WILLIAM CABEZAS VS. GIOVANNA SPOLETI (L-2357-15, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3693-16T1
WILLIAM CABEZAS and
PATRICIA CABEZAS, his wife,
Plaintiffs-Appellants,
v.
GIOVANNA SPOLETI and
VINCENT SPOLETI,
Defendants-Respondents,
and
MICHAEL ANGELO SPOLETI
and BOROUGH OF CLIFFSIDE
PARK,
Defendants.
_______________________________
Argued June 7, 2018 – Decided August 20, 2018
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
2357-15.
Monika M. Emara argued the cause for
appellants (Law Offices of Rosemarie Arnold,
attorneys; Melissa A. Peace, on the briefs).
Mario C. Collitti argued the cause for
respondent Giovanna Spoleti (Law Offices of
Viscomi & Lyons, attorneys; Emily S. Barnett,
on the brief).
John R. Knodel argued the cause for respondent
Vincent Spoleti (Methfessel & Werbel, PC,
attorneys; John R. Knodel and Steven A.
Unterburger, on the brief).
PER CURIAM
In this slip and fall sidewalk liability action, plaintiffs
William Cabezas and his wife, Patricia Cabezas, appeal from the
Law Division's March 31, 2017 order awarding summary judgment in
favor of defendants Giovanna Spoleti and her son, Vincent Spoleti,
and dismissing plaintiffs' complaint. The complaint sought
damages arising from the injuries William sustained when he fell
on a sidewalk adjacent to Giovanna's home.1 On summary judgment,
it was undisputed that Vincent replaced the sidewalk years earlier
and according to plaintiffs' expert, Vincent's work was defective
and caused William to fall. The motion judge, however, granted
defendants' motion after finding that the opinion was a "net
opinion" without any foundation. On appeal, plaintiffs argue that
we should reverse because the motion judge was wrong. For the
reasons that follow, we disagree and affirm.
1
We refer to the parties by their first names to avoid any
confusion caused by their common last names.
2 A-3693-16T1
We derive the following facts from the evidence submitted by
the parties in support of, and in opposition to, the summary
judgment motion, viewed in the light most favorable to plaintiffs,
the parties who opposed entry of summary judgment. Edan Ben Elazar
v. Macrietta Cleaners, Inc., 230 N.J. 123, 135 (2017). Giovanna,
who was eighty-four years old at the time of the accident, is the
owner of a home located in Cliffside Park. Vincent lives in the
house next door to his mother and helps her by maintaining her
property, including performing snow and ice removal during the
winter. According to Vincent, on days that it snowed, he always
put down salt or sand, even during a precipitation event, such as
freezing rain. He typically "clean[s] the snow with a snow blower"
and inspects the sidewalk and driveway, salting it with "calcium
chloride." Vincent does not receive any compensation for his
services.
In October 2006, Vincent replaced his mother's sidewalk after
first obtaining a municipal permit for that work. After the work
was completed, neither defendants nor the municipality ever
received any complaints about the sidewalk, nor did the town have
any record of any citations or warnings being issued to defendants
about the sidewalk.
On February 6, 2014, at approximately 6:30 a.m., William
walked past Giovanna's home and suddenly fell on an "icy
3 A-3693-16T1
condition," and broke his right ankle. According to William, the
sidewalk had "an accumulation of snow on the side, but . . . it
was clear in the path." He did not see what caused him to fall,
but after he fell, he realized there was clear "ice" on the ground.
After he fell, William called the police from his cell phone
and an officer arrived immediately on the scene. William was
taken to the emergency room at a nearby hospital, and remained
hospitalized for two days. During that time, he underwent surgery
on his right ankle.
On March 9, 2015, plaintiffs filed their complaint, which
they amended on July 1, 2015, adding the Borough of Cliffside Park
as an additional defendant. In their amended complaint, plaintiffs
alleged that defendants negligently inspected or maintained the
sidewalk located in front of Giovanna's home, which caused William
"to become injured due to the presence of a hazardous and dangerous
condition . . . ." According to the complaint, William slipped
and fell "to the ground" on an icy sidewalk, suffering "severe and
permanent injuries."
Contrary to the allegations in the complaint, Vincent
testified at his deposition that "to [his] knowledge, there was
never any water ponding or any ice that he ever saw" on his
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mother's sidewalk.2 He stated that he was not aware of any problems
with the sidewalk, and no one ever made any complaints to him, his
mother, or the town about the condition of the sidewalk.
Plaintiffs retained an engineering expert, George
Gianforcaro, who prepared a report about the "dangerous hazardous
conditions that existed with the improper [c]onstruction . . . in
the [p]ublic [s]idewalk at" Giovanna's property, and the "[c]ode
[v]iolations and [s]tandards in the [i]ndustry [v]iolations that
contributed to [William's] accident." He issued his report after
inspecting the property and reviewing the parties' answers to
interrogatories.
In his report, Gianforcaro determined that the "[p]roperty
[o]wner and/or its [a]gent[] failed to properly [c]onstruct
and . . . [m]aintain the [p]ublic [s]idewalk prior to" William's
accident. He also found that the joint material between the
sidewalk slabs was "decaying and disintegrating[,] . . . which
cause[d] water . . . from melting snow to course over the surface
of the [sidewalk] and create a Dam-Like effect . . . causing the
water to . . . form ice during freezing temperatures."
Gianforcaro opined that had an "[e]lastomeric sealant" been used
or "a '[c]old-[a]pplied [j]oint [s]ealant[,]' which is a
2
Giovanna was unable to attend her own deposition due to a medical
condition.
5 A-3693-16T1
[s]tandard in the [i]ndustry," been applied to the joint material,
the material would have been able to prevent ice from forming on
the sidewalk; thus, preventing slip and fall accidents.
While the report cited to general construction and property
maintenance regulations and ordinances, it did not identify any
building code or industry standard that required construction of
a sidewalk in the manner Gianforcaro described. Nevertheless, his
report stated that "[i]t is [s]tandard and [c]ustomary within the
[c]oncrete [c]onstruction [i]ndustry to install a Cold-Applied,
Urethane Elastometric Sealant to the [c]onstruction [j]oints in
[w]alkways . . . in order to protect and create a [w]alking
[s]urface that is on an even and uniform plane with the adjacent
[w]alking [s]urface." As to defendants' failure to remove snow
and ice from the sidewalk, the report stated that:
It is [s]tandard and [c]ustomary within the
[s]now [r]emoval [i]ndustry that in case of
snow or ice which may be so frozen to the
surface of the [w]alkway and/or surrounding
areas as to make it impractical to remove the
snow and ice from such areas, the snowy and
icy areas shall be thoroughly covered with
[s]alt and s]and.
Relying on unidentified standards within the building
industry and municipal codes, the report also stated that a
property owner was obligated to keep their property "in a proper
state of repair, and maintained free of dangerous conditions[,]"
6 A-3693-16T1
which required the application of the "Cold-Applied Joint Sealant"
described in the report.
During his deposition, Gianforcaro clarified that New
Jersey's codes and ordinances do not require the use of
"elastomeric material" during sidewalk construction, as they only
require that one has "to construct a safe sidewalk and it's up to
you to construct that safe sidewalk . . . ." He further explained
that other engineers or architects will tell you that "'[a]fter
you construct [a] concrete sidewalk, you must come back and install
elastomeric material over the top of the construction joint,' but
the code won't say that." Moreover, he testified that "[t]oday,
most companies are putting the elastomeric caulk right after the
concrete is poured. . . . because it has a longer life expectancy
than [another] type of material."
According to Gianforcaro's "[p]ersonal engineering opinion,"
a properly constructed sidewalk construction joint should be
covered with the sealant. (Emphasis added). He stated that his
"personal engineering opinion" was based upon his "experience, the
research, [and his] education." Gianforcaro further explained
that he could "supply additional information" that a properly
constructed sidewalk included covering a joint with the material
he suggested, but that the information would not say that it was
a required process that "must" be followed. However, he did
7 A-3693-16T1
express that a manufacturer will state that it uses elastomeric
caulk on places such as "concrete sidewalks, concrete retaining
walls[,]" and "[c]oncrete decks on parking garages."
After the completion of discovery, Giovanna, her son, and the
Borough moved for summary judgment seeking dismissal of
plaintiffs' complaint. Vincent and his mother argued they were
not liable for William's injuries because "snow melting [and/or]
refreezing" is "not a dangerous condition[,]" and Vincent did not
"defectively or improperly shovel[] the snow . . . on the
sidewalk." Moreover, they asserted that William did not "remember
if [he] saw anything, but [he did] know that the sidewalk was
clear up until the point that [he] fell." They also argued that
plaintiffs' expert's report was "a net opinion and [that] it should
be barred" because Gianforcaro gave his personal opinion as to
whether it was industry standard to apply elastomeric sealant to
concrete construction, and did not "cite to any specific
standard, . . . code, . . . [or] any construction ANSI standards
promulgated by the various construction groups that are out
there . . . ."
Relying on their expert's report, plaintiffs responded by
arguing that "[b]ecause of the construction and joints failure to
be maintained, . . . water was able to pool around the area [on
the sidewalk], creating a hazard and ice to form around that area."
8 A-3693-16T1
"Absent the owner's liability to maintain the
[sidewalk], . . . plaintiff wouldn't have become injured."
Plaintiffs contended that a genuine issue of material fact exists
as to the negligent maintenance of the sidewalk, which "should
[go] before a jury to decide."
Plaintiffs disagreed with defendants' assessment of
Gianforcaro issuing a net opinion, arguing that the expert could
not say in his report or at the deposition "that a New Jersey
code" instructs the use of the sealant "because the codes do not
speak to that at all." According to plaintiffs, Gianforcaro "had
to give his opinion based on the standard of the industry," which
he "maintains [is] that the . . . sealant should be used on a
sidewalk to maintain its safety."
After considering the parties' written and oral arguments,
Judge Estella M. De La Cruz granted summary judgment to all
defendants, placing her reasons on the record. With respect to
Giovanna and Vincent, the judge found that the record did not
establish that "the property owner Giovanna . . ., [or] her agent,
Vincent . . .," negligently installed the sidewalk, and thus,
plaintiffs could not establish that they owed William a duty.
Quoting from our opinion in Taylor v. DeLosso, 319 N.J. Super. 174(App. Div. 1999), the judge observed it was plaintiffs' burden to
"produce expert testimony upon which the jury could find that the
9 A-3693-16T1
consensus of the particular profession involved recognizes the
existence of the standard defined by the expert." She found that
there was no "evidential support offered by the expert establishing
the existence of" an industry standard "defined in any code or any
guide." The judge acknowledged that Gianforcaro gave "an expert
opinion[,]" but she concluded that "the manufacturers who require
the sealant" to be used "is not an industry standard[,]" but
rather, "a requirement or a suggestion by a manufacturer . . . ."
This was supported by Gianforcaro's deposition where he stated
that a manufacturer will suggest that one use the sealant in a
number of places, including a concrete sidewalk. Judge De La
Cruz concluded that the expert's opinion was insufficient, "and,
therefore, [did] not carry the day to create a breach of duty."
On March 31, 2017, Judge De La Cruz entered orders granting
summary judgment and dismissing the complaint. Plaintiffs filed
a motion for reconsideration and while that motion was pending,
filed this appeal. Judge De La Cruz denied the reconsideration
motion on June 30, 2017.
On appeal from the orders granting summary judgment to
Giovanna and Vincent, plaintiffs acknowledge that New Jersey
immunizes homeowners like Giovanna from liability for injuries
arising out of "a fall due to naturally occurring icy conditions
on her residential property." However, they contend that an
10 A-3693-16T1
exception to the general rule applies in this case because the
property owner replaced her sidewalk and did so negligently,
"thereby creating a dangerous condition." Plaintiffs argue that
their expert established defendants' negligent construction to the
sidewalk where William fell, and that the judge erred by granting
summary judgment based solely on her finding that their expert's
report "constituted a so-called 'net opinion[.]'"
Relying on Townsend v. Pierre, 221 N.J. 36, 55 (2015) and
Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App.
Div. 2002), plaintiffs argue that Gianforcaro's expert report does
not constitute a net opinion because it was "factually
supported, . . . was not 'speculative,' and did not merely
express a 'personal view.'" To support this contention, plaintiffs
assert that Gianforcaro based his report on an "inspection of the
accident site" in August 2015 and "answers to interrogatories by
[William] and defendants." Plaintiffs note that during his
inspection, Gianforcaro found that the "construction joint
material" in the sidewalk was "decaying and disintegrating,
creating an opening in the sidewalk, which caused water to build-
up . . . ." Moreover, they point out that Gianforcaro "cited to
several standards in the construction industry that stand
generally for the proposition that public sidewalks be maintained
11 A-3693-16T1
free of dangerous, hazardous conditions, so that persons may travel
the area in a safe manner." Finally, plaintiffs argue that despite
the judge's finding that Gianforcaro expressed "a personal opinion
of his," he in fact gave a "professional opinion,
which . . . reflected an industry standard of which he was
cognizant by virtue of his many years of experience." Thus, they
contend that the motion judge erred in considering "the absence
of written industry standards to be dispositive," and the court's
decision should be reversed on appeal. We disagree.
We review the disposition of a summary judgment motion de
novo, applying the same standard used by the motion judge. Conley
v. Guerrero, 228 N.J. 339, 346 (2017); see also Townsend, 221 N.J.
at 59. We must analyze:
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. "Summary
judgment should be denied unless" the moving
party's right to judgment is so clear that
there is "no room for controversy."
[Ellis v. Hilton United Methodist Church, ___
N.J. Super. ___ (2018) (slip op. at 4)
(citations omitted).]
If no genuine issue of material fact exists, the inquiry then
turns to "whether the trial court correctly interpreted the law."
12 A-3693-16T1
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430
N.J. Super. 325, 333 (App. Div. 2013).
It is beyond cavil that "[g]enerally, absent negligent
construction or repair, a [home]-owner does not owe a duty of care
to a pedestrian injured as a result of the condition of the
sidewalk abutting the [home]owner's property." Ellis, __ N.J.
Super. at __ (slip op. at 5) (quoting Dupree v. City of Clifton,
351 N.J. Super. 237, 241 (App. Div. 2002) (citing Stewart v. 104
Wallace Street, Inc., 87 N.J. 146, 153 (1981)), aff'd o.b., 175
N.J. 449 (2003)). Neither "breach of an ordinance directing
private persons to care for public property," nor a "property
owner['s failure] to clear the snow and ice from public sidewalks
abutting their land" can be considered a breach of a duty owed to
an injured plaintiff, "unless through [the owner's] negligence a
new element of danger or hazard, other than one caused by natural
forces, [was] added to the safe use of the sidewalk by a
pedestrian." Luchejko v. City of Hoboken, 207 N.J. 191, 200-01
(2011) (citations omitted).
When attempting to prove that a homeowner created a "new
danger" through deficient construction or repair, a net opinion
is insufficient to satisfy a plaintiff's burden on a motion for
summary judgment. Polzo v. Cty. of Essex, 196 N.J. 569, 583-84
(2008); Smith v. Estate of Kelly, 343 N.J. Super. 480, 497-98
13 A-3693-16T1
(App. Div. 2001). A net opinion is one rendered with only "an
expert's bare opinion that has no support in factual evidence or
similar data . . .[,] which is not admissible and may not be
considered." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 372 (2011) (citation omitted). In essence, the net opinion
"rule requires that an expert 'give the why and wherefore' that
supports the opinion, 'rather than a mere conclusion.'" Townsend,
221 N.J. at 54 (citations omitted). The net opinion rule
"frequently focuses . . . on the failure of the expert to explain
a causal connection between the act or incident complained of and
the injury or damage allegedly resulting therefrom." Buckelew v.
Grossbard, 87 N.J. 512, 524, (1981) (citations omitted).
Under the rule, "a trial court must ensure that an expert is
not permitted to express speculative opinions or personal
views . . . ." Townsend, 221 N.J. at 55. Thus, "an expert offers
an inadmissible net opinion if he or she 'cannot offer objective
support for his or her opinions, but testifies only to a view
about a standard that is "personal."'" Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting Pomerantz,
207 N.J. at 373). Experts "must be able to point to generally
accepted, objective standards of practice and not merely standards
personal to them." Riley v. Keenan, 406 N.J. Super. 281, 296
(App. Div. 2009). As the Supreme Court explained in Pomerantz,
14 A-3693-16T1
[I]f an expert cannot offer objective support
for his or her opinions, but testifies only
to a view about a standard that is "personal,"
it fails because it is a mere net opinion.
. . . .
It is insufficient for . . . [an]
expert simply to follow slavishly an
"accepted practice" formula; there
must be some evidential support
offered by the expert establishing
the existence of the standard. A
standard which is personal to the
expert is equivalent to a net
opinion.
[207 N.J. at 373 (citation omitted).]
"Evidential support for an expert opinion may include what
the expert has learned from personal experience and training;
however such experience, in turn, must be informed and given
content and context by generally accepted standards, practices,
or customs of the . . . industry." Satec, Inc. v. Hanover Ins.
Grp., Inc., 450 N.J. Super. 319, 333-34 (App. Div. 2017). There
must be some "authority supporting [the] opinion," which can take
the form of "any document, any written or unwritten custom, or
established practice that the [industry] recognized as a duty it
owes . . . ." Ibid. "[T]he source of the standard of care
enunciated, . . . by which to measure plaintiff's claimed
deficiencies or to determine whether there was a breach of duty
owed defendant[,]" must be identified. Id. at 334.
15 A-3693-16T1
Applying these guiding principles here, we conclude that
Judge De La Cruz correctly determined that plaintiffs' expert's
opinion was a net opinion expressing Gianforcaro's view of what
he believed, as an engineer, to be good construction practices.
His opinion "lacked any foundation of the sort required for
admissibility." Pomerantz, 207 N.J. at 374. "There [was] no
suggestion that there are [authoritative materials that] would
support the opinions about accepted" sidewalk construction
practices, or any "basis on which to draw the conclusions offered
that" Vincent's construction of the sidewalk in 2006 was not
completed in accordance with industry standards and created a
hazardous condition that caused William's injuries. Ibid. "In
the end, the expert offered a series of personal views that were
net opinions and therefore not worthy of consideration." Ibid.
"Notwithstanding [Gianforcaro's] extensive experience . . .,
boiled down to its essence, [his] opinion is infirm as comprised
of conclusory determinations that defendants departed from the
standard of care [owed by a homeowner to third parties] based on
his personal view of that standard." Satec, Inc., 450 N.J. Super.
at 334 (citing Pomerantz, 207 N.J. at 373).
Affirmed.
16 A-3693-16T1