Opinion
DOCKET NO. A-3715-11T4
04-12-2013
NATALIE PUGLIESE, infant by her g/a/l Lee Pugliese and LEE PUGLIESE, Plaintiffs-Appellants, v. RED BANK ARMORY, INC., Defendant-Respondent.
Philip G. Auerbach argued the cause for appellants (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Mr. Auerbach, of counsel and on the brief). Samuel J. McNulty argued the cause for respondent (Hueston McNulty, P.C., attorneys; Mr. McNulty, of counsel and on the brief; Edward J. Turro, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3914-10.
Philip G. Auerbach argued the cause for appellants (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Mr. Auerbach, of counsel and on the brief).
Samuel J. McNulty argued the cause for respondent (Hueston McNulty, P.C., attorneys; Mr. McNulty, of counsel and on the brief; Edward J. Turro, on the brief). PER CURIAM
Plaintiffs appeal from an order of the Law Division granting summary judgment to defendant and dismissing plaintiffs' complaint for damages based on personal injuries suffered by the minor plaintiff Natalie Pugliese while skating at defendant's ice rink. We affirm.
I.
We derive the facts from the record before the motion judge, viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On January 17, 2010, eleven-year-old Natalie Pugliese (plaintiff) attended a birthday party at an ice rink owned and operated by defendant, Red Bank Armory, Inc. Plaintiff had only ice skated a few times before the party and described herself as a "beginner."
Although there are two plaintiffs in this action, we shall refer to plaintiff in the singular for ease of reference.
Plaintiff skated without incident during most of the open ice-skating session but stayed with two friends near the wall around the rink. Although she had rented skates that day, plaintiff never sought or received any skating instructions from anyone. Toward the end of the skating session, plaintiff saw a "walker" out on the ice and, having used the device on a prior occasion, used it while skating once or twice around the rink on this occasion. Plaintiff had seen one of her friends use a walker while skating earlier in the day.
A walker is a short metallic frame, similar to the device used by disabled persons to assist them while walking. Defendant kept a number of walkers on the premises as a "complementary aid" for beginning skaters, to assist them in maintaining their balance on the ice. No instructions were provided on the use of the walkers.
Plaintiff recalled that she placed her hands on either side of the walker and "slowly moved with it." The walker was not broken and plaintiff had no difficulty moving the walker along the ice. At some point, however, the plaintiff "just normally slipped" and her left leg "slid in between the walker and twisted around it." She felt immediate pain in her left leg and was unable to get up from the ice. One of the adults at the birthday party helped plaintiff off the ice.
Plaintiff's mother then brought her to Riverview Medical Center, where X-rays showed that plaintiff suffered an "oblique, comminuted fracture of mid-shaft of left tibia." A "closed reduction" was undertaken, and plaintiff was placed in a long leg cast.
On January 18, 2010, plaintiff's mother called defendant to complain about the incident, and spoke to Leslie Brooks, a manager at the ice rink. Plaintiff's mother alleges that Brooks said, "Yes. We've had problems with walkers in the past. That's why we have less than we used to . . . ." Brooks denied making the statement.
On August 6, 2010, plaintiff filed a complaint in the Law Division alleging that defendant was negligent and "created a hazardous condition by providing infant plaintiff" with the walker. The court entered an order on August 19, 2011, extending discovery to December 11, 2011, and requiring plaintiffs to serve expert reports by October 15, 2011.
Following the close of discovery, defendant filed a motion for summary judgment, contending, among other things, that plaintiff had not provided an expert liability report and plaintiff's fall on the ice was a normal incident of skating. Plaintiff argued that Brooks' statement that defendant had "problems" with the walkers in the past, as well as the nature of the fracture, warranted denial of summary judgment and submission of the case to a jury.
Judge David F. Bauman granted defendant's motion for summary judgment and opined, in pertinent part:
[T]he Armory should not be held liable for injuries sustained by the plaintiff so long as the business acted in accordance with the ordinary duty of care owed to business invitees, including the exercise of care commensurate with the nature of the risk, the foreseeability of the injury and the fairness under all of the circumstances in this case.Regarding Brooks' statement concerning past problems with the walkers, Judge Bauman stated "that the trier of fact can only speculate as to what the nature of those problems may have been or how any of those problems relate to the walker in question here."
To establish liability in this case, the plaintiff has to demonstrate that the Armory failed to act or failed to warn in accordance with the applicable standard of care for the management and operation of an ice skating rink.
The Court does not find that that standard of care is within the ordinary ken of typical jurors. And indeed there is no report.
Judge Bauman concluded that
the jury should [not] be allowed to speculate as to whether the Armory's use of the walker, or the Armory's failure to warn was improper or negligent in the absence of any expert opinion as to the standard of care governing the operation of ice skating rinks.A confirmatory order was entered on February 17, 2012, and this appeal followed.
And without a liability expert, plaintiff will not be able to sustain her burden of proof on liability as a matter of law.
II.
Plaintiff argues on appeal that "the walker should not have been in use" and that Brooks' statement "clear[ly] . . . pertained to the ability of . . . children to use [the walkers,] or the safety of the walkers when used by children." Plaintiff adds that "expert opinions required in malpractice cases do not apply here."
Having considered these arguments in light of the motion record and the applicable legal standards, we affirm essentially for the reasons expressed by Judge Bauman in his thoughtful opinion from the bench. We add only the following.
To prevail in a negligence action, plaintiff bears the burden of proving that defendant owed a duty to exercise reasonable care, defendant breached that duty, and the breach was a proximate cause of plaintiff's injury. Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994), certif. denied, 139 N.J. 441 (1995). "'The nature of the duty resting upon the defendant[] is a question of law'" for the court. Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 221 (1954) (quoting Niles v. Phillips Express Co., 118 N.J.L. 455 (E. & A. 1937)).
The operator of a commercial recreational facility has a general duty to exercise reasonable care for the safety of its patrons. Hojnowski v. Vans Skate Park, 187 N.J. 323, 335 (2006) (holding that "business owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is in the scope of the invitation"); McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 303-04 (1970). The measure of that duty is "'due care under all the circumstances.'" Schneider v. American Hockey and Ice Skating Center, Inc., 342 N.J. Super. 527, 534 (App. Div. 2001) (quoting Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 506 (1997); Butler v. Acme Mkts., Inc., 89 N.J. 270, 276 (1982)).
Some activities, due to their very nature, require the participant to assume some risk because injury is a common and inherent aspect of the activity. Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 307 (2010) ("When it comes to physical activities in the nature of sports--physical exertion associated with physical training, exercise, and the like--injuries are not an unexpected, unforeseeable result of such strenuous activity."); Crawn v. Campo, 136 N.J. 494, 500 (1994). Thus, if "the evidence so clearly shows the injury-producing risk was a normal incident of skating, the issue may be resolved against plaintiff as a matter of law." Calhanas v. South Amboy Roller Rink, 292 N.J. Super. 513, 521 (App. Div. 1996).
While there is no general rule or policy requiring expert testimony on the standard of care, where the court finds that a defendant owed the plaintiff a duty to exercise reasonable care, expert testimony will be required when "the 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." Butler, supra, 89 N.J. at 283. See also Scully v. Fitzgerald, 179 N.J. 114, 127 (2004); Kelly v. Berlin, 300 N.J. Super. 256, 269 (App. Div. 1997). Expert testimony is also required where damage can be attributed to several separate causative factors. Schwarze v. Mulrooney, 291 N.J. Super. 530, 541 (App. Div. 1996); see also Scully, supra, 179 N.J. at 248; Butler, supra, 89 N.J. at 283. A related problem arises when a party seeks to adduce non-expert proof of facts that would be relevant if logically connected to the case by expert opinion. See, e.g., Wyatt by Caldwell v. Wyatt, 217 N.J. Super. 580, 591-92 (App. Div. 1987); see also Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2013). The Butler court encouraged the use of expert testimony as an aid to the jury, but "its absence is not fatal." Butler, supra, 89 N.J. at 283.
In the case before us, Judge Bauman determined that the standard of care was not within the ordinary ken of typical jurors, and plaintiff therefore, required an expert report on liability. We agree.
Plaintiff alleged that defendant was negligent in its operation of the skating facility, because defendant created "a hazardous condition by providing infant plaintiff with a 'walker' on the ice," causing her to sustain an injury. Plaintiff claimed she was injured when "her leg got twisted around the walker which means that either the leg or cross bar of the walker was applying pressure against her leg." Defendant argues, however, that plaintiff's injuries were a "normal incident of skating."
Plaintiff produced a medical report from Cary Skolnick, M.D., which contained no opinion as to the biomechanics of plaintiff's injury. On appeal, plaintiff maintains that Dr. Skolnick would testify as to the cause of the fall, and that this testimony would be within the scope of his expert report. In his report, Dr. Skolnick described plaintiff's injuries as a "displaced fractured left tibia and fibula midshaft." He described plaintiff's accident in his report as: plaintiff "was instructed to use a walker to help with skating and learning. She slipped on the ice and her leg went through the legs of the walker, and she sustained an injury to the lower left extremity. She was unable to get up off the ice by herself." Dr. Skolnick opined that the injuries noted in his report were "directly and causally related to the accident." Clearly, however, Dr. Skolnick offered no opinion pertaining to the propriety of supplying a walker for the use of skaters, or, indeed, any opinion at all relating to the walker that was used.
"The mere showing of an incident causing the injury sued upon is not alone sufficient to authorize the finding of an incident of negligence. Negligence is a fact which must be shown and which will not be presumed." Long v. Landy, 35 N.J. 44, 54 (1961). Plaintiff submitted no liability expert and her medical expert did not opine on the use or condition of the walker. Further, there is no evidence in the record to suggest defendant was negligent. Plaintiff stated in her deposition that she just "normally slipped," and that the walker was neither broken nor difficult to use.
The duty claimed here is that defendant should not have supplied the walker at all. While plaintiff portrays this as a common knowledge claim, deeper reflection reveals it is not. Nothing in the record suggests that defendant's walker was improperly designed, broken or improperly made available to plaintiff. Nothing in the record suggests that defendant breached a duty to plaintiff, or, indeed, what defendant's duty was. Without expert testimony, a trier of fact would be left to speculate about these critical issues. Consequently, the record was insufficient for a jury to determine that plaintiff fell or suffered an injury because of the negligence of defendant.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELJLATE DIVISION