Wayne Davis v. Brickman Landscaping (071310) , 219 N.J. 395 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Wayne Davis v. Brickman Landscaping, Ltd. (A-22/23/24-12) (071310)
Argued March 4, 2014 -- Decided September 15, 2014
FERNANDEZ-VINA, J., writing for a unanimous Court.
In this appeal, the Court considers whether expert testimony must be offered to establish the standard of
care applicable to fire sprinkler inspectors who performed their inspections pursuant to relevant provisions of the
New Jersey Uniform Fire Code (UFC), N.J.A.C. 5:70-1.1 to -4.20. If such expert testimony is required, the Court
considers whether plaintiffs’ expert adequately supported his asserted standard of care, and a breach thereof.
Plaintiff Irene Davis and her two children resided in a second-floor suite at the Staybridge Suites Hotel,
which had a storage closet without a fire sprinkler beneath a staircase leading to the second-floor. Defendants
Atlantic Fire Service (Atlantic), Cintas Corporation (Cintas), and Master Protection L.P., d/b/a FireMaster L.P.
(FireMaster) each performed sprinkler inspections at the hotel and did not advise the hotel owner that the storage
closet required a fire sprinkler. A fire subsequently occurred at the hotel, causing serious injury to Davis and killing
her two children. Plaintiffs Davis and her husband, individually and on behalf of the estates of their children,
brought claims against Atlantic, Cintas, and FireMaster alleging that defendants’ inspectors had negligently failed to
inform the hotel owner of the need to install a sprinkler in the storage closet.
Plaintiffs and defendants each presented an expert during pretrial proceedings to address the proper
standard of care for defendants’ inspectors. Defendants’ expert asserted that a standard developed by the National
Fire Protection Association (NFPA) and adopted by reference into the UFC -- NFPA 25 -- represented the full extent
of the responsibilities of private sprinkler maintenance inspectors. Defendants’ expert concluded that defendants’
inspectors had properly complied with NFPA 25, which did not require them to evaluate the need for an additional
sprinkler or to notify the hotel owner about any such need. Plaintiffs’ expert agreed that NFPA 25 did not require
defendants’ inspectors to identify or report the need for an additional sprinkler, but stated that sprinkler inspectors
must exercise reasonable care, a standard that requires precautions beyond compliance with NFPA 25. He
concluded that defendants’ inspectors failed to exercise reasonable care when they neglected to notify the hotel
owner that a sprinkler was needed in the storage closet.
Following discovery, defendants moved for summary judgment, arguing that NFPA 25 constituted the
applicable standard of care and that plaintiffs could not prove that defendants’ inspectors breached that standard.
They also asserted that defendants’ expert’s view -- that a higher standard of reasonable care must be satisfied --
constituted an impermissible net opinion. The trial court found that defendants’ inspectors were not required to
satisfy any standard of care beyond that contained in NFPA 25, and that plaintiffs had failed to establish that
defendants had breached that standard. Therefore, the trial court granted summary judgment in favor of Atlantic,
Cintas, and FireMaster. The Appellate Division reversed, finding that compliance with safety regulations, such as
NFPA 25, was not dispositive on the issue of negligence. The panel found that reasonable care constituted the
relevant standard, and whether defendants exercised adequate care remained a question of material fact for the jury
to decide. The Court granted defendants’ petitions for certification. 212 N.J. 459 (2012).
HELD: Plaintiffs were required to establish the applicable standard of care through expert testimony. The standard
of care set forth by plaintiffs’ expert constituted an inadmissible net opinion because it lacked objective support.
Summary judgment in defendants’ favor was appropriate because, as a result of plaintiffs’ failure to support their
asserted standard of care, they were unable to establish the required elements of their negligence claim.
1. Summary judgment is appropriate when the record demonstrates that “there is no genuine issue as to any material
fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46-2(c). The
Court considers “whether the competent evidential materials presented, when viewed in the light most favorable to
1
the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of
the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). “[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.” Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594
(2013). In most negligence cases, the plaintiff is not required to establish the applicable standard of care because “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.” Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996). In cases in which
“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,” Butler v. Acme Mkts., Inc., 89 N.J. 270, 283
(1982), however, the plaintiff must “establish the requisite standard of care and [the defendant’s] deviation from that
standard” by “present[ing] reliable expert testimony,” Giantonnio, 291 N.J. Super. at 42. (pp. 10-13)
2. 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.” Cf. Giantonnio, 291 N.J. Super. at 44. The
average juror would be unfamiliar with the training that sprinkler inspectors receive, what training would be
necessary for an inspector to properly identify system design flaws such as the need for an additional sprinkler, and
the regulatory scheme applicable to sprinkler inspectors. In fact, the fire codes and standards relevant to sprinkler
inspectors are particularly complex. In 1983, the Legislature enacted the Uniform Fire Safety Act and directed the
Department of Community Affairs (DCA) to promulgate a uniform fire safety code that included requirements for
fire suppression systems. N.J.S.A. 52:27D-198(a) and (b). Pursuant to those legislative instructions, the DCA
promulgated the UFC. As part of the UFC, the DCA later adopted by reference the Building Officials and Code
Administrators’ (BOCA) 1996 National Fire Prevention Code (1996 BOCA Code), which required water sprinkler
systems to be inspected in accordance with NFPA 25. BOCA National Fire Prevention Code/1996, § F-506.1.
Thus, NFPA 25 became part of the UFC through the adoption, by reference, of the 1996 BOCA Code. Because
familiarity with New Jersey’s complex regulatory scheme, as well as the role of fire sprinkler inspectors in that
system, is necessary to determine the appropriate standard of care by which to assess defendants’ inspectors
conduct, plaintiffs were required to produce an expert to establish the standard of care and any departure from that
standard. (pp. 13-16)
3. Compliance with NFPA 25 does not, as a matter of law, prevent a finding of negligence. “The customs of an
industry are not conclusive on the issue of the proper standard of care; they are at most evidential of this standard.”
Wellenheider v. Rader, 49 N.J. 1, 7 (1967). Similarly, a regulatory code or standard “is evidence of due care but is
not conclusive on the subject.” Black v. Pub. Serv. Electric & Gas Co., 56 N.J. 63, 77 (1970). In Black, when
considering whether a utility company could be found negligent for failing to post danger signs not required by the
National Electric Safety Code, which had been adopted into the relevant regulations, the Court explained that
“safety codes represent minimum standards and do not establish the complete duty of the utility under all
circumstances.” Id. at 76-77. Here, because the DCA promulgated the UFC at the Legislature’s direction to create a
uniform fire safety code with requirements for fire suppression systems, the UFC or its successor provides the
standard of care for defendants’ inspectors absent competent expert testimony that a different standard of care is
generally recognized in the fire prevention field. (pp. 18-20)
4. An expert may not provide “mere net opinion.” Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372
(2011). 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.’” Ibid. Plaintiffs’ expert’s assertion that
defendants’ inspectors had a duty beyond NFPA 25 to report the need for an additional sprinkler lacked objective
support. None of plaintiffs’ expert’s sources addressed the role of sprinkler inspectors. Although he maintained that
NFPA 25 is “written wrong” and should have included a requirement for reporting design flaws, he did not
“reference any written document or unwritten custom accepted by the [fire safety] community” to buttress that
opinion. Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001). The standard of care set forth
by plaintiffs’ expert represented only his personal view, and therefore constituted inadmissible net opinion. Because
plaintiffs did support their asserted standard of care and a breach of that standard with admissible expert testimony,
they are unable to establish the required elements of their negligence cause of action. Defendants are therefore
entitled to summary judgment. (pp. 16-18, 20-23).
The judgment of the Appellate Division is REVERSED, and the trial court’s orders granting defendants’
motions for summary judgment are REINSTATED.
2
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and ALBIN, and JUDGES RODRÍGUEZ
and CUFF (both temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE
PATTERSON did not participate.
3
SUPREME COURT OF NEW JERSEY
A-22/23/24 September Term 2012
071310
WAYNE DAVIS and IRENE LAVERNE
DAVIS, individually and on
behalf of the ESTATES OF
COURTNEY DAVIS and MYLES
DAVIS, deceased,
Plaintiffs-Respondents,
v.
BRICKMAN LANDSCAPING, LTD.,
d/b/a BRICKMAN LANDSCAPING,
GENERATED MATERIALS, LLC,
NORTHERN FIRE AND SAFETY,
TOWNSHIP OF FRANKLIN, COUNTY
OF SOMERSET, JOHN GOODMAN,
DENISE GOODMAN, JANET DEMARY,
ANN KINGSTON, CONNIE GORDON,
KAY STYLES-TIMMONS, WENDY
LAFORTUNE, and TYSHEE STYLES,
Defendants,
and
ATLANTIC FIRE SERVICE, CINTAS
CORPORATION and MASTER
PROTECTION LP, d/b/a
FIREMASTER LP,
Defendants-Appellants.
Argued March 4, 2014 – Decided September 15, 2014
On certification to the Superior Court,
Appellate Division.
Michael B. Devins argued the cause for
appellant Cintas Corporation (McElroy,
Deutsch, Mulvaney & Carpenter, attorneys;
Mr. Devins, Walter R. Krzastek, and Joseph
G. Fuoco, on the briefs).
1
Michael L. Trucillo argued the cause for
appellant Atlantic Fire Service (Lewis
Brisbois Bisgaard & Smith, attorneys; Martin
J. Sullivan, of counsel; Mr. Trucillo and
Mr. Sullivan, on the briefs).
Charles C. Eblen argued the cause for
appellant Master Protection LP d/b/a
FireMaster LP (Shook, Hardy & Bacon,
attorneys; Mr. Eblen and Karen A. Read, a
member of the Missouri bar, on the briefs).
G. Martin Meyers argued the cause for
respondents (Law Offices of G. Martin
Meyers, attorney; Mr. Meyers and Susan S.
Singer, of counsel and on the briefs).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
This appeal presents two questions related to the standard
of care that private fire sprinkler maintenance inspectors are
required to exercise. First, we are asked to consider whether
plaintiffs must offer expert testimony to establish the standard
of care applicable to fire sprinkler inspectors who performed
their inspections pursuant to relevant provisions of the New
Jersey Uniform Fire Code (UFC), N.J.A.C. 5:70-1.1 to -4.20. If
such expert testimony is required, we are then called upon to
address whether plaintiffs’ expert adequately supported his
asserted standard of care, and a breach thereof, or whether he
offered an inadmissible net opinion.
The defendants in this case are private fire sprinkler
inspection companies that were hired to assess the operating
2
condition of a hotel’s sprinkler system. Following a fatal fire
at the hotel, the parents of the victims, individually and on
behalf of the estates of the decedents, alleged that defendants
had negligently failed to inform the hotel owner about a flaw in
the design of the hotel’s sprinkler system.
At the trial level, the court granted defendants’ motions
for summary judgment. The court explained that defendants’
inspectors had possessed no duty to report any sprinkler system
design flaws to the hotel owner because applicable State
regulations did not necessitate any such reporting. The
Appellate Division reversed, agreeing with plaintiffs’
contention that defendants’ compliance with regulatory
requirements was not dispositive of the issue of negligence.
The appellate panel explained that defendants owed plaintiffs a
duty of reasonable care and that a jury should decide whether
defendants had been obliged to exceed the dictates of the
regulations in their exercise of reasonable care.
After considering the complex nature of the Uniform Fire
Code and other factors relevant to sprinkler inspections, we
conclude that a jury should not be allowed to speculate as to
the proper standard of care in this case. Instead, we hold that
plaintiffs were required to establish the applicable standard of
care through expert testimony. Although plaintiffs presented an
expert during pretrial proceedings, the standard of care he set
3
forth represented only his personal view and was not founded
upon any objective support. His opinion as to the applicable
standard of care thus constituted an inadmissible net opinion.
As a result of plaintiffs’ failure to support their asserted
standard of care with admissible expert testimony, they were
unable to establish the required elements of their negligence
cause of action. We therefore reverse the judgment of the
Appellate Division and reinstate the trial court’s grant of
summary judgment to defendants.
I.
A.
Defendants Atlantic Fire Service (Atlantic), Cintas
Corporation (Cintas), and Master Protection L.P., d/b/a
FireMaster L.P. (FireMaster) were each hired to perform
sprinkler inspections at the Staybridge Suites Hotel in Somerset
in the years preceding the fire. FireMaster completed the
inspections between 1992 and 1997. Atlantic inspected the
sprinklers between 1997 and 2004. After Cintas purchased
Atlantic, Cintas completed the inspections between November 2004
and May 2005.
A fire occurred at the Staybridge Suites Hotel on May 13,
2005. On that date, Irene Davis was temporarily residing in a
second-floor suite with her two children. The primary means of
egress from that suite was an external, combustible staircase
4
that led from the second-floor suites to the hotel’s parking
lot. Beneath that staircase, the hotel had constructed a
storage closet but had not installed a sprinkler in the closet.1
The May 2005 fire was sparked by a lit cigarette butt,
which someone threw into the landscaping mulch beside the hotel.
The fire spread to the storage closet and then up the stairs to
the second floor. Davis and her children became trapped in
their suite. Tragically, the two children did not survive the
fire. Davis was rescued by emergency personnel after suffering
serious injuries from smoke inhalation.
B.
Following the fatal fire, plaintiffs Irene Davis and her
husband, Wayne Davis, filed suit individually and on behalf of
the estates of their deceased children against various
defendants. In addition to their claims against the hotel and
the hotel’s landscaping contractor, among others, plaintiffs
brought negligence claims against Atlantic, Cintas, and
1 The parties disagree over whether the hotel owner was required
to install a sprinkler in that closet. Plaintiffs assert that
the applicable regulatory standard was National Fire Protection
Association (NFPA) 13, which applies generally to all buildings.
NFPA 13, § 1.1. That standard instructs that sprinklers must be
installed “throughout the premises,” with only limited
exceptions. NFPA 13, §§ 8.1.1(1), (4). In contrast, defendants
contend that NFPA 13R governed the sprinkler system
requirements. NFPA 13R applies only to low-rise residential
buildings. NFPA 13R, § 1.1. That standard does not call for
sprinklers in “closets on exterior balconies,” unless those
closets directly connect with, or penetrate into, a dwelling
unit. NFPA 13R, § 6.8.6.
5
FireMaster.2 Plaintiffs alleged that defendants’ inspectors had
negligently failed to inform the hotel owner of the need to
install a sprinkler in the storage closet beneath the staircase.
Plaintiffs asserted that, had such a sprinkler been installed,
Davis and her children would have been able to escape the fire.
Both plaintiffs and defendants obtained expert reports that
addressed the proper standard of care by which the performance
of defendants’ inspectors should be measured.
Defendants’ expert, Russell Fleming, asserted that
applicable provisions of the Uniform Fire Code delineated the
extent of the care that defendants’ inspectors were required to
exercise. Specifically, Fleming pointed to one standard
developed by the National Fire Protection Association (NFPA) and
adopted by reference into the Uniform Fire Code -- NFPA 25 -- as
representing the full extent of the responsibilities of private
sprinkler maintenance inspectors. Fleming concluded that
defendants’ inspectors had properly complied with all
requirements of NFPA 25 and that NFPA 25 obligated them neither
to evaluate the need for an additional sprinkler nor to notify
the hotel owner about any such need.
2 This appeal involves only plaintiffs’ negligence claims against
Atlantic, Cintas, and FireMaster. All claims against other
defendants have been otherwise resolved.
6
Plaintiffs’ expert, Jack Mawhinney,3 agreed that NFPA 25 did
not require defendants’ inspectors to identify or report defects
in the design of a sprinkler system, such as the need for an
additional sprinkler. However, he further asserted that “NFPA
25 . . . [i]s just written wrong,” and that reasonable care
obligates sprinkler inspectors to take additional precautions
beyond those set forth in NFPA 25. He admitted that he was “not
familiar with the law in New Jersey,” but nonetheless believed
that “[t]here is an expectation of [a] standard of reasonable
care which applies throughout the country that . . . thought and
experience and knowledge has to be applied in following the
requirement of the regulations.” He thus concluded that
defendants’ inspectors failed to exercise reasonable care when
they neglected to notify the hotel owner that a sprinkler was
needed in the storage closet beneath the staircase at issue.
Following discovery, defendants moved for summary judgment.
They argued that they could not be found negligent because NFPA
25 constituted the applicable standard of care and that
plaintiffs could not point to any evidence that defendants’
inspectors had failed to satisfy the requirements of that
standard. They also asserted that Mawhinney’s view -- that a
3 Plaintiffs also obtained a report from a second expert, Joseph
McCarey, but the trial court granted defendants’ motion to
strike that report as a net opinion. Plaintiffs did not appeal
that outcome.
7
higher standard of reasonable care must be satisfied --
constituted an impermissible net opinion.
The trial court agreed with defendants that there existed
no genuine issue of material fact as to whether they had
negligently inspected the Staybridge Suites Hotel. The court
did not strike Mawhinney’s opinion but nonetheless held that
defendants had not been required to satisfy any standard of care
beyond that contained in NFPA 25. Therefore, because plaintiffs
had failed to establish that defendants had breached the duty of
care set forth by NFPA 25, the trial court granted summary
judgment to Atlantic, Cintas, and FireMaster.
On appeal, the Appellate Division reversed the trial
court’s grant of summary judgment to all three defendants.4 The
panel explained that compliance with safety regulations, such as
NFPA 25, was not dispositive on the issue of negligence.
Instead, reasonable care constituted the relevant standard, and
whether defendants exercised adequate care remained a question
of material fact for the jury to decide.
Each of the three defendants petitioned this Court for
certification, and we granted their petitions. 212 N.J. 459(2012).
II.
4 The appellate panel also affirmed the trial court’s denial of
summary judgment to plaintiffs. That issue is not relevant to
this appeal.
8
Defendants urge this Court to reverse the Appellate
Division and reinstate the trial court’s grant of their motions
for summary judgment. They contend that plaintiffs bear the
burden of establishing defendants’ breach of the appropriate
standard of care and that plaintiffs have failed to demonstrate
that the proper standard exceeds the requirements of NFPA 25.
Although plaintiffs’ expert, Mawhinney, asserted that reasonable
care required defendants to report the need for an additional
sprinkler, defendants characterize his assertion as an
impermissible net opinion because it was not supported by
sufficient objective authority. Therefore, defendants maintain
that plaintiffs failed to demonstrate a prima facie case of
negligence.
In contrast, plaintiffs ask this Court to affirm the
Appellate Division’s reversal of summary judgment. Plaintiffs
argue that NFPA 25 sets forth only the minimum requirements for
sprinkler inspectors and that compliance with that standard is
thus not dispositive on the issue of negligence. Instead,
defendants’ sprinkler inspectors may be held to a higher
standard of care if a jury determines that reasonable care
necssitated additional precautions beyond the dictates of NFPA
25. Plaintiffs point to Mawhinney’s opinion as support for the
existence of such a higher standard of care. They contend that
Mawhinney referenced sufficient authority when he opined that a
9
reasonable inspector would have notified the hotel owner about
the absence of a needed sprinkler and thus that his conclusion
should not be characterized as a net opinion. For those
reasons, plaintiffs maintain that summary judgment is
inappropriate and that the case should proceed to trial so that
a jury can determine what reasonable care required.
III.
A.
A ruling on summary judgment is reviewed de novo.
Manahawkin Convalescent v. O’Neill, 217 N.J. 99, 115 (2014). We
thus “apply the same standard governing the trial court,” Murray
v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012), and do not
defer to the trial court’s or Appellate Division’s
interpretation of “the meaning of a statute or the common law,”
Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Our court rules require summary judgment to be granted when
the record demonstrates that “there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law.” Rule 4:46-
2(c). This Court thus considers “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.” Brill v. Guardian Life Ins. Co.
10
of Am., 142 N.J. 520, 540 (1995). In applying that standard, a
court properly grants summary judgment “when the evidence ‘is so
one-sided that one party must prevail as a matter of law.’”
Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
259, 106 S. Ct. 2505, 2516, 91 L. Ed. 2d 202, 219 (1986)).
“[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.” Jersey
Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594
(2013). The plaintiff bears the burden of establishing those
elements, Buckelew v. Grossbard, 87 N.J. 512, 525 (1981), “by
some competent proof,” Overby v. Union Laundry Co., 28 N.J.
Super. 100, 104 (App. Div. 1953), aff’d o.b., 14 N.J. 526(1954).
B.
Plaintiffs and defendants disagree over whether plaintiffs
have adequately established defendants’ duty to plaintiffs and
defendants’ breach of that duty. Although defendants do not
deny the existence of their legal duty to plaintiffs, they
assert that plaintiffs have not adequately defined the contours
of that duty. Specifically, defendants contend that plaintiffs
must set forth the applicable standard of care and a breach of
that standard through admissible expert testimony.
11
In most negligence cases, the plaintiff is not required to
establish the applicable standard of care. Sanzari v.
Rosenfeld, 34 N.J. 128, 134 (1961). In those 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.” Ibid. Such cases
involve facts about which “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.”
Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996).
In some cases, however, the “jury is not competent to
supply the standard by which to measure the defendant’s
conduct,” Sanzari, supra, 34 N.J. at 134-35, and the plaintiff
must instead “establish the requisite standard of care and [the
defendant’s] deviation from that standard” by “present[ing]
reliable expert testimony on the subject,” Giantonnio, supra,291 N.J. Super. at 42. This Court has previously explained
that, when deciding whether expert testimony is necessary, a
court properly considers “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.” Butler v. Acme Mkts., Inc., 89
12
N.J. 270, 283 (1982). In such cases, the jury “would have to
speculate without the aid of expert testimony.” Torres v.
Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001).
Cases requiring the plaintiff to “advance expert testimony
establishing an accepted standard of care” include “the ordinary
dental or medical malpractice case.” Sanzari, supra, 34 N.J. at
134-35; accord Bender v. Adelson, 187 N.J. 411, 435 (2006). In
addition, our courts have recognized other esoteric subject
matters requiring expert testimony, such as “the
responsibilities and functions of real-estate brokers with
respect to open-house tours,” Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 444 (1993), precautions necessary to ensure “the
safe conduct of a funeral procession,” Giantonnio, supra, 291
N.J. Super. at 44, the appropriate “conduct of those teaching
karate,” Fantini v. Alexander, 172 N.J. Super. 105, 108 (App.
Div. 1980), the proper application of “pertinent skydiving
guidelines,” Dare v. Freefall Adventures, Inc., 349 N.J. Super.
205, 215 (App. Div.), certif. denied, 174 N.J. 43 (2002), and
the proper “repair and inspection” of an automobile, Ford Motor
Credit Co. v. Mendola, 427 N.J. Super. 226, 236-37 (App. Div.
2012).
Similar to previous cases in which New Jersey courts have
required the plaintiffs to establish the standard of care
through expert testimony, the inspection of fire sprinklers by
13
qualified contractors also “constitutes a complex process
involving assessment of a myriad of factors” that “is beyond the
ken of the average juror.” Cf. Giantonnio, supra, 291 N.J.
Super. at 44. Therefore, plaintiffs were required to produce an
expert in fire prevention engineering to explain New Jersey’s
complex regulatory scheme as well as the role that fire
sprinkler inspectors properly play amidst that system. The
average juror would be familiar with neither the training that
such sprinkler inspectors receive nor what training would be
necessary for an inspector to properly identify system design
flaws and recognize the need for an additional sprinkler.
Similarly, the jury would be unfamiliar with the Uniform Fire
Code, N.J.A.C. 5:70-1.1 to -4.20, including NFPA 25 and other
standards adopted by reference into that code.
New Jersey’s fire codes and standards are particularly
complex, as illustrated by the history of NFPA 25. In 1983, the
Legislature enacted the Uniform Fire Safety Act. See L. 1983,
c. 383 (codified as amended at N.J.S.A. 52:27D-192 to -198.6).
The express purpose of that statute was to create a “uniform,
minimum, fire safety code” to prevent loss of life, ensure fire
safety inspections, and provide for penalties for violations.
N.J.S.A. 52:27D-195. The Legislature specifically instructed
the Department of Community Affairs (DCA) to “promulgate . . .
regulations to [e]nsure the maintenance and operation of
14
buildings and equipment in such a manner as will provide a
reasonable degree of safety from fire and explosion.” N.J.S.A.
52:27D-198(a). The Legislature required that those regulations
“shall include a uniform fire safety code primarily based on the
standards established by the Life Safety Code ([NFPA] 101) and
any other fire codes of the [NFPA] and the Building Officials
and Code Administrators International (BOCA) Basic Fire
Prevention Code, both of which may be adopted by reference.”
Ibid. The Legislature further directed that the fire safety
code would include requirements for fire suppression systems.
N.J.S.A. 52:27D-198(b).
Pursuant to those legislative instructions, the DCA
promulgated a Uniform Fire Code. N.J.A.C. 5:70-1.1 to -4.20.
As part of that fire code, the DCA later adopted by reference
the 1996 BOCA National Fire Prevention Code (1996 BOCA Code),
which thereafter constituted “the State Fire Prevention Code for
New Jersey.” N.J.A.C. 5:70-3.1(a) (pre-2008 amendment5). The
1996 BOCA Code instructed that “[a]ll water sprinkler . . .
systems shall be periodically inspected, tested and maintained
in accordance with the requirements of NFPA 25.” BOCA National
Fire Prevention Code/1996, § F-506.1 (emphasis removed). In
short, through the DCA’s adoption of the 1996 BOCA Code, the
5 In 2008, the DCA amended N.J.A.C. 5:70-3.1(a) to instead adopt
by reference the “2006 International Fire Code” as the State
Fire Prevention Code. N.J.A.C. 5:70-3.1(a) (2014).
15
provisions of NFPA 25 were also given the force of law in New
Jersey. NFPA 25, set forth the requirements for the
“inspection, testing, and maintenance of water-based fire
protection systems.” NFPA 25, § 1.1. Thus, familiarity with
that standard, as well as other provisions of the fire code, is
necessary to determine the appropriate standard of care by which
to assess defendants’ conduct, and identification of the
relevant standard and any departure from that standard requires
expert testimony.
C.
Having concluded that expert testimony is required to
establish the standard of care in this case, we next turn to the
question of whether plaintiffs adequately supported the standard
of care that they asserted through admissible expert testimony.
An expert may not provide an opinion at trial that
constitutes “mere net opinion.” Pomerantz Paper Corp. v. New
Cmty. Corp., 207 N.J. 344, 372 (2011). The rule prohibiting net
opinions is a “corollary” of New Jersey Rule of Evidence 703,
State v. Townsend, 186 N.J. 473, 494 (2006), which provides that
an expert’s testimony “may be based on 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
16
on the same subject,” Weissbard & Zegas, Current N.J. Rules of
Evidence, cmt. 1 on N.J.R.E. 703 (2014). Thus, the net opinion
rule can be considered a “restatement of the established rule
that an expert’s bare conclusions, unsupported by factual
evidence, [are] inadmissible.” Buckelew, supra, 87 N.J. at 524.
The net opinion rule “requir[es] that the expert ‘give the
why and wherefore’ that supports the opinion, ‘rather than a
mere conclusion.’” Pomerantz Paper Corp., supra, 207 N.J. at
372 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).
For example, “a trial court may not rely on expert testimony
that lacks an appropriate factual foundation and fails to
establish the existence of any standard about which the expert
testified.” Id. at 373. Therefore, 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.’” Ibid.
Plaintiffs’ expert, Mawhinney, asserted in both his report
and deposition that a reasonable sprinkler inspector would have
informed the owner of the Staybridge Suites Hotel about the need
for an additional sprinkler in the storage closet beneath the
external staircase. That conclusion, however, represented an
impermissible net opinion because it lacked objective support.
Mawhinney referenced several NFPA standards in his report,
but they were not sufficient to support his opinion as to the
17
applicable standard of care. For example, he discussed NFPA 25
and its 2008 handbook, which address the responsibilities of
sprinkler inspectors when completing a sprinkler maintenance
inspection of the kind that defendants performed at the
Staybridge Suites Hotel. NFPA 25 defines “inspection” as “[a]
visual examination of a system or portion thereof to verify that
it appears to be in operating condition and is free of physical
damage.” NFPA 25, § 3.3.19. Mawhinney acknowledged that NFPA
25 makes no mention of any duty by sprinkler inspectors to
report deficiencies in the design of a sprinkler system, such as
the need to install an additional fire sprinkler. Thus
defendants’ inspectors did not violate NFPA 25 by failing to
identify such design flaws.
Compliance with NFPA 25 does not, as a matter of law,
prevent a finding of negligence. Cf. Kane v. Hartz Mountain
Indus., Inc., 278 N.J. Super. 129, 142 (App. Div. 1994), aff’d
o.b., 143 N.J. 141 (1996). This Court has long held that “[t]he
customs of an industry are not conclusive on the issue of the
proper standard of care; they are at most evidential of this
standard.” Wellenheider v. Rader, 49 N.J. 1, 7 (1967). Such
industry standards are not dispositive because “to allow [an
industry] to set its own standard of conduct is tantamount to
allowing it to set the limits of its own legal liability, even
though those limits are below a level of care readily
18
attainable.” Estate of Elkerson v. N. Jersey Blood Ctr., 342
N.J. Super. 219, 230 (App. Div.), certif. denied, 170 N.J. 390(2001). Similarly, this Court held in Black v. Pub. Serv.
Electric & Gas Co., 56 N.J. 63, 77 (1970), that a regulatory
code or standard “is evidence of due care but is not conclusive
on the subject.” The question in that case was whether a
utility company could be found negligent for failing to post
danger signs even though the National Electric Safety Code,
which had been adopted into the regulations of this State, did
not require the posting of such warnings. Id. at 76-77. In
holding that the utility could be found negligent, this Court
explained that “safety codes represent minimum standards and do
not establish the complete duty of the utility under all
circumstances.” Id. at 77.
The Legislature, however, directed the DCA to promulgate a
uniform fire safety code, N.J.S.A. 52:27D-198(a), and also
directed that the fire safety code must include requirements for
fire suppression systems, N.J.S.A. 52:27D-198(b). The UFC, and
the later adopted State Fire Prevention Code, are a piece of a
comprehensive legislative effort to establish uniform codes for
residential and commercial construction throughout the State.
See, e.g., N.J.S.A. 40:55D-40.4 (directing adoption of uniform
residential site improvement standards); N.J.A.C. 5:21
(promulgating uniform residential site improvement standards).
19
To that end, the UFC or the current State Fire Prevention Code
provides the standard of care absent competent expert testimony
that a standard of care other than the UFC or its successor is
generally recognized in the fire prevention field.
Despite their compliance with NFPA 25, Mawhinney asserted
that defendants’ inspectors had a duty to satisfy a higher
standard of care and report design flaws. Although Mawhinney is
correct that defendants may be required to exercise care beyond
the requirements of NFPA 25, his assertion that a reasonable
sprinkler inspector would have identified design deficiencies
represents an impermissible net opinion because he failed to
provide objective support for that conclusion. Mawhinney’s
report referenced several other NFPA standards -- NFPA 13, NFPA
13R and its appendix, and NFPA 101 -- and also provided a brief
discussion of a few fatal fires that may have been fueled by the
storage of combustible materials in stairwells. None of those
sources, however, address the role of sprinkler inspectors or
lend support to Mawhinney’s conclusion regarding what actions a
reasonable inspector would have taken. Instead, they relate
only to whether the hotel owner may have had a duty to install a
sprinkler in the storage closet beneath the staircase.
In support of his conclusion that reasonable care required
defendants’ inspectors to identify and report the need for an
additional sprinkler, Mawhinney relied upon nothing more than
20
his personal opinion about what the inspectors should have done.
Thus, just as in Kaplan v. Skoloff & Wolfe, P.C., 339 N.J.
Super. 97, 103 (App. Div. 2001), “[p]laintiff[s’] expert offered
no evidential support establishing the existence of a standard
of care, other than standards that were apparently personal to
himself.”
During his deposition, Mawhinney stated that NFPA 25 has
been adopted by most states in the country and acknowledged that
it is generally recognized as the standard of care for sprinkler
inspectors in New Jersey. Despite that admission, he maintained
that “NFPA 25 . . . [i]s just written wrong.” His report
explained that NFPA 25 should have been drafted to include a
requirement for reporting such deficiencies instead of
“allow[ing] the inspector[s] to turn a blind eye to design
flaws” while “conducting inspections of a limited scope.”
However, Mawhinney “failed to reference any written document or
unwritten custom accepted by the [fire safety] community” to
buttress that opinion. Kaplan, supra, 339 N.J. Super. at 103.
Mawhinney also expressed his view that, although NFPA 25
recognizes that sprinkler maintenance inspectors may not have
received the training necessary to identify design flaws, they
should nevertheless be required to acquire such training. Those
conclusory statements, however, “lacked any foundation of the
sort required for admissibility.” Pomerantz Paper Corp., supra,
21
207 N.J. at 374. Again, Mawhinny made “[n]o reference . . . to
any written document, or even unwritten custom or practice.”
Kaplan, supra, 339 N.J. Super. at 103. “In this stark absence
of supporting authority, [Mawhinney] provided only his personal
view, which . . . ‘is equivalent to a net opinion.’” Ibid.(quoting Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div.
1999)).
Having reviewed Mawhinney’s report and deposition, it is
clear that his opinion as to the applicable standard of care for
sprinkler inspectors was a “mere conclusion” that “lack[ed] an
appropriate factual foundation.” Cf. Pomerantz Paper Corp.,
supra, 207 N.J. at 372-73. Therefore, we reject as an
inadmissible net opinion Mawhinney’s assertion that the exercise
of reasonable care required defendants’ inspectors to identify
sprinkler system design flaws and report the need for an
additional sprinkler.
D.
Absent Mawhinney’s expert opinion to support a standard of
care beyond that prescribed in the UFC, plaintiffs are unable to
satisfy their burden of establishing the applicable standard of
care and a breach of that standard. Plaintiffs thus fail to
satisfy the elements of their negligence claim, and we hold that
defendants are entitled to judgment as a matter of law. Rule
4:46-2(c).
22
IV.
For the reasons set forth above, we reverse the judgment of
the Appellate Division and reinstate the orders of the trial
court, granting defendants’ motions for summary judgment and
thus dismissing with prejudice plaintiffs’ negligence claims
against defendants Atlantic, Cintas, and FireMaster.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, and
PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.
23
SUPREME COURT OF NEW JERSEY
NO. A-22/23/24 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
WAYNE DAVIS and IRENE LAVERNE
DAVIS, individually and on
Behalf of the ESTATE OF
COURTNEY DAVIS and MYLES
DAVIS, deceased,
Plaintiffs-Respondents,
v.
BRICKMAN LANDSCAPING, LTD.,
d/b/a BRICKMAN LANDSCAPING,
GENERATED MATERIALS, LLC,
NORTHERN FIRE AND SAFETY,
TOWNSHIP OF FRANKLIN, COUNTY
OF SOMERSET, JOHN GOODMAN,
DENISE GOODMAN, JANET DEMARY,
ANN KINGSTON, CONNIE GORDON,
KAY STYLES-TIMMONS, WENDY
LAFORTUNE, and TYSHEE STYLES,
Defendants,
and
ATLANTIC FIRE SERVICE, CINTAS
CORPORATION and MASTER
PROTECTION LP, d/b/a
FIREMASTER LP,
Defendants-Appellants.
DECIDED September 15, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST REVERSE/REINSTATE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1
2