Opinion
DOCKET NO. A-2524-13T2
03-20-2015
LINDA LEE MCNEISH, Plaintiff-Appellant, v. BARBARA MARTIN, Defendant-Respondent, and HAROLD MARTIN, Defendant.
Rebenack Aronow & Mascolo, attorneys for appellant (J. Silvio Mascolo, of counsel and on the brief). Tompkins, McGuire, Wachenfeld & Barry, L.L.P., attorneys for respondent Barbara Martin (Harry D. McEnroe, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4007-11. Rebenack Aronow & Mascolo, attorneys for appellant (J. Silvio Mascolo, of counsel and on the brief). Tompkins, McGuire, Wachenfeld & Barry, L.L.P., attorneys for respondent Barbara Martin (Harry D. McEnroe, of counsel and on the brief). PER CURIAM
Plaintiff Linda Lee McNeish appeals from the grant of defendant Barbara Martin's motion for involuntary dismissal of her complaint pursuant to Rule 4:37-2(b), and the denial of her motion for reconsideration. We reverse.
I.
On May 31, 2011, plaintiff filed a complaint in the Law Division, alleging that on July 23, 2009, she was lawfully on defendant's premises in Morganville, New Jersey. Plaintiff claimed that, while exiting the residence, she slipped and fell on defendant's front porch. Plaintiff alleged that defendant was negligent in failing to warn of the dangerous condition and to provide safe premises. Plaintiff claimed that, as a result of defendant's negligence, she sustained severe and permanent bodily injuries.
Harold Martin also was named as a defendant. It appears, however, that those claims were dismissed. Accordingly, Barbara Martin is hereinafter referred to as "defendant."
In discovery, plaintiff produced an expert report from W. Thomas Watkinson ("Watkinson"). Sometime in the latter part of 2012, defendant filed a motion to bar Watkinson's report, arguing that it constituted a net opinion. The motion judge entered an order on January 11, 2013, denying the motion. On the order, the judge wrote that the report does not constitute a net opinion.
After the case was initially scheduled for trial, defendant filed a motion in limine again seeking to bar Watkinson's report. Plaintiff opposed the motion, arguing that the motion judge had already ruled on that issue and his order should be followed as the "law of the case." The trial judge determined that he would not be bound by the motion judge's order, and he would consider the motion after he conducted a N.J.R.E. 104 hearing.
Thereafter, plaintiff's attorney advised the judge that he did not believe an expert was necessary because a jury could address the issue of whether there was a dangerous condition on defendant's property as a matter of common knowledge. Counsel informed the judge that plaintiff would proceed to trial without an expert if the court agreed.
The judge indicated that a jury could find that because defendant probably knew it had rained and had previously directed plaintiff to use the side portion of the steps, defendant should have given plaintiff alternative directions on the day she fell. The judge therefore allowed plaintiff to go to trial without an expert on a limited failure-to-warn theory. The trial was adjourned, however, because plaintiff's medical expert was not available.
Before the trial began, defendant sought dismissal of plaintiff's complaint based on the representation that she would not be presenting an expert on the issue of whether there was a dangerous condition on defendant's property. The judge reserved decision, indicating that he would rule on the motion at the end of plaintiff's case. The parties agreed that plaintiff would present the testimony of the fact witnesses first, and the judge would rule on defendant's motion before the expert testimony on damages was presented.
II.
Defendant testified that the landing outside of her residence is made out of multi-colored "outdoor tile" in a diamond-shaped pattern. The steps leading up to the landing are constructed of concrete. Defendant said that, at the time plaintiff fell, she had removable mats on the top landing area. She placed them there so that persons could clean their shoes before entering the house.
Defendant said the landing area was covered and protected. She indicated that the tile is not slippery even when it is icy, snowing or raining because "it is an outdoor tile." When questioned further, defendant said the tile was not slippery to her, but "it might be slippery to someone else." She conceded that in her deposition testimony, she had testified that the landing area is more slippery than the steps. Defendant explained that the front steps of her home are divided into three sections: two narrower outer sections with handrails on both sides, and a wider section in the middle. In the middle section, there are black strips of rubber matting on the step treads.
Plaintiff testified that the day of the accident, she was employed by a retail store as a home decorator doing window treatments. She went to defendant's home in her capacity as a decorator, and she had been there four or five times before. Plaintiff said there was a wide, cement staircase at the entrance to the home. The landing at the top of the stairs was covered with tile. Defendant had "highlight carved mats" in the center of the stairs at the top, which were about one-inch thick. The tile was "pretty" and it was "glazed."
Plaintiff testified that on the day she fell, there was no mat on the top landing area. She said the landing was not slippery in the morning, but later in the day, after it rained, the landing was slippery. Plaintiff stated that, previously, defendant had spoken to her about entering the house. According to plaintiff, on her first visit to defendant's home, defendant told her it would be better if she walked up the left side of the stairway rather than up the center because there were mats there and they were dangerous "if you had any kind of heel on." Plaintiff stated that she always went up or down on the side of the steps, as she was instructed to do.
On the day of the accident, plaintiff was wearing shoes with rubber soles and a "wider heel." Plaintiff said she never had any problem slipping with those shoes. She had worn them in the past when it rained, and did not recall ever falling while wearing them.
Plaintiff further testified that she was in the front living room of defendant's home with a person taking measurements when suddenly, it started to rain. Plaintiff went outside to close the windows in her car. She got to the top of the stairs and went to hold onto the railing. She picked up one foot and the other foot "slipped right out" from beneath her. She said her foot slipped on the tile at the top of the stairs. The tile was wet and slippery.
Plaintiff attempted to grab the railing on the right side but she "was heading down." When plaintiff went to grab the other railing, she flipped over onto her shoulder and then onto her back. Plaintiff pulled her head up and tried to grab onto the posts because she was already on the ground. She thought she may have slid down four steps. Plaintiff said she was being careful and she was looking where she was going. Plaintiff was startled. She closed the windows in her car and went back into the house.
III.
The judge then considered defendant's motion for a directed verdict under Rule 4:37-2(b). Counsel for defendant argued that plaintiff had not presented sufficient evidence to show that there was an unreasonably dangerous condition on defendant's property. Counsel said defendant merely stated that the landing was slippery when it was wet, but this did not mean that the landing area was unduly hazardous or an unreasonable risk of harm to anyone.
Counsel further argued that expert testimony was required to establish that the wet tile floor of the landing area constituted a dangerous condition of defendant's property. Counsel stated, "What is slippery? . . . [W]hat's the degree of slipperiness? How does that become seriously slippery as to create an unreasonable risk of harm? We don't know."
Plaintiff's counsel responded by arguing that an expert was not required to establish that defendant was negligent. He said the jurors could address the question of whether the landing area was an unreasonably dangerous condition based on their common knowledge. He stated, "Everyone knows what slippery is. Ice is slippery. A wet tile floor is slippery. That's not technical. That's not rocket science. We [do not] need an expert to determine whether or not water or ice or anything to that effect is slippery."
The judge granted defendant's motion. The judge found that plaintiff had not presented sufficient evidence to establish that the landing area at defendant's home presented an unreasonable risk or harm. The judge stated that plaintiff had not shown that there was an inherent defect in the tile, or that the landing was "unreasonably slippery." The judge observed that it was a matter of common knowledge that a wet hard surface is more slippery than when it is dry, and an expert would not be required to explain that.
The judge stated, however, that the test is whether there is an unreasonable risk of harm, and "that requires a finding of how much slippery is too . . . slippery because if [it is] not too slippery, there's no duty to warn." The judge stated that, "It is not common knowledge or lay knowledge of what is too slippery," and that an expert is required to establish that standard.
Thereafter, plaintiff filed a motion for reconsideration of the judge's decision. The judge subsequently considered that motion, and placed an oral decision on the record. The judge again concluded that an expert was required to establish that the landing area at defendant's home presented an unreasonable risk of harm to plaintiff when she fell.
IV.
On appeal, plaintiff argues that the trial judge erred by granting defendant's motion for involuntary dismissal. Rule 4:37-2(b) permits the trial court to dismiss an action "on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." Ibid.
The rule provides, however, that the motion must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid. We apply this standard in our review of a trial court's order granting involuntary dismissal. Luczak v. Township of Evesham, 311 N.J. Super. 103, 108 (App. Div.), certif. denied, 156 N.J. 407 (1998).
To prevail on a negligence claim, a plaintiff must establish that: (1) the defendant owed the plaintiff a duty of care (2) the defendant breached that duty; (3) the defendant's negligence was a proximate cause of the plaintiff's injuries; and (4) the plaintiff sustained damages as a result of defendant's negligence. D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996)). "The duty owed to a plaintiff is determined by the circumstance that brought [plaintiff] to the property." Ibid. (citing Daggett v. Di Trani, 194 N.J. Super. 185, 189 (App. Div. 1984)).
An invitee is "'one who is on the premises to confer some benefit[] upon the invitor other than purely social.'" Ibid. (quoting Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div.), certif. denied, 174 N.J. 362 (2002)). A "property owner owes a duty to an invitee to provide a 'reasonably safe place to do that which is within the scope of the invitation.'" Ibid. (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982)).
"The duty includes the obligation to 'use reasonable care to make the premises safe, including the duty to conduct a reasonable inspection to discover defective conditions.'" Ibid. (quoting Daggett, supra, 194 N.J. Super. at 192). "Premises liability, the scope of which changes according to the status of the plaintiff as either a business invitee or social guest, is dependent upon injury being caused by a dangerous condition of property, which involves an unreasonable risk of harm." Longo v. Aprile, 374 N.J. Super. 469, 474 (App. Div. 2005) (citing Restatement (Second) of Torts §§ 342 and 343).
Here, the trial judge determined that plaintiff's testimony was insufficient to establish that the wet tile on defendant's landing presented an unreasonable risk of harm and expert testimony was required on that issue. However, expert testimony is not required to establish the existence of a dangerous condition if "the subject can be understood by jurors utilizing [their] common judgment and experience." Campbell v. Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002) (citing Wyatt v. Wyatt, 217 N.J. Super. 580, 591 (App. Div. 1987)).
In such cases, the applicable standard of care is "'supplied by the jury[,] which is competent to determine what precautions a reasonably prudent [person] in the position of the defendant would have taken.'" Davis v. Brickman Landscaping, LTD, 219 N.J. 395, 407 (2014) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)). Expert testimony is only required when "the subject matter to be dealt with 'is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.'" Rocco v. N.J. Trans. Rail Operations, Inc., 330 N.J. Super. 320, 341 (App. Div. 2000) (quoting Butler, supra, 89 N.J. at 283).
We are convinced that the question of whether the wet tile on defendant's landing presented an unreasonable risk of injury was not an issue "'so esoteric'" that it could not be addressed by jurors, based on their own common judgment and experience. Ibid. (quoting Butler, supra, 89 N.J. at 283). Here, the trial judge reasoned that expert testimony was required to establish that the tile was "too slippery," but resolution of that issue was not "'beyond the ken of the average juror.'" See Boland v. Dolan, 140 N.J. 174, 188 ( 1995) (quoting State v. Berry, 140 N.J. 280, 290 (1995)).
Our Supreme Court's decision in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), supports this conclusion. In that case, the plaintiff was injured while on an "open house" tour conducted by a real estate broker to attract potential buyers. Id. at 431. The plaintiff fell when she was proceeding "down from one level of the house to another and missed a step, which she claimed constituted a dangerous condition because the connecting step was camouflaged by the similar floor that covered both levels." Id. at 431-32.
The Court noted that a homeowner has a preexisting duty to invitees "to make reasonable inspections of the property and to remedy any reasonably discoverable defects." Id. at 441 (citing Butler, supra, 89 N.J. at 225). The broker and the homeowner had "a somewhat shared responsibility" to the invitee "to the extent that they share the benefits derived from [the invitee's] presence on the property." Id. at 442.
The Court also addressed the question of whether expert testimony was required to establish the existence of a dangerous condition. Id. at 449-51. The Court held that "any juror, any person of average knowledge and ordinary experience, could determine by considering the testimony and by examining a photograph whether a step was 'camouflaged' or obscured and whether that condition could cause an unsuspecting person to fall." Id. at 450. The Court held that this was one of the cases where the hazard was "relatively commonplace and ordinary" and did "not require the explanation of experts in order for [its] danger to be understood by average persons." Ibid. That same conclusion applies here.
In finding that plaintiff was required to present expert testimony to support her claim, the judge relied upon Brody v. Albert Lifson & Sons, Inc., 17 N.J. 383 (1955). There, the plaintiff slipped and fell in the exterior vestibule of the defendant's retail store. Id. at 386-88. The floor of the vestibule was made of "terrazzo" which "was described as being composed of a mixture of Portland cement, sand, water and marble chips, laid rough and then ground down and polished to produce a smooth surface, bring out the color of the marble chips and make it ornamental." Id. at 386. The vestibule to the store extended about sixteen feet from the sidewalk to the entrance door, and was sloped down, at a grade of three-eighths of an inch to a foot, from the innermost point to the sidewalk. Ibid.
The plaintiff's expert testified that there were no abrasive materials on the surface of the floor. Ibid. He said the floor was slippery in a dry condition and would become "'considerably slippery'" if water were applied to its surface. Ibid. The expert also testified that there was a standard practice to add carborundum chips to the "surface of the material to cut down the slipperiness of the surface," which had not been done. Ibid. The expert also said that it was standard practice to place rubber mats on the surface of the terrazzo in wet or slippery weather. Id. at 386-87.
The defendant's expert testified that the defendant's floor conformed to certain "'accepted standards'" and with the municipality's building code. Id. at 387. The defense expert said "there was no standard requiring abrasives, but admitted that the composition of a terrazzo floor with abrasives as well as the composition of such a floor without abrasives was standard practice." Ibid. The defendant's expert also stated he was aware of no standard that required use of rubber mats on the type of floor involved, but admitted that the use of such mats would cut down the slipperiness. Ibid. The expert also said that terrazzo becomes slippery if wet, and depending on the pitch of the floor, could create a hazard. Ibid.
The Court determined that the plaintiff had presented sufficient evidence "from which a jury could reasonably infer that the construction of the floor rendered it peculiarly liable to become slippery by virtue of introduction of water thereon and that defendant omitted precautions which would have been practical or reasonable under the circumstances[.]" Id. at 390. The Court noted the presence of water, the "intrinsic slipperiness" of the terrazzo floor, the slope of the floor, the location of the vestibule, and the failure to use "customary precautions to prevent slipping[.]" Ibid.
The defendant had argued that the trial judge erred by permitting the plaintiff's expert to testify as to the effect that water would have upon the terrazzo flooring, because the fact that water makes terrazzo slippery was a matter of common knowledge. Id. at 391-92. The Court disagreed with the defendant's "assumption that the matter of the inherent slippery characteristics of terrazzo, or the effect of moisture thereon, is a matter of common knowledge." Id. at 392. The Court concluded, however, that the admission of the expert testimony "was harmless because it was in accord with the views the defendant asserted were encompassed by common knowledge." Ibid.
Here, the trial judge erred by relying upon Brody. That case dealt with terrazzo flooring, and there is no indication that the tile floor on defendant's landing was of the same type. Indeed, the trial judge commented that terrazzo is apparently more slippery than the tile at issue here. In addition, plaintiff did not allege that the tile at defendant's home was inherently slippery.
Moreover, the Brody case did not hold that expert testimony is required in all cases to show that a wet tile floor is unreasonably dangerous. We note that, in Hopkins, the Court cited Brody, and pointed out that the Court had there held that "expert testimony was necessary to prove that wet terrazzo floor constituted [a] dangerous condition of property." Hopkins, supra, 132 N.J. at 450. However, the Hopkins Court merely referenced the holding in Brody, and did not rely on that decision as support for its decision that expert testimony was not required to establish that the condition at issue was dangerous.
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION