PAULINE MOORE v. MARY BALDINI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PAULINE MOORE,

Plaintiff-Appellant,

v.

MARY BALDINI, SKYLINE

CONDOMINIUM ASSOCIATION,

THOMPSON REALTY COMPANY and

TOLBERT CONSTRUCTION

CORPORATION,

Defendants-Respondents,

and

SKYLINE CONDOMINIUM ASSOCIATION

and THOMPSON REALTY COMPANY,

Third-Party Plaintiffs,

v.

TOLBERT CONSTRUCTION CORPORATION,

Third-Party Defendant.

___________________________________

April 5, 2016

Submitted March 14, 2016 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-362-11.

Economides & Economides, attorneys for appellant (Constantine Z. Economides, on the brief).

Devlin Associates, P.C., attorneys for respondents Mary Baldini, Skyline Condominium Association, and Thompson Realty Company (John Gerard Devlin, on the brief).

PER CURIAM

Plaintiff Pauline Moore, by her guardian, Helen Dodick, Acting Public Guardian of Elderly Adults, appeals from a summary judgment dismissing her premises liability complaint against defendants Mary Baldini, Skyline Condominium Association, Thompson Realty Company, and Tolbert Construction Corporation. We affirm.

Viewed in the light most favorable to plaintiff, the facts discovered about this unfortunate accident are as follows. On a clear and dry afternoon in January 2009, plaintiff, then sixty years old, was descending the wooden set of stairs leading from her condominium to the sidewalk when she fell and suffered catastrophic injuries. No one witnessed the accident and plaintiff's injuries left her unable to testify.

Plaintiff's downstairs neighbor did, however, hear a noise and came outside to find plaintiff bleeding on the sidewalk at the bottom of the stairs. Plaintiff's son certified he was present at Atlantic City Medical Center later that day when medical personnel attempted to ascertain from plaintiff what had happened to her. He averred that his mother, who "was in and out of consciousness . . . was able to tell us that she stepped one or two steps off the landing and was then caused to trip and fall forward down the 14 stairs."

Plaintiff had lived in the condominium, which she rented from defendant Mary Baldini at the time of the accident, for seventeen years. She had complained about the stairs, which served as the sole means of ingress and egress to her unit, on only one occasion four years before the accident. Records of defendant Thompson Realty, the company that manages the complex for defendant Skyline Condominium Association, the entity responsible for maintenance of that common element, note plaintiff complained of "rocky and loose steps" on September 6, 2005. Upon inspection the following day, Thompson "found the steps were loose" and retained additional defendant Tolbert Construction to make repairs. Tolbert replaced the 2 x 12 stair treads and a stringer within weeks. Inspections of plaintiff's building by the State Bureau of Housing Inspection in 2008 and 2013 noted no violations involving the exterior stairs.

Plaintiff retained an engineering expert who submitted a report opining that the steps were poorly repaired and maintained and presented a tripping hazard. He found the downward slope of the steps, designed to shed water, was not effective as there was mold and mildew on the treads, which made them slippery. He also noted the treads were uneven, exceeding the .375 requirement for variation in step height, and that "the twisted top steps . . . made treads not even over the lower treads." He further noted that the upper steps had separated from the rear risers. The expert concluded that "[a]ll of these concerns can easily cause someone to slip on a step, catch a heal [sic] in the gap to the riser, trip since they are expecting the steps to be parallel to each other, etc."

Based on those facts, developed after full discovery, Judge Kane entered summary judgment for defendants and dismissed the complaint. Specifically, the judge rejected defendants' argument that they owed no duty to plaintiff under Luchejko v. City of Hoboken, 207 N.J. 191 (2011), and instead found plaintiff should be considered a business invitee to whom the highest duty of care is owed. See Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 121 (2005); Parks v. Rogers, 176 N.J. 491, 497-98 (2003). Notwithstanding the duty, the judge found plaintiff could not establish a prima facie case of negligence because she "failed to adduce competent documentary or testimonial evidence identifying the dangerous or defective condition which caused Plaintiff to fall."

The judge rejected plaintiff's expert's report as a net opinion because the expert failed to "offer any opinion as to which of the identified tripping hazards was the proximate cause of Plaintiff's fall." See Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 299 (App. Div.) (explaining "[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") (citation omitted), certif. denied, 122 N.J. 333 (1990). Acknowledging the testimony of plaintiff's son regarding plaintiff's statements to medical personnel about the accident, the judge noted the statement only "indicates that Plaintiff fell down but does not attribute any reason or defect as a possible cause." Judge Kane concluded there was "no evidence to submit to the jury on the issue of causation" and because that "necessary element" was lacking, summary judgment was appropriate.

On appeal, plaintiff argues the trial court erred in dismissing her complaint because "the jury should be entitled to draw legitimate, probable inferences that [plaintiff] 'misstepped' because of the numerous deviations from the applicable code standards present in the top two steps of the staircase," relying on Webb v. Betta, 7 N.J. Super. 60, 62 (App. Div. 1950).

In Webb, we reversed the dismissal of the plaintiff's complaint at trial entered on the basis that she had not established the landlord's failure to illuminate a staircase constituted negligent conduct causing her injury. Id. at 61. Although the defendant did not dispute that his failure to light the stairway was a violation of statute and evidence of negligence, the trial judge found the plaintiff's testimony had not established "any proximate causal relation between the absence of the light and the fall." Id. at 61-62.

We rejected that ruling, finding it "fairly inferable" from the circumstances that the defendant's conduct in failing to provide light constituted negligence which proximately caused plaintiff to fall. Id. at 62. Plaintiff testified that she was descending the staircase in darkness, holding on to the banister and misstepped. Ibid. From that we concluded that "the jury was entitled to draw 'legitimate, probable inferences' that she misstepped because she could not see the next step on account of the darkness." Ibid. (quoting Demeter v. Rosenberg, 114 N.J.L. 55, 59 (Sup. Ct. 1934)). We dismissed suggestions that the plaintiff might have gotten dizzy or that her hand might have slipped off the rail, finding nothing in the record to indicate such happenings and declining to assign the plaintiff a burden to negate possibilities not suggested by the testimony and its ordinary inferences. Ibid.

We think it plain that Webb is of no avail to plaintiff here. The difference between that case and this one is there the plaintiff was available to testify about the circumstances of her fall, explaining the darkness and excluding other possible reasons for her misstep on the stairs. Here, of course, plaintiff's unfortunate injuries have made it impossible for her to tell anyone what caused her "to trip and fall forward down 14 stairs."

In addition, the nature of the alleged defect is different. It is easy to infer that a tenant could trip on a familiar staircase in the dark. Had the light on plaintiff's stairs burned out and she fell descending in the dark, she may have been able to get to a jury even without her testimony to explain the accident. The alleged primary defect here, however, was not darkness but a 3/8 inch variation between the risers of the two top steps when only 3/16 is allowed by code. Because that defect was either built into the stairs or developed slowly over time in the course of regular use, it is not easy to infer how it made a staircase trod every day unfamiliar in the way darkness could.

Accordingly, we reject plaintiff's contention that the jury could draw legitimate, probable inferences that she misstepped because of the alleged deviations present in the top two steps of the staircase. Instead, we agree with Judge Kane that the absence of any testimony from plaintiff made it impossible for her expert to identify which of the tripping hazards he identified was the proximate cause of her fall, reducing his opinion to no better than a guess and mandating the entry of summary judgment for defendants.

Affirmed.