KAREN TURKOWSKI v. STANBERY HAMILTON, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KAREN TURKOWSKI, as EXECUTRIX

OF THE ESTATE OF CAROL HELTON,

Plaintiff-Appellant/

Cross-Respondent,

v.

STANBERY HAMILTON, LLC,

Defendant-Respondent/

Cross-Appellant,

and

RACK ROOM SHOES, INC.,

Defendant/Third-Party

Plaintiff-Respondent,

v.

MANAGEMENT RESOURCES SYSTEMS, INC.,

Third-Party Defendant/

Fourth-Party Plaintiff-Respondent,

v.

ACCARPIO ALL FLOORS, LLC, and

MANNY STEIN, INC.,

Fourth-Party Defendants-Respondents.

March 31, 2014

Argued March 18, 2014 Decided

Before Judges Alvarez, Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-179-10.

Jill R. Cohen argued the cause for appellant/cross-respondent (Eckert Seamans Cherin & Mellott, attorneys; Michael A. Spero, of counsel and on the brief; Ms. Cohen, on the brief).

Bernard J. Tkaczynski argued the cause for respondent/cross-appellantStanbery Hamilton, LLC (Law Offices of William E. Staehle, attorneys; Mr. Tkaczynski, of counsel and on the brief).

J.R. Peter Wilson argued the cause for respondent Rack Room Shoes, Inc. (Linda S. Baumann, attorney; Mr. Wilson, on the brief).

Francis T. McDevitt argued the cause for respondent Management Resources Systems, Inc. (Naulty, Scaricamazza & McDevitt, attorneys; Mr. McDevitt, of counsel and on the brief).

Jonathan S. Robinson argued the cause for respondent Accarpio All Floors, LLC (Terkowitz & Hermesmann, attorneys; Mr. Robinson, on the brief).

Stephen B. Fenster argued the cause for respondent Manny Stein, Inc. (Schenck, Price, Smith & King, attorneys; Mr. Fenster, of counsel; Valerie A. Vladyka, on the brief).

PER CURIAM

Plaintiff Carol Helton appeals from the January 15, 2013 summary judgment dismissal of her trip-and-fall personal injury action.1 We affirm.

I.

Because this matter comes to us from the motion court's grant of summary judgment in favor of defendants (the moving parties), we view the evidence in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On August 30, 2009, plaintiff, then seventy-seven years old, accompanied her daughter to defendant Rack Room Shoes, Inc. (Rack Room), a retail shoe store in Hamilton, New Jersey. Rack Room is located in a shopping mall known as the Shoppes at Hamilton, which is owned and operated by defendant Stanbery Hamilton, LLC (Stanbery). After initially waiting in the car, plaintiff entered the store and asked an employee if she could use the restroom. She was then directed through the store and to the back stockroom where the restroom was located. While walking through this storage area, plaintiff tripped on or near a metal drain cleanout cover in the floor, causing her to fall and sustain personal injury. Discovery revealed that a three-sixteenth inch height differential existed between the vinyl floor and the metal cap for the sewer clean-out, which plaintiff alleged constituted a dangerous or unsafe condition.

When Rack Room originally rented the premises, Stanbery provided it with a "shell" that included a plumbing "stubout" for a sewer connection. Rack Room then hired defendant Management Resources Systems, Inc. (MRS) to construct the interior of the store to Rack Room's specifications. MRS in turn engaged subcontractors for the plumbing work (defendant Manny Stein, Inc.) and installation of the vinyl tile flooring (defendant Accarpio All Floors, LLC). Plaintiff alleged that the area where she fell was not properly constructed, and required warning as to its dangerous condition.

To establish liability, plaintiff retained Wayne F. Nolte, Ph.D., P.E., as her expert. Nolte has some thirty years experience as a civil engineer. He conducted a site inspection on December 15, 2010, during which he made observations and took measurements and photographs of the area identified by plaintiff where her fall occurred. He then prepared an expert report, and was deposed on May 3, 2012.

EDS was the architectural firm retained by Rack Room to prepare the plans for the "fit-out" of the interior of the store. Nolte maintained that the drain cover and vinyl flooring were improperly installed based on the architectural plans that showed the vinyl flooring was to be level with the drain cover. As noted, upon measuring he found the elevation difference between two to three-sixteenth of an inch. Consequently he opined that "[h]ad the floor been constructed as shown in the construction plan detail, an elevation differential would not have existed and nothing would have been on the floor at that location to have caused Carol Helton to trip and fall." Nolte ultimately concluded that the failure to construct the floor with a level surface as depicted on the plans caused plaintiff to fall.

However, during his deposition, Nolte admitted that this variation did not violate any known construction code or regulation. He acknowledged that a three-sixteenth inch height differential does not violate the Uniform Construction Code, which allows for a depression of up to one-quarter inch. He also conceded that during construction there are certain tolerances which are permitted from design plans.

Following discovery, defendants moved for summary judgment, and to bar Nolte's report and testimony as a net opinion. On January 15, 2013, Judge Darlene Pereksta found that Nolte's report amounted to an inadmissible net opinion. The judge explained that under the net opinion rule encompassed in N.J.R.E. 703, there must be some evidentiary support that provides the background reasoning and standard that form the expert's opinion. In his expert report and deposition testimony, Nolte did not cite to any industry standards, codes or regulations that would require warning for the three-sixteenth inch depression in the floor. The court ultimately reasoned that because Nolte's only basis for finding a dangerous condition existed was the deviation from the architect's plan, that was insufficient to establish negligence in failing to warn Helton of the presence of the drain cover.

Judge Peretska next considered whether plaintiff could establish defendants' alleged negligence in the absence of a liability expert. She reiterated plaintiff's argument that a dangerous condition existed "because the drain and the floor are not in compliance with the architectural design plans," and concluded that such claim failed in the absence of competent expert testimony. Summarizing, the judge concluded:

I note the law doesn't require perfection and plaintiff's argument that because the floor as built was not perfectly flat as [s]he alleges was implicitly called for in the plans, and again I note the plans don't say do not accept any tolerances when building this floor, their plans just show a floor that's level with the drain.

But again noting that there is this acceptable differential, this acceptable tolerance in the industry, the mere fact, and that's all that plaintiff argues, is evidence of a dangerous condition that the floor as built was not perfectly flat per the plans, [s]he argues that constitutes a dangerous condition and I disagree.

I think plaintiff needs to . . . make out a prima facie case to prove negligence here. I don't find that a reasonable jury could[,] based on that[,] find in favor of the plaintiff and that's the standard on summary judgment. So for that reason I am granting the motions to dismiss the plaintiff's complaint.

II.

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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). Under this rule, "[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.; see alsoBrill, supra, 142 N.J.at 523.

The party opposing summary judgment "'must do more than simply show that there is some metaphysical doubt as to the material facts[,]'" Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3rd Cir. 1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993)), as "[c]ompetent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Exp. Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005), appeal dismissed, (Jan. 3, 2006)).

We review the matter de novo and are governed by the same standard governing the motion court under Rule 4:46-2(c). Khandelwal v. Zurich Ins. Co., 427 N.J. Super. 577, 585 (App. Div.), certif. denied, 212 N.J. 430 (2012). Thus, the trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

To establish premises liability, plaintiff bears the burden of proving that the premises owners breached the duty of care owed to her. Jerista v. Murray, 185 N.J. 175, 191 (2005). "Business owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). This duty arises out of the fact that business owners "are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm." Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997) (citation omitted).

Owners of premises generally are not liable for injuries caused by defects for which they had no actual or constructive notice and no reasonable opportunity to discover. Nisivoccia, supra, 175 N.J. at 563; Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). For that reason, "[o]rdinarily an injured plaintiff . . . must prove, as an element of the cause of action, that the defendant[s] had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563.

In addition, "[n]egligence 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).

Plaintiff contends the motion judge erred in finding that Nolte's opinions, as expressed in his report and deposition, were net opinions. Plaintiff additionally contends that even if the judge properly excluded Nolte's testimony, summary judgment should not have been granted because expert testimony was not necessary to prove defendants' negligence. We disagree with both contentions.

We apply a "deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.344, 371 (2011). "[A] court must ensure that the proffered expert does not offer a mere net opinion." Id.at 372. A net opinion is "an expert's bare opinion that has no support in factual evidence or similar data." Ibid.

An expert witness's opinions that are not reasonably supported by the factual record and an explanatory analysis from the expert may be excluded as net opinion. Creanga v. Jardal, 185 N.J.345, 360 (2005); accordGreenberg v. Pryszlak, 426 N.J. Super.591, 607 (App. Div. 2012). In general, an expert should provide the "whys and wherefores" supporting his or her analysis. Beadling v. William Bowman Assocs., 355 N.J. Super.70, 87 (App. Div. 2002). As we have explained, "'[e]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.'" Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.) (alterations in original) (quoting Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 146 N.J. 569 (1996).

"[I]f an expert cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is 'personal,' it fails because it is a mere net opinion." Pomerantz, supra, 207 N.J. at 373. Indeed, we have stressed that "opinion testimony 'must relate to generally accepted . . . standards, not merely to standards personal to the witness.'" Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999) (omission in original) (quoting Fernandez v. Baruch, 52 N.J. 127, 131 (1968)); see also Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001) (discussing that the court in Taylor was "concerned by 'the total absence in [plaintiff's expert's] testimony of reference to any text book, treatise, standard, custom or recognized practice, other than his personal view.'") (alteration in original) (quoting Taylor, supra, 319 N.J. Super. at 182)). "A standard which is personal to the expert is equivalent to a net opinion." Taylor, supra, 319 N.J. Super. at 180.

Here, Nolte was unable to point to any objective industry standard that the three-sixteenth inch height differential between the flooring and the drain cap constituted a dangerous condition. In fact, he conceded that deviations from the architectural plans may be allowable during construction, and that the Uniform Construction Code allows tolerances of up to one-quarter inch, thus bringing the alleged construction defect here within the ambit of acceptable tolerances.

We do not question that Nolte has extensive experience as a civil engineer. And while evidential support for an expert opinion may include what the expert has learned from personal experience,2 that experience, in turn, must be informed and given content and context by generally accepted standards, practices, or customs of the pertinent industry. Here, the opinion rendered appeared personal to Nolte and was not based on any industry standards. Consequently, the judge did not abuse her discretion in excluding Nolte's testimony.

Next, we reject plaintiff's claim that expert testimony was not necessary to assist the jury in resolving the disputed issue of whether the three-sixteenth inch height differential between the flooring and the metal cap constituted a dangerous condition. Whether the construction was proper requires a detailed analysis of the architectural plans, when and how much deviation from the plans is allowable, and the applicable building codes and standards. Again, we reiterate that the mere fact that plaintiff fell and was injured is not alone sufficient to establish an inference of negligence. See Vander Groef, supra, 32 N.J. Super. at 370; Simpson v. Duffy, 19 N.J. Super. 339, 343 (App. Div.), certif. denied, 10 N.J. 315 (1952). Here, a determination of whether the height differential created a hazard sufficient to constitute an unreasonably dangerous condition is "beyond the ken of the average juror." State v. Kelly, 97 N.J. 178, 208 (1984). Expert testimony is needed to exclude other possible causes of the accident, especially since plaintiff offered differing versions of how she fell.3

The motion judge, having properly excluded Nolte's testimony as a net opinion, also properly granted summary judgment dismissal of plaintiff's complaint, as without such expert proof, no reasonable jury could have found negligence on the part of any of the defendants.4

1 Plaintiff has since passed away, and on July 16, 2013, we entered an order substituting her Executrix, Karen Turkowski, in her stead and amending the caption accordingly. For purposes of this opinion, plaintiff shall be understood to refer to Carol Helton.

2 See Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002).

3 Helton informed Nolte that she fell because her toe on her right foot came in contact with the raised edge of the utility cap and floor tile. Helton's answers to interrogatories stated that she tripped on the round metal plate that was below the floor level. During her deposition, Helton explained that "[a]ll of a sudden I tripped and I felt that my sneaker was being caught in something and I couldn't get out of it." She then testified that her left foot came in contact with a metal cap on a drain in the floor that "seemed depressed" and thought that this is where she "probably . . . got [her] sneaker caught."

4 Because we find the court properly barred Nolte's testimony and report as a net opinion, we need not address the other reasons proffered by Stanbery on its cross-appeal that the court should have granted summary judgment in its favor.