SARAH WESTCOTT v. BOARD OF EDUCATION MIDDLESEX COUNTY VOCATIONAL AND TECHNICAL SCHOOLS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SARAH WESTCOTT,

Plaintiff-Appellant,

v.

BOARD OF EDUCATION, MIDDLESEX

COUNTY VOCATIONAL AND TECHNICAL

SCHOOLS, COUNTY OF MIDDLESEX, and

CITY OF PERTH AMBOY,

Defendants,

and

HAUSER REFRIGERATION, INC.,

Defendant-Respondent.

____________________________________

March 14, 2014

Submitted February 24, 2014 Decided

Before Judges Parrillo and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3734-11.

Nash & Tobias LLC, attorneys for appellant (Richard S. Pantich, on the brief).

Linda S. Bauman, attorney for respondent (Angela E. Cameron, on the brief).

PER CURIAM

Plaintiff appeals from the Law Division's grant of summary judgment in favor of defendant Hauser Refrigeration, Inc. (Hauser) dismissing her complaint for personal injuries. Plaintiff argues that she had established a "prima facie case of negligence" against Hauser, and that there existed "genuine issues of material fact" which should have precluded the granting of summary judgment. We disagree and affirm.

I.

Our review of a motion court's order granting or denying summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts viewed in a light most favorable to plaintiff. Plaintiff filed a complaint against the Board of Education, Middlesex County Vocational and Technical Schools, Hauser, and others, alleging she was injured when she fell on November 24, 2009, in a walk-in freezer at the Middlesex County Vocational and Technical School in Perth Amboy. At the time, plaintiff was employed as the kitchen manager by a food-service company that provided meals to students at the school.

When she arrived at the school that morning at approximately seven a.m., plaintiff unlocked the walk-in freezer and reported to her supervisor that the freezer was "losing temperature." Plaintiff saw no ice or water on the floor of the unit, however, and her supervisor said he would "get right on it."

Thereafter, plaintiff entered the freezer again at nine a.m. to inventory the food products stored there, and slipped and fell on ice and water that had accumulated on the floor. Plaintiff suffered grievous injuries.

Plaintiff said she had reported problems with the freezer "losing temperature" to her supervisor on numerous occasions. Plaintiff said she had seen a Hauser representative at the premises working on the freezer in October and November, but did not know the "type of work" that was undertaken. Plaintiff avers that "[n]o effective action was taken to repair the problem [in the freezer] despite ample notices to Hauser and her employer." She adds that she needs no expert testimony to support her cause of action because "it is common knowledge as to what will occur when a freezer is de-frosted."

Hauser concedes it had been called in on occasion in the past to address problems with the freezer "losing temperature." Its records reveal that its last service call was made on October 27, 2009, in response to a communication of "warm temperature day before." The service representative found, however, that the "box temperature [was] below zero" and no repairs were undertaken.

The motion judge granted summary judgment and stated, in pertinent part, that plaintiff never established the "actual cause of . . . the temperature [in the freezer] going down" nor that Hauser "did anything wrong in repairing" the freezer earlier. This appeal followed.

II.

The principles which guide our analysis have been long-established in New Jersey. "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). The burden of proving negligence is on the plaintiff. Ibid. Negligence must be shown by circumstances which would allow a legitimate inference that the defendant failed to exercise due care. Ibid. "It is a substantial right of the defendant that the plaintiff be required to bear this burden." Ibid.

Moreover, "[a]n inference can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess." Long, supra, 35 N.J. at 54 (citations omitted). Our Supreme Court in Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 141 (1951), held that "existence of a possibility of a defendant's responsibility for a plaintiff's injuries is insufficient to impose liability" and that "[w]hile proof of certainty is not required, the evidence must be such as to justify an inference of probability as distinguished from the mere possibility of negligence on the part of the defendant."

Here, plaintiff has not presented any evidence, direct or circumstantial, that a dangerous condition was created by Hauser or that the freezer failed on November 24, 2009, as a consequence of a defect in the unit that Hauser knew about or had earlier tried to repair. Indeed, it is as likely as not that the freezer that day "lost temperature" as a consequence of some newly-arising defect that Hauser could not have anticipated. In short, plaintiff has not shown a breach of duty by Hauser that proximately caused plaintiff's fall.

Finally, we note that plaintiff expressly eschewed submission of an expert report. The facts in this case show that plaintiff entered the freezer that morning at seven a.m. and discovered the freezer was "losing temperature." No water or ice wereevident on the floor at that time. Plaintiff contends she entered the freezer again at nine a.m. and, after falling, saw the entire floor of the freezer was covered with ice and water.

It is not within the common purview of a jury to know whether a new or a pre-existing mechanical defect or malfunction caused that condition to arise in an industrial freezer. Therefore, expert testimony was necessary to establish the cause of the problem, as well as a prima facie case against Hauser. See Ford Motor Credit Co. v. Mendola, 427 N.J. Super. 226, 236-37 (App. Div. 2012) (expert witness testimony was necessary to support the claim of negligent repair in order for "a jury to determine whether defendants performed their functions negligently and whether that negligence caused the engine to seize").

[T]he limit of proximate cause is, ultimately, an issue of law and . . . entails a consideration of public policy and fairness. Ordinarily, issues of proximate cause are considered jury questions. On occasion, however, a court may resolve that issue itself. The Restatement (Second) of Torts states that courts may resolve for themselves the question of legal or proximate causation if they believe that a reasonable jury could not find such causation on the facts presented.

[Miller v. Estate of Sperling, 166 N.J. 370, 387-88 (2001) (internal citations and quotations omitted) (Verniero, J., concurring).]

Here, there is no evidence or expert opinion showing that Hauser's prior repairs to the freezer exacerbated, caused or contributed to the defect that caused water and ice to accumulate on the floor, or that the defect pre-existed Hauser's last service on the freezer.

Affirmed.