FRED KATZ VS. CHARLES E. VOORHEES (L-2675-14, BURLINGTON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-5225-16T4
FRED KATZ and MARLA
KATZ,
Plaintiffs-Appellants/
Cross-Respondents,
v.
CHARLES E. VOORHEES,
Defendant-Respondent/
Cross-Appellant.
_________________________________
Argued October 30, 2018 – Decided November 26, 2018
Before Judges Hoffman, Geiger and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Docket No. L-2675-14.
Christa F. High argued the cause for appellants/cross-
respondents (Law Offices of Daniel J. Siegel, LLC,
attorneys; Daniel J. Siegel, on the briefs).
Steven Antinoff argued the cause for respondent/cross-
appellant (Parker Young & Antinoff, LLC, attorneys;
Steven Antinoff, on the briefs).
PER CURIAM
Plaintiffs Fred and Marla Katz1 appeal from the summary judgment
dismissal of their slip and fall negligence complaint. Defendant Charles
Voorhees cross-appeals from an earlier order which effectively vacated an order
confirming a no-cause arbitration award in defendant's favor. For the following
reasons, we vacate and remand the summary judgment dismissal of plaintiff's
complaint, and affirm on defendant's cross-appeal.
I.
We begin with a summary of the pertinent facts, viewed in the light most
favorable to plaintiffs, the parties opposing summary judgment. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see R. 4:46-2. On a
rainy day in June 2013, plaintiff went to defendant's home on a service call, in
the course of his employment as an air-conditioning technician. As plaintiff
inspected the unit, defendant stood next to him, holding an umbrella over both
of them. When plaintiff started to walk around the house to access his service
vehicle, defendant encouraged him to walk through the house to avoid the rain.
After putting cloth booties over his shoes, plaintiff followed defendant through
1
For ease of reference, we refer to Fred Katz individually as plaintiff; his wife,
Marla Katz, sues per quod.
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the house and into a mudroom, which had a doorway to access steps leading to
a garage. Defendant did not wipe his shoes on a mat in the mudroom before
descending seven steps ahead of plaintiff to the garage floor. As he walked from
the mudroom into the garage, defendant did not turn on the garage overhead
lights; instead, he hit the button to open the garage door. The light on the garage
door opener provided only dim light as plaintiff began to descend the steps from
the mudroom. Defendant's stairs consisted of unusually steep risers with narrow
treads.
According to plaintiff, when he "stepped on the first step," he fell
backwards, and "went down all the steps," sustaining serious injuries. 2 Plaintiff
was "shocked" to learn, after falling, that there were more than two or three
descending steps. He also stated he did not see any handrail before he fell.
Additionally, plaintiff claims that immediately after he fell, defendant ran over
to him and said, "Are you okay[?] I should have warned you." He also told
plaintiff that his son fell there, and got hurt.
Plaintiff further claims that when he stood up, he turned and looked at the
steps, and began touching them because he "was curious why [he] fell." Plaintiff
2
Plaintiff's injuries included a right rotator cuff tear, a left elbow biceps tendon
rupture, and a right biceps tear, requiring multiple surgeries.
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3
stated that he remembers "touching the steps and they [were] shiny, [and] very
slippery." Specifically, plaintiff stated he was feeling "one of the top" stairs at
this time.
Defendant's house was built in 1966. In the twelve years he lived there
before plaintiff's accident, defendant never repaired or updated the garage stairs.
Plaintiff submitted a report from a premises liability expert, Ronald Cohen, P.E.
After reviewing deposition testimony and physically examining the steps, Cohen
concluded that plaintiff's fall was the result of an "overstep," because the end of
his foot extended beyond the edge of the step. He opined that tread depths
should be "eleven inches minimum," which meant defendant's treads were
undersized by almost four inches, in violation of "long standing engineering
practice," and several building codes, including the BOCA 3 National Building
Code of 1987. Cohen further opined that defendant should have verbally warned
Katz of the shallow tread depths. Other defects noted by Cohen were an
ineffective handrail which did not extend to the garage floor; failure to maintain
uniform treads and risers; and failure to provide an adequate stair land ing.
Cohen noted that the stairs' "effective tread depths varied and the effective
depth of the top/incident tread was 7-1/16 inches," while a "men's size [nine]
3
BOCA stands for Building Officials and Code Administrators.
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foot is 10-3/8 inches long and a size [ten] is 10-5/8 inches long. A corresponding
work boot length would be about 12-3/8 inches and 12-5/8 inches, respectively."
Based on these facts, Cohen found that plaintiff's fall "was consistent with an
overstep," which occurs when "too much of the foot projects beyond the [tread]
nosing; the body's full weight is transferred to the leading foot, which may slide
over the edge, causing a loss of balance." Cohen further opined that in order for
plaintiff to have avoided overstepping, he "would have had to know to descend
with his feet turned outward in a duck-like manner." Cohen therefore concluded,
"Absent a warning marker and because [plaintiff] was unfamiliar with the
residence, at the very least [defendant] should have provided a verbal warning
to be careful because the stair tread depths were shallow."
Defendant's expert, Keith Bergman, P.E., did not dispute the contention
that defendant's stairs were not code compliant on the date of plaintiff's accident.
Instead, he expressed the opinion that since New Jersey did not adopt the BOCA
building code until 1975, and since defendant's home was constructed "circa
1965," the opinions of plaintiff's expert were "unreasonable and inappropriate."
The motion court granted defendant's motion for summary judgment, after
ruling that Cohen's report constituted "a net opinion." The judge explained that
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because he would "not allow the expert to testify . . . there's no evidence now,
[so] I'm going to dismiss the plaintiff's complaint." 4 This appeal followed.
II.
We review a trial court's grant of summary judgment de novo. Cypress
Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016) (citation
omitted). "[The] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)
(citations omitted). Summary judgment may be granted when the evidence
before the trial court on the motion, viewed in a light most favorable to the non -
moving party, indicates there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. R. 4:46-2(c); see also
Brill, 142 N.J. at 540. In reviewing an order granting or denying summary
judgment, we employ the same standard as the trial court. Murray v. Plainfield
Rescue Squad, 210 N.J. 581, 584 (2012).
The trial court's "function is not . . . to weigh the evidence and determine
the truth . . . but to determine whether there is a genuine issue for trial." Brill,
4
The judge provided no separate basis for summary judgment; he merely
assumed that, without Cohen's testimony, plaintiff had no viable claim.
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142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)). To make the determination, the trial judge must "consider whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Ibid.
The judge must assume the non-moving party's version of the facts as true and
give that party the benefit of all favorable inferences available in the record. Id.
at 536.
Broadly speaking, to recover on a negligence claim, a plaintiff must prove
1) the defendant owed the plaintiff a duty, 2) the defendant breached
that duty, and 3) the breach of the duty proximately caused the plaintiff's injury.
Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984). In a premises
liability case, as here, the type of duty owed by defendant to plaintiff generally
depends upon plaintiff's classification. Hopkins v. Fox & Lazo Realtors, 132
N.J. 426, 433 (1993) (noting that the three classifications are business invitee,
licensee, and trespasser). Business invitees are defined as individuals that
"come by invitation, express or implied." Snyder v. I. Jay Realty Co., 30 N.J.
303, 312 (1959) (citation omitted). The duty owed to business invitees, such as
plaintiff here, is a "duty of reasonable care to guard against any dangerous
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conditions on [his] property that [defendant] either kn[ew] about or should have
discovered. That standard of care encompasses the duty to conduct a reasonable
inspection to discover latent dangerous conditions." Hopkins, 132 N.J. at 434.
See also, Daggett v. Di Trani, 194 N.J. Super. 185, 192 (App. Div. 1984)
(residential defendant's duty to business invitee is to use reasonable care to make
premises safe; duty includes obligation to make reasonable inspections to
discover defective conditions).
"A homeowner is intimately acquainted with his or her residence and
consequently aware of many of the problems that remain hidden to the untrained
or unfamiliar eye." Hopkins, 132 N.J. at 445. At a minimum, reasonable care
requires a homeowner to warn a business guest of any defects or dangerous
conditions of which the homeowner is aware or should be aware. See Filipowicz
v. Diletto, 350 N.J. Super. 552, 560 (App. Div. 2002).
A.
We first address the judge's determination that plaintiff could not sustain
his burden of proof to establish that defendant violated a duty to him without
expert testimony. In determining whether a plaintiff must provide expert
testimony, a court must consider "whether the matter to be dealt with is so
esoteric that jurors of common judgment and experience cannot form a valid
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judgment as to whether the conduct of the [defendant] was reasonable." Davis
v. Brickman Landscaping, Ltd., 219 N.J. 395, 407 (2014) (alteration in original)
(quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)). In those
instances, the jury would have to "speculate without the aid of expert testimony."
Torrey v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly
v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997)).
Basic principles of negligence law routinely allow lay jurors to determine
if a defendant acted unreasonably. Model Jury Charge (Civil), 5.10A,
"Negligence and Ordinary Care" (approved before 1984). Basic notions of
reasonable behavior do not necessarily require an expert to testify regarding
standards of care, particularly where the case does not involve suit against a
licensed professional covered by the Affidavit of Merit statute. Jacobs v. Jersey
Cent. Power & Light Co., 452 N.J. Super. 494, 505 (App. Div. 2017).
In many situations, expert testimony will not be necessary to establish that
the defendant failed to act as a reasonable person. See Hopkins, 132 N.J. at 449-
51. See also Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982) (emphasis
omitted) (citation omitted) ("no general rule or policy requiring expert testimony
as to the standard of care"). Accord, Crawn v. Campo, 136 N.J. 494, 508 (1994).
As the Court observed in Hopkins, "some hazards are relatively commonplace
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and ordinary and do not require the explanation of experts in order for their
danger to be understood by average persons." 132 N.J. at 450. In Hopkins, the
plaintiff lost her footing when she stepped down from a home's hallway into its
foyer, and both surfaces were covered by vinyl material that had the same
pattern. Id. at 432. The Court concluded that a jury would be capable of
deciding, without expert assistance, whether the step constituted a dangerous
condition. Id. at 450-51. See also Campbell v. Hastings, 348 N.J. Super. 264,
270 (App. Div. 2002) (expert testimony not necessary to explain danger created
by unlit sunken foyer); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507,
511 (App. Div. 1957) (expert testimony not required to prove that wet floor is
likely to be slippery).
Based upon the photograph of defendant's stairs, the detailed
measurements of the stairs, and plaintiff's description of the circumstances of
his fall, we conclude that plaintiff was not required to provide expert testimony
to establish that defendant violated a duty to him as an invitee. We conclude
that average persons could readily understand the potential hazards presented by
undersized, wet stairs encountered with inadequate lighting and no warning.
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B.
We next address the judge's determination to bar the report of plaintiff's
expert as constituting a net opinion. A net opinion consists of nothing more than
"bare conclusions, unsupported by factual evidence." Buckelew v. Grossbard,
87 N.J. 512, 524 (1981); see also Townsend v. Pierre, 221 N.J. 36, 55 (2015).
An expert's bare conclusions, unsupported by factual evidence, are inadmissible.
Buckelew 87 N.J. at 524.
Contrary to the motion judge's ruling, we do not find Cohen's report
constituted a net opinion. His opinions were based – in part – on his physical
inspection, which revealed tread depths significantly shorter than industry
standards, to the extent that they "would not reasonably accommodate safe adult
male descent without stepping with their feet turned outward in a duck -like
manner." Cohen therefore proffered the plausible inference that the stairs' tread
depth, along with the potential moisture and the lack of warning and lighting,
caused plaintiff to "overstep" and fall backwards down the stairs.
Considered together and cumulatively, these facts reasonably explain and
support the "why[s] and wherefore[s] of [Cohen's] opinion," Townsend, 86 N.J.
at 494, and amount to much more than a bare conclusion. Indeed, although the
BOCA violations would not constitute negligence per se, such evidence provides
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support for Cohen's opinion that the undersized tread depth of defendant's stairs
"would not safely accommodate a [shoed] adult male during normal descent."
C.
As to causal connection, even if plaintiff could not precisely pinpoint the
specific cause of the slip, there were sufficient facts from which it may be
reasonably inferred that the hazardous condition identified by the expert was a
proximate cause of plaintiff's injury. On this score:
It is well settled that the existence of a possibility of a
defendant's responsibility for a plaintiff's injuries is
insufficient to impose liability. "In the absence of
direct evidence, it is incumbent upon the plaintiff to
prove not only the existence of such possible
responsibility, but the existence of such circumstances
as would justify the inference that the injury was caused
by the wrongful act of the defendant and would exclude
the idea that it was due to a cause with which the
defendant was unconnected. While proof of certainty
is not required, the evidence must be such as to justify
an inference of probability as distinguished from the
mere possibility of negligence on the part of the
defendant."
[Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 141
(1951) (emphasis omitted) (quoting Callahan v. Nat'l
Lead Co., 4 N.J. 150, 154 (1950)).]
After considering all the evidence in the light most favorable to plaintiff,
including how narrow and steep tread depths can lead to overstepping, coupled
with the presence of multiple hazards (wet stairs and poor lighting) and the
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absence of any warning, it is reasonable to infer that the defect in the stairs, and
the hazards surrounding them at the time of the incident, probably caused the
accident.
We conclude that genuine issues of material fact exist as to whether the
tread depth on the stairs was both hazardous and therefore a breach of the duty
owed to plaintiff, and a proximate cause of plaintiff's slip and fall, sufficient to
warrant the matter to proceed to trial. We also find genuine issues of material
fact as to whether defendant contributed to a hazardous condition that caused
plaintiff's accident, by failing to turn on the overhead light, by walking ahead of
plaintiff with wet shoes, and by failing to warn plaintiff of the stairs' unusually
narrow and steep treads. Because genuine issues of material fact exist as to both
breach of duty and causation, the motion court erred in granting summary
judgment.
III.
We now turn to defendant's cross-appeal and address defendant's
argument that the motion court erred when it vacated an order confirming a no -
cause arbitration award in defendant's favor. The parties went to arbitration on
August 24, 2016, and the arbitrator found in favor of defendant. In a written
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opinion in support of the decision that defendant now challenges on his cross -
appeal, the motion judge summarized the procedural events that followed:
On September 9, 2016, [p]laintiffs sent a Notice of
Demand for Trial De Novo. On September 15, 2016,
the [c]ourt contacted [p]laintiffs and informed them
that they would require a new copy signed in blue ink
to confirm an original signature. The requested copy
was received by the [c]ourt on September 21, 2016[,]
and time[-]stamped received on September 15, 2016.
The thirty . . . day period to file a Trial De Novo expired
on September 24, 2016.
On September 28, 2016, [p]laintiffs received
[d]efendant's Motion to Enforce Arbitration Award. On
September 29, 2016, [p]laintiffs forwarded [d]efendant
a copy of the Notice of Demand for Trial De Novo with
a letter informing [d]efendant that they were awaiting a
time stamped copy from the [c]ourt and requesting that
[d]efendant withdraw his motion. Between September
29, 2016 and October 10, 2016, [the] parties
communicated with the [c]ourt to schedule a trial date.
On October 14, 2016, [d]efendant proceeded with his
motion and it was granted as unopposed.
After the judge issued the order confirming the arbitration award, plaintiff
filed a motion for reconsideration. In his written opinion granting plaintiff's
motion, the judge explained that he granted defendant's motion "without any
consideration to the aforementioned facts," as "[d]efendant's motion was
unopposed." The judge determined that defendant would not be prejudiced
because "the parties were communicating with this [c]ourt in an effort to
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schedule trial as early as September 29, 2016, and thus, [d]efendant had
sufficient notice." Ultimately, the judge granted plaintiff's motion for
reconsideration "based on [the] additional information they provided and most
importantly, for the need to achieve equity and justice in this matter."
We review a trial court's decision to grant or deny a motion for
reconsideration under an "abuse of discretion" standard. Fusco v. Bd. of Educ.
of City of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002). An abuse of
discretion "arises when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting
Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260,
1265 (7th Cir. 1985)).
"Motions for reconsideration are granted only under very narrow
circumstances . . . ." Fusco, 349 N.J. Super. at 462. The motion is reserved for
cases where "either (1) the [c]ourt has expressed its decision based upon a
palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either
did not consider, or failed to appreciate the significance of probative, competent
evidence." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990)).
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Reconsideration is "a matter within the sound discretion of the [c]ourt, to
be exercised in the interest of justice . . . ." Palombi v. Palombi, 414 N.J. Super.
274, 288 (App. Div. 2010) (alteration in original) (quoting D'Atria, 242 N.J.
Super. at 401).
Rule 4:21A-6(b)(1) provides,
An order shall be entered dismissing the action
following the filing of the arbitrator's award unless:
(1) within 30 days after filing of the arbitration award,
a party thereto files with the civil division manager and
serves on all other parties a notice of rejection of the
award and demand for a trial de novo . . . .
In Flett Assocs. v. S.D. Catalano, Inc., 361 N.J. Super. 127 (App. Div. 2003),
the defendant filed a demand for a trial de novo from an arbitration proceeding
within the thirty-day period provided by Rule 4:21A-6(b), but it failed to notify its
adversaries within the same time frame. Id. at 129-30. The trial judge granted
plaintiff's motion to enforce the arbitration award based on existing case law and
Rule 4:21A-6(b)(1), however, we reversed, citing Corcoran v. St. Peter's Med. Ctr.,
339 N.J. Super. 337, 343 (App. Div. 2001), which
shows that our courts extend some latitude in
enforcement of the service requirement of Rule 4:21A-
6(b)(1) in cases where the demand has been filed within
the allowed thirty-day period. It also shows that even
a "clerical mistake" may provide a sufficient basis for a
court declining to strictly enforce the service
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requirement if there is "reasonable explanation" for the
mistake. Corcoran, 339 N.J. Super. at 344.
Rule 1:3-4(a) confers general authority upon the
trial and appellate courts to enlarge the time allowed for
taking action under the court rules. Although certain
time periods are not subject to such enlargement, R.
1:3-4(c), the thirty-day period for service of a trial de
novo demand under Rule 4:21A-6(b)(1) is not one of
those time periods. Therefore, Rule 1:3-4(a) provides
the requisite authority for a trial court to enlarge this
time period.
[Flett Assocs., 361 N.J. Super. at 132-33.]
In applying Rule 1:3-4(a), "unless there is an overriding policy
consideration that requires a stricter standard, an application for an enlargement
or extension of the time for taking action under a court rule is governed by a
more liberal standard than 'extraordinary circumstances,' such as the 'interests
of justice' or 'good cause.'" Id. at 133 (citations omitted). While the Supreme
Court has found that the thirty-day period for filing a demand for a trial de novo
may be relaxed only upon a showing of "extraordinary circumstances," Wallace
v. JFK Hartwyck at Oak Tree, 149 N.J. 605, 609 (1997) (citing Hartsfield v.
Fantini, 149 N.J. 611, 618 (1997)), it also acknowledged our holding in Flett,
stating that the panel "held correctly that, under the facts presented, 'a delay in
satisfaction of the service requirement does not have the same deleterious effect
upon efficient administration of the arbitration program as a failure to file the
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demand within time.'" Vanderslice v. Stewart, 220 N.J. 385, 391 (2015)
(quoting Flett Assocs., 631 N.J. Super. at 134). Therefore, it is appropriate to
adhere to this court's conclusion "the requirement that a trial de novo demand
be served within thirty days may be relaxed upon a showing of good c ause and
the absence of prejudice." Flett Assocs., 361 N.J. Super. at 134.
Here, on the motion for reconsideration, the trial judge considered facts
that were not before him at the time of the order confirming the arbitration
award. He considered the potential prejudice to defendant and found none. In
accordance with this court's holding in Flett and Rule 1:3-4(a), the judge granted
plaintiff's motion for reconsideration "based on . . . the need to achieve equity
and justice in this matter." The judge did not abuse his discretion, since he
applied the appropriate principles and provided a rational explanation for
granting plaintiff's motion for reconsideration. We therefore affirm on
defendant's cross-appeal.
Vacated and remanded, in part, and affirmed, in part. We do not retain
jurisdiction.
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