Who Caused the Flooded Basement? Plaintiff has the Burden of Proof

Submitted by New Jersey Civil Lawyer, Jeffrey Harkwww.criminalcivillawyer.com

In this case there was a broken water main which caused a flood in defendant’s basement store causing economic damage to plaintiff’s business.  Plaintiff was not able to obtain an expert report who, based on the facts of the case and the applicable standards, provided an expert opinion establishing a causal relationship between the damage and any specific conduct on behalf of any of the defendants.  As a result, the court threw out the plaintiff’s expert’s “net opinion” and dismissed his case at the summary judgment stage.  Plaintiff appealed and the appellate court briefly and succinctly stated:

“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); see N.J.R.E. 702. Here, expert evidence was needed to show defendants were negligent and that such negligence proximately caused plaintiffs’ damages. See Ford Motor Credit Co., LLC v. Mendola, 427 N.J. Super. 226, 236-37 (App. Div. 2012); Fanning v. Montclair, 81 N.J. Super. 481, 486-87 (App. Div. 1963). Despite being given ample opportunity, plaintiffs were unable to come forward with a liability expert’s report identifying who were culpable for the flooding. Without an expert’s report setting forth that defendants were negligent and that their negligence proximately caused plaintiffs damages, plaintiffs were not going to make out a prima facie case at trial.

We have written numerous blogs and article on this point.  Plaintiff has the burden of proof in all litigation and has to present enough evidence to be entitled to get in front of a jury.  Here the plaintiff’s expert attempted to write an opinion out of thin air, and not related to the facts of the case and any applicable standard of care!  This was clearly a ‘net opinion’ and not in accordance with New Jersey law.  Hence, the trial court dismissed a the Summary Judgement stage and the Appellate Division affirmed.

Read the entire case here.

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