NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2148-24
FRANCIS E. BOROWSKY, JR. and PAULINA A. BOROWSKY, his wife,
Plaintiffs-Appellants,
v.
U-HAUL OF MIDDLETOWN, U-HAUL COMPANY OF NEW JERSEY, INC., U-HAUL INTERNATIONAL, INC.,
Defendants-Respondents.
Argued May 11, 2026 – Decided June 22, 2026
Before Judges Walcott-Henderson and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3398-21.
Frank E. Borowsky, Jr. argued the cause for appellants (Borowsky & Borowsky, attorneys; Frank E. Borowsky, Jr., on the briefs).
Richard J. Williams, Jr. argued the cause for respondents (McElroy Deutsch Mulvaney & Carpenter LLP, attorneys; Richard J. Williams, Jr. and Colden R. Gosselin, of counsel and on the brief).
PER CURIAM
Plaintiffs Francis E. Borowsky and Paulina A. Borowsky 1 appeal from
trial court orders denying their motions for partial summary judgment and to bar
defendants'2 expert opinion. Based on our review of the record and governing
legal principles, we affirm both orders for the cogent reasons expressed by Judge
Chad N. Cagan in his detailed oral decision.
I.
The following relevant facts are derived from the record. On August 16,
2020, plaintiff was assisting his son with moving items from an apartment in
Hoboken, using a rented U-Haul truck. The truck was a 2019 Ford cab and
chassis with a box-type body designed by U-Haul International, Inc. and
manufactured by a subsidiary.
The truck's cargo area floor was approximately thirty-three inches above
ground level, and a galvanized steel step bumper was attached about twenty
inches above the ground, resulting in a riser height of thirteen inches between
1 We refer to Frank K. Borowsky as "plaintiff" in this opinion as Paulina A. Borowsky's claims are per quod only. 2 We refer to all U-Haul entities collectively as "defendants." A-2148-24 2 the step bumper and the cargo area. The step bumper featured raised metal
holes, referred to as "halos" or "coins," designed to provide traction and prevent
water accumulation. The edge of the cargo bed, at the threshold of the cargo
area, was a bare metal surface with allegedly no slip-resistant features or
markings to delineate the edge. The truck was equipped with a loading ramp
and handholds for safety when entering or exiting the cargo area. Adjacent to
the threshold, inside the cargo area, was a grooved aluminum panel designed to
provide traction, while the remainder of the cargo area floor was plain steel.
On the date of the incident, it was raining intermittently, and the street,
sidewalk, and outdoor surfaces were wet. Plaintiff and others made between
seven and ten trips loading items into the truck with no incident, with plaintiff
stepping up onto the step bumper and into the cargo area each time.
On his final trip, after placing a piece of furniture in the truck, plaintiff
moved to the back of the cargo area to exit. As he stepped down from the cargo
area onto the step bumper, his foot slipped, causing him to fall face-first into the
street below. Plaintiff sustained serious injuries, including a shattered alveolar
bone, the loss of several teeth, permanent loss of sensation in his upper lip and
mouth, and facial disfigurement.
A-2148-24 3 Plaintiff commenced this action by filing a complaint in October 2021.
The complaint asserted claims for products liability and negligence collectively
against defendants. The complaint alleged that plaintiff sustained injuries when
he slipped and fell and asserted the truck design was defective. Defendants filed
an answer denying liability and asserting various defenses, including
comparative negligence against plaintiff.
The parties engaged in extensive discovery, lasting nearly one-thousand
days, including several discovery end date extensions, two arbitration
adjournments and two trial adjournments. Both parties obtained experts who
submitted reports with conflicting opinions.
Plaintiff presented the opinion and report of Michaela Kuba, P.E. (Kuba),
a metallurgical engineer with experience in failure analysis and tribological 3
testing. Kuba visually inspected the subject truck and performed coefficient of
friction testing at the area where plaintiff slipped, using a BOT-3000e tribometer
3 Tribology is the study of surfaces moving relative to one another and includes three key topics: friction, wear, and lubrication. The Society of Tribologists and Lubrication Engineers, About STLE, www.stle.org/files/About_STLE/tribology/files/What_is_tribilolgy.aspx . (last visited June 3, 2026).
A-2148-24 4 device.4 Her testing was conducted according to the American National
Standards Institute and the National Floor Safety Institute standards and found
that the dynamic coefficient of friction (DCOF) at the threshold was at the
minimum value generally accepted for wet exterior surfaces at 0.55. Kuba
opined that this was inadequate for the truck in question, given the step height,
mixed surface textures and the foreseeable risk of users carrying heavy items in
wet conditions.
Kuba concluded that the design was defective because the bare metal edge
lacked slip-resistance features, especially in light of the presence of such
features elsewhere on the trucks of competitors' vehicles. She identified several
reasonable alternative designs, including extending the grooved aluminum panel
to the edge, applying slip-resistant tape or coatings, or coining the edge, all of
which she opined would be simple, cost-effective, and would not impair the
truck's utility. Kuba also noted the absence of adequate warnings regarding the
risk of slipping at the threshold.
4 This device is designed to measure the slip resistance of flooring and walkway surfaces and mechanically tests both wet and dry surfaces to determine DCOF . Walkway Management Group, BOT-3000E Package, https://store.walkwaymg.com/products/bot-3000e-kit. (last visited June 3, 2026). A-2148-24 5 Defendants presented the expert report of Dr. Zdenek Hejzlar, Ph.D., CSP,
(Hejzlar) a safety and human factors consultant with extensive experience in
slip, trip and fall analysis. Hejzlar's report detailed his inspection of the subject
vehicle and tribometry testing of the truck bed and threshold, using an ASM
825A tribometer 5 and various types of footwear. His testing found SCOF
ranging from 0.35 to 0.74, depending on the location and shoe type, with the
threshold area generally meeting or exceeding the minimum values cited in
voluntary industry standards.
Hejzlar opined that there are no mandatory federal or state standards for
slip resistance in cargo areas of moving trucks, and that U-Haul's truck design
was not unreasonably dangerous. He further opined that plaintiff increased his
risk of injury by not using available safety features such as the handholds and
loading ramp, and environmental factors, such as parking location and weather,
contributed to the risk. Hejzlar also offered alternative theories for the fall,
suggesting that plaintiff may have overstepped the edge, causing his foot to
rotate over the nosing and slip, a mechanism he described as common in stair
5 ASM 825 tribometers test the Static Coefficient of Friction, defined as how much force is required to initiate horizontal movement, or a slip. American Slip Meter, Inc., About Slip Meters, https://americanslipmeter.com/info/ (last visited June 3, 2026). A-2148-24 6 descent incidents. He concluded that the system safety provided by the truck
enabled prudent users to load and unload safely, and that the design was not
defective or unreasonably unsafe.
Following discovery, plaintiff moved for partial summary judgment as to
liability only, seeking a limited determination that the truck was defectively
designed as a matter of law and requesting that the trial be limited to damages.
Additionally, plaintiff's motion sought to prevent defendant from submitting the
defenses of comparative negligence and proximate cause to the jury. As a
separate and distinct matter, plaintiff also moved to bar the testimony of Hejzlar,
on the grounds that his report constituted a net opinion. Defendants opposed the
motion, arguing that there were genuine issues of material fact regarding the
alleged design defect and their expert's report was not a net opinion, precluding
summary judgment as a matter of law.
The trial court heard extensive oral arguments on the motion in January
2025. After considering the parties' submissions and arguments, the court
denied plaintiff's motion to bar defendants' expert opinion and denied his motion
for partial summary judgment.
Regarding defendants' expert's report, the trial court concluded that the
opinion was not a net opinion. After an extensive review of his expert report
A-2148-24 7 the court found it "[was] satisfied . . . under the particular circumstances here
that this is not a net opinion . . . [and] that this expert report in fact provides the
why and wherefore for the conclusions that were reached[.]" In support of its
conclusion, the court stated that "what's very, very clear [in the report] . . . is
that the defendant['s] expert[] performed the same scientific testing as the
plaintiff['s] expert[] did[;] the coefficient of friction."
The court noted that the "experts have competing conclusions" as to the
danger of the design of the truck, stating:
The defense expert concludes that the system safety provided by the U-Haul's subject truck design enables prudent users to accomplish loading and unloading in a safe manner and is not unreasonably dangerous. The experts, conducting the same type of scientific testing, slip resistance testing, come to different conclusions, and those are fact questions for the jury.
....
I am very much satisfied based on this record that this expert report provides the why and wherefore . . . [T]his expert report sets forth how they conducted a scientific slip resistance testing, the coefficient of friction. They applied applicable standards. They examined the actual truck. They distinguished the findings set forth frankly in [] Ms. Kuba's report. But this is not simply a report that sets forth a conclusion without any analysis. Quite to the contrary. This report sets forth all these testing and review of scientific literature, standards and codes, inspection, and tribometry testing of the subject truck.
A-2148-24 8 Thus, the court denied plaintiff's application to bar Hejzlar's report as a net
opinion.
Concerning plaintiff's partial summary judgment motion, the court found
that "there [were] questions of material fact that require submission to the jury."
The court noted that:
The parties hotly dispute the underlying issue as to whether or not the bay area, the cargo bay area of this U-Haul was defectively designed, and the defense expert says [it was] not defectively designed. The plaintiffs' expert says [it was] defectively designed.
The court concluded there were competing expert reports and the findings and
subsequent conclusions in the reports were hotly contested, resulting in
questions of fact for the jury to consider. Thus, the court denied plaintiff 's
motion for partial summary judgment.
In its findings, the court also referenced plaintiff's attempts to strike
defendants' comparative negligence claim and its proximate cause defense but
ultimately did not address these issues, finding "the issue presented . . . [was]
whether summary judgment should be granted as to liability when there are
questions of fact as to whether or not the U-Haul truck was defectively
designed." The court noted that plaintiff's "primary position is that a product is
A-2148-24 9 defectively designed when it could have been designed in an alternative manner
so as to minimize or eliminate the risk of harm . . . ."
The case ultimately proceeded to trial before a different judge. Following
the presentation of testimony and evidence by each party, the jury returned a
verdict in favor of defendants, finding that the truck was not defectively
designed and that any failure to provide adequate warnings was not a proximate
cause of the accident. Notably, the jury did not reach the issues of comparative
negligence or proximate causation. At no point did plaintiff move for a directed
verdict, nor did he challenge the verdict through any post-trial motion. The
court accordingly entered judgment dismissing plaintiff's complaint.
Plaintiffs appeal the trial court's orders denying their motion to bar
defendants' expert opinion, denying partial summary judgment, and denying, as
moot, plaintiff's motion to strike defendants' comparative negligence and
proximate cause affirmative defenses.
II.
A.
We begin by addressing plaintiff's contention that Hejzlar's opinion
should have been barred as a net opinion. Plaintiff offers several arguments
supporting his position for inadmissibility, including: (1) Hejzlar did not
A-2148-24 10 specifically address competitors designs; (2) the opinion related to the "risk-
utility" analysis rather than "alternative safer design;" (3) the report and
conclusions were not based on anything; (4) his reference to "prudent users" was
inappropriate; (5) his conclusion about plaintiff "increasing his risk of injury" is
speculative; and (6) his remaining conclusions were not required for the analysis
by a lay person.
We conclude plaintiff's arguments on these points lack sufficient merit to
warrant an extensive discussion in a written opinion and affirm substantially for
the reasons expressed by the trial court. R. 2:11-3(e)(1)(E). We address
selective issues for the sake of clarity.
"[W]e apply [a] deferential approach to a trial court's decision to admit
expert testimony, reviewing it against an abuse of discretion standard."
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). The
exclusion or admission of an expert's opinion 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)) and is governed by N.J.R.E. 702 and
N.J.R.E. 703. Id. at 53.
N.J.R.E. 702 sets forth three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to
A-2148-24 11 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.
[State v. Derry, 250 N.J. 611, 632-33 (2022) (quoting State v. Torres, 183 N.J. 554, 567-68 (2005)).]
"Those requirements are construed liberally in light of Rule 702's tilt in favor of
the admissibility of expert testimony." State v. Jenewicz, 193 N.J. 440, 454
(2008).
Pursuant to N.J.R.E. 703, an expert opinion must be based on
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 in forming opinions on the same subject.
[Townsend, 221 N.J. at 53 (quoting State v. Townsend, 186 N.J. 473, 494 (2006)).]
N.J.R.E. 703's corollary, the net opinion rule, "stands for the proposition
that an expert opinion must have a rational basis" and prohibits admitting an
expert's opinion into evidence if its conclusions are "not supported by factual
evidence or other data." Crispino v. Tp. of Sparta, 243 N.J. 234, 257 (2020)
(citing Townsend, 221 N.J. at 53-54). "[T]he net opinion Rule requires an expert
witness to give the why and wherefore of his expert opinion, not just a mere
A-2148-24 12 conclusion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.
1996). "[B]are conclusions, unsupported by factual evidence, [are]
inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); see also Fin.
Servs. Vehicle Tr. v. Panter, 458 N.J. Super. 244, 257 (App. Div. 2019).
The net opinion Rule does not impose a "standard of perfection."
Townsend, 221 N.J. at 54. Rather, it "is a prohibition against speculative
testimony." Ehrlich v. Sorokin, 451 N.J. Super. 119, 134 (App. Div. 2017)
(quoting Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013)). A judge
should not admit expert testimony "if it appears the witness is not in possession
of such facts as will enable him to express a reasonably accurate conclusion as
distinguished from a mere guess or conjecture." Vuocolo v. Diamond Shamrock
Chems. Co., 240 N.J. Super. 289, 299 (App. Div. 1990) (quoting Clearwater
Corp. v. Lincoln, 202 Neb. 796 (1979)).
In concluding that the defendants' expert opinion was not a net opinion,
the court determined that both parties' experts utilized the same scientific testing
and methodology surrounding the slip resistance in the truck's loading area, and
further found defendant's expert conducted extensive testing when coming to its
conclusion that the design of defendants' truck enables users to accomplish
loading and unloading in a safe manner. The court also found that defendants'
A-2148-24 13 expert report sets forth the basis for his opinion through scientific slip resistance
testing. The court found Hejzler's report sets forth a conclusion based on all the
testing and review of scientific literature, standards and codes, inspection, and
tribometry testing of the subject truck.
We are satisfied, based on Judge Cagan's detailed findings, that
defendants' expert opinion is not a net opinion. We add only that the opinion
has a rational basis and is clearly supported by factual evidence, data, and
testing, including substantially the same testing utilized by plaintiff's expert.
We further determine the opinion provides the whys and wherefores, not just
mere conclusions. For these reasons, the trial court's denial of plaintiff's motion
to strike defendant's expert opinion as a net opinion was not an abuse of
discretion.
B.
We next turn to plaintiffs' contention that the court erred by denying their
motion for partial summary judgment for liability only. Our review of a ruling
on summary judgment is de novo, applying the same legal standard as the trial
court. Townsend, 221 N.J. at 59. Summary judgment must be granted if the
court determines "there is no genuine issue as to any material fact challenged
and that the moving party is entitled to a judgment or order as a matter of law. "
A-2148-24 14 R. 4:46-2(c). The court must "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 Insurance Co.
of Am., 142 N.J. 520, 540 (1995). We accord no special deference to the trial
judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478
(2013).
The New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11,
governs products liability issues in this State. When our Legislature enacted the
PLA, it "established 'one unified, statutorily defined theory of recovery for harm
caused by a product, and that theory is, for the most part, identical to strict
liability.'" Dean v. Barrett Homes, Inc., 204 N.J. 286, 294 (2010) (quoting In re
Lead Paint Litig., 191 N.J. 405, 436 (2007)). The PLA is "remedial legislation,"
enacted to "establish clear rules" in claims "for damages for harm caused by
products, including certain principles under which liability is imposed."
McDarby v. Merck & Co., 401 N.J. Super. 10, 97 (App. Div. 2008) (quoting
Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 47-48 (1996)).
"A product liability action is defined as 'any claim or action brought by a
claimant for harm caused by a product, irrespective of the theory underlying the
A-2148-24 15 claim, except actions for harm caused by breach of an express warranty.'"
Sinclair v. Merck & Co., 195 N.J. 51, 62 (2008) (quoting N.J.S.A. 2A:58C-
1(b)(3)). The PLA provides:
A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner.
[N.J.S.A. 2A:58C-2.]
In other words, a "prerequisite" for recovery under the PLA "is the existence of
a defective condition." Zaza, 144 N.J. at 49.
To prove a design defect under the PLA as pled by plaintiff herein, they
must establish that the product was "designed in a defective manner." N.J.S.A.
2A:58C-2(c). Moreover, a plaintiff must demonstrate that the product "was not
reasonably fit, suitable or safe for its intended purpose." Dewey v. R.J.
Reynolds Tobacco Co., 121 N.J. 69, 95 (1990) (quoting N.J.S.A. 2A:58C-2).
Accordingly, a plaintiff must prove either that the product's risk outweighs its
A-2148-24 16 utility or that the product could have been designed in an alternative manner so
as to minimize or eliminate the risk of harm. Lewis, 155 N.J. 569.
Plaintiff's theory is centered upon the "reasonable alternative design"
theory we outlined above. Plaintiff primarily asserts that a product is defectively
designed if it "'could have been designed in an alternative manner so as to
minimize or eliminate the risk of harm.'" Cavanaugh v. Skil Corp., 331 N.J.
Super. 134, 162 (App. Div. 1999), aff'd, 164 N.J. 1 (1999) (quoting Lewis, 155
N.J. at 570).
The defense expert report references the alternative designs proffered by
Kuba and contests their applicability to the facts in this matter and challenges
the conclusions drawn therefrom. Specifically, in his report for the defense,
Hejzlar concluded that the U-Haul design was reasonably safe based on
extensive testing, which we reiterate was substantially the same testing
performed by Kuba.
We recently held that the alternative design standard has two parts. The
first part being that "[a] product . . . is defective in design when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design . . . [and the second part requiring
that] the omission of the alternative design renders the product not reasonably
A-2148-24 17 safe." Berkoski v. Honda Motor Co., 480 N.J. Super. 379, 392-93 (App. Div.
2025) (quoting Restatement (Third) of Torts: Prods. Liab. § 2(b) (A.L.I. 1998))
(emphasis added). Simply put, a plaintiff cannot succeed in a products liability
action solely by proffering alternative designs; they must also show that the
omission of such a design renders the product not reasonably safe.
We conclude here that Hejzlar's report squarely contests plaintiff's expert
report concerning the second element of the alternative design test and opines
that the design of the truck is reasonably safe. He arrived at this conclusion
through his extensive testing, as noted and relied upon by the trial court. We
further reject plaintiff's contention that defendant's expert did not conduct a
thorough examination of the designs of competitors. Hejzlar's report states that
defendants' design is similar to that of their competitors in reference to their rear
cargo area step bumper and height access to the cargo area. His testing also
reveals that the slip coefficient is well within an acceptable range, and thus he
systemically refutes plaintiff's expert's conclusions. Additionally, he opines that
human factors played a role in the incident, largely citing to plaintiff's lack of
use of the loading ramp and safety handholds as well as other factors, including
parking location and loading during rain.
A-2148-24 18 Based on the foregoing reasons, we conclude plaintiff's contention that
the subject truck was defective as a matter of law simply because its expert
opined that alternative designs existed lacks merit. Plaintiff's analysis omits the
second element required to prove an alternative design claim, which is a critical
element of this category of products liability claim and necessitated denial of
his summary judgment motion. Here, Hejzlar's report provides a detailed and
comprehensive rebuttal of the positions relied upon by plaintiff's expert and
creates multiple disputed issues of material fact that required a jury
determination as the court determined. Judge Cagan's denial of plaintiff's
summary judgment motion, therefore, was not error.
C.
Lastly, we briefly address plaintiff's contention that the trial court erred
in failing to strike defendant's comparative negligence and proximate cause
defenses as asserted in his summary judgment motion.
The parties hotly contest the procedural history concerning this issue.
Plaintiff argues that defendant waived opposition by not factually refuting or
addressing the attempts to strike the defenses as part of the summary judgment
motion while defendants argue that because plaintiff moved to strike the
defenses in a motion in limine prior to trial, which was denied, but did not appeal
A-2148-24 19 such, he waived this argument on appeal. We note that the trial court declined
to rule on this issue during oral argument in the summary judgment motion
because the issues centered around defendant's liability as a matter of law, not
proximate cause, or plaintiff's comparative negligence.
We deem this procedural dispute moot because we have affirmed the trial
court's denial of plaintiff's motion to strike defendants' expert report as a net
opinion and also have affirmed the court's order denying plaintiff's summary
judgment motion. Thereafter, at trial, based on the sequence of questions on the
jury verdict sheet, the jury never reached the issues of comparative negligence
and proximate cause since they previously determined that defendant's design
was not defective.
To the extent we have not addressed any of plaintiff's remaining
arguments, we conclude those arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2148-24 20