PHILADELPHIA CONTRIBUTIONSHIP INSURANCE COMPANY, ETC. VS. RYAN, INC. (L-2449-15, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4890-16T1
PHILADELPHIA CONTRIBUTIONSHIP
INSURANCE COMPANY, a/s/o
DAVID MUNZ,
Plaintiff-Appellant,
v.
RYAN, INC.,
Defendant-Respondent.
____________________________
Submitted September 13, 2018 – Decided January 9, 2019
Before Judges Simonelli and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Docket No. L-2449-15.
Crawford and McElhatton, attorneys for appellant
(Brian J. James, and on the brief).
Hardin, Kundla, McKeon & Poletto, PA, attorneys for
respondent (Janet L. Poletto and Robert E. Blanton, Jr.,
on the brief).
PER CURIAM
In this insurance subrogation matter, plaintiff Philadelphia
Contributionship Insurance Company appeals from the April 13, 2017 Law
Division order barring its experts' reports and testimony and granting summary
judgment to defendant Ryan, Inc. Plaintiff also appeals from the June 9, 2017
order denying its motion for reconsideration. We affirm.
I.
Defendant is a fuel oil company that provided fuel for the oil-fired furnace
located in the home of David Munz. Defendant also serviced the furnace for
many years. Approximately one month before December 16, 2013, and again
on that date, defendant's service technician, Anthony Perriello, serviced the
furnace after Munz reported having no heat.
On January 4, 2014, a fire occurred at Munz's home, which originated
inside the furnace. Munz submitted a property damage claim to plaintiff, which
plaintiff paid. On July 6, 2015, plaintiff filed a complaint for subrogation
against defendant to recover the sum paid to Munz.
The discovery deadline was July 21, 2016. On May 20, 2016, the parties
consented to a sixty-day extension. On August 30, 2016, defendant filed a
motion to further extend discovery and fix a date certain for plaintiff to furnish
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expert reports. In a September 16, 2016 order, the trial court extended discovery
to November 18, 2016, and ordered as follows, in pertinent part:
Plaintiff shall furnish all written reports or written
summaries of oral reports from all proposed expert
witnesses on liability, causation, and/or damages by
September 26, 2016[;]
The testimony of the experts for [p]laintiff whose
written reports are supplied by September 26, 2016
shall be specifically limited to the scope of the
reports[;] and
The testimony of any expert witnesses on behalf of
[p]laintiff whose reports are not supplied by September
26, 2016 shall be barred at the time of trial.
Plaintiff did not seek relief from this order and does not challenge it on appeal.
On September 26, 2016, plaintiff amended its interrogatory answers to
include the following written summary of the oral reports of its proposed origin
and cause expert, John Goetz, and furnace expert, Edward Carey:
John Goetz – Origin and Cause Expert
[] Goetz conducted an inspection of [Munz's]
property . . . to determine the origin and cause of the
fire at the subject property. No exterior fire or smoke
damage was observed. An interior examination
disclosed smoke and heavy soot damage throughout the
first and second floor. The soot damage was observed
to be coming from the hot air ducts for the oil fired
furnace located in the basement. The basement was
observed to have sustained smoke, soot, fire and water
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damage. Fire damage was observed in the area of the
oil-fired, hot air furnace.
Fire patterns observed in the structure place the
area of origin as the oil-fired, hot air furnace. Above
the furnace was the duct system for the furnace as well
as some electrical lines. These electrical lines sustained
no damage, and no malfunctions were observed. The
duct system contained large amounts of soot.
An examination of the oil-fired, hot air furnace
was conducted. The furnace sustained fire and heat
damage. The fire and heat damage was observed
mainly in the burner area of the furnace. Various
components of the furnace had been removed and
placed on top of the furnace. There was large amount
of soot in the flue for the chimney. The burner section
of the furnace displayed heavy heat damage. From the
fire patterns observed on the furnace, the furnace is the
point of origin of the fire. The only fire damage
observed within the basement was within the oil-fired,
hot air furnace.
Ed Carey – Furnace Expert
[] Carey conducted an evidence examination of
the oil-fired, hot air furnace. The furnace is a Thatcher
[TM] Low Boy designed furnace, Model No. V120G,
Series I which was approximately [forty-six] years old.
The furnace sustained a fuel release in the burden
vestibule (front) of the furnace, which fire and burn
patterns indicate resulted in a hostile fire in the burner
vestibule.
The chimney connector pipe is the pipe from the
breach/outlet of the furnace to the chimney. It is
presumed that the chimney connector pipe was
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removed from the furnace by the fire department
personnel’s fire suppression efforts.
Examination of the chimney pipe disclosed
heavily corroded holes through the chimney connector
pipe that would have been visible by any professional
working on the subject furnace. Further inspection of
the subject furnace revealed that the oil furnace also
had large holes corroded through the metal surfaces of
the heat exchanger. The extent and condition of the
corrosion of the metal surfaces of the chimney
connector pipe and heat exchanger indicate that said
condition was not the result of the events of the subject
fire. Rather, the holes corroded through the chimney
connector pipe and heat exchanger were obviously
preexisting, prior to the services performed by
defendant, within a few weeks of the fire.
The subject furnace is long past its useful life
expectancy. Also, it clearly appears that the subject oil
furnace, chimney pipe and heat exchanger would not
have been in safe and serviceable condition when the
services were performed by defendant, within a few
weeks of the fire.
The subject furnace should not have been
repaired and returned to service when defendant
worked on said furnace a few weeks prior to the
incident. At that time, the subject furnace should have
been declared unsafe and removed from service by the
defendant’s service personnel.
The court entered two more orders extending the discovery deadline for
the parties to complete specified discovery, which did not include serving
supplemental or rebuttal expert reports. On January 10, 2017, plaintiff filed a
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motion to extend discovery for thirty days to serve rebuttal expert reports and
complete specific depositions, including Perriello's deposition. Perriello's
deposition occurred on January 19, 2017. Thereafter, in a February 3, 2017
order, the court extended discovery for thirty days, to March 6, 2017, 1 for the
parties to complete the specified deposition and denied plaintiff’s request to
serve rebuttal expert reports. The court also scheduled trial for May 15, 2017.
Plaintiff did not seek relief from this order and does not challenge it on appeal.
Without leave of court, on March 1, 2017, plaintiff amended its answers
to interrogatories to include a supplemental expert report from Carey that gave
an entirely new opinion as to the cause of the fire. Defendant objected to the
supplemental report and reserved the right to contest it.
On March 15, 2017, defendant filed a motion to bar Goetz's and Carey's
reports and testimony and for summary judgment dismissing the complaint for
plaintiff's lack of expert evidence establishing defendant's liability. Defendant
argued that Carey's supplemental report was untimely and served in violation of
the court's orders, and Goetz and Carey rendered net opinions that failed to
articulate the cause of the fire.
1
March 4, 2017 was a Saturday. See R. 1:3-1.
A-4890-16T1
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Plaintiff countered that the court should allow Carey's supplemental report
because Perriello's deposition testimony provided newly discovered evidence as
to the cause of the fire. Plaintiff claimed this new evidence was not readily
available or discoverable prior to the deposition, but did not explain why.
On April 13, 2017, the court entered an order barring Goetz's and Carey's
reports and testimony and granting summary judgment dismissing the
complaint. In an oral opinion, the court found the case required expert testimony
establishing the origin and cause of the fire and whether defendant was
negligent. The court then reviewed the written summary of Goetz's report and
found that other than saying the fire originated in the furnace, Goetz did not
establish the cause of the fire or give the whys and wherefores supporting
plaintiff's claim that defendant's actions caused the fire. The court concluded
that Goetz rendered an inadmissible net opinion and barred his report and
testimony.
The court reviewed the written summary of Carey's report and found that
although Carey concluded the furnace, chimney pipe and heat exchanger would
not have been in a safe and serviceable condition when Perriello serviced the
furnace, he failed "to reference any textbook treatise, standard custom
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recognized practice or anything of the like other than his personal view" to
support his opinion. The court also stated that Carey
talk[ed] about the chimney pipe and the holes in the
system and things like that. And having done that, he
[did not] say at all why ̶ provide any foundation other
than his own training and experience as to why ̶ that
those were the problems and not let the [furnace]
continue to be [in] serviceable condition and continue
to be operated. So there is no, I find, explanatory
analysis provided.
The court determined that Carey's supplemental report was barred by court
orders. Nevertheless, the court found that "the same is true of [the supplemental
report]. . . . At no time is there any reference to anything other than [Carey's]
own personal viewpoint." The court concluded that Carey rendered inadmissible
net opinions and barred his reports and testimony. Due to the lack of expert
evidence, the court granted summary judgment and dismissed the complaint.
Plaintiff filed a motion for reconsideration, reiterating that the court
should allow Carey's supplemental report based on newly discovered evidence
from Perriello's deposition testimony that was not readily available or
discoverable prior to the deposition, but again did not explain why. In the
alternative, plaintiff argued for the first time that expert testimony was not
necessary.
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Defendant countered that the September 16, 2016 order required plaintiff
to serve all expert reports or written summaries by September 26, 2016, and the
order limited the testimony of plaintiff's experts to the scope of the reports
furnished and barred any expert reports not timely served. Defendant also
argued that the February 3, 2017 order barred plaintiff from submitting further
expert reports; expert testimony was necessary to prove the cause of the fire;
and Goetz and Carey rendered net opinions as to the cause of the fire. Defendant
further argued that Perriello's deposition testimony was not newly discovered
evidence that was not readily available or discoverable prior to the deposition
because plaintiff could have deposed Perriello prior to submitting the written
summaries of Goetz's and Carey's oral expert reports.
On June 9, 2017, the court entered an order denying the motion, finding
plaintiff did not satisfy the requirements for granting reconsideration. In an oral
opinion, the court again found the case required expert testimony, reasoning as
follows:
This is not a case that's so plain on its facts that it would
not be beyond the ken of an average juror as to the
operation of the [furnace], the way the [furnace] should
be maintained, and how if there were a failure to
maintain the [furnace] correctly specifically that that
would lead to the fire in question. It would absolutely
cause a jury to speculate. So it is the plaintiff's burden
to prove negligence in this matter.
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The court also concluded that Goetz and Carey rendered inadmissible net
opinions for the reasons the court expressed in granting defendant's motion to
bar Goetz's and Carey's reports and testimony and for summary judgment.
II.
On appeal, plaintiff argues that Carey's expert opinions are admissible
because they satisfy the foundational requirements for the admission of expert
testimony. Plaintiff also reiterates that the court should have allowed Carey's
supplemental report because it was based on newly discovered evidence from
Perriello's deposition testimony.2
We first address the barring of Carey's supplemental report. Rule 4:17-
4(a) provides, in pertinent part: "If the interrogatory requests the name of an
expert . . . of the answering party or a copy of the expert's . . . report, the party
shall comply with the requirements of [Rule 4:17-4(e)]." Rule 4:17-4(e)
provides, in pertinent part:
2
Plaintiff did not specifically address the barring of Goetz's expert report and
testimony. Thus, the issued is deemed waived. See Sklodowsky v. Lushis, 417
N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court
Rules, cmt. 5 on R. 2:6-2 (2019). In any event, we agree with the court that
Goetz rendered an inadmissible net opinion. Goetz failed to opine as to where,
how, and why the fire started in the furnace and that defendant's actions caused
the fire.
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If an interrogatory requires a copy of the report of an
expert witness . . . as set forth in [Rule] 4:10-2(d)(1),
the answering party shall annex to the interrogatory an
exact copy of the entire report or reports rendered by
the expert . . . . The report shall contain a complete
statement of that person's opinions and the basis
therefor; the facts and data considered in forming the
opinions; the qualifications of the witness, including a
list of all publications authored by the witness within
the preceding ten years; and whether compensation has
been or is to be paid for the report and testimony and,
if so, the terms of the compensation. If the answer to
an interrogatory requesting the name and report of the
party's expert . . . indicates that the same will be
supplied thereafter, the propounder may, on notice,
move for an order of the court fixing a day certain for
the furnishing of that information by the answering
party. Such order may further provide that an expert . .
. whose name or report is not so furnished shall not be
permitted to testify at trial.
"The first two sentences of [Rule 4:17-4(e)] define the answering party's
obligation with respect to furnishing the full reports received by him and all
supplementary reports." Pressler & Verniero, Current N.J. Court Rules, cmt. 5
on R. 4:17-4(e) (2019).
Rule 4:17-7 provides, in pertinent part:
Except as otherwise provided by [Rule] 4:17-4(e), if a
party who has furnished answers to interrogatories
thereafter obtains information that renders such
answers incomplete or inaccurate, amended answers
shall be served not later than [twenty] days prior to the
end of the discovery period, as fixed by the track
assignment or subsequent order. Amendments may be
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allowed thereafter only if the party seeking to amend
certifies therein that the information requiring the
amendment was not reasonably available or
discoverable by the exercise of due diligence prior to
the discovery end date. In the absence of said
certification, the late amendment shall be disregarded
by the court and adverse parties.
Here, defendant filed a motion for an order fixing a date certain for the
furnishing of plaintiff's expert reports. The September 16, 2016 order set
September 26, 2016 as the deadline for plaintiff the furnish "all written expert
reports or written summaries of oral reports from all proposed expert witnesses
on liability, causation, and/or damages." (Emphasis added). The order also
specifically limited the testimony of plaintiff's experts whose reports were
timely furnished to the scope of the reports furnished, and barred the testimony
of any expert whose report was not timely furnished. In addition, the February
3, 2017 order barred plaintiff from serving further expert reports.
Plaintiff's late service of Carey's supplemental report violated the
September 16, 2016 order not only as to time, but also as to content. Plaintiff
served the supplemental report well after the September 26, 2016 deadline, and
Carey asserted a completely new theory of liability that went beyond the scope
of the written summary of his oral report. The supplemental report also violated
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the February 3, 2017 order, which denied plaintiff leave to serve further expert
reports.
In addition, the court had extended discovery to March 6, 2017, but not
for the purpose of allowing plaintiff to amend its answers to interrogatories to
include supplemental expert reports. Nonetheless, on March 1, 2017, less than
twenty days prior to the discovery deadline, plaintiff amended its interrogatory
answers to include Carey's supplemental expert. Plaintiff claimed that
Perriello's deposition testimony provided newly discovered evidence that was
not reasonably available or discoverable by the exercise of due diligence prior
to the discovery deadline, but gave no explanation whatsoever as to why
Perriello was not deposed prior to the submission of the written summary. For
all of these reasons, Carey's supplemental report and testimony based thereon
were properly barred.
We next address whether the court properly barred Carey's initial expert
report and testimony based thereon. A trial court's evidentiary rulings, including
those regarding expert testimony, are "entitled to deference absent a showing of
an abuse of discretion[.]" State v. Brown, 170 N.J. 138, 147 (2001) (quoting
State v. Marrero, 148 N.J. 469, 484 (1997)); see also Townsend v. Pierre, 221
N.J. 36, 53 (2015); Bender v. Adelson, 187 N.J. 411, 428 (2006). "[An] abuse
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of discretion only arises on demonstration of 'manifest error or injus tice[,]'"
Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554,
572 (2005)), and occurs when the trial judge's "decision is 'made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197
(App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
(2002)). We discern no abuse of discretion here.
Generally, the admission of expert testimony is governed by N.J.R.E. 702,
which provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion
or otherwise.
Admissibility turns on three basic requirements:
(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.
[Agha v. Feiner, 198 N.J. 50, 62 (2009) (quoting State
v. Kelly, 97 N.J. 178, 208 (1984)).]
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N.J.R.E. 703 addresses the foundation for expert testimony. The rule
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 in forming opinions
on the same subject." Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008) (quoting
State v. Townsend, 186 N.J. 473, 494 (2006)).
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." Ibid. (alteration in original). The rule requires
that an expert "'give the why and wherefore' that supports the opinion, 'rather
than a mere conclusion.'" Borough of Saddle River v. 66 E. Allendale, LLC,
216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp. v. New Cmty. Corp.,
207 N.J. 344, 372 (2011)); see also Buckelew v. Grossbard, 87 N.J. 512, 524
(1981) (explaining that "an expert's bare conclusion[], unsupported by factual
evidence, is inadmissible").
The net opinion does not mandate an expert organize or support an opinion
in a particular manner that opposing counsel deems preferable. Pierre, 221 N.J.
at 54. An expert’s proposed testimony should not be excluded merely "because
A-4890-16T1
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it fails to account for some particular condition or fact which the adversary
considers relevant." Creanga v. Jardal, 185 N.J. 345, 360 (2005) (quoting State
v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988)).
The net opinion rule, however, mandates that experts "be able to identify
the factual bases for their conclusions, explain their methodology, and
demonstrate that both the factual bases and the methodology are reliable."
Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). An expert's conclusion
"is excluded if it is based merely on unfounded speculation and unquantified
possibilities." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)
(quoting Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300
(App. Div. 1990)). By definition, unsubstantiated expert testimony cannot
provide to the factfinder the benefit that N.J.R.E. 702 envisions: a qualified
specialist’s reliable analysis of an issue "beyond the ken of the average juror."
Polzo, 196 N.J. at 582; see N.J.R.E. 702. Given 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. Pierre, 221 N.J. at 55.
Applying these standards, we conclude the court correctly determined that
Carey rendered an inadmissible net opinion. Carey's opinion is completely
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lacking in the "why[s ]and wherefore[s,]" of the cause of the fire, Pomerantz
Paper Corp., 207 N.J. at 372, and he did not explain the methodology for his
opinions. Landrigan, 127 N.J. at 417. The written summary of Carey's oral
report stated that the furnace was not in a serviceable condition when defendant
serviced it. However, as the court found, Carey did not reference any textbook,
treatise, standard custom, or recognized practice other than his personal view,
and provided no explanatory analysis whatsoever. Thus, it cannot be said that
anything in Carey's report constituted "specialized knowledge [that] will assist
the trier of fact." N.J.R.E. 702. Most importantly, as the court noted on
reconsideration, "while [] Carey may be able to establish that someone had a
duty that was breached which caused the fire, because the report of [Goetz was]
excluded, there's nothing to definitely tie defendant to being the cause beyond
mere speculation."
Given our standard of review, we conclude the court properly barred
Carey's expert report and testimony, as he failed to meet the threshold
requirements necessary to surpass a net opinion.
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III.
Plaintiff argues that this case does not require expert testimony because
jurors of common knowledge can form a valid conclusion on the standard of
care. We disagree.
"In most negligence cases, the plaintiff is not required to establish the
applicable standard of care." Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 406 (2014). In the majority of negligence cases, "[i]t is sufficient for [the]
plaintiff to show what the defendant did and what the circumstances were. The
applicable standard of conduct is then supplied by the jury[,] which is competent
to determine what precautions a reasonably prudent man in the position of the
defendant would have taken." Id. at 406-07 (alterations in original) (quoting
Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)). In cases that do not require
expert testimony, the facts are such that "a layperson's common knowledge is
sufficient to permit a jury to find that the duty of care has been breached without
the aid of an expert's opinion." Id. at 407 (quoting Giantonnio v. Taccard, 291
N.J. Super. 31, 43 (App. Div. 1996)).
However, in some instances, "the 'jury is not competent to supply the
standard by which to measure the defendant's conduct,' and the plaintiff must
instead 'establish the requisite standard of care and [the defendant's] deviation
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from that standard' by 'present[ing] reliable expert testimony on the subject[.]"
Ibid. (first and second alteration in original) (citations omitted). To determine
whether expert testimony is required, a court should consider "whether 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
[defendant] was reasonable." Ibid. (alteration in original) (quoting Butler v.
Acme Mkts, Inc., 89 N.J. 270, 283 (1982)).
The common knowledge doctrine applies in circumstances "where 'jurors'
common knowledge as lay persons is sufficient to enable them, using ordinary
understanding and experience, to determine a defendant's negligence without the
benefit of the specialized knowledge of experts.'" Hubbard v. Reed, 168 N.J.
387, 394 (2001) (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J.
454, 469 (1999)), superseded by Affidavit of Merit statutory amendment, L.
2001, c. 372, § 1, N.J.S.A. 2A:53A-26 to -29, as recognized in Meehan v.
Antonellis, 226 N.J. 216, 228 (2016). "The most appropriate application of the
common knowledge doctrine involves situations where the carelessness of the
defendant is readily apparent to anyone of average intelligence and ordinary
experience." Rosenberg v. Cahill, 99 N.J. 318, 325 (1985).
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This case is not a common knowledge case. It is the type of case where
evidence of defendant’s negligence is not so readily apparent as to justify use of
the common knowledge exception. Rather, this case involves specialized
technical knowledge that is necessary to provide the jury with the applicable
standard of care for the maintenance and servicing of a specific type of oil-fired
furnace. An average juror would lack the "'requisite special knowledge,
technical training and background' to make those determinations without an
expert's assistance." Lucia v. Monmouth Med. Ctr., 341 N.J. Super. 95, 103
(App. Div. 2001) (quoting Kelly v. Berlin, 300 N.J. Super. 256, 264 (App. Div.
1997)).
The cases plaintiff cites to support the common knowledge exception do
not apply, as none of them concern the standards of care and proximate cause in
matters involving technical machinery or investigations of the origin and cause
of a furnace fire. For example, Sommers v. McKinney, 287 N.J. Super. 1 (App.
Div. 1996) involved a legal malpractice claim where a juror of common
knowledge could determine without expert testimony whether the failure to file
a brief and advise the client of settlement discussions constituted attorney
negligence. Id. at 12. The case here involves specialized technical knowledge
of the maintenance and service of a furnace.
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Rosenberg is contrary to plaintiff's position, and actually supports
defendant’s position and the court’s opinion. In Rosenberg, the Court
determined "that the common knowledge doctrine was not available . . . and
[did] not obviate the need for competent expert testimony to establish the
applicable duty of care with respect to the proper chiropractic practices" in the
reading of x-rays. 99 N.J. at 327. Similarly, here, competent expert testimony
is necessary to establish the applicable standard of care with respect to the
maintenance and service of the furnace.
In Klimko v. Rose, 84 N.J. 496 (1980), the Court held that although expert
testimony was required to determine causation, expert testimony was not
required to establish the standard of care applicable to a chiropractor and
whether the chiropractor breached that standard of care. Id. at 505-06. The
Court reasoned that a layperson could determine whether the chiropractor acted
within his standard of care by continuing to apply pressure to the patient’s neck
where the patient had already once lost consciousness. Ibid. In contrast, the
case here is not a case where the standard of care is readily apparent to a
layperson.
In Butler v. Acme Markets, Inc., 89 N.J. 270, 274-75, 283-84 (1982), the
Court held that the lack of expert testimony was "not fatal" for the jury to decide
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whether the defendant was negligent and breached its duty of care to its
customers regarding a robbery that occurred in the defendant's parking lot by
failing to post and having one guard remain inside of the store in a known high
crime area. In Butler, unlike here, no specialized skill or knowledge was
required for a jury to determine whether the lack of signs or heightened security
in a high crime area meant the defendant was negligent.
Finally, in Black v. Pub. Serv. Elec. & Gas Co., 56 N.J. 63, 68, 78-79
(1970), the defendant's maintenance of a high voltage wire allegedly caused the
decedent's electrocution. The Court held that expert testimony was not
necessary for the jury to decide whether the duty to exercise care commensurate
with the risk involved was satisfied when the defendant failed to post warning
signs on or near the poles or on the wires. Unlike here, no specialized skill or
knowledge was necessary to determine whether or not warning signs were
appropriate.
The more applicable case is Davis, where the Court held that "the
inspection of fire sprinklers by qualified contractors . . . 'constitutes a complex
process involving assessment of a myriad of factors' that 'is beyond the ken of
the average juror.'" 219 N.J. at 408 (quoting Giantonnio, 291 N.J. Super. at
44). Such is the case here. Expert testimony as to the cause of the fire requires
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technical knowledge of proper maintenance and servicing of a furnace that is
beyond the ken of an average juror.
IV.
Plaintiff argues the court erred in granting summary judgment because
there was enough circumstantial evidence to overcome summary judgment. We
have considered this argument in light of the record and applicable legal
principles and conclude it is without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E). Expert evidence was necessary in this case.
Because plaintiff lacked expert evidence, summary judgment was properly
granted.
Affirmed.
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