AFRIDITA ABAS VS. ARIMINAS BAGELS, LLC, D/B/A BAGEL HUT (L-3454-15, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-2274-18T2
    AFRIDITA ABAS and
    ZIKO ABAS,
    Plaintiffs-Appellants,
    v.
    ARIMINAS BAGELS, LLC,
    d/b/a BAGEL HUT, JOANN P.
    MONTERO, AIA, and
    WINTERS DESIGN, LLC,
    Defendants,
    and
    EVANS ARCHITECTS, AIA, JOHN
    EVANS, and MATTHEW EVANS,
    Defendants-Respondents.
    ________________________________
    Argued January 23, 2020 – Decided April 29, 2020
    Before Judges Koblitz, Whipple and Gooden Brown.
    On appeal from the Superior Court of New Jersey, Law
    Division, Monmouth County, Docket No. L-3454-15.
    Richard D. Picini argued the cause for appellants
    (Caruso Smith Picini, PC, attorneys; Richard D. Picini,
    of counsel and on the briefs).
    Lawrence P. Powers argued the cause for respondents
    (Hoagland, Longo, Moran, Dunst & Doukas, LLP,
    attorneys; Lawrence P. Powers, of counsel and on the
    brief; Peter K. Oliver, on the brief).
    PER CURIAM
    Plaintiffs Afridita and Ziko Abas appeal from the trial court's January 2,
    2019 orders granting summary judgment to defendants Evans Architects, AIA,
    John Evans and Matthew Evans (the Evans defendants) and denying plaintiffs'
    cross-motion for summary judgment. After reviewing the record in light of the
    contentions advanced on appeal, we affirm.
    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, who opposed the entry of summary judgment.
    Elazar v. Macrietta Cleaners, Inc., 
    230 N.J. 123
    , 135 (2017).
    On September 16, 2013, plaintiff1 Afridita Abas was working at the Bagel
    Hut, in Aberdeen, where she slipped on a wet floor, on her way back to the
    kitchen area of the store, causing her left arm to land in a bagel kettle filled with
    1
    Plaintiff's husband Ziko asserts a per quod claim.
    A-2274-18T2
    2
    hot water. She suffered first-degree burns to the left side of her face, neck and
    chest, and second-degree burns to her left flank, forearm, and armpit, as well as
    visible scarring.
    The Evans defendants designed the original architectural plans for Bagel
    Hut in 2006. The 2006 design located the bagel kettle near a corridor used by
    employees to traverse from the front counter area of the store to the back-kitchen
    area. The 2006 design showed the kettle was shielded and separated from the
    corridor by two walls. In a 2007 revision to the original design, the Evans
    defendants changed the location of the kettle by placing it along the corridor and
    removing the two protective walls which shielded the kettle from passing
    employees. The 2007 design shows a partition wall extending from the rear
    kitchen wall towards the kettle, perpendicular to the kettle.
    In 2012, defendants Winters Design, LLC, and JoAnn P. Montero, the
    architect of record, designed architectural plans for Bagel Hut's renovation and
    expansion. The partition wall extending towards the kettle was demolished as
    part of the renovation, so at the time of plaintiff's accident, the kettle did not
    have any wall shielding it.
    On September 15, 2015, plaintiff filed a complaint against multiple
    entities including the Evans defendants, JoAnn Montero and Winters. Plaintiff
    A-2274-18T2
    3
    alleged defendants breached their professional duty of care in negligently
    designing the layout of Bagel Hut regarding the placement, design, and
    installation of the bagel kettle.
    Plaintiffs' expert William Martin, a licensed professional architect with a
    background in designing commercial kitchens, visited Bagel Hut in April 2017,
    to review the premises and observe the site of Afridita's accident. Martin also
    reviewed multiple layout and construction plans including the 2006 plan, 2007
    plan, and the 2012 plan provided to the Aberdeen building department. Martin
    compiled his observations in a report dated June 28, 2017.
    In his report, Martin noted that in the 2006 plan "the bagel kettle [was]
    located adjacent to the bagel oven and [was] shielded by [two] walls . . . . [T]he
    layout designer's decision to place the kettle in a location protected by walls
    acknowledges the proper and safe functioning of this kitchen." In the 2007 plan
    "[t]he bagel kettle [and oven] [was] now along the travel path for employees to
    reach the back[-]kitchen work area." Martin noted that in the 2007 plan the
    kettle "[was] shielded by a single wall . . . [and the] designer's decision to place
    the kettle . . . along a travel path . . . is potentially a safety issue, however the
    single wall . . . provide[s] some protection for employees       . . . ." In the 2012
    plan, Martin found the "walls around the bagel kettle have been removed . . . .
    A-2274-18T2
    4
    This is potentially a safety issue for this kitchen design layout. The layout
    designer's decision to remove all walls from around the kettle removes any
    protective shielding preventing accidental contact with the bagel kettle."
    Martin's report listed four central observations which, in his professional
    opinion, compromised the safety of the Bagel Hut facility:
    1. Plan layout issues.
    2. Bagel kettle equipment located with insufficient
    clearances and protections for persons.
    3. Floor finish materials that contribute to potential slip
    hazards for persons.
    4. Lighting levels that are insufficient for employees to
    perform their duties in a safe manner.
    In his expert report and deposition testimony, Martin asserted that in
    designing the layout of Bagel Hut with these safety hazards, defendants
    breached their duty to "recognize the primary obligation to protect the health,
    safety, and welfare of the public in [their] performance of professional duties,
    and . . . act with reasonable care and competence."
    The Evans defendants moved for summary judgment arguing, among
    other things, Martin's conclusions constituted impermissible net opinio ns, and
    thus, plaintiffs' claims against them should be dismissed with prejudice.
    A-2274-18T2
    5
    Defendants Joan P. Montero and Winters Design also moved for summary
    judgment.
    Subsequently, the Evans defendants filed another motion for summary
    judgment arguing that there is no causal connection between their alleged
    negligence and Afridita's injuries. Plaintiffs opposed the motions and filed a
    cross-motion for summary judgment on the issue of superseding cause.
    Oral argument on all motions for summary judgment were heard in
    November 2018. At that time, plaintiffs withdrew their opposition to defendants
    Montero and Winters Design motions for summary judgment and conceded that
    the Evans defendants did not breach their duty of care in designing the 2006
    plan, since the plan depicted the kettle being shielded by two walls. Instead,
    plaintiff contended the professional negligence claim is tied to the 2007 plan
    which changed the location of the kettle to an area along a travel path without a
    wall providing enough protection for employees passing by the kettle.
    The court granted summary judgment and issued a written decision
    finding the Evans defendants were entitled to summary judgment as a ma tter of
    law because Martin's opinions addressed no specific custom, practice , or
    standard with which defendants had not complied.          The judge concluded
    defendants violated no professional duty of care, and therefore, Martin's report
    A-2274-18T2
    6
    was a net opinion. The court issued an order granting the Evans defendants'
    motion for summary judgment and denying plaintiffs' cross-motion for summary
    judgment.
    This appeal followed.
    We review a ruling on a motion for summary judgment de novo, applying
    the same standard governing the trial court. Davis v. Brickman Landscaping,
    Ltd., 
    219 N.J. 395
    , 405 (2014) (citations omitted). Thus, we consider, as the
    motion judge did, "'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.'"
    Id. at 406
    (citation omitted). If there is no genuine issue
    of material fact, we must then "'decide whether the trial court correctly
    interpreted the law.'" DepoLink Court Reporting & Litig. Support Servs. v.
    Rochman, 
    430 N.J. Super. 325
    , 333 (App. Div. 2013) (citation omitted).
    On appeal, plaintiffs argue the trial judge erred in rejecting Martin's report
    as a net opinion and granting summary judgment in favor of the Evans
    defendants. Plaintiffs also contend the court erred in failing to grant their cross-
    motion for summary judgment. Since a trial court, when "'confronted with an
    evidence determination precedent to ruling on a summary judgment motion . . .
    A-2274-18T2
    7
    must address the evidence decision first,'" we review the trial court's decision in
    that sequence. Townsend v. Pierre, 
    221 N.J. 36
    , 53 (2015).
    Plaintiffs argue the trial court erred finding Martin did not identify an
    industry standard the Evans defendants violated when they placed the bagel
    kettle next to a pathway employees used to access the back-kitchen. Martin's
    opinion relied on the standard set forth in N.J.A.C. 13:27-5.1(a):
    An architect shall at all times recognize the primary
    obligation to protect the health, safety and welfare of
    the public in the performance of professional duties,
    shall act with reasonable care and competence, and
    shall apply the technical knowledge and skill which are
    ordinarily applied by architects of good standing,
    practicing in the same locality.
    Plaintiffs argue that Martin's reliance on N.J.A.C. 13:27-5.1(a) does not
    establish the duty of care, but addresses the overall competence of the 2007 plan,
    which moved the bagel kettle from its shielded position leaving it adjacent to a
    pathway to the kitchen, deviating from an accepted architectural duty of care
    and creating an unnecessary hazard for employees. Plaintiff asserts Martin is
    highly qualified as he is a licensed architect who designed at least sixteen
    commercial kitchens and was informed by the recommended kitchen layout
    published by a bagel kettle manufacturer and the Evans defendants 2006 plan.
    A-2274-18T2
    8
    Plaintiff also asserts that while N.J.A.C. 13:27-5.1(b) requires compliance
    with all applicable statutes, regulations, and building codes, and the code
    prohibits the knowing violation of the same, there is nothing in the code which
    limits an architect's obligations to mere compliance with the applicable statutes,
    regulations and building codes. Plaintiff further asserts that an experienced
    architect should not be precluded from offering an opinion on a deviation from
    the accepted architectural practice because the complained of conduct did not
    violate a building code.
    "'[A] negligence cause of action requires the establishment of four
    elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate
    causation, and (4) damages.'" 
    Davis, 219 N.J. at 406
    (citation omitted). In most
    negligence cases, plaintiffs need not prove the standard of conduct violated by
    the defendant because it "is sufficient for [a] plaintiff to show what the defendant
    did and what the circumstances were," Sanzari v. Rosenfield, 
    34 N.J. 128
    , 134
    (1961), and these cases include facts where "'a lay person's common knowledge
    is sufficient to permit a jury to find that the duty of care [had] been breached . .
    . .'" 
    Davis, 219 N.J. at 407
    (quoting Giantonnio v. Taccard, 
    291 N.J. Super. 31
    ,
    43 (App. Div. 1996)).
    A-2274-18T2
    9
    In professional negligence cases, however, the standard of care must
    normally be established by expert testimony, because a jury should not be
    permitted to speculate, without an expert's guidance, on issues where lay persons
    have insufficient knowledge or experience. See Rosenberg v. Cahill, 
    99 N.J. 318
    , 325 (1985); see also Kelly v. Berlin, 
    300 N.J. Super. 256
    , 268 (App. 1997)
    (finding juries should not be permitted to speculate, without expert testimony,
    in areas where lay persons are not expected to have sufficient knowledge.). In
    these cases, a "plaintiff must produce expert testimony upon which the jur y
    could find that the consensus of the particular profession involved[,] recognized
    the existence of the standard defined by the expert." Taylor v. DeLosso, 
    319 N.J. Super. 174
    , 180 (App. Div. 1999).
    Since a jury may give substantial weight to an expert's testimony,
    "expert[s] may not provide an opinion at trial that constitutes [a] 'mere net
    opinion.'" See 
    Davis, 291 N.J. at 410
    (citation omitted); see also 
    Townsend 221 N.J. at 55
    . The net opinion rule renders an expert's report inadmissible if the
    expert's conclusions "lacks an appropriate factual foundation and fails to
    establish the existence of any standard about which the expert testified."
    Pomerantz Paper Corp. v. New Cmty. Corp., 
    207 N.J. 344
    , 373 (2011) (citation
    omitted). If an expert cannot offer objective support for his or her opinions, but
    A-2274-18T2
    10
    offers only a standard that is "personal," the opinion is a mere net opinion.
    Ibid. Experts cannot provide
    conclusions based solely on "'unfounded speculation,'"
    
    Townsend, 221 N.J. at 55
    (citation omitted), but instead, must bring forth the
    "why and wherefore" of their expert opinion to be admissible, 
    Pomerantz, 207 N.J. at 372
    (citation omitted).
    A regulatory code or standard can be "evidence of due care but is not
    conclusive on the subject." Black v. Public Serv. Elec. & Gas Co., 
    56 N.J. 63
    ,
    77 (1970). In 
    Davis, 219 N.J. at 401
    , the Court found that plaintiffs, whose
    children were killed in a hotel fire, did not establish the necessary requirements
    of their negligence claim because their expert's report was an inadmissible net
    opinion. There, plaintiffs sued the defendant fire inspectors for negligently
    failing to inform the hotel manager of the need to install a sprinkler in a storage
    closet.
    Id. at 402.
    Plaintiff's expert asserted in both his report and deposition
    that a reasonable sprinkler inspector would have informed the owner of the hotel
    about the need for an additional sprinkler in the closet.
    Id. at 410.
    While the
    Court noted that plaintiff's expert referenced several National Fire Protection
    Association standards in his report and provided a brief discussion of a few fatal
    fires that may have been fueled by the storage of combustible materials in
    stairwells, the Court found none of the sources lent support to the expert's
    A-2274-18T2
    11
    conclusions regarding the actions a reasonable inspector would have taken.
    Id. at 411-13.
    Because plaintiff's expert provided no reference to any written
    document, or even unwritten custom or practice, his personal view was an
    inadmissible net opinion.
    Id. at 413-14;
    see 
    Taylor, 319 N.J. Super. at 184
    (holding plaintiff's expert rendered a net opinion because he presented no
    authority to support his opinion that an architect had a duty to make a site
    inspection for small sites.).
    Here, Martin's opinion did not support the conclusion that the Evans
    defendants breached their professional standard of care in the 2007 plan. Martin
    made no reference to a written document, or an unwritten custom or practice,
    and did not buttress his opinion with any applicable regulations, codes or
    customs that illustrate that the Evans defendants breached their standard of care
    in designing the 2007 plan.
    Martin asserted the Evans defendants did not meet the standard of care
    required under N.J.A.C. 13:27-5.1(a) because the 2007 decision to place the
    bagel kettle along the travel path created a potentially dangerous condition for
    employees. However, he provided no authority to support the conclusion that
    the design plan fell below the level of competence required by the general safety
    statute, N.J.A.C. 13:27-5.1.    Martin found no specific code violation and
    A-2274-18T2
    12
    conceded he found no federal, state, county, or municipal statutes, regulations
    or ordinances regarding the spacing around a bagel kettle. Instead, Martin
    premised his opinions on his experience as an architect and his background in
    designing commercial kitchens, the Evans defendants 2006 plan, and the
    recommended kitchen layout published by a bagel kettle manufacturer. The lack
    of a specific code violation is not dispositive of the issue of whether the Evans
    defendants complied with the applicable standard of care, but Martin provided
    insufficient reasons to demonstrate his conclusions were not based on his
    personal view of N.J.A.C. 13:27-5.1.
    Martin provided no violations of generally accepted standards, practices
    or customs, to illustrate that the deviation from the 2006 plan design fell below
    standards of care.    Martin's reliance on the recommended kitchen layout
    published by a bagel kettle manufacturer is not supported by evidence that it is
    an industry standard rather than a suggestion by a manufacturer.
    Thus, we discern no error in the court's determination to grant summary
    judgment because plaintiffs' expert's opinions are barred as net opinions. Since
    plaintiff has failed to satisfy the elements of their negligence claims, we need
    not reach plaintiffs' additional arguments.
    Affirmed.
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    13