SANDRA ROENING v. CITY OF ATLANTIC CITY (L-2929-18, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1369-20
SANDRA ROENING and
ROBERT ROENING,
Plaintiffs-Appellants,
v.
CITY OF ATLANTIC CITY and
ACPD OFFICER LINK,
Defendants-Respondents.
_____________________________
Submitted November 29, 2021 – Decided January 18, 2022
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-2929-18.
Westmoreland Vesper Quattrone & Beers, PA,
attorneys for appellants (R.C. Westmoreland, on the
briefs).
George N. Polis, attorney for respondents.
PER CURIAM
Plaintiffs Sandra Roening and Robert Roening, wife and husband, appeal
the Law Division's summary judgment order dismissing their personal injury
action under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3,
against defendants City of Atlantic City (the City) and Atlantic City Police
Officer Rich Link.1 We affirm.
I.
Since this is an appeal from a summary judgment order in favor of
defendants, our recitation of the facts is derived 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 by giving them the benefit of all
favorable inferences. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573,
577 (2013).
On an April 2018 afternoon, Sandra2 was walking on the Atlantic City
boardwalk when she tripped and fell on a raised nail protruding from a board
and fractured her right shoulder. A few minutes after her fall, photos were taken
of the nail by an eyewitness. According to Robert, the raised portion of the nail,
1
Officer Rich Link's first name is not set forth in the caption.
2
To avoid confusion, we refer to plaintiffs by their first names because they
have the same last name. We mean no disrespect.
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which was not measured at the time of the accident, had a bluish tint without
any rustiness, and was fixed by the time he returned the next day. Link was
summoned to the accident and, wearing a body camera, he video recorded the
assistance he gave Sandra. He also radioed for an ambulance to assist Sandra.
The recording was auto-deleted six months later in accordance with the City's
protocols.
Plaintiffs filed a TCA suit claiming the City was liable for Sandra's injury
and Robert's per quo claim for loss of her services, companionship, and society
because it failed to repair a dangerous condition, the protruding nail in the
boardwalk. They also sought damages against Link for wrongfully spoliating
his body camera video of the accident scene.
Discovery revealed the City's designated boardwalk inspector, Dennis
McReynolds, inspected the approximately four-and-a-half-mile long boardwalk
consisting of about 80,000 nails and screws for tripping hazards five days a
week, twice a day. When shown a photo of the raised nail at deposition, he
stated that he could not tell how long it had been raised.
Plaintiffs' liability expert, Francesco Tedesco, a former Ocean City
boardwalk inspector, authored a report stating the City was liable for Sandra's
fall but he did not opine how long the nail was in a raised condition prior to her
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accident. He also stated that the City's clerk and chief of police were negligent
in in not preserving and securing Link's body camera video and Boardwalk
camera video footage. He did not assert that Link was responsible for the
destruction of his body camera video.
At the conclusion of discovery, defendants moved for summary judgment,
arguing plaintiffs did not satisfy the requirements of the TCA and there was no
merit to the spoilation claim because the body camera video did not depict
Sandra's fall and there was a photo of the protruding nail evidencing the
dangerous condition. In response, Tedesco prepared a supplemental report, this
time stating that upon viewing the photo of the nail, he believed that, based on
its rusty condition, it had been raised for "at least three months or more" before
Sandra's fall. Prior to conducting argument on the motion, the court held a Rule
104 hearing, regarding the admissibility of Tedesco's opinion.
At the hearing, Tedesco testified the "nail has been up for a while . . . the
patina3 along the nail is dark and where the top is shiny because it was worn off
from foot traffic and friction." When describing his methodology for
3
Patina is "a usually green film formed naturally on copper and bronze by long
exposure or artificially (as by acids) and often valued aesthetically for its color[.]"
Patina, Merriam-Webster.com Dictionary (2022), https://www.merriam-
webster.com/dictionary/patina.
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determining how long the nail was above the boardwalk surface, he stated, "I've
always just used – the patina and the fact that these nails were coated at one
time. . . . [B]ut they're over [twenty] years old. [The City hasn't] used nails in
the boardwalk [for] at least [twenty] years."
Following the hearing, the parties' written summations, and motion
argument, the court entered an order granting defendants' summary judgment.
In a detailed twenty-page, single-spaced memorandum of decision, the court
determined the protruding nail was a dangerous condition under the TCA, but
plaintiffs failed to establish the statutory requirements that the City4 had actual
or constructive notice of the dangerous condition and that the City's failure to
repair it was due to palpably unreasonable conduct.
The court prefaced its ruling by finding Tedesco's opinion was
inadmissible net opinion. In particular, the court reasoned he
did not adequately address any factual or scientific
basis on either the location or age of the subject nail . . .
was involved in [Sandra's] accident. Additionally, his
testimony runs counter to [Robert's] testimony that the
nail was no longer raised following the incident when
he returned later to the site.
4
The court's decision speaks to defendants collectively, however, plaintiffs'
allegations regarding the failure to repair a dangerous condition pertain only to
the City. The claims against Link are limited to the spoilation of the body
camera video. Thus, we clarify that the TCA statutory requirements regarding
the dangerous condition pertain to the City.
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....
. . . Tedesco merely offered an unsupported bare
conclusion regarding the subject nail and the length of
time it protruded from the boardwalk. The [c]ourt finds
the opinion lacked any foundation and was simply
based off of []Tedesco's perception of the corrosion
relative to another piece of hardware located nearby.
Indeed, []Tedesco did not offer any factual or scientific
support for his conclusion of the nail's age or the
subject nail as this [c]ourt found it was no longer raised
a day later as testified by [Robert]. . . . [Tedesco] is not
a metallurgist and is not competent to opine as to the
age of the subject metal nail he saw simply by his
observation alone of rust. . . . Tedesco's opinion on the
nail is a net opinion and inadmissible.
With the exclusion of Tedesco's opinion, the court found that plaintiffs
failed to prove defendants had actual or constructive notice of the raised nail. It
also found they made no showing that defendants' lack of notice of the dangerous
condition was the result of palpably unreasonable conduct. Specifically, the
court found
no reasonable fact[]finder could conclude . . . [the
City's] practice of inspecting and repairing [the]
boardwalk in this case was palpably unreasonable. The
City employs a full-time boardwalk inspector [whose]
job is to inspect the boardwalk by walking and
traversing the City's boardwalk by vehicle. [He]
inspects the boardwalk five days per week and two
times per day looking for defects such as tripping
hazards. The over four-mile[-]long boardwalk contains
a vast number of nails and other pieces of hardware as
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well as lumber. Under no circumstances would it be
palpably unreasonable for the City's inspector to fail to
notice one protruding nail as presented here.
On appeal, plaintiffs argue the court erred in finding: (1) Tedesco's
opinion that the rusting nail had been protruding from the boardwalk for a long
time was inadmissible net opinion; and (2) the City's conduct in failing to repair
the protruding nail was not palpably unreasonable. 5
II
Before addressing the grant of summary judgment, we consider the court's
determination that Tedesco's report was inadmissible net opinion. "The
admission or exclusion of expert testimony is committed to the sound discretion
of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015) (citing State v.
Berry, 140 N.J. 280, 293 (1995)). "As a discovery determination, a trial court's
grant or denial of a motion to strike expert testimony is entitled to deference on
appellate review." Ibid.5
The court did not specifically mention its reasons for dismissing the spoilation
claim against Link. Because plaintiffs do not brief the dismissal of the claim on
appeal, we deem it abandoned. Pressler & Verniero, Current N.J. Court Rules,
cmt 5 on R. 2:6-2 (2022); see also Sklodowsky v. Lushis, 417 N.J. Super. 648,
657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.") .
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"When, as in this case, a trial court is 'confronted with an evidence
determination precedent to ruling on a summary judgment motion,' it 'squarely
must address the evidence decision first.'" Id. at 53 (quoting Estate of Hanges
v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 384-85 (2010)). "Appellate review
of the trial court's decisions proceeds in the same sequence, with the evidentiary
issue resolved first, followed by the summary judgment determination of the
trial court." Ibid. (citing Hanges, 202 N.J. at 384-85).
N.J.R.E. 703 requires an expert's 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.'" Ibid.(quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). "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.'" Id. at 53-54 (alterations in original) (quoting Polzo, 196 N.J. at
583). The rule "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.'" Id. at 55 (quoting Landrigan
v. Celotex Corp., 127 N.J. 404, 417 (1992)). "An expert's conclusion 'is
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excluded if it is based merely on unfounded speculation and unquant ified
possibilities.'" Ibid. (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App.
Div. 1997)) (internal quotation marks omitted).
"[A] trial court must ensure that an expert is not permitted to express
speculative opinions or personal views . . . ." Ibid. "[A]n 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 Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 373 (2011)) (internal
quotation marks omitted); see also Riley v. Keenan, 406 N.J. Super. 281, 296
(App. Div. 2009) (explaining experts "must be able to point to generally
accepted, objective standards of practice and not merely standards personal to
them").
"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 (App. Div. 2017). There must be some
"authority supporting [the] opinion," which can take the form of "any document,
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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 [by] defendant" must be
identified. Id. at 334.
Applying these principles to our review of Tedesco's Rule 104 hearing
testimony, we are convinced he rendered an inadmissible net opinion. The court
was correct that Tedesco's conclusions that the City had constructive notice of
the protruding nail due to rust on the nail was a conclusory personal opinion.
While he referenced the photo of the nail in his assessment, he did not offer any
factual or scientific support for his conclusion that it had been protruding for at
least three months. He simply gave an estimated range based solely on
photographic comparisons to other nails in that area of the boardwalk. While
these comparisons may be useful to determine relative corrosiveness, it was
speculative for Tedesco to opine how long the nail was rusting and protruding
from the boardwalk. Although, as plaintiffs argue, he does not necessarily need
to be a metallurgist to qualify as an expert witness, he must still support his
opinion with facts, scientific data, or an accepted standard. He provided none.
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Because he failed to state the "why and wherefore" of his opinion, the court
properly applied its discretion to bar his testimony as inadmissible net opinion.
Turning to the trial court's summary judgment dismissal of plaintiffs'
complaint, we review the decision de novo. Giannakopoulos v. Mid State Mall,
438 N.J. Super. 595, 599 (App. Div. 2014). We utilize the same standard as the
court and consider "whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995).
"Generally, immunity for public entities is the rule and liability is t he
exception." Fleuhr v. City of Cape May, 159 N.J. 532, 539 (1999). "[P]ublic
entities shall only be liable for their negligence within the limitations of" the
TCA. N.J.S.A. 59:1-2. The requirements of the TCA are "stringent" and place
a "heavy burden" on plaintiffs seeking to establish public entity liability. Bligen
v. Jersey City Hous. Auth., 131 N.J. 124, 136 (1993).
Through enactment of N.J.S.A. 59:4-2, our Legislature waived public
entity immunity for injuries caused by a dangerous condition of public property
in limited circumstances. The statute provides, in relevant part, as follows:
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A public entity is liable for injury caused by a
condition of its property if the plaintiff establishes that
the property was in dangerous condition at the time of
the injury, that the injury was proximately caused by
the dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of the kind of
injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an
employee of the public entity within the scope of his
employment created the dangerous condition; or
b. a public entity had actual or constructive notice of
the dangerous condition under section 59:4-3 a
sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose
liability upon a public entity for a dangerous condition
of its public property if the action the entity took to
protect against the condition or the failure to take such
action was not palpably unreasonable.
[N.J.S.A. 59:4-2.]
N.J.S.A. 59:4-1(a) defines a "dangerous condition" as "a condition of
property that creates a substantial risk of injury when such property is used with
due care in a manner in which it is reasonably foreseeable that it will be used."
To pose a "'substantial risk of injury' a condition of property cannot be minor,
trivial, or insignificant. However, the defect cannot be viewed in a vacuum.
Instead, it must be considered together with the anticipated use of the
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property . . . ." Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div.
2003).
N.J.S.A. 59:4-3 establishes when a public entity will be deemed to have
actual or constructive notice of a dangerous condition of its property:
a. A public entity shall be deemed to have actual notice
of a dangerous condition within the meaning of
subsection b. of section 59:4-2 if it had actual
knowledge of the existence of the condition and knew
or should have known of its dangerous character.
b. A public entity shall be deemed to have constructive
notice of a dangerous condition within the meaning of
subsection b. of section 59:4-2 only if the plaintiff
establishes that the condition had existed for such a
period of time and was of such an obvious nature that
the public entity, in the exercise of due care, should
have discovered the condition and its dangerous
character.
Finally, to establish palpably unreasonable behavior, a plaintiff has a
"steep burden" to prove "more than ordinary negligence." Coyne v. State Dep't
of Transp., 182 N.J. 481, 493 (2005). "Palpably unreasonable" implies behavior
by a public entity "'that is patently unacceptable under any circumstance' and
that 'it must be manifest and obvious that no prudent person would approve of
its course of action or inaction.'" Holloway v. State, 125 N.J. 386, 403-04 (1991)
(quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)). An analysis of
whether a public entity's behavior is palpably unreasonable involves "not only
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what was done" but also the entity's "motivating concerns." Schwartz v. Jordan,
337 N.J. Super. 550, 563 (App. Div. 2001). "Simply put, the greater the risk of
danger known by the Township and sought to be remedied, the greater the need
for urgency." Ibid.Although whether a public entity acted in a palpably unreasonable manner
is often decided by a jury, the court may decide the question in appropriate cases.
Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002).
"[L]ike any question of fact, the determination of palpable unreasonableness is
subject to a preliminary assessment by the court as to whether it can reasonably
be made by a fact-finder considering the evidence." Charney v. City of
Wildwood, 732 F. Supp. 2d 448, 457 (D.N.J. 2010) (citing Black v. Borough of
Atlantic Highlands, 263 N.J. Super. 445, 451-52 (App. Div. 1993)).
Considering these guidelines and carefully reviewing the record, we are
satisfied the summary judgment order is supported by the record. We agree with
the court that no reasonable factfinder could conclude defendant's practice of
inspecting and repairing the boardwalk was palpably unreasonable. The court's
reliance on Charney, which involved a plaintiff's fall caused by a hole in the
City of Wildwood boardwalk, was on point. There, Judge Rodriguez explained:
Even assuming . . . Wildwood had notice of the hole, it
cannot be said that the decision to leave a one and one-
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half inch deep, one and one-quarter inch wide triangular
hole unrepaired was palpably unreasonable. At worse,
the decision to leave small boardwalk defects
unrepaired was negligent. Indeed, Wildwood . . .
arguably could have made more thorough and effective
repairs of the boardwalk. Perfection, however, is not
required under the [TCA]. Wildwood made daily
inspections of the boardwalk and repaired those defects
it deemed sufficiently hazardous. . . . Wildwood's
failure to remedy a small defect in a walkway surface
cannot be said to constitute the kind of "outrageous" or
"patently unacceptable" behavior that rises to the level
of palpable unreasonableness. Imperfections in
boardwalk surfaces are commonplace, and the failure
of a public entity to remedy every small defect in a
boardwalk simply cannot be deemed palpably
unreasonable.
[Charney, 732 F. Supp. 2d at 458.]
Considering the boardwalk's length and the number of nails or screws used to
secure it, plaintiffs have not shown, based on the record, that defendants are
liable for the TCA claims asserted in the complaint.
To the extent we have not specifically addressed any of plaintiffs'
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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