JONATHAN VINCI v. CLIFTON BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4828-10T4

JONATHAN VINCI, AN INFANT

BY HIS GUARDIAN AD LITEM,

VINCENZA VINCI, AND VINCENZA

AND ANTHONY VINCI, INDIVIDUALLY,

Plaintiffs-Appellants/

Cross-Respondents,

v.

CLIFTON BOARD OF EDUCATION and

PARENT TEACHERS ASSOCIATION OF

THE CLIFTON BOARD OF EDUCATION,

Defendants-Respondents/

Cross-Appellants.

_______________________________________

November 21, 2012

Argued September 20, 2012 - Decided

Before Judges Fuentes, Grall and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No. L-

4774-08.

Barry D. Epstein argued the cause for

appellants/cross-respondents (The Epstein Law Firm, P.A., attorneys; Mr. Epstein, of counsel; Michael A. Rabasca, on the brief).

John Goworek argued the cause for respondents/cross-appellants (Weston, Stierli, McFadden & Capotorto, attorneys; Mr. Goworek, on the brief).

PER CURIAM

Plaintiffs Jonathan Vinci and his parents appeal from a judgment after a jury trial dismissing their complaint for personal injuries Jonathan suffered at an after-school event. Defendants school board and parents association cross-appeal from rulings allowing the jury to deliberate on plaintiffs' claims. Because we affirm the jury's verdict, we need not address issues raised on the cross-appeal.

I.

At the time of the slip and fall accident, Jonathan was ten years old and in fifth grade at a public school in Clifton. The Home and School Association (HASA), a not-for-profit organization of parents, sponsored an annual Halloween party called "Family Fun Night" to be held from 7 to 9 p.m. in the school's "all purpose room" (gymnasium/auditorium). HASA arranged for games, snacks, and a disc jockey to entertain the children, and it requested assistance from parent-volunteers to supervise the party along with its own executive board members.

The school principal approved a flyer prepared by HASA to advertise the party, and the flyer was distributed to students during school hours. It included a requirement that "[e]ach child must be accompanied by an adult." In HASA's view, the purpose of this requirement was to ensure that parents would attend and participate in the supervision of their own children. Jonathan's mother, Vincenza Vinci, was under the impression that "accompany means, just bring them there, drop them off, and then you can leave." She believed supervision would be the responsibility of school personnel.

Despite her understanding that she need not stay, Mrs. Vinci dressed in costume at the urging of her children and remained at the party throughout the evening. She arrived at about 7 p.m. with Jonathan, her four-year-old daughter, her neighbor and the neighbor's son, and another friend of Jonathan. Most of the evening, she stayed with her daughter near a popcorn machine, and she socialized with other parents. Meanwhile, Jonathan played, danced, and moved around the room with friends. From time to time, Mrs. Vinci saw Jonathan running with other boys as they played. The children were active but generally well-behaved, and Mrs. Vinci did not recall anyone admonishing the children for inappropriate conduct. She did not tell him not to run.

Shortly before the party ended, Jonathan was playing tag with other boys. As he ran on the gym floor, he slipped and fell near the stage. Another parent was sitting on the stage and witnessed the fall. The parent and his wife noticed a puddle roughly two to three feet in diameter in proximity of the spot where Jonathan fell. The witness could not say whether Jonathan slipped on the puddle, and he had not seen the puddle before the accident. He testified that at some point during the evening he had noticed some other liquid spills near the snacks table. He was not specific as to the nature of the spills or how long the spills had been there before the accident occurred.

Defense witnesses denied observing any spilled liquids or food on the floor. Mrs. Vinci recalled popcorn kernels and cake crumbs on the floor near where she was standing. She was not aware of spills of water or beverages except for a small "drop" that she cleaned. Also, while Mrs. Vinci estimated about forty adults in attendance, including "perhaps four [or] five" HASA representatives, the school principal recalled there were about ninety adults present, including more than twenty HASA repre-sentatives. The other parent who saw the accident estimated about seventy-five adults in attendance.

At the time her son fell, Mrs. Vinci was saying goodbye to other parents. She was alerted to the accident by Jonathan's scream. She hurried to help him and saw a twelve-by-eighteen-inch puddle approximately two feet from where he lay. She had not previously seen the puddle.

In fact, no witness testified at trial or in the course of discovery about seeing the puddle that allegedly caused the fall until after the accident occurred. No one could say how long the puddle had been on the floor. School personnel and representatives of the parents' association testified they had not observed or been made aware of any spills. Consequently, they had not asked a janitor to clean the floor although one was on duty in the school.

Jonathan suffered a displaced fracture of the femur that required surgeries and pins. The injury left him with a scar and allegedly a limp and permanent loss of strength and range of motion of the leg. Nevertheless, he had recovered sufficiently by the time of trial to testify that he felt no serious effects of the injury and that he was playing lacrosse with a team.

Jonathan and his parents filed their complaint in November 2008 against the Clifton Board of Education and HASA,1 alleging a dangerous condition of the school property and negligent supervision of the event.

After discovery, defendants moved for summary judgment. Among other grounds, they asserted that the board of education was entitled to summary judgment on the basis of public-entity immunity under the Tort Claims Act, N.J.S.A. 59:1-1 to 14-4, and that HASA was entitled to summary judgment on the basis of the Charitable Immunity Act, N.J.S.A. 2A:53A-7. Plaintiffs opposed summary judgment and cross-moved for leave to amend their complaint to assert gross negligence against HASA.

The trial court granted partial summary judgment to defendants, dismissing the claims of dangerous condition of the property. Applying the requirements of the Tort Claims Act, N.J.S.A. 59:4-2, -3, the court discussed both the absence of evidence in the summary judgment record that school personnel had notice of the allegedly dangerous condition caused by spills and the insufficiency of plaintiffs' proofs to permit a rational jury to find palpably unreasonable conduct of the board of education. Ultimately, the court relied on the latter rationale to grant summary judgment as to a dangerous condition of the property.

As to the negligent supervision claim, the court denied the school board's motion for summary judgment, finding a disputed issue of fact regarding whether the school board was responsible for supervision of the party. With respect to HASA, the court applied the Charitable Immunity Act and concluded that proof of ordinary negligence was insufficient to establish HASA's liability. But, over defendants' opposition, the court granted plaintiffs' cross-motion to amend their complaint to allege gross negligence. Thus, the case proceeded to trial on ordinary negligent supervision of the party and maintenance of the premises by the school board and on grossly negligent supervision and maintenance by HASA.

At the time of trial, defendants moved to exclude proposed testimony by plaintiffs' liability expert. Plaintiffs had retained Donald Geddis, an experienced school administrator, to prepare an expert report addressing the responsibilities of school personnel at a school event. Based upon his review of interrogatory answers, deposition transcripts, and exhibits, Geddis wrote a three-page report in which he concluded that Jonathan's injuries were caused by defendants' failure to supervise the children and the event. The trial court held a hearing in accordance with N.J.R.E. 104 to assess the admissibility of the proffered expert testimony. In testimony out of the presence of the jury, Geddis conceded he could not "point to a specific standard which would be commonly held" that supported his conclusions regarding inadequate supervision. The judge ruled that Geddis's proffered expert testimony was inadmissible because it was a net opinion.

At the conclusion of the trial, the jury voted 6-1 that plaintiffs had proven negligence by the board of education and gross negligence by HASA. By votes of 7-0, however, the jury concluded that neither defendant's conduct was a proximate cause of Jonathan's injury. The jury's verdict in favor of defendants was memorialized in an order of final judgment. The trial judge denied plaintiffs' subsequent motion for judgment notwith-standing the verdict or for a new trial on proximate cause and damages. These appeals followed.

II.

Plaintiffs contend that the trial court erred in dismissing by summary judgment their claim of dangerous condition of the property.

To hold a public entity liable for a dangerous condition of its property, the Tort Claims Act requires that plaintiffs prove: 1) that a dangerous condition existed; 2) that the condition created a foreseeable risk of the kind of injury that occurred; and 3) that the dangerous condition proximately caused the injury. Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998). In a case such as this where plaintiffs did not allege public employees themselves created the dangerous condition, see N.J.S.A. 59:4-2a, plaintiffs were also required to prove actual knowledge of the dangerous condition by representatives of the school board or constructive notice within sufficient time to eliminate the danger. N.J.S.A. 59:4-2b, -3; Carroll v. N.J. Transit, 366 N.J. Super. 380, 386-87 (App. Div. 2004). In addition, plaintiffs were required to prove that the public entity's action or inaction with respect to the dangerous condition was "palpably unreasonable." N.J.S.A. 59:4-2; Garrison, supra, 154 N.J. at 286.

Plaintiffs argue there was disputed testimony as to the condition of the gym floor and that the trial court erred in taking away from the jury the issue of whether it was palpably unreasonable for defendant school board not to keep the floor clean during the party. See Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001) (whether a defendant's action or inaction is palpably unreasonable is typically a question of fact for a jury to decide).

We need not decide whether the trial court correctly determined the palpably unreasonable issue by summary judgment. Because appeals are taken from judgments and orders rather than the analysis of the trial court, we need not adopt the trial court's reasoning to affirm a correct result. See, e.g., Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n.8 (App. Div. 2008); Khalil v. Motwani, 376 N.J. Super. 496, 499 (App. Div. 2005); Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993). Here, we conclude that the summary judgment record did not establish a prima facie showing that defendant school board had actual knowledge or constructive notice of the alleged dangerous condition that caused Jonathan's fall. Plaintiffs lacked sufficient evidence to satisfy all elements required under the Tort Claims Act to prove the school board's liability for a dangerous condition of its property.

The knowledge or notice element is satisfied if the public entity "had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3a. Constructive notice, on the other hand, is found "only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3b.

Here, nothing in the record supported a claim that school personnel, or HASA members, actually knew of spills of liquid or food on the gym floor. And with respect to constructive notice of the condition of the floor, no one testified about observing any significant liquid spills until after the accident. While Mrs. Vinci testified about popcorn kernels and crumbs near the location where she spent most of the evening, she had no knowledge of liquid spills other than a small "drop" that she cleaned up near the place she was standing. Additionally, she had no knowledge of the condition of the floor in the area where Jonathan fell. The other parent who witnessed the accident also could not say that he had seen any significant liquid spills on the floor until after his attention was drawn to the allegedly dangerous condition at about the same time as Jonathan's fall. His recollection was that there were spills near the snacks table, but he was uncertain about how long they had been there. Missing from the summary judgment record was any evidence that any representative of defendant school board had the required notice of a "messy" floor in sufficient time to clean it before Jonathan fell.

Even if there was a factual dispute about how "messy" the floor was during the evening, and even if defendants had acted to clean the spills, no one knows how long the puddle that allegedly caused Jonathan to slip was present. The failure of defendants to clean would not have prevented the accident if the spill that allegedly caused the accident occurred only a short time earlier. Consequently, plaintiffs' evidence failed to satisfy either alternative under N.J.S.A. 59:4-3 for establishing notice of the dangerous condition. See Carroll, supra, 366 N.J. Super. at 388-89; Grzanka v. Pfeifer, 301 N.J. Super. 563, 574 (App. Div.), certif. denied, 154 N.J. 607 (1997).

Having determined that plaintiffs could not prove a prima facie case of all the essential elements of N.J.S.A. 59:4-2, we agree with the trial court's pretrial order on summary judgment dismissing the claims of dangerous condition of the property against the school board.

III.

Plaintiffs contend the trial court erred in barring testimony from their liability expert, Donald Geddis. They argue Geddis was experienced as a school administrator and qualified to provide an opinion concerning the degree and nature of supervision that was required for a school event. Also, citing Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988), plaintiffs assert that expert opinion need not in all instances be supported by "a treatise" or similar authority.

The qualifications of an expert and the admissibility of opinion or similar expert testimony are matters left to the discretion of the trial court. State v. Torres, 183 N.J. 554, 572 (2005); Carey v. Lovett, 132 N.J. 44, 64 (1993). Expert testimony is not admissible, however, if it is only a personal opinion of the witness without supporting facts or authority. Riley v. Keenan, 406 N.J. Super. 281, 296 (App. Div.), certif. denied, 200 N.J. 207 (2009); Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 525-27 (App. Div. 2007), certif. denied, 194 N.J. 272 (2008). An expert witness must state the factual bases for his or her conclusions, explain the methodology used to reach those conclusions, and "be able to point to generally accepted, objective standards of practice and not merely standards personal to [the expert]." Riley, supra, 406 N.J. Super. at 296. The expert opinion must permit a jury to "find that the consensus of the particular profession involved recognize[s] the existence of the standard defined by the expert." Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999). A standard of conduct that is personal to the expert and not based on supporting authority in the field of expertise is "equivalent to a net opinion." Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001) (quoting Taylor, supra, 319 N.J. Super. at 180) (internal quotation marks omitted).

Geddis's expert report concluded that defendants had not provided adequate supervision of the party, but it did not explain any source or authority for that conclusion. It was essentially stated as Geddis's personal opinion. Although Geddis testified at the N.J.R.E. 104 hearing that his opinion was based on "knowledge of the standards in the educational field," he ultimately conceded that he was unable to "point to a textbook where those standards are reinforced or enunciated in writing," or to "a specific standard that would be commonly held" in the field. We find no abuse of discretion in the trial judge's exclusion of his opinion testimony.2

IV.

Next, plaintiffs contend the trial court erred in allowing the jury to deliberate on whether defendants' conduct was a proximate cause of Jonathan's injuries. They argue that proximate cause was not in issue at the trial because Jonathan's fall was obviously the cause of his injury. Plaintiffs, however, did not object to the jury charge on proximate cause given by the judge in accordance with Model Jury Charge (Civil), 6.12, "Proximate Cause Where There Is Claim That Concurrent Causes of Harm Were Present" (1998). Therefore, the plain error standard of review applies to plaintiffs' contention on appeal. R. 1:7-2, 2:10-2; Mogull v. CB Commercial Real Estate Grp., 162 N.J. 449, 463-64 (2000).

The trial court's instruction on proximate cause permitted the jury to conclude that Jonathan's accident may have had multiple causes, and that defendants were liable even if the jury found other contributing causes. Unlike Ponzo v. Pelle, 166 N.J. 481, 491-92 (2001), where the defense did not dispute that the plaintiff had injured his knee in the accident, defendants in this case disputed plaintiffs' claims that defendants' wrongdoing was the cause of Jonathan's fractured leg. They disputed that a spill would have been prevented and Jonathan would not have fallen if increased supervision and clean-up had been provided at the party. Because that permissible argument addressed proximate cause, defendants had a right to seek the jury's determination of proximate causation.

We conclude the trial court did not commit plain error in charging the jury on proximate cause.

V.

Plaintiffs argue prejudicial error in defense counsel's opening statement, examination of witnesses, and summation remarks. Primarily, plaintiffs argue defense counsel improperly suggested to the jury that Mrs. Vinci was responsible for her son's accident because she was not supervising him during the party. The trial judge sustained plaintiffs' objections several times to statements and questions in that regard, stating to defense counsel that Mrs. Vinci was not charged with negligence in the case and instructing the jury to disregard counsel's remarks.

We do not see error in defense counsel's remarks and questions. It is not necessary for another individual to be a party formally charged with negligence for a defendant to attribute responsibility to that individual for being a cause of the plaintiff's injury. See Restatement (Second) of Torts 433(a) and cmt. d (1965); Verdicchio v. Ricca, 179 N.J. 1, 25 (2004). Defendants were permitted to point to causes of the accident other than their own alleged fault so long as evidence supported their contentions. Here, inadequate supervision was the basis of plaintiffs' claims. Defendants could suggest that Mrs. Vinci's failure to watch her ten-year-old child was a similar contributing cause of his injury. It was then for the jury to determine whether defendants' actions or inactions were nevertheless a substantial factor in bringing about the accident and therefore a proximate cause of Jonathan's injury.

With respect to other alleged prejudicial remarks of defense counsel, we find insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

VI.

Plaintiffs contend the trial judge erred in denying their post-trial motion for judgment notwithstanding the verdict or, alternatively, for a new trial on proximate cause and damages. As a threshold matter, defendants correctly respond that plaintiffs were procedurally barred from moving for judgment notwithstanding the verdict because they did not make such a motion, or its equivalent, during the trial. See Velazquez v. Jimenez, 336 N.J. Super. 10, 34 (App. Div. 2000), aff d, 172 N.J. 240 (2002); Sun Source, Inc. v. Kuczkir, 260 N.J. Super. 256, 266 (App. Div. 1992) (a party that does not move for judgment at the close of a case, or does not make "an adequate substitute for the requisite trial motion," may not subsequently move for judgment notwithstanding the verdict), certif. denied, 133 N.J. 439 (1993). In moving for relief after the trial pursuant to Rule 4:40-2, plaintiffs acknowledged they had not moved for judgment during trial. Despite this procedural bar, we have considered plaintiffs' arguments on appeal and find them without merit for the same reasons that we find no error in denial of their motion for a new trial.

Plaintiffs were not entitled to a new trial pursuant to Rule 4:49-1. "The standard of review on appeal from decisions on motions for a new trial is the same as that governing the trial judge whether there was a miscarriage of justice under the law." Risko v. Thompson Muller Auto. Grp., 206 N.J. 506, 522 (2011).

The thrust of plaintiffs' argument is that the jury's verdict that defendants were negligent or grossly negligent but that their actions or inactions were not a proximate cause of Jonathan's injury demonstrates "clear mistake [or] injustice" warranting relief. But a jury is permitted to determine that a defendant's wrongful conduct was not a proximate cause of the injuries for which plaintiff has brought a claim. See, e.g., Baboghlian v. Swift Elec. Supply Co., 197 N.J. 509, 515, 521 (2009); Newmark-Shortino v. Buna, 427 N.J. Super. 285, 290, 309 (App. Div. 2012).

Having heard all the evidence, the trial court applied the well-established standard enunciated in Dolson v. Anastasia, 55 N.J. 2, 4-5 (1969), and denied plaintiffs' motion for a new trial. We find no reason to disturb that ruling. The jury's verdict was not "clearly the product of mistake, passion, prejudice or partiality." Lanzet v. Greenberg, 126 N.J. 168, 175 (1991).

VII.

We do not find sufficient merit to warrant discussion in this opinion of plaintiffs' additional arguments that the verdict form should have separated questions pertaining to negligence based on failure to supervise and negligence based on failure to maintain the premises, or in plaintiffs' argument alleging cumulative error. R. 2:11-3(e)(1)(E).

Finally, having rejected plaintiffs' contentions on appeal, we need not discuss issues raised by the cross-appeal regarding whether the evidence could have supported a claim of gross negligence and whether the trial court erred in denying full summary judgment to the board of education.

1 HASA was incorrectly identified in plaintiffs' complaint as Parent Teachers Association of the Clifton Board of Education.

2 Although the issue has not been briefed, we question whether a liability expert was needed for the jury to understand the evidence and make a determination as to adequacy of supervision at the school event. To be admissible under N.J.R.E. 702, the subject matter of the expert's testimony must be "beyond the ken of the average juror." State v. Kelly, 97 N.J. 178, 208 (1984). Most jurors can understand without expert testimony the level of supervision needed to prevent accidents at a children's party.

Also, Geddis's report and plaintiffs' brief contend that defendants failed to adhere to board of education policy requiring that they hire a special police officer when attendance at an after-school event exceeds seventy-five people. The absence of a special police officer does not appear relevant to the slip and fall accident in this case. An officer at such an event is unlikely to have been hired to supervise children or attend to the cleanliness of the room.