REESE ROTBLAT v. OAK HILL ACADEMY
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0558-16T4
REESE ROTBLAT, an
infant by her Guardian
ad Litem SCOTT ROTBLAT,
SCOTT ROTBLAT and
MICHELLE ROTBLAT,
individually,
Plaintiffs-Appellants,
v.
OAK HILL ACADEMY,
Defendant-Respondent,
and
ABC DOOR MANUFACTURING, DESIGN,
AND/OR MAINTENANCE COMPANY, DEF
DOOR MAUFACTURING, DESIGN, AND/OR
MAINTENANCE CORPORATIONS, GHT
DOOR MANUFACTURING DESIGN, AND/OR
MAINTENANCE PARTNERSHIPS and JILL
DOOR MANUFACTURING, DESIGN, AND/OR
MAINTENANCE LIMITED LIABILITY COMPANIES,
Defendants.
________________________________________
Argued November 2, 2017 – Decided January 31, 2018
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No.
L-3885-14.
Andrew S. Blumer argued the cause for
appellants.
Kevin M. Killmurray argued the cause for
respondent (Zirulnik, Sherlock & Demille,
attorneys; Kevin M. Killmurray, of counsel;
Ellen G. Bertman, on the brief).
PER CURIAM
Plaintiffs, Scott Rotblat and his wife, Michelle Rotblat,
filed suit individually and on behalf of their minor daughter,
plaintiff Reese Rotblat, for damages arising from injuries the
child sustained when a closing metal door struck her. The door
was located in the private, parochial school she attended that
was owned and operated by defendant, Oak Hill Academy (Oak
Hill). Plaintiffs appeal from the Law Division's order
dismissing their complaint on summary judgment and from the
denial of their motion for reconsideration.
The motion judge granted Oak Hill summary judgment and
denied reconsideration after he found plaintiffs' claim was
subject to the gross negligence standard set forth in New
Jersey's Charitable Immunity Act (CIA),
N.J.S.A. 2A:53A-7 to -
2 A-0558-16T4
11,1 and plaintiffs failed to establish any question as to a
material fact about Oak Hill's liability, as plaintiffs'
expert's report constituted a net opinion. On appeal,
plaintiffs contend the motion judge misapplied the summary
judgment standard, used an "erroneous" definition for gross
negligence, incorrectly found Oak Hill's duty to the child was
delegable, and erred by finding, without conducting a Rule 104
hearing, plaintiffs' expert's report was an inadmissible net
opinion.
We have carefully considered plaintiffs' contentions in
light of the record on summary judgment and the applicable
principles of law. We vacate the entry of summary judgment,
1
The CIA states a charitable or educational organization shall
not "be liable to respond in damages to any person who shall
suffer damage from the negligence of any agent or servant of
such [organization], where such person is a beneficiary, to
whatever degree, of the works of such nonprofit [organization]."
N.J.S.A. 2A:53A-7(a). The CIA also provides that immunity is
not available for gross negligence or willful conduct.
N.J.S.A.
2A:53A-7(c)(1).
Gross negligence is defined as "an act or omission, which
is more than ordinary negligence, but less than willful or
intentional misconduct. [It] refers to a person's conduct where
an act or failure to act creates an unreasonable risk of harm to
another because of the person's failure to exercise slight care
or diligence." Steinberg v. Sahara Sam's Oasis, LLC,
226 N.J. 344, 364 (2016) (quoting Model Jury Charge (Civil), 5.12, "Gross
Negligence" (2009)). "Whereas negligence is 'the failure to
exercise ordinary or reasonable care' that leads to a natural
and probable injury, gross negligence is 'the failure to
exercise slight care or diligence.'" Ibid. (citation omitted).
3 A-0558-16T4
restore plaintiffs' complaint and remand for reconsideration of
the summary judgment motion after the court conducts a Rule 104
hearing as to plaintiffs' expert's report.
We review a trial court's order granting summary judgment
de novo, applying the same standard as the trial court. Conley
v. Guerrero,
228 N.J. 339, 346 (2017). Thus, we examine the
competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact and,
if not, whether the moving party is entitled to summary judgment
as a matter of law. Ibid. To defeat a motion for summary
judgment, "[t]he opponent must 'come forward with evidence' that
creates a genuine issue of material fact." Horizon Blue Cross
Blue Shield of N.J. v. State,
425 N.J. Super. 1, 32 (App. Div.
2012) (quoting Brill v. Guardian Life Ins. Co. of Am.,
142 N.J.
520, 529 (1995)); see also R. 4:46-2(c). "Competent opposition
requires 'competent evidential material' beyond mere
'speculation' and 'fanciful arguments.'" Hoffman v.
Asseenontv.Com, Inc.,
404 N.J. Super. 415, 426 (App. Div. 2009)
(citations omitted). After consideration of the competent
evidence, "[s]ummary judgment should be denied unless" the
moving party's right to judgment is so clear that there is "no
room for controversy." Akhtar v. JDN Props. at Florham Park,
4 A-0558-16T4
LLC,
439 N.J. Super. 391, 399 (App. Div. 2015) (quoting Saldana
v. DiMedio,
275 N.J. Super. 488, 495 (App. Div. 1994)).
In deciding a summary judgment motion, courts must first
resolve any issues relating to the evidence presented before
deciding the motion. Townsend v. Pierre,
221 N.J. 36, 53 (2015)
("[A] trial court . . . 'confronted with an evidence
determination precedent to ruling on a summary judgment
motion' . . . 'squarely must address the evidence decision
first.'" (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins.
Co.,
202 N.J. 369, 384-85 (2010))). In our review of the
court's decision, we follow "the same sequence, with the
evidentiary issue resolved first, followed by the summary
judgment determination of the trial court." Ibid. (quoting
Estate of Hanges,
202 N.J. at 385).
Applying those guidelines, we conclude from our review that
the motion judge did not properly confront the evidential issue
he found relating to plaintiffs' expert before deciding the
motion in Oak Hill's favor, nor did he apply the correct
standard on summary judgment.
The facts set forth in the record, viewed in the light most
favorable to plaintiffs, Angland v. Mountain Creek Resort, Inc.,
213 N.J. 573, 577 (2013), are summarized as follows. According
to plaintiffs' answers to interrogatories and deposition
5 A-0558-16T4
testimony, Reese2 was enrolled as a fifth-grade student at Oak
Hill on November 8, 2013, when she opened a self-closing metal
door and it "forcefully slammed shut and abruptly struck the
back of her [right] ankle/foot . . . . There was a sharp piece
of metal protruding out of the bottom area of the door and there
was also no properly working door dampening mechanism." The
door caused an adhesion and a torn right Achilles tendon that
required surgical repair.
Scott went to Oak Hill a few days after the incident to
observe the door and take photographs and a video of its
operation. When he inspected the door, he observed a piece of
metal extruding from its bottom. When he opened the door and
allowed it to close, he explained that the door "closed so fast"
that he believed it to be defectively operating. Scott returned
to the school about a week after his initial inspection and
noticed that the door had since been fixed, as the piece of
metal was no longer extruding from the door.
According to Oak Hill's headmaster, Joseph Pacelli, he
inspected the door within minutes of the incident being reported
and found no imperfections or metal objects protruding from the
door or any problems with the way it closed or with its
2
We refer to plaintiffs by their first names to avoid any
confusion caused by their sharing a common last name.
6 A-0558-16T4
dampening mechanism. He explained that there were no prior
reports of anyone being injured by the door, nor were there
reports that it was defective in any way, and that no repairs
were made to the door after the incident. He stated that the
school's Director of Facilities, Glenn Mission was responsible
for school maintenance and for servicing the doors if needed.
If any repairs were required, the school would also call outside
contractors to make them. The school, however, had no policies
before or after the incident relating to maintenance of the
doors. Pacelli believed Mission inspected the doors annually,
although there were no written records of those inspections.
Mission confirmed that he was responsible for maintaining
the school's doors. After the incident, however, he did not
touch the door or make any changes to it. Mission stated that
he had no training on door maintenance and was not aware of how
to maintain proper door dampening speed. He would check a door
by opening it and explained that if "it didn't shut immediately
on me and it closed within a reasonable amount of time [that was
acceptable]. Now, what is that time? I do not know, but it
would not hit me in the can per se." Mission was also not aware
of any standard for how fast the door should close. He
described his annual inspection of the school's doors to include
looking at the dampeners, checking the oil, checking for overall
7 A-0558-16T4
soundness and feeling the bottom of the doors with his hand to
check for sharp protrusions.
Plaintiffs' expert Theodore Moss, P.E. issued a report
concluding that the subject door "closed with substantial . . .
force" because the dampening device was not properly slowing the
door and Oak Hill's maintenance staff was not competently
trained to address the types of door issues he found at the
school. According to Moss, due to the door's speed and the
staff's lack of training, the door was bound to injure somebody
using it. He specifically took issue with Mission's maintenance
of the door, or lack thereof, over a period of eighteen years or
more. Moss explained that "proper door closure speed and
dampening operation must be adjusted, at the time of
installation and periodically thereafter, to empirically fit the
requirements of the particular door on which it is installed."
He noted the importance of the closer unit on the type of door
used by Oak Hill, stating that "it is a relatively heavy
exterior door located off a hallway within a commercial type
structure expected to accommodate relatively heavy use [and
c]loser units are normally intended . . . to ensure pedestrian
safety by directly control[ling] and dampening door
operation/movement."
8 A-0558-16T4
Moss indicated that he based his opinion on his visit to
the school and his review of deposition transcripts and other
discovery, including the video and photographs taken of the door
by Scott. However, he stated that he did not have the benefit
of viewing the video captured by the school's surveillance
camera situated above the door that struck Reese because, as
Arthur Livingston, a member of the school's security personnel,
testified in his deposition, Oak Hill failed to retain the
video, as the surveillance system's storage erases automatically
every thirty days.
In his report, Moss described the door as metal, using a
standard doorknob, with a metal kick plate mounted on the bottom
interior of the door, and a metal strip holding weather
stripping on the bottom exterior. He compared his observation
of the door's speed to that depicted in Scott's video and
concluded that the video depicted a door speed two times as fast
as what Moss observed, indicating to him that the door had been
altered since the incident. He also observed that the right
bottom of the "door had clearly been previously damaged" without
specification that the door was damaged on the date of the
incident as suggested by Scott after his inspection shortly
after the incident.
9 A-0558-16T4
Moss referred to an article that explained "ideally a non-
delayed action door closer will close and latch the door in
[seven] to [eight] seconds." He stated that "door closer units
are normally designed to meet ANSI (American National Standards
Institute) and ADA (Americans with Disabilities Act and
Architectural Barriers Act) standards" and cited to the National
Fire Protection Association Life Safety Code requirements for
restricting a door's "rate of closure." Relying on the 2009
International Building Code, which was "adopted as the [S]tate
construction code under the New Jersey Uniform Construction
Code," Moss also highlighted that the "Code specifically
requires that fire doors . . . (like the metal door in
question), must have self-closing mechanisms [and i]mplicit in
this requirement . . . is the necessity that door mechanism must
be maintained to operate . . . safely [and] the force required
to move (push, pull, etc.) [the] swinging egress door may not
exceed [five] pounds[.]" Therefore, according to Moss, "the
door in question was required to operate easily, smoothly, and
properly, without high levels of force (either by the user or
imparted by the door itself)."
On April 19, 2016, Oak Hill's insurance company requested
that Atlantic Professional Services, Inc. (Atlantic) conduct an
on-site inspection of the door. Atlantic concluded in its
10 A-0558-16T4
report that Moss's report was inaccurate, as the information he
relied upon, including the video, did not contain the necessary
components of reliability, such as timestamping, explanations as
to how the door motion started or stopped, and other variables.
Atlantic further concluded that there was no evidence, or even
testimony, that repairs had been made post-incident, and that
Moss's conclusions to the contrary ignored the available proofs.
Atlantic also determined that, despite Moss's opinion that
standards defined the speed for a door to close, he was
incorrect, as no such requirements or standards existed.
Defendant moved for summary judgment on June 23, 2016.
Neither defendant's motion nor plaintiffs' opposition were
supported by deposition transcripts from either party's expert
as only fact witnesses were deposed prior to the motion being
filed.
By order dated August 5, 2016, the motion judge granted
summary judgment in defendant's favor, and dismissed the action
with prejudice. In his oral decision, the judge rejected the
facts advanced by plaintiffs and their expert, and instead
relied upon those testified to by Oak Hill's representatives.
The judge found that the CIA applied to Oak Hill. He analyzed
plaintiffs' gross negligence claims, and found that they had not
met their burden based upon Oak Hill's alleged annual
11 A-0558-16T4
inspections of the door and its representative's testimony that
no prior incidents involving the door were reported. The judge
noted that while "[i]t might not be the greatest
inspection, . . . plaintiff[s] could point to no standard that a
maintenance person has to have in inspecting doors."
The judge rejected Moss's expert opinion, finding it to be
a net opinion, unsupported by the facts of this case. According
to the judge, Moss improperly "substitute[d] his views of the
facts for [Oak Hill's] views or ignores [Oak Hill's] views
rather than just simply commenting on his own." The judge
criticized Moss for "substituting his judgment on
things . . . and accepting only one set of facts." As an
example, the judge cited Moss's reliance on his own observations
of the door's condition that led him to conclude there were
prior repairs and adjustments to the damper speed. He found
Moss's observations unsustainable in light of Pacelli's and
Mission's testimony that there were no repairs. According to
the judge, Moss's observations did not constitute evidence that
plaintiffs could rely upon in opposition to Oak Hill's motion.
The judge also concluded that Moss never discussed any
standard that a maintenance person was "supposed to know" when
maintaining the door. He acknowledged that Moss cited to
specific codes, but found that it was only an attempt to "make
12 A-0558-16T4
gross negligence there for the plaintiff[s] rather than simply
saying something is wrong with the door or the way it was
maintained." The judge concluded that plaintiffs "cannot show
any type of gross negligence and cannot show negligence in this
matter[.]"
Plaintiffs sought reconsideration, which the judge denied
on September 16, 2016, for the same reasons set forth in his
summary judgment decision. The judge stated that plaintiffs
offered no standards relating to the inspection or maintenance
of the door, and therefore, his earlier decision to grant
summary judgment was correct in all respects.
In deciding the summary judgment motion, the judge clearly
recognized that plaintiffs' opposition to the motion was based
primarily upon Scott's and Moss's observation of the door and
Moss's opinions about its condition and Oak Hill's failure to
properly maintain it. It is apparent from the judge's decision
that in rejecting Scott's testimony and Moss's report, he did
not properly apply the summary judgment standard or address the
issues of the admissibility of Moss's report.
First, although confronted by conflicting testimony about
the door and whether it was previously repaired or properly
maintained, the judge viewed and accepted the facts advanced by
Oak Hill rather than viewing the facts advanced by plaintiffs,
13 A-0558-16T4
the non-movants, in the most favorable light. Angland,
213 N.J.
at 577. In doing so, he went beyond his "function [to]
not . . . weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Brill,
142 N.J. at 540 (quoting Anderson v. Liberty
Lobby, Inc.,
477 U.S. 242, 249 (1986)). For that reason alone,
the judge should have reconsidered his decision on summary
judgment. See R. 4:49-2; see also Palombi v. Palombi,
414 N.J.
Super. 274, 288 (App. Div. 2010) (stating that reconsideration
is appropriate for a "narrow corridor" of cases in which either
the court's decision was made upon a "palpably incorrect or
irrational basis, or [where] it is obvious that the [c]ourt
either did not consider, or failed to appreciate the
significance of probative, competent evidence" (quoting D'Atria
v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990))).
Second, turning to Moss's report, where proffered evidence
is properly considered, we typically "apply [a] deferential
approach to a trial court's decision to admit [or reject] expert
testimony, reviewing it against an abuse of discretion
standard." Townsend, 221 N.J. at 53 (first alteration in
original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp.,
207 N.J. 344, 371-72 (2011)). Here, the motion judge did not follow
the procedure for properly assessing the evidential value of
14 A-0558-16T4
Moss's opinions because he did not analyze Moss's findings and
opinions following well-settled principles governing the
admissibility of expert opinions.
In Townsend, the Court explained the required analysis. It
stated:
When a trial court determines the
admissibility of expert testimony, N.J.R.E.
702 and N.J.R.E. 703 frame its analysis.
N.J.R.E. 702 imposes three core requirements
for the admission of expert testimony:
"(1) the intended testimony must
concern a subject matter that is
beyond the ken of the average
juror; (2) the field testified to
must be at a state of the art such
that an expert's testimony could
be sufficiently reliable; and (3)
the witness must have sufficient
expertise to offer the intended
testimony."
N.J.R.E. 703 addresses the foundation for
expert testimony. It mandates that expert
opinion be grounded in "facts or data
derived from (1) the expert's personal
observations, or (2) evidence admitted at
the trial, or (3) data relied upon by the
expert which is not necessarily admissible
in evidence but which is the type of data
normally relied upon by experts." The net
opinion rule is a "corollary of [N.J.R.E.
703] . . . which forbids the admission into
evidence of an expert's conclusions that are
not supported by factual evidence or other
data." The rule requires that an expert
"'give the why and wherefore' that supports
the opinion, 'rather than a mere
conclusion.'"
15 A-0558-16T4
[Id. at 53-54 (alteration in original)
(emphasis added) (citations omitted).]
In conducting its analysis in the context of a summary
judgment motion, a court should not reject an expert's opinion
merely because it does not agree with facts advanced by the
movant "if he otherwise offers sufficient reasons which
logically support his opinion." Id. at 54 (quoting Rosenberg v.
Tavorath,
352 N.J. Super. 385, 402 (App. Div. 2002)). But, "[a]
party's burden of proof on an element of a claim may not be
satisfied by an expert opinion that is unsupported by the
factual record or by an expert's speculation that contradicts
that record." Id. at 55.
When, as here, a court's decision as to whether an expert's
opinion is evidential "turns on factual issues . . . in the
summary judgment context, failure to hold . . . a [Rule 104]
hearing may be an abuse of discretion." Kemp v. State,
174 N.J.
412, 428 (2002) (quoting Padillas v. Stork-Gamco, Inc.,
186 F.3d 412, 418 (3d Cir. 1999)). "[O]rdinarily the best practice would
be for a trial judge to permit the examination of the scope of
an expert's opinion—when its admissibility is challenged—at a
pretrial N.J.R.E. 104(a) hearing." Fairfax Fin. Holdings Ltd.
v. S.A.C. Capital Mgmt., LLC,
450 N.J. Super. 1, 100 n.50 (App.
Div. 2017) (citing Kemp,
174 N.J. at 432) (finding "no error in
16 A-0558-16T4
the failure to conduct such a hearing . . . because [the expert]
was examined at great length at his deposition about his
methodology and that deposition testimony was available to and
considered by the trial judge at the time of his ruling").
Because an expert may testify at a hearing to "the logical
predicates for and conclusions from statements made in [a]
report[,]" McCalla v. Harnischfeger Corp.,
215 N.J. Super. 160,
171 (App. Div. 1987), courts must remain mindful of the Supreme
Court's caution 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. See Kemp,
174 N.J. at 432-33 (stating that when "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").
The Rule 104 hearing allows the court to
assess whether the expert's opinion is based
on scientifically sound reasoning or
unsubstantiated personal beliefs . . . .
[During the hearing], an expert must be able
to identify the factual basis for his
conclusion, explain his methodology, and
demonstrate that both the factual basis and
underlying methodology are scientifically
reliable.
[Id. at 427 (citations omitted).]
17 A-0558-16T4
We conclude the motion judge mistakenly exercised his
discretion by failing to conduct a Rule 104 hearing once he
determined there were issues regarding the evidential value of
plaintiffs' expert's opinion, which focused on facts relied upon
by the expert. If given the proper opportunity, Moss could have
addressed the motion judge's concerns about his rejection of Oak
Hill's facts and explained his findings to the judge.
Under these circumstances, we are constrained to reverse
the motion judge's denial of reconsideration, vacate his award
of summary judgment, and remand for reconsideration of Oak
Hill's summary judgment motion after a Rule 104 hearing as to
the admissibility of Moss's report. In addition, in light of
the motion judge's findings, we direct that the matter be
considered anew by a different judge. See R. 1:12-1(d); J.L. v.
J.F.,
317 N.J. Super. 418, 438 (App. Div. 1999) (stating that
the Rule "provides that a judge shall not sit in any matter
where the judge has given an opinion upon a matter in question
in the action" and remanding to a different judge because "the
motion judge determined plaintiffs' position was not credible").
Reversed in part; vacated and remanded in part for further
proceedings consistent with our opinion. We do not retain
jurisdiction.
18 A-0558-16T4
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