RITA NARDI v. RBB ENTERPRISES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RITA NARDI,

Plaintiff-Appellant,

v.

RBB ENTERPRISES, INC.,

d/b/a PINSETTER BAR &

BOWL,

Defendant-Respondent.

_________________________________

August 26, 2016

Argued January 4, 2016 Decided

Before Judges Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-772-13.

Robert J. Hensler argued the cause for appellant.

James A. Kassis argued the cause for respondent (Schenck, Price, Smith & King, LLP, attorneys; Mr. Kassis and Sandra Calvert Nathans, on the brief).

PER CURIAM

Plaintiff Rita Nardi appeals from an October 10, 2014 Law Division order entering summary judgment in favor of RBB Enterprises, Inc., doing business as Pinsetter Bar & Bowl (Pinsetter) and dismissing her personal injury action with prejudice. Plaintiff argues on appeal the trial court misapplied the summary judgment standard, substituted its experience for that of plaintiff's expert, and improperly disregarded the expert's opinion in deciding Pinsetter owed no duty to plaintiff. For the reasons that follow, we reverse and remand.

Plaintiff commenced this action in February 2013, describing in her complaint how she fell while bowling: "She proceeded toward the alley, and attempted to release the ball. Suddenly, she slipped and fell, falling hard to the surface. As a result of the fall, she fell hard on her head, body and hands. She sustained serious personal injuries." Plaintiff alleged she fell as the result of Pinsetter's negligence.

Pinsetter filed an answer with affirmative defenses. Discovery ensued. Following discovery, Pinsetter filed a summary judgment motion. In its short supporting statement of facts, Pinsetter stated: "Plaintiff testified [at her deposition] that she does not recall what happened during the accident . . . . Plaintiff also testified that she slipped on the lane. However, she did not mention what caused her to slip." Based on these facts, Pinsetter argued plaintiff had "failed to demonstrate that defendants have breached any duty to plaintiff." Pinsetter made no reference to plaintiff's expert report, challenging neither the expert's qualifications nor the admissibility of the expert's opinions.

Plaintiff opposed the motion by submitting an excerpt from her deposition, six witness statements, and an expert report.1 When deposed, she could not recall how her accident happened

Q. [W]hen you bowled, what happened[?]

A. I walked up to the lane and threw the ball.

Q. And then what happened?

A. I don't recall.

Q. Did you slip?

A. Yes.

Q. On what?

A. The lane.

Q. Where in the lane? Do you know was - - is there something called a line that you're not supposed to go over? Were you aware of that?

A. No.

In a certification, plaintiff elaborated on her deposition testimony. Acknowledging she had not recalled exactly where her feet were when she fell, she averred her feet "suddenly went out from under [her], and [her] legs flew into the air." She further averred she learned from those who witnessed the accident that her "foot went just beyond the 'foul line' (a term with which [she] was not familiar [when the accident occurred])."

Plaintiff also submitted statements from six witnesses. One witness did not see the accident but had knowledge about plaintiff's injuries. One witness gave a specific account of where plaintiff fell in relation to the foul line

I was standing almost directly behind [plaintiff] behind the seats so I could watch the game while waiting for my turn and I observed her step up to the lane to bowl. [Plaintiff] went to throw the ball and as she did her right foot slipped on the floor just past the foul line. As [plaintiff] was falling backwards I observed the bowling ball go up into the air and come down hitting the lane and made a loud bang as it did. I also observed [plaintiff's] right arm go back and her right hand hit the floor.

The other four witnesses were less precise about where plaintiff fell. One reported plaintiff fell "in the vicinity of the 'foul line.'" The other three signed certifications containing identical language: "My recollection is that the incident occurred at or near the area of the 'foul line,' for the lane in which [plaintiff] was bowling." One of the three handwrote next to this typewritten language, "I saw [plaintiff] on ground cannot say if before or after foul line." The witnesses also discussed in their statements how slippery the lane was in the area plaintiff fell.

Plaintiff submitted the report of a professional engineer, Dr. C.J. Abraham, a specialist "in safety engineering and design." According to the report, Dr. Abraham was a "specialist in sports accident reconstruction, human factors analysis, safety analysis, risk analysis, forensic investigations, warnings and instructions, supervising in a variety of areas including, but not limited to bowling alleys." The document also stated Dr. Abraham was "experienced and knowledgeable in acceptable, good and customary safety practices, policies, codes, rules and regulations in sports, recreational activities including, but not limited to, bowling alleys, parks, playgrounds, paintball facilities and nursing homes to name a few."

Among other things, Dr. Abraham's report concluded Pinsetter uses a computerized system which is connected to the foul line. During recreational bowling, such as when plaintiff was injured, the foul signal was turned off, because if a player crossed the foul line when the foul signal was active, the system would not record the number of pins knocked down. According to Dr. Abraham, deactivating the signal "allows individuals to go past the foul line and contaminate their shoes with oil and walk back on to the approach area creating a hidden and dangerous risk to other bowlers using the same lane." In Dr. Abraham's opinion, this "made the system defective as to the safety and welfare of the invitees and overall supervision by the management and employees of [defendant]." According to Dr. Abraham, defendant could rectify this situation by: turning on the foul signal, but still allowing pins to be counted; expanding the width of the foul line from six to twelve inches; moving oil placement back six inches from the foul line; posting additional warnings as to the slippery nature of the lane; using oil that was colored instead of invisible; wiping down the balls; and providing better supervision.

Immediately following the entry of the attorneys' appearances at oral argument, the court summarized the motion and commented, "[p]laintiff has an expert who expresses numerous opinions that, in my view, are primarily net in nature." During argument, the court also commented that nothing in the three pages containing the expert's qualifications "shows he's an expert in bowling." The court also commented it had been involved with bowling alleys since being a teenager.

Plaintiff's attorney pointed "that the sole basis for [Pinsetter's] Motion for Summary Judgment was simply that [plaintiff] didn't know precisely where she fell. So I went out and I addressed that issue, which was the sole basis for the Motion for Summary Judgment." Plaintiff's attorney also pointed out Pinsetter had not addressed many issues plaintiff had raised, including the expert report.

The court granted Pinsetter's motion, stating

The standard of care applicable to a business invitee requires the owner or operator of the premises to inspect the premises, and to correct those dangerous conditions.

There has been no industry standard identified which has been violated by the defendant. Many of the opinions expressed by [plaintiff's] experts are net opinions, many of them are opinions that are personal to him and not a comment or exposition of the industry standard. To adopt plaintiff's argument would mean that every single lane in every single bowling alley in the entire country was in a dangerous condition because it was slippery. Slippery is a necessary condition in bowling alleys because that's what helps the ball go down the alley.

I find that there has been no violation of any standard identified and the [m]otion for [s]ummary [j]udgment will be granted.

Plaintiff appealed from the court's implementing order.

When a party appeals an order granting summary judgment, our review is "in accordance with the same standard as the motion judge." Globe Motor Co. v. Igdalev, __ N.J. __, __ (2016) (slip op. at 19) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Under that standard, a party is entitled to summary judgment "if 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).

The summary judgment rule set forth in Rule 4:46-2 "serve[s] two competing jurisprudential philosophies": first, "the desire to afford every litigant who has a bona fide cause of action or defense the opportunity to fully expose his case," and second, to guard "against groundless claims and frivolous defenses," thus saving the resources of the parties and the court. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 541-42 (1995) (quoting Robbins v. Jersey City, 23 N.J. 229, 240-41 (1957)). In light of the important interests at stake when a party seeks summary judgment, the motion court must carefully evaluate the record in light of the governing law, and determine the facts in the light most favorable to the non-moving party. R. 4:46-2(c).

[Globe Motor Co., supra, __ N.J. at (slip op. at 19) (alteration in original).]

On appeal, plaintiff argues, among other things, the trial court substituted its experience from its involvement with bowling alleys for that of the expert. Plaintiff reiterates "[t]he only issued raised by [Pinsetter] on its summary judgment motion] was that plaintiff allegedly did not specifically recall where she fell."

The summary judgment rules have been amended over the years to ensure, among other things, litigants have an opportunity to be heard at a meaningful time and in a meaningful manner, a fundamental element of due process. Seoung Ouk Cho v. Trinitas Reg'l Med. Ctr., 443 N.J. Super. 461, 473 (App. Div. 2015), certif. denied, 224 N.J. 529 (2016). The time requirements of the summary judgment rules serve this purpose.

Similarly, the requirement that a summary judgment motion be served with a statement of material facts "set[ting] forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue," R. 4:46-2(a), "is intended 'to focus the parties' attention on the areas of actual dispute' and 'significantly facilitate the court's review.'" Seoung Ouk Cho, supra, 443 N.J. Super. at 474 n.6 (quoting Pressler and Verniero, Current N.J. Court Rules, comment 1 on R. 4:46-2). If a moving party's statement of material facts focuses the parties' attention on a narrow area of dispute, and a court decides the motion on a different area of dispute, then the summary judgment rules have been compromised and the opposing party has been deprived of the opportunity to be heard at a meaningful time and in a meaningful manner. That is what happened here.

Pinsetter's summary judgment motion was based on plaintiff's deposition testimony that she did not know where she fell. Plaintiff addressed that issue by submitting witness statements. Pinsetter's statement of material facts did not mention, let alone attack, plaintiff's expert's opinion, nor did Pinsetter's supporting brief mention it. Yet, the court decided the motion on the basis of an issue Pinsetter had not raised, namely, plaintiff's expert report expressed incompetent net or personal opinions. Plaintiff was deprived of the opportunity to provide a meaningful response to the issue raised sua sponte by the court.

We note our Supreme Court has cautioned against barring an expert report, particularly if doing so will be dispositive of a case, when the expert has not had the opportunity to explain his opinions through testimony

Although the parties did not request a Rule 104 hearing, we hold that it was plain error for the trial court not to conduct an evidentiary hearing in order to determine the reliability of plaintiffs' expert testimony. We fully agree with the Third Circuit's observation in In re Paoli [R.R. Yard PCB Litig.], 916 F.2d [829,] 854 [3d Cir. 1990] (internal citations omitted)

The adversarial process upon which our legal system is based assumes that a fact finder will give the parties an adequate opportunity to be heard; if it does not, it cannot find facts reliably. Thus, the detailed factual record requirement, firmly entrenched in our jurisprudence, requires adequate process at the evidentiary stage, particularly when a summary judgment may flow from it.

Moreover, although the need for a hearing is remitted to the trial court's discretion, in cases in which the scientific reliability of an expert's opinion is challenged and the court's ruling on admissibility may be dispositive of the merits, the sounder practice is to afford the proponent of the expert's opinion an opportunity to prove its admissibility at a Rule 104 hearing.

[Kemp ex rel. Wright v. State, 174 N.J. 412, 432-433 (2002) (alteration in original).]

The case before us does not involve the scientific reliability of an expert's opinion. Nonetheless, Dr. Abraham's report contained sufficient detail to avoid a "net opinion" challenge based on its four corners, let alone a sua sponte ruling in the context of the summary judgment standard, which required the evidence to be construed in the light most favorable to plaintiff, the non-moving party.

The trial court emphasized the expert had cited no industry standards. The report stated, however, the expert was "experienced and knowledgeable in acceptable, good and customary safety practices, policies, codes, rules and regulations in sports, [and] recreational activities including, but not limited to, bowling alleys." Whether the expert's opinions concerning warnings or the other safety measures he referenced in the report were based on the "customary safety practices, policies, codes, rules and regulations" in the industry an issue Pinsetter had not raised is not an issue that should have been resolved on summary judgment, sua sponte, by the court. An expert may testify to "the logical predicates for and conclusions from statements made in the report." McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div. 1987).

Our opinion should not be construed to suggest the expert either is or is not qualified to render opinions concerning the safety of the bowling lanes where plaintiff fell; or, that he either has or has not rendered a net opinion. Rather, we are reversing the summary judgment order because the court decided the motion based on its conclusion the expert's report contained a net opinion, an issue not raised by Pinsetter, and thus an issue at to which plaintiff was deprived of the opportunity to be heard in a meaningful time and in a meaningful manner.2

For the foregoing reasons, we reverse the order granting summary judgment and remand the matter for further proceedings consistent with this opinion. Because the motion judge has improvidently determined the issues concerning plaintiff's expert, the case should be heard by a different jurist.

Reversed and remanded.

1 Plaintiff also submitted other documentary evidence, including the parties' original pleadings, her interrogatory answers, and medical records.

2 On the incomplete record before us, particularly in view of the question concerning the existence or non-existence of industry standards, we decline to decide the issue of whether a bowling alley has a duty to warn its patrons or implement other safety measures. Other jurisdictions have addressed the issue. Compare Beatty v. Lee's Woodland Lanes, 73 Pa. D. & C.4th 398, 419 (C.P. Armstrong Cty. 2005) (denying summary judgment in personal injury action where the plaintiff stepped over the foul line), and Conary v. Clover Lanes, 605 N.Y.S.2d 607 (N.Y. App. Div. 1993) (reversing grant of summary judgment where plaintiff stepped over the foul line because "[w]hether plaintiff assumed the risk of . . . injury is a factual issue for jury determination"), with Taylor v. Thunderbird Lanes, LLC, 748 S.E.2d 308, 311 (Ga. Ct. App. 2013) (affirming the grant of summary judgment where plaintiff allegedly fell due to negligent application of oil to the lanes).