Marte 
(“Plaintiff”) submitted a brief in opposition (“Pl.’s Opp’n Br.,” ECF No. 33), and Defendant 
replied (“Def.’s Reply Br.,” ECF No. 36). 
The Court has carefully considered the parties’ submissions and decide s the Motion 
without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. 
For the reasons set forth below, the Court will GRANT Defendant’s Motion for Summary 
Judgment. PageID:
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I. BACKGROUND AND PROCEDURAL HISTORY 
The following facts are drawn from Defendant’s Statement of Material Facts, which are 
undisputed.1 (“Def.’s SOMF,” ECF No. 32-3.) 
On March 14, 2021, Plaintiff slipped and fell over a safety cone at Defendant’s Howell, 
New Jersey location. ( Id. ¶¶ 4, 10.) Approximately ten minutes before Plaintiff fell, a customer 
hit the safety cone with his foot and knocked it over. ( Id. ¶¶ 10, 12.) One minute before the 
accident, an individual who was wearing an apron walked past the safety cone . ( Id. ¶¶ 14–17.) 
That individual was not one of Defendant’s employees but was identified by Defendant’s Asset 
Protections Operations Coach as a McDonalds employee. (Id. ¶¶ 15–16.) 
On March 13, 2023, Plaintiff filed a Complaint in the Superior Court of New Jersey, 
Monmouth County, against Defendant asserting negligence causes of action for: (1) failing to 
remedy a dangerous or hazardous condition; and (2) failing to warn Plaintiff of a dangerous or 
hazardous condition. (Id. ¶ 2; see generally “Compl.,” ECF No. 1- 1.) Defendant removed this 
action on August 25, 2023, and filed an answer with crossclaims for contribution and 
indemnification against fictitious defendants John Doe 1–5 and XYZ Corp 1–5 on September 15, 
2023. (Def.’s SOMF ¶¶ 1–2; “Answer” at 5–6, ECF No. 5.) 
 
1 In the instant matter, Plaintiff has not filed a responsive statement of material facts or a supplemental statement of 
disputed material facts in a separate document with numbered paragraphs citing to the record. Instead, Plaintiff 
embeds her statement of disputed material facts within her brief and does not cite to affidavits or other documents in 
the record to support her contentions. Plaintiff has thus not complied with Local Civil Rule 56.1(a), which requires 
that “[e]ach statement of material facts be in a separate document (not part of a brief) ” with “separately numbered 
paragraphs citing to the affidavits and other documents submitted in connection with the motion[.]” L. Civ. R. 56.1(a). 
Accordingly, the Court construes Defendant’s statement of material facts as undisputed for purposes of this Motion. 
See Anchorage Assocs. v. V.I. Bd. of Tax Rev. , 922 F.2d 168, 17 5–76 (3d Cir. 1990 ) (explaining that the failure to 
dispute a party’s statement of material facts “is not alone a sufficient basis for the entry of summary judgment,” but 
rather, it is “a waiver of the opponent’s right to controvert the facts asserted by the moving party in the motion for 
summary judgment or the supporting material accompanying it.”). PageID:
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The parties completed discovery in September 2025 (ECF No. 26), and Defendant filed the 
instant Motion for Summary Judgment on November 28, 2025.2 (Def.’s Mot.) Plaintiff filed her 
opposition on December 23, 2025 (Pl.’s Opp’n Br.), and Defendant replied on December 29, 2025 
(Def.’s Reply Br.).3 
II. SUBJECT MATTER JURISDICTION 
The Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1332 because the parties 
are diverse and the amount in controversy exceeds $75,000. (See generally ECF No. 1.) 
III. LEGAL STANDARD 
Rule 56 4 provides that summary judgment should be granted “if the movant shows that 
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 
matter of law.” Fed. R. Civ. P. 56(a); see also Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 
204 (3d Cir. 2000). The moving party bears the burden of establishing that no genuine dispute of 
material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “[W]ith respect 
to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving 
 
2 On September 24, 2025, Plaintiff filed correspondence request ing ninety additional days to complete discovery. 
(ECF No. 27.) The Magistrate Judge entered a Text Order on the docket instructing Plaintiff to file a formal motion 
requesting the reopening of discovery by October 15, 2025 since the parties represented that discovery was complete 
in the September 4, 2025 status conference. (ECF Nos. 26, 29.) Plaintiff did not do so by the Court’s deadline, and 
as such, the discovery period has expired. 
3 The parties submitted a joint proposed briefing schedule on November 14, 2025, which the Magistrate Judge entered 
on November 21, 2025. (ECF Nos . 30, 31.) Pursuant to that briefing schedule, Defendant was to file its Motion on 
November 28, 2025, Plaintiff was to file her opposition on December 8, 2025, and Defendant was to file its reply on 
December 15, 2025. (See ECF No. 31.) When Defendant filed its Motion on November 28, 2025, the Clerk’s Office 
automatically generated a message setting the motion return date for January 5, 2026 before the Undersigned. (See 
ECF Docket Sheet, Dec. 1, 2025 Clerk’s Office Entry.) In turn , the January 5, 2026 motion return date required 
Plaintiff’s opposition to be filed on December 22 , 2025. However, the Clerk’s Office automatic message stated that 
it did not supersede any prior orders from the Court . (See id.) Plaintiff nevertheless untimely filed her opposition 
brief on December 23, 2025 without requesting leave from the Court despite the entry of either (1) the parties’ briefing 
schedule or (2) the automatically generated Clerk’s Office message. On December 23, 2025, Defendant filed 
correspondence on the docket, objecting to Plaintiff’s tardy filing of her opposition brief. (ECF No. 34.) In responsive 
correspondence, Plaintiff’s counsel cited calendaring and technological issues contributing to the delay. (ECF No. 
35.) Based on that good faith representation by Plaintiff’s counsel, the Court finds good cause to accept Plaintiff’s 
late submission of her opposition brief. 
4 All references to “Rule” or “Rules” hereafter refer to the Federal Rules of Civil Procedure. PageID:
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party may be discharged by ‘showing’—that is, pointing out to the district court —that there is an 
absence of evidence to support the nonmoving party’s case.” Id. at 325. 
Once the moving party has met that threshold burden, the nonmoving party “must do more 
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. 
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present 
actual evidence that creates a genuine dispute as to a material fact for trial. Anderson v. Liberty 
Lobby, Inc., 477 U.S. 242, 248 (1986); see also Fed. R. Civ. P. 56(c) (setting forth types of 
evidence on which nonmoving party mus t rely to support its assertion that genuine disputes of 
material fact exist). “[U]nsupported allegations in . . . pleadings are insufficient to repel summary 
judgment.” Schoch v. First Fid. Bancorp., 912 F.2d 654, 657 (3d Cir. 1990). 
In deciding a motion for summary judgment, the Court’s role is not to evaluate the evidence 
and decide the truth of the matter but to determine whether there is a genuine dispute for trial. 
Anderson, 477 U.S. at 248–49. The summary judgment standard, however, does not operate in a 
vacuum. The Court “must view the evidence presented through the prism of the substantive 
evidentiary burden,” id. at 254, and construe all facts and inferences in the light most favorable to 
the nonmoving party. See Boyle v. County of Allegheny P.A., 139 F.3d 386, 393 (3d Cir. 1998). 
IV. DISCUSSION 
Defendant contends that the entry of judgment in its favor is warranted as Plaintiff has 
failed to establish a negligence cause of action. ( See generally Def.’s Moving Br.) As part of 
Defendant’s Motion, it challenges the admissibility of the report from Plaintiff’s liability expert. 
(Id. at 10 –15.) Before turning to the merits of Defendant’s Motion, the Court addresses the 
admissibility of Plaintiff’s expert report. PageID:
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A. PLAINTIFF’S EXPERT LIABILITY REPORT 
Defendant argues that the liability report from Plaintiff’s retail expert, Daniel Schroeder, 
CSM (“Schroeder”), is an inadmissible net opinion because the expert’s conclusions lack factual 
basis. (Def.’s Moving Br. at 10–15.) Plaintiff responds that any lack of factual foundation for 
Schroeder’s conclusions was caused by Defendant withholding discovery. (Pl.’s Opp’n Br. at 16–
17.) Defendant represents that it has complied with its discovery obligations prior to the close of 
discovery.5 (Def.’s Reply Br. at 2.) For the reasons that follow, the Court finds that Schroeder’s 
report is an inadmissible net opinion. 
Courts may only consider admissible evidence on a motion for summary judgment. Lopez 
v. Honeywell Int’l Inc., Civ. No. 10-3518, 2014 WL 3500326, at *9 (D.N.J. July 14, 2014). “[A]n 
expert’s bare conclusions, unsupported by factual evidence are an inadmissible net opinion.” 
Faragalla v. Otundo, 626 F. Supp. 3d 783, 786 (D.N.J. 2022) (quoting W. Am. Ins. Co. v. Jersey 
Cent. Power & Light Co., Civ. No. 03-6161, 2008 WL 5244232, at *5 (D.N.J. Dec. 15, 2008)) . 
“The net opinion rule requires the expert to give the why and wherefore of the opinion, rather than 
a mere conclusion.” Iudici v. Camisa, Civ. No. 12-3466, 2022 WL 3998295, at *2 (D.N.J. Sep. 1, 
2022) (citation modified). 
 
5 To the extent Plaintiff implies that there is more discovery to be conducted, Rule 56(d) governs the relief Plaintiff 
seeks. That Rule permits a court to defer or deny consideration of a summary judgment motion if the non- movant 
shows by affidavit or declaration specific reasons as to why the non-movant cannot present facts essential to support 
the opposition to summary judgment . Fed. R. Civ. P. 56( d). However, “[a] request for relief under [Rule 56(d)] is 
extremely unlikely to succeed when the party seeking delay has failed to take advantage of discovery.” Koplove v. 
Ford Motor Co. , 795 F.2d 15, 18 (3d Cir. 1986). Given the parties’ representation to this Court that discovery is 
complete, as well as Plaintiff’s failure to request the reopening of discovery by the deadline ordered by the Magistrate 
Judge, supra n.2, it is not a defense to summary judgment to allege that Defendant withheld documents essential to 
proving Plaintiff’s case. See Finizie v. Peake, 548 F. Supp. 2d 171, 179 (E.D. Pa. 2008) (explaining that the failure 
to produce documents is “an issue is properly raised in the context of a motion to compel, not as a defense to summary 
judgment. . . . Rule 56 does not allow a non- moving party to avoid summary judgment by positing the existence of 
documents it does not have, but instead requires the party opposing summary judgment to actually produce them. ”). PageID:
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Here, the Court finds Schroeder’s expert opinion riddled with inadmissible net opinions. 
For example, Schroeder opines that, by allowing the cone to remain tipped over, Defendant 
violated its own policy and procedures based upon Schroeder’s experience in the retail industry . 
(“Schroeder Report,” at 6, ECF No. 33- 5.) This assertion lacks factual foundation because 
Schroeder neither cites Defendant’s policies and procedures in his report nor lists Defendant’s 
policies and procedures in the “Works Cited” section of the report. (Id. at 14.) Additionally, there 
is no discussion in the report as to what Defendant’s policies and procedures are and how 
Defendant violated them . Moreover, there is no information regarding Schroeder’s experience 
contained within the report—such as a curriculum vitae or publications —or discussion about such 
experience that would lend support for this opinion. This conclusion therefore lacks the “why and 
wherefore” required by an expert report. Iudici, 2022 WL 3998295, at *2. 
Schroeder additionally concludes that the person wearing an apron could have eliminated 
the hazard posed by the tipped-over cone because “[i]t is the responsibility of the store leadership 
and staff to actively look for hazards during their work shifts in order to maintain a safe shopping 
environment.” (Schroeder Report at 8.) This contention similarly lacks the “why and wherefore” 
necessary for expert reports because Schroeder offers no explanation or discussion for his finding 
that the person wearing an apron was Defendant’s employee. (See generally id.) 
Connecting his two assertions, Schroeder ultimately concludes that Defendant was 
responsible for Plaintiff’s fall and resulting injuries because: (1) “there was a specific opportunity 
for the hazard to be observed, identified[,] and eliminated before the incident by the employee 
walking past the safety cone less than 1 minute before the incident ”; (2) “had the area been 
adequately inspected, monitored, and maintained reasonably safe and in compliance with the 
subject documentation, the subject condition would have been corrected”; and (3) Defendant’s PageID:
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“responsibility comes in the form of training and procedures to ensure that store leadership, as well 
as their employees recognize, mitigate, and eliminate potential risks in a reasonable manner.” (Id. 
at 13.) Without any discussion of Defendant’s policies and procedures or deposition testimony by 
Defendant’s corporate representative to support Schroeder’s conclusion of liability, his report 
constitutes nothing more than bare conclusions in Plaintiff’s favor. The Court, accordingly, finds 
that Schroeder’s report is a net opinion that cannot be considered for the purposes of deciding 
Defendant’s Motion.6 
B. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 
Defendant contends that Plaintiff cannot sustain a negligence cause of action against it 
because Plaintiff has not presented evidence that: (1) the tipped-over orange cone constituted a 
dangerous condition; and (2) Defendant had notice of the dangerous condition. ( See generally 
Def.’s Moving Br.) Plaintiff responds that summary judgment should be denied because her 
liability expert conclusively opined that Defendant’s employee walked past the tipped- over cone 
one minute before Plaintiff fell and failed to remedy th e dangerous condition causing Plaintiff’s 
fall. (See generally Pl.’s Opp’n Br.) 
Under New Jersey law, “[t]he fundamental elements of a negligence claim are a duty of 
care owed by the defendant to the plaintiff, a breach of that duty by the defendant, injury to the 
plaintiff proximately caused by the breach, and damages.” Shields v. Ramslee Motors, 223 A.3d 
172, 176 (N.J. 2020) (citation omitted). “Generally, a proprietor’s duty to his invitee is one of due 
care under all the circumstances.” Prioleau v. Ky. Fried Chicken, Inc., 122 A.3d 328, 335 (N.J. 
 
6 The Court further observes that Schroeder’s report is unsworn. For purposes of summary judgment, “Rule 56 
requires an expert report to be sworn by the alleged expert.” Snead v. Casino, 700 F. Supp. 3d 203, 215 (D.N.J. 2023) 
(citing Fed. R. Civ. P. 56(c)(4)). “Unsworn expert reports are inadmissible on a summary judgment motion.” Id. 
(citing Fowle v. C&C Cola, a Div. of ITT-Cont’l Baking Co., 868 F.2d 59, 67 (3d Cir. 1989)). Here, Plaintiff attached 
Schroeder’s report as an exhibit to the Certification of Plaintiff’s Counsel, and the substance of the report was not 
sworn to by Schroeder . (See ECF Nos. 33-4, 33-5.) This provides a separate and independent ground for the Court 
to reject the report. PageID:
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2015) (quoting Bozza v. Vornado, Inc., 200 A.2d 777, 780 (N.J. 1964)) . The duty owed to a 
business invitee “encompasses the duty to conduct a reasonable inspection to discover latent 
dangerous conditions.” Rowe v. Mazel Thirty, LLC , 34 A.3d 1248, 1256 (N.J. 2012) (quoting 
Hopkins v. Fox & Lazo Realtors , 625 A.2d 1110, 1113 (N.J. 1993)). Additionally, “ an injured 
plaintiff asserting a breach of that duty must prove, as an element of the cause of action, that the 
defendant had actual or constructive knowle dge of the dangerous condition that caused the 
accident.” Layden v. Target Corp., 768 F. App ’x 152, 156 (3d Cir. 2019) (quoting Nisivoccia v. 
Glass Gardens, Inc., 818 A.2d 314, 316 (N.J. 2003)). 
The Court begins with whether Defendant had constructive notice of the tipped-over cone 
assuming that it constitutes a dangerous condition.
7 See Supreme v. Village Super Market of NJ, 
LP, Civ. No. A -2305-24, 2026 WL 1045379, at *3 (N.J. Super. Ct. App. Div. Apr. 17, 2026) 
(“Absent proof of . . . constructive notice, a premises liability claim ultimately fails.”). “Liability 
for injuries caused by premises defects is imposed when a plaintiff establishes a defendant knew 
or had the reasonable opportunity to discover and correct the defect .” Prioleau v. K y. Fried 
Chicken, Inc. , 85 A.3d 1015, 1022 ( N.J. Super. Ct. App. Div. 2014), aff’ d as modified and 
remanded, 122 A.3d 328 (N.J. 2015) (citation omitted). Constructive notice is usually a question 
of fact for the jury, Betancourt v. Home Depot U.S.A., Inc., Civ. No. 16-7255, 2018 WL 3954854, 
at *5 (D.N.J. Aug. 16, 2018), but may be appropriate for summary judgment when no reasonable 
juror could conclude otherwise, Troupe v. Burlington Coat Factory Warehouse Corp., 129 A.3d 
1111, 1114 (N.J. Super. Ct. App. Div. 2016) (citations omitted). A business owner 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, 129 
 
7 Plaintiff does not argue that Defendant had actual notice. (See Pl.’s Opp’n Br. at 13 (arguing constructive notice).) PageID:
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A.3d at 1114 (quoting Parmenter v. Jarvis Drug Store, Inc., 138 A.2d 548, 550 (N.J. Super . Ct. 
App. Div. 1957)). “Constructive notice can be inferred in various ways,” such as eyewitness 
testimony or from “[t]he characteristics of the dangerous condition giving rise to the slip and fall.” 
Id. “However, the mere existence of an alleged dangerous condition is not constructive notice of 
it.” Jeter v. Sam’s Club, 271 A.3d 317, 324 (N.J. 2022) (citation modified). 
 Here, Plaintiff fails to reference any evidence in opposition to Defendant’s Motion beyond 
Schroeder’s report, which the Court already found it cannot consider.8 (See generally Pl’s Opp’n 
Br.) The Motion record lacks, for example : (1) corporate witness depositions; (2) eyewitness 
statements; (3) Defendant’s policies, procedures, or inspection protocols; and (4) Defendant’s 
records on the day of the incident. The only proof available to demonstrate constructive notice is 
the fact that the cone was knocked over ten minutes prior to Plaintiff’s fall. ( Def.’s Surveillance 
Footage at 2:31:09–2:41:15, ECF No. 32-11.) While the length of time a hazard was present is a 
“key fact in determining constructive notice,” Garcia v. Walmart, Inc., Civ. No. 17- 03118, 2021 
WL 754006, at *5 (D.N.J. Feb. 26, 2021) , standing alone, it is insufficient to create a dispute of 
material fact. See, e.g., Bowman v. Wal-Mart Stores E., LP, Civ. No. 14-3182, 2015 WL 568570, 
at *5 (E.D. Pa. Feb. 10, 2015) (applying Pennsylvania law to conclude that “[t]he approximately 
four-minute period between the spill and Bowman’ s fall is a short duration from which to find 
constructive notice for a hazard not caused by Wal-Mart.”). 
Additionally, even if the Court were to assume that the apron -wearing individual was 
Defendant’s employee, there is no evidence in the record to suggest she was expected to inspect 
 
8 Even if the Court did consider Schroeder’s report, the New Jersey Supreme Court has found that an expert’s report 
containing a net opinion is insufficient to sustain a plaintiff’s burden in demonstrating constructive notice. See Polzo 
v. County of Essex, 960 A.2d. 375, 382, 384 (N.J. 2008) (explaining, in the context of New Jersey’s Tort Claims Act, 
“the only evidence presented by plaintiff that the alleged dangerous condition qualified for constructive notice is the 
report of plaintiff ’s engineering expert . . . . [A] net opinion alone is insufficient to sustain plaintiff ’s burden of 
establishing that the public entity was on constructive notice of a dangerous condition. ”). PageID:
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for hazardous conditions when she walked past the tipped-over cone one minute prior to Plaintiff’s 
fall. See Choi v. Costco Wholesale Corp., Civ. No. 22-3329, 2024 WL 658972 at *3 (3d Cir. Feb. 
16, 2024) (rejecting argument that Cost co had constructive notice where employee was stocking 
shelves near a hazardous condition that existed for fifteen minutes before the plaintiff’s fall); Adler 
v. Wakefern Food Corp., Civ. No. A-0026-18T4, 2019 WL 3003439, at *3 (N.J. Super. Ct. App. 
Div. July 10, 2019) (per curium) (finding no constructive notice where an employee was stocking 
shelves near a hazardous condition because no evidence existed that the employee was expected 
to monitor floor conditions). 
Plaintiff has therefore not met her burden in “ mak[ing] a showing sufficient to establish 
the existence of an element essential to [her] case, and on which [she] will bear the burden of proof 
at trial.” Celotex Corp, 477 U.S. at 322. “In such a situation, there can be ‘no genuine issue as to 
any material fact,’ since a complete failure of proof concerning an essential element of the 
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23. 
Accordingly, Defendant is entitled to summary judgment as to all claims.
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As a final, procedural matter, the Court will also sua sponte dismiss Defendant’s 
crossclaims for contribution and indemnification against fictitious defendants John Doe 1–5 and 
XYZ Corp 1 –5. ( See Answer at 5 –6.) These defendants were never identified after the parties 
completed discovery. See Fed. R. Civ. P. 21; Blakeslee v. Clinton Cnty., 336 F. App’x 248, 250–
51 (3d Cir. 2009) (affirming district court’s sua sponte dismissal of fictitious defendants that were 
not identified in discovery). 
 
9 The Court does not reach Defendant’s remaining arguments. PageID:
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V. CONCLUSION 
For the reasons stated above, the Court will GRANT Defendant’s Motion for Summary 
Judgment and dismiss Defendant’s crossclaims against fictious parties. An appropriate Order will 
follow. 
 
Date: June 16, 2025 
s/ Zahid N. Quraishi 
 ZAHID N. QURAISHI 
 UNITED STATES DISTRICT JUDGE PageID:
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