Slip and Fall – Do you need an expert? “If your mother does not understand who’s responsible, you need an expert!”

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

Strumeier v. Lenard    NJ Appellate Division   December 1, 2016

The facts of this case are very straight forward.  On October 6, 2011, Plaintiff fell after stepping into a hole located in the vicinity of the guide rail in front of 444 Harrison Avenue. Donald Rish, the Superintendent of Public Works for Highland Park, was deposed on September 20, 2013. Rish testified that he visited the accident site in January 2012, shortly after he was made aware of plaintiff’s injury. Rish accompanied Highland Park’s code enforcement officer to the fall site and observed a hole in the ground approximately nine inches deep. On a separate visit to the site, Rish was accompanied by Bruce Koch, a licensed professional engineer employed by CME Associates, the consulting engineers for Highland Park and the designers of the 2009 ROADWAY IMPROVEMENTS project. When asked whether he formed any conclusions at that inspection as to what caused the hole, Rish responded: “I believe [Koch] had said that it may have been caused by some equipment. He would notify the contractor.” Rish further testified that neither he, Koch, nor the code enforcement officer did any probing or forensic investigation to determine the cause of the hole. In January 2012, Rish was interviewed by Jamie Campbell of Amica Mutual Insurance Company, the insurance carrier for the adjoining property owners, the Lenards. Rish testified that the “substance of the statement[s that he] gave [to Amica]” was based on what he learned from Koch. Rish confirmed that Koch said it was “possible” that the pressure of the machine used by F&P to install the guide rail cracked the plate underneath the dirt, thereby causing the hole. Rish also testified that, after F&P was contacted, it “came out to [the] scene, replaced [the] plate[,] and refilled [the] hole.” Koch provided deposition testimony on September 20, 2013, and June 18, 2014. Koch was responsible for putting the roadway improvement project out to bid and providing construction management services for the project.

In granting summary judgment to defendants, Judge Vincent LeBlon found that plaintiff’s expert’s opinions were “conclusions and findings are not only speculative, but they are unsupported by any applicable or relevant codes, statutes or regulations.” The judge further noted that the plaintiff’s expert “admitted that he never personally inspected the broken back plate and that [he] never made any effort to determine what caused the back plate to break by performing any type of forensic analysis.” The judge also determined that Nolte failed to establish any basis to impose liability on F&P or Creamer.

Judge LeBlon completed his in-depth analysis by finding that, even when plaintiff was afforded all reasonable inferences, the evidence only established that she fell into a hole and was injured.  The judge noted that the mere happening of an accident is not proof of negligence 

On appeal, the appellate division noted the following: Plaintiff argues that expert testimony is not required in this case as the subject matter can be understood by jurors using their common knowledge and judgment. She asserts that the testimony that a pile driver-like machine was used near the back plate, and that the back plate subsequently cracked thereby causing the hole into which she fell, together create an inference of negligence that is sufficient to withstand defendants’ summary judgment motions. We disagree. The admissibility of expert testimony is governed by N.J.R.E. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

In general, expert testimony is required when ‘a subject is so esoteric that jurors of common judgment and experience cannot form a valid conclusion.'” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993) (quoting Wyatt ex rel. Caldwell v. Wyatt, 217 N.J. Super. 580, 591 (App. Div. 1987)); accord Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982).

Plaintiff relies on Dodge v. Johns-Manville Sales Corp., 129 N.J.L. 65 (E. & A. 1942), in support of her position that expert testimony is not required. In Dodge, the plaintiff sued for personal injuries she suffered in coming down a movable ladder from the attic to the second story of her home while defendant’s employees were installing insulation in the attic. Ibid. In affirming the trial court’s decision to nonsuit the plaintiff, the Court of Errors & Appeals  determined that the fact that the plaintiff climbed up or down the ladder three times without incident negated any inference that defendants. However, the court found in this case, “Simply put, the capacities of a “pile-driver-like” machine, and the force needed to destroy a back plate and cause a hole of the size and character involved here, are esoteric matters that require expert testimony for an average juror to meaningfully comprehend.

Like the trial court, we conclude that expert evidence was needed to show defendants were negligent and that such negligence was a proximate cause of plaintiff’s injury.  In light of the highly technical nature of the machinery used and the duties attached to proper guide rail installation, the trial court aptly ruled that expert testimony was required to establish defendants’ liability.

In sum, the panel concluded that expert evidence was needed to show defendants were negligent and that such negligence was a proximate cause of plaintiff’s injury. In the absence of expert testimony, there was no competent evidence establishing the standard of care that defendants were required to conform to in performing their work, or that they breached that standard of care and violated a duty owed to plaintiff. The judge properly entered summary judgment for defendants.

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