Submitted by New Jersey personal injury attorney, Jeffrey Hark
Bell v. Turiello, App. Div. (per curiam) (15 pp.)
Plaintiff was working as a mail carrier when she tripped and fell on the public sidewalk in front of defendants’ two-family home. She broke her ankle and injured her foot. She sued defendant-property owners alleging that their negligence in maintaining the sidewalk and in failing to warn pedestrians of the hazard was the cause of her accident and injuries. Plaintiff appeals from summary judgment dismissing her claim. The trial court ruled that plaintiff’s expert engineering report contained inadmissible net opinions because of the general immunity of residential property owners for the condition of public sidewalks, defendants are not liable to plaintiff.
Plaintiff contends her expert report and the photographs of the area where she fell demonstrate factual issues as to whether affirmative acts of defendants or the prior owners of the property caused the cracked and uneven condition of the sidewalk slabs on which she fell. The appellate panel finds no error in the trial court’s decision and affirms its order dismissing plaintiff’s claims.
The trial court correctly ruled that the parts of plaintiff’s expert’s anticipated testimony offered to prove the property owners’ affirmative acts were based on his inadmissible net opinions. Without testimony in that regard, plaintiff could not prove the necessary affirmative acts that allegedly caused the dangerous condition of the sidewalk. Defendants are entitled to summary judgment because of their general immunity from sidewalk liability as residential property owners and because of insufficient evidence from which a jury could rationally conclude that their affirmative acts caused a dangerous condition of the sidewalk.
Rule 702 permits a qualified expert witness to testify “in the form of an opinion or otherwise,” where “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” N.J. R. Evid. 702. Admission of expert testimony has three well-known prerequisites: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. Hisenaj v. Kuehner, 194 N.J. 6, 15 (2008). “The burden of proving that the testimony satisfies those threshold requirements rests with the party proffering the testimony.” Id. Once those prerequisites have been met the this court is required to exclude net opinion testimony when: (1) by “experts” with no expert background to make a conclusion in a particular area; (2) of a purported expert with no expert background on a particular issue; (3) when the expert cannot explain his/her conclusion or methodology; or (4) unsupported by any facts. State v. Bealor, 187 N.J. 574, 592 (2006); State v. Nesbitt, 185 N.J. 504, 514 (2006).
In this case the expert’s opinions had nothing to do with any standard of care, the law, the property owner immunity statute, or the facts of the case. The court bared the report and dismissed plaintiff’s case as a result.