EQUILLA SAMPLE et al. v. CITY OF TRENTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6787-04T16787-04T1

EQUILLA SAMPLE and ELIJAH

SAMPLE, her husband,

Plaintiffs-Respondents,

v.

CITY OF TRENTON,

Defendant-Appellant.

___________________________________

 
Argued telephonically May 16, 2006 -

Decided July 17, 2006

Before Judges Parrillo and Gilroy.

On Appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2274-03.

Peter J. Cohen, Assistant City Attorney, argued the cause for appellant (R. Denise Lyles, City Attorney; Mr. Cohen, on the brief).

Kevin M. Shanahan argued the cause for respondent (Mr. Shanahan, on the brief).

PER CURIAM

This is a trip and fall personal injury negligence action under the New Jersey Tort Claims Act (Act). Plaintiff, Equilla Sample, filed a complaint alleging that she tripped and fell due to uneven brick pavers laid in the section of East State Street, Trenton, known as the Trenton Commons (the Commons). Defendant, City of Trenton (City), appeals from the entry of judgment after a jury verdict in favor of plaintiff.

On August 24, 2001, plaintiff, a sixty-two year old right-hand dominant female, exited a food court located at 50 East State Street, fronting on the Commons, holding a cup of coffee in her left hand. After walking a few feet on the walkway, plaintiff tripped over one or more raised bricks, and fell injuring her right shoulder. Plaintiff identified the area where she fell as having a wooden bench to her right and a "gas meter or . . . silver thing[,] . . . on the ground." Plaintiff was taken to a hospital by ambulance, and underwent immediate surgery to relocate her right shoulder, which had become completely dislocated. Following two weeks of bed rest, plaintiff presented herself to Dr. Einhorn, an orthopedic surgeon, who informed her that she "had to have" surgery to repair a tear of the right rotator cuff. After surgery, plaintiff received physical therapy for three to six months. Plaintiff has a permanent "spider" shaped scar on her right shoulder, and experiences numbness under her right arm, through the armpit, and the lateral side of the shoulder. Plaintiff's range of motion is limited: she cannot lift her right arm over the shoulder without significant pain; she cannot touch her back with her right arm; and she cannot perform household chores as she did before the accident.

After the surgery to repair her rotator cuff, plaintiff pointed out the area where she fell to her husband for the purpose of him taking photographs. Referring to one of the photographs of the area where she fell, plaintiff testified that although she could not identify the exact brick(s) which caused her to fall, she had fallen where the bricks were uneven.

On August 18, 2003, plaintiff filed a complaint against the City under the Act. The City moved for summary judgment, arguing that plaintiff's liability expert, David Goldstein, a licensed construction official, sub-code official, and building inspector, had rendered a net opinion as he had not performed measurements at the site of the accident; and plaintiff could not demonstrate causation because she could not identify the exact brick(s) which had caused her fall. The City acknowledged that "the conditions were imperfect" in the area of plaintiff's fall, and "there were some spaces in between the brick[s], some cracks in a couple of the bricks."

Judge Smithson found that the City had repaved the Commons post-accident for vehicular access, thus, preventing plaintiff's expert from taking measurements of the pavers. The judge determined that: 1) the expert's opinion was not net, stating there were reasons, "whys and . . . wherefores," for the opinion, and the expert did not need to do measurements but could rely on work product and testimony of others; 2) the amount of weight to be afforded the expert's opinion was a jury question; and 3) it was not "necessary to pick [out] the given brick that was the causative factor in the fall . . . . I think the plaintiff is being credible by saying I can[not] pick out a given [brick.]" Accordingly, the judge concluded that there were genuine questions of fact and summary judgment was not appropriate. A confirming order denying the motion was entered on April 15, 2005.

On June 7, 2005, the City moved for reconsideration of the order denying summary judgment raising the same arguments as before. Judge Smithson determined that the expert had relied on both the photographs of the site and the depositions; and the report consisted of an "obtuse type of discussion" as to "how bipeds ambulate on the surface of the earth," and concluded that the uneven "level of the walking surface was the proximate cause of the trip and fall." The judge noted that while plaintiff could not indicate exactly which brick(s) had caused her fall, the expert's opinion was that "any number" of the bricks in the area could have caused the fall.

Although the City acknowledged that it authorized the construction of the Commons, the City argued that the area of plaintiff's fall was the equivalent of a sidewalk in front of a commercial building, and thus, the City was not liable. Plaintiff countered that at no time prior to the City's motion did the City suggest that the walkway was a sidewalk; plaintiff would be prejudiced because if she had been notified of this defense at the time of the City's answer, she could have amended the complaint to include the third party commercial building owner; and the City was estopped from raising the argument, because it had engaged in the litigation. Agreeing with plaintiff, the judge found that the City was estopped from raising the issue one and one-half years into the litigation, determining that plaintiff had specifically alleged that the "property was owned, operated, maintained, [con]structed, and controlled by the [C]ity," and while the City's answer averred the general defense of non-liability, it did not include the specific defense that the area of plaintiff's fall was not public property. The judge also determined that the City had exercised control over the area of the accident, by constructing and maintaining the Commons.

Finally, the City argued that plaintiffs should not be permitted to rely on evidence of other accidents as proof of notice, because the prior accidents involved different types of conditions, i.e., raised, dislodged and missing bricks; occurred at different times; and the defects were not obvious. The City contended that it had no actual or constructive knowledge that the specific area of plaintiff's fall was dangerous. In opposition, plaintiff argued that the evidence of four prior accidents, which resulted in lawsuits against the City, was admissible because the conditions were similar, that is, they all involved brick deterioration and unevenness; the accident sites were similar, as they occurred within the two blocks of the Commons; and the accidents were close in time, occurring within two to three years of plaintiff's accident. Plaintiff also contended that the City had constructive notice due to the number of complaints about the unevenness and dangerous condition of the Commons. Judge Smithson found that the area in question was "discrete," spanning only a few blocks, and the accidents all involved some kind of brick dislodging, movement, or deterioration. He determined the prior accidents relevant as to notice. The City's motion for reconsideration was denied.

During trial, the parties stipulated to the admission of plaintiff's medical records and that plaintiff had incurred medical expenses in excess of the statutory minimum of $3,600, N.J.S.A. 59:9-2d. The parties also stipulated to the existence of two prior lawsuits filed against the City based on: 1) an alleged trip and fall over "collapsed and raised bricks" on February 7, 2000, in the Commons near 5 East State Street, resulting in a right shoulder injury; and 2) an alleged trip and fall over "upraised and missing bricks" on November 9, 2000, in the Commons near 1-9 East State Street, resulting in a right arm injury. In each case, the claimant provided the City with an expert report concerning the dangerous condition of the bricks.

After being qualified as an expert in forensic safety and code compliance, David Goldstein, who was retained approximately two and one-half years post-accident, testified that he had visited the accident site with the intention of taking measurements of the bricks, but the site had been repaved. Goldstein testified that he had reviewed the photographs of the accident site taken by plaintiff's husband; plaintiff's deposition and answers to interrogatories; and plaintiff's description of the size of the bricks, as well as having spoken with her personally. He was familiar with the area of the Commons because he had rendered expert reports in cases involving the Commons on two or three prior occasions. Goldstein described the walkway as consisting of "loose laid bricks," and stated that the photographs showed more than a quarter-inch increase in elevation between bricks, with some of the brick edges being raised by as much as two inches. He testified that his observation of the bricks in the photographs alerted him to several safety code violations, including a standard promulgated by the American Society for Testing and Materials (ASTM), which provided that "more than a quarter of an inch rise in a walking surface . . . is considered a tripping hazard. It is required to either be fixed or . . . repair[ed]."

Goldstein opined, to a reasonable degree of forensic safety and code compliance knowledge, that the condition of the bricks was in violation of the safety standards and codes, and constituted "a hazard to normal, foreseeable pedestrian traffic." He testified that his opinion concerning causation was based on the photographs, his prior knowledge and investigation of the area, and plaintiff's statements. Finally, Goldstein testified that plaintiff's inability to specify which brick caused her to fall was irrelevant, because "[m]ost of the accidents that occur, occur so rapidly, that the individual who has the accident does [not] necessarily have a recollection of the exact spot unless, within that area, there is strictly one and perhaps only one area that . . . could have caused [the accident]." The City did not present a liability expert to counter Goldstein's opinions.

Bea Scala-Fischler, the Director of Programs of the Trenton Downtown Association (TDA), testified that the TDA was involved in managing special improvement projects in downtown Trenton, and the TDA's responsibilities included litter control for the Commons. She was aware that the City constructed the Commons, and believed the City owned and maintained it as well. She did not recall any business owners repairing the bricks, and because the TDA sent crews to the Commons regularly, it had a practice of contacting the City's Department of Public Works to report complaints and egregious conditions. She described "egregious conditions" as including missing bricks, noting that loose or cracked bricks were not regularly reported because "there were lots of those." She acknowledged that the TDA had received complaints from the public about the condition of the bricks, and those complaints were communicated to the City's Department of Public Works. Scala-Fischler also testified that there had been about a dozen lawsuits involving the TDA, brought by individuals who had tripped and fallen over the bricks in the Commons.

Leonard Pucciatti, the Director of the City's Department of Inspections and the City's Construction Official, testified that upon receiving a complaint, an inspection of the area would be performed. He stated that the City's sidewalk ordinance directed that sidewalks be made from concrete, and that they be "level," noting that the Commons was "a special area." Pucciatti testified that the Commons was controlled by the TDA, but conceded that the City would maintain the Commons "in an emergency situation" and "when necessary." He described "when necessary" as including repairing missing, cracked, or disintegrated bricks. While Pucciatti testified that the TDA had responsibility for repairing the brick pavers, he acknowledged the TDA did not make repairs, conceding that in a prior lawsuit against the City he had stated that the TDA did not have responsibility for maintaining the Commons. Pucciatti also admitted that the businesses fronting on the Commons were not responsible for maintaining the walkway.

Pucciatti conceded that the brick paved area of the Commons was not intended for vehicular traffic because it would cause cracking and loosening of the bricks. However, the City was aware of complaints of vehicular traffic on the Commons due to business deliveries. After observing the photographs of the brick paved area, Pucciatti claimed that he could not discern whether any bricks depicted in the photographs were raised. Lastly, he testified that the New Jersey Administrative Code refers to the ASTM Standards, and the City's ordinances have adopted and used the "quarter[-]inch rise" standard since the 1950s.

At the close of testimony, the City moved for judgment of dismissal, arguing that the Commons was the equivalent of a sidewalk, and Gaskill and Maslo dictated that an one-inch change in elevation on a sidewalk was not a "palpably unreasonable" condition. The trial judge determined that the Commons was not the same as a sidewalk, and Maslo was distinguishable because the issue there was lack of notice of a "relatively small [change in] elevation," whereas here there was evidence of notice because of the history of problems with the Commons and prior lawsuits. The judge also determined that there was no "one inch rule," stating that "it [is] all a matter of meeting the five elements of the Tort Claims Act." Judge Smithson denied the motion, determining there was more than enough evidence to support all the elements of a tort claims case, warranting submission of the matter to the jury.

The jury returned its verdict, finding that there was a dangerous condition which created a foreseeable risk of injury, of which the City had actual or constructive notice with ample time to correct; the City's action or inaction was palpably unreasonable; and plaintiff suffered injury resulting in permanent and substantial loss of bodily function. The jury awarded damages in the amount of $95,000, and a confirming order of judgment was entered on July 18, 2005.

The City raises the following issues for our consideration on appeal.

POINT I

THE TRIAL COURT ERRED IN ITS DENIAL OF DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT AND RECONSIDERATION SINCE PLAINTIFF FAILED TO MEET THE REQUIREMENTS OF [N.J.S.A.] 59:4-2.

POINT II

THE PLAINTIFF'S LIABILITY EXPERT'S REPORT AND TESTIMONY SHOULD HAVE BEEN EXCLUDED FROM TRIAL, SINCE THEY [WERE] BASED ON NET OPINIONS, [AND] BARE CONCLUSIONS UNSUPPORTED BY FACTUAL EVIDENCE.

POINT III

THE TRIAL JUDGE SHOULD HAVE GRANTED THE DEFENDANT'S MOTION FOR JUDGMENT OF DISMISSAL AT THE CLOSE OF THE CASE[,] PURSUANT TO [RULE] 4:40-1.

Summary judgment must be granted where there is "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). While the allegations in the pleadings may raise an issue of fact, if the papers and other documents demonstrate that there is no genuine issue, then summary judgment is appropriate. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). Inferences are drawn against the moving party, and that party bears the burden of showing the "absence of a genuine issue of material fact." Judson, supra, 17 N.J. at 75. On appeal, this court will review the findings de novo, using the same standard applied in the trial court. See Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003) (appellate courts review summary judgment motions de novo under the same legal standard as the trial court).

Motions for judgment, whether made under Rule 4:37-2(b), at the close of the plaintiff's case, under Rule 4:40-1, at the close of evidence, or under Rule 4:40-2(b), after the verdict, are governed by the same standard: "'[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . .'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). This is the same standard which applies to trial courts, Frugis v. Bracigliano, 177 N.J. 250, 269 (2003), and which governs a motion for summary judgment. Schneider v. Simonini, 163 N.J. 336, 360 (2000); Brill, supra, 142 N.J. at 523.

Although public entities are generally immune from suit, a public entity may be held liable under the Act for its failure to protect against a dangerous condition on public property. N.J.S.A. 59:4-2. As the Act only applies to "public property," a plaintiff must initially demonstrate that the property in question was "owned or controlled" by a public entity. N.J.S.A. 59:4-1c. Here, the Commons, a pedestrian mall, was created by the City as part of a Special Improvement District "pursuant to N.J.S.A. 40:56-65 to -89." Fanelli v. City of Trenton, 135 N.J. 582, 586-87 (1994). The City exercised control over the area by passing ordinances which limited the use of the Commons, Id. at 587-88; see N.J.S.A. 40:56-71 (providing authority to adopt ordinances), by making repairs to the walkway, and by repaving the area for vehicular traffic. Moreover, at argument on the motion for reconsideration, the City acknowledged that it had authorized construction of the Commons and had made repairs to the walkway. Accordingly, there is no genuine dispute that the site of plaintiff's fall was "public property" under the Act.

In order to recover under the Act, a plaintiff must prove that: 1) a dangerous condition existed on the property at the time of the injury; 2) the dangerous condition was the proximate cause of the injury; 3) the dangerous condition created a foreseeable risk of the kind of injury incurred; 4) either a negligent or wrongful act or omission of a public employee within the scope of his or her employment created the dangerous condition, or the public entity had actual or constructive notice of the dangerous condition with sufficient time prior to the injury to have protected against the condition; and 5) the action or inaction of the public entity as to its effort to protect against the condition was "palpably unreasonable." Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 188 (2002); Margolis and Novack, Claims Against Public Entities, comment on N.J.S.A. 59:4-2 (2006).

We have carefully reviewed the City's arguments in light of the record and applicable law, and we conclude that Judge Smithson properly denied the City's motions for summary judgment, reconsideration, and judgment for dismissal. We determine that there was sufficient evidence to deny summary judgment and more than enough evidence at the close of testimony to warrant submission of the case to the jury. The evidence produced at trial only added to plaintiff's case. We affirm substantially for the reasons stated by Judge Smithson in his oral decisions of April 15, June 7, and June 14, 2005. R. 2:11-3(e)(1)(A) and (E). We add the following comments.

The City argues that plaintiff's liability expert rendered a net opinion. We disagree.

The standard of review applicable to evidentiary determinations at trial is whether the court misapplied its discretion, and we will reverse such decisions only where the trial court committed a clear error of judgment. State v. Brown, 170 N.J. 138, 147 (2001); Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999); Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). Moreover, an appellate court will not substitute its own judgment for that of the trial court unless the trial court's ruling was "'so wide of the mark that a manifest denial of justice resulted.'" Brown, supra, 170 N.J. at 147 (quoting State v. Kelly, 97 N.J. 178, 216 (1984)); accord Green, supra, 160 N.J. at 492.

The admission of expert evidence is governed by the New Jersey Rules of Evidence. See N.J.R.E. 702-705. Pursuant to N.J.R.E. 703, an expert's opinion must be based on "facts, data, or another expert's opinion, either perceived or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). Furthermore, the facts or data relied upon by the expert need not be admissible, so long as of a type reasonably relied upon by experts in the field. N.J.R.E. 703. The rule is that the bare conclusions of an expert, which are unsupported by factual evidence, i.e., a "net opinion," are inadmissible. Myrlak v. Port Auth. of N.Y. & N.J., 302 N.J. Super. 1, 8 (1997), rev'd on other grounds, 157 N.J. 84 (1999). An expert must give the "'why and wherefore'" supporting his or her opinion, "'not just a mere conclusion.'" Ibid. (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)). Expert testimony which does not relate to generally-accepted standards, but instead references a standard that is personal to the expert, is the same as a net opinion. Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999). However, so long as the opinion relates to generally-accepted standards, includes the "why and wherefore," and is not simply a baseless conclusion, the opinion is not net. Jimenez, supra, 286 N.J. Super. at 540.

Our review of Goldstein's report and testimony convinces us that there was ample explanation and factual basis for his opinion constituting the "whys and wherefores," and the opinion was not net. Goldstein opined to a reasonable degree of certainty that the "difference in elevation of the walkway [was] the cause of the accident." In his report, Goldstein stated that because walking involves a "loss and recovery of equilibrium," an interference with the ability to regain balance, "such as an unexpected change in the walkway elevation, can result in a fall." Goldstein stated that an unexpected change in elevation throws off balance because when walking on a seemingly level surface, one expects each step to be at the same level. The expert continued by indicating that an upward change in elevation causes the "forward motion" of walking to be "abruptly stopped;" a downward change causes the front of the foot to continue unexpectedly past the horizontal plane; and in either instance, because the body does not expect the interference, balance is thrown off and a fall often results. Goldstein also supported his opinion concerning the defect in the walkway with reference to several codes and standards in his report.

We also determine that Goldstein properly relied on plaintiff's deposition, trial testimony, and answers to interrogatories; the photographs of the area of the Commons where she fell; and his own personal knowledge of the Commons. See Shatz v. TEC Technical Adhesives, 174 N.J. Super. 135, 146 (App. Div. 1980) (ruling that expert witness' knowledge of the product was sufficient basis to permit him to testify as to the adequacy of warnings even though he had no special expertise in actual writing of warning labels). While in a perfect world, plaintiff would have retained a liability expert immediately following the accident, Goldstein's failure to take site measurements does not render his opinion net. Judge Smithson properly determined that it was the City's action in repaving the Commons which prevented Goldstein from taking site measurements.

Affirmed.

 

N.J.S.A. 59:1-1 to 12-3.

Plaintiff, Elijah Sample, Equilla's husband, sued per quod. As only Equilla suffered injury from the trip and fall, we refer to her as plaintiff.

Gaskill v. Active Envtl. Techs., Inc., 360 N.J. Super. 530 (App. Div. 2003).

Maslo v. City of Jersey City, 346 N.J. Super. 346 (App. Div. 2002).

(continued)

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A-6787-04T1

July 17, 2006