CHRISTOPHER FUNARI v. AMERICAN WATER WORKS SERVICE CO.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4522-11T2

CHRISTOPHER FUNARI,

Plaintiff-Appellant,

v.

AMERICAN WATER WORKS SERVICE

CO. and NEW JERSEY AMERICAN

WATER,

Defendants-Respondents.

_______________________________

June 5, 2013

Submitted March 20, 2013 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-569-11.

Saffren & Weinberg, attorneys for appellant (Richard A. Wolfe and Kenneth S. Saffren, on the brief).

Hurvitz & Waldman, LLC, attorneys for respondents (Mitchell Waldman and Joshua K. Givner, on the brief).

PER CURIAM

Plaintiff Christopher Funari appeals from the trial court order granting summary judgment and dismissing his personal injury action. We affirm.

Plaintiff leased property in Carney's Point on which a manhole was located. The manhole was owned by defendant utility company, American Water Works Service Company and New Jersey American Water ("Water Works"). Plaintiff claimed that he stepped on the corner of the manhole cover and his leg fell into the manhole. He sued the landlord, the management company and Water Works. Water Works was the only party who answered the complaint. It later moved for summary judgment, arguing that dismissal of plaintiff's complaint was warranted because plaintiff failed to produce expert testimony raising a genuinely disputed issue of fact that defendant breached a duty of care owed to plaintiff, which was causally related to the injuries plaintiff allegedly sustained. The motion judge agreed and granted summary judgment dismissing plaintiff's complaint with prejudice.

On appeal, plaintiff contends the trial court "manifestly abused its discretion" in granting summary judgment "where the photographs of the accident location, water meter maintenance records and water meter reading records demonstrate that genuine issues of material fact exist as to whether the [de]fendant failed to properly and/or adequately maintain its water meter pit." We disagree.

At the outset, a trial court's grant or denial of a summary judgment motion is not reviewed under an abuse of discretion standard, as plaintiff urges. Rather, summary judgment must be granted, as a matter of law, if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that 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). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995). On appeal, we employ the same standard, deciding first whether there was a genuine issue of material fact. Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011). If there was not, we then must decide whether the judge's ruling on the law was correct. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Legal conclusions are subject to de novo review. Ibid.

Next, contrary to the argument advanced in this appeal, before the motion judge, plaintiff failed to present "water meter maintenance records and water meter reading records" which, before us, he claims demonstrate that there were genuinely disputed issues of fact established sufficient to defeat summary judgment. As Judge Anne McDonnell noted in her oral decision granting summary judgment:

Here, this is not a complex piece of machinery. The [p]laintiff still, however, has the obligation to establish the negligence of the defendant. It could be done through the defendant's own records, or deposition of defendant's representative, whether it's as to the maintenance or the lack thereof, schedules for meter readers; but there's nothing to indicate that the [p]laintiff has obtained this information.

To the extent plaintiff is of the view the trial court erroneously believed he was not in possession of any documentation to support his negligence claims, the court's belief was invited by plaintiff's failure to present such documentation to the court in support of his opposition to the motion. Plaintiff, in his appellate brief, urges that the documentation was not provided to the motion judge because defendant's basis for seeking summary judgment was limited to the absence of an expert report.

Before the motion judge, plaintiff's counsel represented that plaintiff was not pursuing a theory of negligence based upon res ipsa loquitur. Plaintiff simply argued that expert testimony was not necessary because of the "nature of the defect and the flipping of the cover is something that would happen as a result of a failure to inspect, a failure to repair. It wouldn't flip if the cover's doing . . . what it's supposed to do." Whether flipping of the cover would only result from a failure to inspect or a failure to repair requires expert testimony, not simply argument set forth in a brief.

Most important, however, is the motion judge's reasoning in granting summary judgment. She did not premise her ruling solely upon the absence of expert testimony. Rather, as we noted earlier, she additionally noted defendant failed to raise a genuinely disputed issue of fact "through the defendant's own records, or deposition of defendant's representative, whether it's as to the maintenance or lack thereof, schedules for meter readers; but there's nothing to indicate that the [p]laintiff has obtained this information." No attempt was made, at that point, to explain to the judge that there was documentation which was not presented because defendant was seeking summary judgment based solely upon the legal premise that expert testimony is required to establish defendant's negligence. Nor did plaintiff seek reconsideration in order to urge that the court erred in reaching its decision based upon the absence of documentation when the sole issue before the court was the legal question of whether expert testimony is required to support plaintiff's claim.

Because we are satisfied expert testimony is required to support plaintiff's theory of negligence, the motion judge properly granted summary judgment as a matter of law. Moreover, we are equally persuaded that had plaintiff supported his opposition to defendant's motion with the documentation presented to us, albeit contrary to Rule 2:6-1, the outcome would not have been different.

The maintenance records and photographs which plaintiff relies upon do not raise a genuinely disputed issue of fact sufficient to warrant denial of defendant's motion. The maintenance records confirm that a meter was changed. Although it is unclear whether that occurred on October 14, 2008, we presume for purposes of summary judgment that the meter change occurred on that date. Likewise, we also presume that the service order dated January 2009 reflects a meter reading during this time period. There is, however, no indication that the meter cover or manhole was left in a dangerous condition following servicing on these dates. Finally, even assuming the post-accident photographs of the manhole and the service record confirm the existence of a gap between the manhole cover and the resulting need for topsoil, this evidence does not establish how long this condition existed nor defendant's actual or constructive notice of this condition prior to plaintiff's accident.

"Negligence is a fact which must be shown and which will not be presumed." Long v. Landy, 35 N.J. 44, 54 (1961). "[T]he mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence." Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954) (internal quotation marks omitted). Here, plaintiff conducted no depositions from which evidence may have been revealed about how the meter change was performed, how meter readings were performed, when inspections were conducted, and the frequency of any inspections. Thus, when the facts are viewed most favorably towards plaintiff, Brill, supra, 142 N.J. at 529-30, plaintiff has only established the fact of an accident and defendant's control and maintenance of the manhole. These facts, without more, were insufficient to raise genuinely disputed issues of fact sufficient to defeat summary judgment.

Affirmed.