Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark
In this case the plaintiff was injured when he/she left a relative’s condo. There were two driveways in front of the house and a 12 inch abrupt step down from one driveway to the another driveway without any visual indication of the step down.
At the conclusion of the discovery, the defense asking the court to have the case dismissed. The property owner’s attorney was arguing to the trial judge that the plaintiff had failed to establish the breach of the duty of care without an expert commenting on the nature of the risk and the violations of local building code regarding the transitional slope created by the two different driveways and the substantial height difference.
The plaintiff argued that because of the open and apparent obvious difference in the 12 inch step down between the two driveways, no expert was required to comment on the “dangerous condition”. In other words, because the dangerous condition was so obvious and open (clearly understandable to a jury) this was not a condition that was beyond the comprehension and understanding of a juror without explanation from an expert.
The plaintiff also argue that the expert was not required because the complaint is not allege a “design defect”. Instead the plaintiff argues the condo association maintained a dangerous condition which it had actual knowledge of because of the obvious nature of the height differential and obvious dangerous condition.
New Jersey courts have a long-standing requirement that “often a jury is not competent on its own to supply the standard by which to measure a defendants conduct and as a result a plaintiff must establish the standard of care, as well as identifying the breach of the standard of care by expert testimony.” If the dangerous condition and it’s perception is so esoteric or specialize the jurors of common judgment knowledge and experience cannot understand, expert testimony is required.
Conversely, if a jury can perceive with their layperson common knowledge the duty of care and the breach of the duty, the expert testimony is not required. In other words some hazards are relatively common place an ordinary and do not require the exclamation of experts in order for there a danger to be understood by the average person.
The two seminal cases that address these slip in for premises liability expert testimony legal threshold standards are Butler v. Acme Markets, 89 NJ 270 (1982), and Hopkins v. Fox and Lazo Realtors, 132 NJ 426 (1993).
At the end of the day the appeals court agreed with the plaintiff that there was a substantial question of fact concerning the existence of the open and obvious dangerous condition without the need of expert discussion and explanation of the dangerous condition merely based on the photos.
They reinstated the complaint and sent the case back to the trial judge for a trial on the merits.
The attorney in this case risked having his client’s claim dismissed as a result of his failure to hire an expert to address this issue. We do not know when the plaintiff fell based on this opinion, however the case was dismissed in June of 2015. The appeals court part of the case was heard in March 2017, 20 months later. Had the plaintiff’s attorney hired an expert, his clients would not have been subject to a summary judgment dismissal, 20 months of delay, and the risk of having the trial judge’s dismissal affirmed on appeal as well. Obviously, the case at this time will either settle or go to trial. Spending a few thousand dollars on an expert three years ago would have avoided all of this wasted time effort and delay. That is why this case initially was dismissed and then took so long to travel through the appellate courts.
Jeffrey S. Hark, Esq.