STRATUS NICOLAS v. RIVERVIEW TOWERS APARTMENT CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STRATUS NICOLAS,

Plaintiff-Appellant,

v.

RIVERVIEW TOWERS

APARTMENT CORPORATION,

Defendant-Respondent.

________________________________________________________________

February 12, 2015

Submitted July 8, 2014 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1316-12.

Drazin & Warshaw, P.C., attorneys for appellant (Steven L. Kessel, on the briefs).

Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (Anna Krepps and Walter F. Kawalec, III, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Plaintiff suffered a tear to his rotator cuff when the metal fire door to the laundry room in his co-operative apartment building (defendant) closed on him as he was pushing his laundry cart through the door. He alleged that defendant was liable because either the door was defective or defendant was negligent because the door slammed too hard upon him. No expert testimony was presented to support these allegations. Plaintiff appeals from an order that granted summary judgment to defendant. We affirm.

Viewing the evidence in the light most favorable to the non-moving party, R. 4:46-2(c), we determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). Plaintiff testified that on the day he was injured, he opened the door all the way and held onto his laundry cart as he walked through. He stated,

[T]he door closed because there was nothing holding it, and it hit my right rotator cuff and . . . I really went over like this, and if you went over there today, right now, and saw what that door is capable of doing and they have nothing up there on that door on the inside or the out, you know, one of those stoppers.

Nothing slows down the movement of the door and, as a result, the door "bangs shut." Plaintiff stated that the door had previously been propped open with a hanger, which was removed when a new superintendent came in, and a door stopper, which was removed when a resident complained that it was illegal to prop the door open.

As plaintiff noted, the door in question is a fire door. Fire codes in New Jersey are governed by the 2009 International Building Code (IBC), New Jersey Edition. Section 715.4.8 states, "Fire doors shall be self- or automatic-closing in accordance with this section." Self-closing "means equipped with [a] device that will ensure closing after having been opened." Id. 702.1. No evidence was presented that the fire door here failed to comply with applicable building and fire codes.

In this appeal, plaintiff argues that no expert was needed to prove that a door is in a dangerous condition if it closes too hard as to cause physical injury.1 In short, he contends that the fact he was injured when the door closed is sufficient to meet his burden of establishing a prima facie case of negligence. We disagree.

"[A] negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013). In Davis v. Brickman Landscaping, Ltd., our Supreme Court addressed the question whether there was a need for expert testimony to determine the issues of duty and breach where the alleged negligence concerned the inspection of fire sprinklers, a matter governed by fire safety codes. 219 N.J. 395 (2014). The Court noted that the uniform fire safety code was promulgated by the Department of Community Affairs at the directive of the Legislature, N.J.S.A. 52:27D-198(a), as part of

a comprehensive legislative effort to establish uniform codes for residential and commercial construction throughout the State To that end, the UFC or the current State Fire Prevention Code provides the standard of care absent competent expert testimony that a standard of care other than the UFC or its successor is generally recognized in the fire prevention field.

[Id. at 412 (citations omitted).]

The Court observed that "New Jersey's fire codes and standards are particularly complex," and concluded that "familiarity with th[e] standard [established in the fire safety code] . . . is necessary to determine the appropriate standard of care by which to assess defendants' conduct." Id. at 409. Because this is a matter beyond the ken of the average juror, "identification of the relevant standard and any departure from that standard requires expert testimony." Ibid.

Although safety codes "do not establish the complete duty" of an alleged tortfeasor, they do "represent minimum standards" that provide "evidence of due care." Id. at 411-12 (quoting Black v. Pub. Serv. Electric & Gas Co., 56 N.J. 63, 77 (1970)).

Therefore, although evidence of compliance with the fire safety code would not be dispositive of the issues of duty and breach here, compliance with the fire safety code was a necessary threshold issue for the determination of these issues. As the Court held in Davis, in the absence of competent expert testimony that a standard of care other than the fire safety code applied here, the fire safety code provided the applicable standard of care and expert testimony was required to explain to the jury whether there was compliance with that standard.

Affirmed.

1 Plaintiff also argues that the Law Division lacked jurisdiction to enter an order of dismissal pursuant to R. 4:21A-6(b) after summary judgment had been granted and a notice of appeal was filed. This argument does not merit discussion in a written opinion. R. 2:11-3(e)(1)(E).