FATIMA BOROVSKAIA v. BOARD OF EDUCATION OF PERTH AMBOY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FATIMA BOROVSKAIA, as

guardian ad litem,

Plaintiff-Appellant,

v.

BOARD OF EDUCATION OF PERTH

AMBOY, RARITAN BAY AREA YMCA,

and SCHOOL DISTRICT OF PERTH AMBOY,

Defendants-Respondents.

________________________________________

October 19, 2016

Argued September 28, 2016 Decided

Before Judges Alvarez, Accurso and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7953-13.

Yelena Perchuk argued the cause for appellant (Law Offices of Yelena Perchuk, attorneys; Ms. Perchuk, on the briefs).

Peter H. Spaeth argued the cause for respondents Board of Education of Perth Amboy and the School District of Perth Amboy (Wolff, Helies, Spaeth & Lucas, P.A., attorneys; Mr. Tobin, of counsel and on the brief).

Jason T. George argued the cause for respondent Raritan Bay Area YMCA (Hardin, Kundla, McKeon & Poletto, P.A., attorneys; Mark S. Kundla, of counsel and on the brief).

PER CURIAM

Plaintiff Fatima Borovskaia appeals from a January 16, 2015 order granting summary judgment in favor of defendants Perth Amboy Board of Education, School District of Perth Amboy, (hereinafter, collectively, BOE) and the Raritan Bay Area YMCA (YMCA). Plaintiff commenced this action on behalf of her five-year old daughter, D.B., after she fell during YMCA's after-school care program held in BOE's elementary school cafeteria. Having considered plaintiff's arguments in light of the facts and applicable law, we affirm.

We discern the following facts from the record, viewing them in the light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On October 5, 2012, plaintiff was walking toward BOE's cafeteria to pick up D.B. when she observed her walking on the windowsill of the elementary school cafeteria. Plaintiff attempted to gain D.B.'s attention, but could not do so because the window was closed. Plaintiff was concerned that D.B. was unsupervised and that being on the windowsill could pose a danger to her. When plaintiff arrived and was admitted inside the cafeteria, she observed D.B. on the cafeteria floor having suffered injuries to her upper lip and front baby tooth. Plaintiff had no knowledge how D.B. was injured and assumed it was a fall from the windowsill. D.B. never told her mother how she was injured. The sole version of how D.B. was injured was derived from YMCA employees, as well as the YMCA incident report, who testified during depositions that, upon seeing her mother arrive, D.B. ran toward the door when she tripped and hit her face on the ledge of the door.

Plaintiff took D.B. to the Raritan Bay Medical Center emergency room where she received stitches between her upper lip and nose. The stitches were later removed by D.B.'s pediatrician who recommended applying ointment to the wound. A dentist was consulted for the chipped, front, baby tooth. The dentist did not recommend dental work, as D.B.'s permanent tooth was already protruding. Neither D.B.'s pediatrician nor the dentist recommended or provided further medical treatment. The incident left D.B. with a residual scar to her lip.

Plaintiff made no observations of the windowsill on the date of the incident due to concern about her daughter. Approximately ten days after the accident, plaintiff photographed the windowsill for the purpose of depicting a small chip.

YMCA and BOE filed a motion and cross-motion for summary judgment on August 20, 2014 and September 23, 2014, respectively. In response thereto, plaintiff filed opposition, as well as a cross-motion seeking summary judgment on her own behalf. Before filing a reply, plaintiff filed an order to show cause for BOE to provide cameras and camera recordings for plaintiff's review, which was denied on October 30, 2014.1 On November 4, 2014, plaintiff provided an expert report prepared by Dr. Richard Farber, an education expert and consultant. Thereafter, on November 21, 2014, the trial court held oral argument for the motion for summary judgment, during which the court reserved its decision. At the request of the court, both defendants and plaintiff submitted briefs relative to the impact of plaintiff's expert report on the motions for summary judgment. On December 19, 2014, the court again heard oral argument on the motions for summary judgment. The court granted summary judgment in favor of both BOE and YMCA and further issued a twenty-page written decision in supplementation of the reasons placed on the record. This appeal followed.

On appeal, plaintiff raises the following arguments

POINT I

THE LOWER COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS.

POINT II

THE LOWER COURT COMMITTED REVERSIBLE ERROR BY [THE TRIAL JUDGE] FAILING TO RECUSE HIMSELF.

A trial court must grant a summary judgment motion "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). "An 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 also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On appeal, we employ the same summary judgment standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015).

If there is no factual dispute, and only a legal issue to resolve, the standard of review is de novo and the trial court rulings "are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). However, when a trial court must decide on the admissibility of evidence prior to a ruling on a summary judgment motion, it "squarely must address the evidence decision first." Townsend, supra, 221 N.J. at 53 (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010)). Appellate review proceeds in the same sequence: the evidentiary ruling under the abuse of discretion standard and the legal conclusions supporting the summary judgment ruling de novo. Ibid. The abuse of discretion standard applies to evidentiary rulings regarding the evaluation, admission or exclusion of expert testimony. Estate of Hanges, supra, 202 N.J. at 384-85; State v. Torres, 183 N.J. 554, 572 (2005).

We commence our discussion by addressing plaintiff's argument that both BOE's and YMCA's summary judgment motions were premature as filed prior to the submission of plaintiff's expert report. Summary judgment is generally inappropriate prior to the completion of discovery. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988). Nonetheless, a plaintiff "has an obligation to demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action." Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003) (quoting Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977)). There is no need to complete further discovery "if it will patently not change the outcome." Minoia v. Kushner, 365 N.J. Super. 304, 307 (App. Div.), certif. denied, 180 N.J. 354 (2004).

Here, plaintiff has not demonstrated with the required particularity what outstanding discovery was needed nor how the completion of discovery would have supplied the missing elements of the cause of action and altered the motion's outcome. Thus, her argument that the motion was not ripe for determination based upon incomplete discovery lacks a suitable basis for relief.

We next turn to plaintiff's contention that the judge erred by rejecting Farber's report as a net opinion. This court has defined a net opinion as one based on speculation or mere possibilities. Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 11 (App. Div. 2001); Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div. 1990), certif. denied, 122 N.J. 333 (1990). Such an opinion is inadmissible. Brach Eichler, supra, 345 N.J. Super. at 11. A net opinion violates the requirement set in N.J.R.E. 703 that an expert's opinion must be based on "facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial." Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78-79 (App. Div. 2007) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

While Farber presented as an education expert his report was wholly unsupported by a factual foundation rooted in the record. Our Supreme Court has stated, "[g]iven the weight that a jury may accord to expert testimony, a trial court must ensure that an expert is not permitted to express speculative opinions or personal views that are unfounded in the record." Townsend, supra, 221 N.J. at 55.

The judge noted this admonition by stating

[Dr. Farber] is not an accident reconstruction expert. He is an educator, so he theorizes that this is how it must have happened. He does not have the sufficient background and qualifications to do that and he certainly doesn't have sufficient background and qualifications to say that a [windowsill] is an inherently dangerous condition or a [windowsill] that had this kind of crack is an inherently dangerous condition when the [windowsill] had nothing to do with how this accident happened.

As the judge aptly observed, the discovery record was devoid of any proof that the windowsill played a role in the accident. In the absence of the requisite foundation, Farber's opinion on causation was speculative and therefore properly rejected by the judge.

For the same reasons, we conclude that plaintiff's claim that BOE allowed a dangerous condition to exist on its premises, i.e., an improperly maintained windowsill, is without basis in fact and fails as a matter of law. The claim by plaintiff is governed by the Tort Claims Act (TCA). N.J.S.A. 59:1-1 to 12-3. Pursuant to the TCA, a public employee is liable for an injury caused by his or her acts or omissions to the same extent as a private person unless there is a specific immunity granted under the TCA. N.J.S.A. 59:3-1(a). Similarly, "[a] public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2(a).

N.J.S.A. 59:4-2 proscribes that a public entity is liable if a plaintiff establishes: (1) the public property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) a negligent or wrongful act or omission of a public employee created the dangerous condition, or a public entity had actual or constructive notice of the condition. Additionally, a public entity is not liable for a dangerous condition of its property if "the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." N.J.S.A. 59:4-2.

The heightened "palpably unreasonable" standard applies to dangerous conditions of public property, and is intended to comport with the principles of liability used by the courts for local public entities in their capacity as landowners. Margolis & Novack, Claims Against Public Entities, 1972 Task Force Comment on N.J.S.A. 59:4-2 (2016). Although the statute has been broadly applied, it is nevertheless limited to instances where a dangerous condition of public property itself is at issue. Ibid.; Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459-60 (2009).

Viewed in light of the controlling law, we conclude plaintiff has not demonstrated that a dangerous condition existed in the cafeteria at the time of the incident. Nor has plaintiff established sufficiently that if a dangerous condition did exist, i.e., the "chipped and sharp windowsill[,]" that it was the cause of the injury. Consequently, plaintiff's claim of the existence of a dangerous condition fails.

Plaintiff's claim against YMCA also fails. Pursuant to N.J.S.A. 2A:53A-7(a), YMCA is afforded protection under the Charitable Immunity Act (CIA), N.J.S.A. 2A:53A-1 to -11. The CIA's grant of immunity is to be applied liberally. N.J.S.A. 2A:53A-10. The protection afforded by the CIA is "broader than simply preserving charitable trust funds and include[s] the encouragement of altruistic activity." Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 341 (2003). Whether a defendant entity qualifies for immunity is determined by a three-prong test

[A]n entity qualifies for charitable immunity when it "(1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works."

[O'Connell v. State, 171 N.J. 484, 489 (2002) (quoting Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999)).]

It is undisputed that YMCA is (1) a non-profit 503(c)(3) corporation; (2) organized exclusively for religious, charitable and educational purposes; and (3) at the time of this incident, plaintiff and her daughter were beneficiaries of such charitable works. In satisfaction of the statutory factors, YMCA is entitled to the protection afforded by the CIA. The immunity afforded, however, is not absolute.

The CIA immunizes charitable entities for simple negligence only, but not for "other forms of aggravated wrongful conduct, such as malice or fraud, or intentional, reckless, and wanton, or even grossly negligent behavior." Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 97 (2006) (internal quotations omitted); see N.J.S.A. 2A:53A-7(c). "Negligence, gross negligence, recklessness, and willful conduct fall on a spectrum, and the difference between negligence and gross negligence is a matter of degree." Steinberg, v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016) (rejecting the description of gross negligence as the equivalent of willful conduct). "Although gross negligence is something more than inattention or mistaken judgment, it does not require willful or wanton misconduct or recklessness." Id. at 364 (citing Model Jury Charge (Civil), 5.12, "Gross Negligence" (2004)).

In application of these legal principles to the undisputed facts, the judge was satisfied that reasonable factfinders could not find that D.B.'s injuries, caused by her running and tripping in her excitement to see her mother, were the product of gross negligence. We agree.

Finally, for the first time on appeal, plaintiff contends the judge should have recused himself.2 This court ordinarily will not address an issue on appeal that parties have not raised to the trial court absent jurisdictional or public policy concerns. Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2 at 659 (2016); Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citing State v. Robinson, 200 N.J. 1, 20-22 (2009)); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Plaintiff has not argued any public policy concerns that would warrant consideration of this issue after she failed to raise it to the trial court. In the absence thereof, we decline to consider plaintiff's argument.

In plaintiff's briefs she makes reference to other arguments, such as spoliation, as a basis for error. After our review of the record, we conclude these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Plaintiff did not appeal this order.

2 Plaintiff states that the trial judge should have recused himself because he attended Perth Amboy schools. This assertion lacks merit both under R. 1:12-1(e) and R. 1:12-1(g).