BARBI GNECCO v. GAIL ABBATE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5197-04T1

BARBI GNECCO,

Plaintiff-Appellant,

v.

GAIL ABBATE and NORMA PRINCING,

Defendants-Respondents.

__________________________________

 

Submitted June 5, 2006 - Decided June 26, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen County,

L-6278-03.

Margulies Wind, attorneys for appellant (Robert E. Margulies, of counsel; Frank E. Catalina, on the brief).

Leary, Bride, Tinker & Moran, attorneys for respondents (David J. Dering, of counsel and on the brief).

PER CURIAM

Plaintiff, Barbi Gnecco, a tenant in a two-family home owned by defendants, Gail Abbate and Norma Princing, was injured when she slipped and fell at midnight on December 28, 2002, on a one-foot patch of black ice located on the macadam driveway serving her residence. Plaintiff, who had just returned from her father-in-law's home, had taken her 18-month-old son out of the rear passenger side of the car and was walking around the rear of her car when she fell. The last significant snowfall occurred three days earlier on Christmas day, at which time approximately one to six inches fell. For a period of at least forty-eight hours prior to plaintiff's fall, there had been no precipitation.

T&C Landscaping performed snow removal services on December 26 by removing the snow around the several cars located in the driveway. Princing and Abbate's daughter had performed some additional hand shoveling on the premises, while Princing had spread some calcium chloride on the driveway. Several witnesses who testified at the trial confirmed the existence of the ice patch that caused plaintiff's fall. The parties presented contradicting testimony from professional engineering experts, John Toto for plaintiff and Jeffrey J. Schwalje for defendants.

Prior to the presentation of testimony from plaintiff's expert, the judge denied plaintiff's motion in limine to preclude Schwalje's testimony as embracing a net opinion. The jury returned a verdict finding defendants not negligent. It never reached the questions of proximate cause, plaintiff's negligence, or damages. Plaintiff appeals from the adverse judgment and the order denying her motion for new trial. We affirm.

On appeal, plaintiff asserts that the judge erred in denying her motion in limine, arguing that Schwalje's opinions respecting the illumination at the scene and the adequacy of snow removal maintenance performed by defendants were net opinions devoid of factual and scientific basis. She also argues that the judge erred in permitting Schwalje to testify, over her objection, that plaintiff's failure to make careful observations, given the inclement condition, contributed to the accident. In Point II of her brief, plaintiff raises the same reasons in support of her contention that she was entitled to a new trial.

At trial, Toto testified that he took light meter readings on August 4, 2004, at 8:39 p.m. and 9:10 p.m., both of which revealed .15-foot candles of illumination. He opined that those readings fell below the Uniform Construction Code, which adopted the BOCA National Building Code (BOCA) standard requiring a minimum of 1.0-foot candles of illumination for "egress or a way out of a building . . . ." On cross-examination, he conceded that BOCA did not require existing buildings to comply with changes in the BOCA code. He also related that BOCA also required, "driveways will be maintained free from hazardous conditions and, also that roof water shall not be discharged in a manner that creates a public nuisance." Toto opined that the existence of two downspouts on the side of the house, which discharged water onto the driveway rather than being piped underground, the slope of the grass appurtenant to the driveway causing snow to melt onto the driveway, the raveling condition of the macadam (deterioration leaving low areas where water will accumulate), and low illumination created an environment that required more frequent inspection and application of a snow melt material in the area.

Schwalje examined the downspouts, lighting, and driveway on October 27, 2004. That day, he measured the illumination with a Greenlee Professional Light Meter and found .39-foot candles. The lighting consisted of a 100-watt bulb in a lamppost approximately seventeen feet from the location of the fall, a light on the front porch approximately thirty-feet away from the point of the fall, and streetlights, which would not have been blocked by foliage at the time of the accident. He also testified that, when plaintiff fell, there were decorative Christmas lights present. According to Schwalje, .2-foot candles are usual for driveway areas and he concluded that the illumination present was reasonably adequate to make safe observations of the driveway surface. Plaintiff's counsel's objection to Schwalje's testimony concerning .2-foot candles was overruled by the judge, who indicated that it was fair game for cross-examination. Plaintiff's counsel, however, did not cross-examine Schwalje on his opinion respecting the minimum required illumination for driveways.

Schwalje related that the house elevation is higher than the street. The driveway slope varies from four degrees or seven percent at bottom near the street to a less steep slope near the house. It also slopes 1.5 degrees or 2.7 percent to the right. He found that the driveway was reasonably maintained, testifying that he did not find any raveling, holes, or broken areas.

He also reviewed the temperature readings between Christmas and the day of the fall, explaining that they generally hovered below freezing to 32 F, ranging from a low of 27 to a high of 36 during the daylight hours on December 26 and December 27. Because the temperature did not reach above freezing for any significant period of time, Schwalje opined that there would not have been any significant water coming from the leaders and gutters, only dripping. Although he found a few minor depressions, he opined that for an older driveway, it was reasonably maintained and it did not violate the Uniform Construction Code. On cross-examination, Schwalje confirmed that he too relied on the same BOCA provisions concerning maintenance of driveways, discharge of water, and he was of the opinion that the property was maintained in a safe fashion.

Generally, the competency of a witness to testify as an expert is within the sound discretion of the trial judge and will not be reversed on appeal "[a]bsent a clear abuse of discretion." Carey v. Lovett, 132 N.J. 44, 64 (1993). Expert opinion testimony is admissible under N.J.R.E. 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

N.J.R.E. 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

However, a "net opinion," an expert's opinion unsupported by factual evidence, is not admissible. Lanzet v. Greenberg, 126 N.J. 168, 186 (1991); Nesmith v. Walsh Trucking Co., 123 N.J. 547, 549 (1991); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The rule "frequently focuses . . . on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Buckelew, supra, 87 N.J. at 524.

Thus, "the net opinion rule requires the expert witness 'to give the why and wherefore of his expert opinion, not just a mere conclusion.'" Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001) (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)); see also New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 16 (1999) (expert opinion that presence of a communications monopoly would "derail" development not supported by any studies or data was a net opinion).

Plaintiff argues that Schwalje's testimony that .2-foot candles were sufficient to make safe observations of the driveway was devoid of a factual basis because it did not relate to an objective standard as compared to Toto's opinion that cited the 1.0-foot candle minimum invoked by BOCA. We disagree. Contrary to plaintiff's arguments, the BOCA requirement for illumination does not specifically address driveways, but instead is limited to "egress or way out of a building." Moreover, plaintiff's expert conceded that, even if applicable, BOCA did not require existing buildings to change lighting conditions to meet new standards. Plaintiff's assertion that Schwalje should not have been permitted to testify to the .2 standard because it did not appear in his report, lacks merit. His report related .39 reading that he obtained, and concluded that it met code requirements and was sufficient to safely illuminate the driveway. It adequately placed plaintiff on notice that Schwalje would testify that it met an applicable standard. Moreover, plaintiff's failure to cross-examine Schwalje on the source of the .2 standard prevents us from coming to the conclusion that it was baseless or not a standard reasonably relied upon by experts in the field.

It is well established that "[o]ne of the types of facts or data on which an expert may rely in formulating an opinion is personal observation." Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 703 (2006). Here, Schwalje inspected the premises and could rely on his observations in formulating his opinion. See Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 324 (App. Div.) (plaintiff's expert's failure to inspect collapsed trusses was one reason that his opinion was a net opinion), certif. denied, 146 N.J. 569 (1996).

We find no merit in plaintiff's contention that Schwalje's investigation and resulting testimony concerning the lack of an unreasonable hazardous condition and adequate maintenance was a net opinion. Like Toto's conclusions, Schwalje's opinions came about as a result of his examination of the property, weather history, and descriptive testimony of witnesses concerning the conditions at the time. The experts' opinions as to the adequacy of defendant's efforts to remove ice and snow, though contrary, were formed by applying the same foundation, specifically, the general BOCA standard respecting driveways and water drainage. It was up to the jury to determine who was credible. Manning v. Pub. Serv. Elec. & Gas Co., 58 N.J. Super. 386, 393 (App. Div. 1959).

Lastly, we comment briefly on plaintiff's contention that the judge erred in overruling her objection to defendant's direct question concerning Schwalje's opinion as to whether plaintiff's conduct contributed to the accident. Schwalje responded:

[Y]ou have to be very cognizant and aware of your surroundings. Walk very carefully and make very good observations, and from that standpoint . . . had in my opinion those very careful observations been made knowing that this was a period of inclement weather. I think that that did contribute to this occurrence. I think that's what caused this.

The judge, sua sponte, gave the following instruction:

Ladies and gentlemen, the expert has just given you his opinion as to the ultimate conclusion of the case, which you are going to be asked to decide when you deliberate on the facts. So you can give his opinion whatever weight you deem necessary at the particular time.

Relying on Nesmith, supra, 123 N.J. 547, plaintiff argues that that testimony egregiously invaded the province of the jury and amounted to reversible error. Although testimony in the form of an opinion is not objectionable merely because it embraces an ultimate issue, N.J.R.E. 704, it nevertheless is rightfully excluded where it goes "beyond the scope of the expert's skill and competence" and invades the deliberative process of the jury. Nesmith, supra, 123 N.J. at 549. We agree with plaintiff that, as professional engineers, the experts were competent to testify regarding unreasonable safety hazards and proper maintenance. Opinions concerning the reasonable and proper observations required of a pedestrian under a particular set of circumstances, however, are not within the scope of an engineer's expertise and improperly intrude on a jury's deliberative process in determining plaintiff's negligence. Nonetheless, because the jury never reached the question of plaintiff's negligence, we conclude that the error was harmless, that it neither had the capacity to prejudice the jury's fair assessment of the case nor produce an unjust result. R. 2:10-2.

Finally, plaintiff's Points II arguments directed at the judge's denial of her motion for new trial raise the same issues already addressed and are rendered moot by our decision. See Bankers Trust Co. of Cal., N.A. v. Delgado, 346 N.J. Super 103, 106 n.1 (App. Div. 2001).

Affirmed.

 

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A-5197-04T1

June 26, 2006