Homero Mendoza v. Our Pool Company of Nj Inc.

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0910-24

HOMERO MENDOZA,

Plaintiff-Appellant,

v.

OUR POOL COMPANY OF NJ INC. and ELEANOR DAVIS,

Defendants-Respondents,

and

LITTLE GIANT PUMP COMPANY LLC,

Defendant. ___________________________

Submitted June 30, 2026 – Decided July 27, 2026

Before Judges Natali and Chase.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1464-22.

Ameri Law Firm, attorneys for appellant (Nima Ameri, on the brief). Burke & Potenza, attorneys for respondent Eleanor Davis (John Burke, of counsel and on the brief).

PER CURIAM

Plaintiff Homero Mendoza appeals from the court's order granting

defendant Eleanor Davis's summary judgment application and dismissing his

negligence-based personal injury complaint. We affirm.

We summarize the facts from the summary judgment record, viewing

them in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995). In June 2021, while he was employed as a pool

technician by Aqua Pools, Inc., plaintiff went to defendant's Mahwah residence

to open her pool, which had been closed by a different company, Our Pool

Company of NJ, Inc. (Our Pool), in the Fall of 2020. According to plaintiff,

during the process of opening the pool, the filter body of the filtration system

exploded, seriously injuring his face and head.

Plaintiff sued defendant, along with Our Pool and Little Giant Pump

Company, LLC. He asserted their negligence in failing to safely maintain the

premises and pool equipment and properly close the pool in the Fall of 2020,

created a dangerous condition that caused his injuries.

Defendant denied all material allegations of the complaint. After a period

of discovery, and plaintiff's unsuccessful arbitration against her, defendant

A-0910-24 2 moved for summary judgment and maintained the motion record failed to create

a genuine and material issue of fact regarding her negligence, and plaintiff failed

to support any of his claims with a necessary expert report that established her

liability.

In support, she attested that at no time did she ever touch the pool, its

filter, or pump between the time it was serviced by Our Pool in the Fall of 2020

and Aqua Pools in the Spring of 2021. She further certified that she merely

hired two companies to perform the work and did not participate in the closing

or opening of the pool. In addition, she maintained she did not give workers

"directions or instructions . . . [nor] did she tell them how to do their jobs or how

to perform their work . . . [and] did not provide the workers from either company

with tools or supplies."

Plaintiff opposed defendant's motion and primarily relied on an OSHA

investigation report prepared after the incident. The report stated six chlorine

tablets had been left in a chlorinator vessel attached to the filtration system,

causing "off-gassing back into the system and, coupled with pre-season

temperatures, caused a buildup of chlorine gas within the filter body which had

not been relieved by an air pressure valve." The report further concluded that

the gas buildup was caused by the lack of water and appeared to be "cooking"

A-0910-24 3 within the system for some time. It also determined plaintiff failed to open the

pressure relief valve which would have permitted the gas to escape.

Those conditions, according to plaintiff, existed for such an extended

period of time that defendant should have discovered it, especially if an odor

was emitted, thereby creating a triable issue of fact with respect to her

knowledge of a dangerous condition. As to the absence of an expert report,

plaintiff's counsel certified they were unable to locate a liability expert with

appropriate expertise despite contacting "nationwide expert companies."

After considering the parties' written submissions and oral arguments, the

court granted defendant's application, dismissed the complaint with prejudice,

and explained its decision in a comprehensive oral decision. The court first

found the following undisputed facts: 1) defendant hired Our Pool to close the

pool in 2020 and Aqua to open it in 2021, and 2) she "did not touch the pool or

its filter and pump at any time between when the pool was closed in the Fall of

2020 and June 2, 2021" but instead "simply hired the two companies to perform

the work" and "was not involved in any way in either closing or opening the

pool." Next, it relied on Long v. Landy, 35 N.J. 44, 54 (1961), for the well-

settled legal proposition that "[n]egligence cannot merely be presumed. Instead,

A-0910-24 4 it must be sustained by proof of circumstances from which defendant's want of

due care is a legitimate inference."

The court also noted that plaintiff failed to retain a liability expert,

discovery had closed, and a previous judge had denied plaintiff's request to

extend the discovery deadline. Applying Brill, the court determined that

"plaintiff . . . failed to proffer any competent factual support" to support the

claim defendant "breached her duty of care to the plaintiff by failing to guard

the plaintiff from a defective condition, which the defendant knew or should

have known existed on the premises." The court specifically addressed and

rejected plaintiff's contention that a reasonable homeowner would have detected

the chlorine odor which would have placed her on constructive notice of a

dangerous condition because there was no competent evidence that she could or

should have smelled any fumes.

Before us, plaintiff maintains the court erred in granting summary

judgment and failed to provide him with all favorable inferences because he

presented sufficient evidence in the motion record that created genuine issues of

material fact that, as a business invitee, he was owed a duty of care by defendant,

which included her obligation to be aware of and correct dangerous conditions

on her property. He again relies on the OSHA investigation report which he

A-0910-24 5 maintains supports his contention that chlorine tablets left in the filtration

system and a resulting buildup of chlorine gas caused the explosion. He

contends the findings in the report created a factual question sufficient to deny

summary judgment as to whether defendant had constructive notice of a

dangerous condition because the gas buildup "may have also caused an odor to

emanate from the system."

Plaintiff also maintains the issue of whether defendant "could have or

should have detected that there was something wrong with any of the equipment

or anything . . . wrong with the way that the pool was being reopened" was a

jury question and points out that co-defendant, Our Pool, also opposed

defendant's summary judgment application. Finally, plaintiff argues that the

absence of an expert report should not have been dispositive, as the OSHA report

provided sufficient evidence to raise a triable issue of fact regarding the

existence of a dangerous condition and defendant's potential notice of it. We

disagree with all of plaintiff's arguments.

We first address the standards of review that guide our analysis, followed

by the applicable substantive legal principles. We review the disposition of a

summary judgment motion de novo, applying the same standard used by the

motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Like the motion

A-0910-24 6 judge, we view "'the competent evidential materials presented . . . in the light

most favorable to the non-moving party, [and determine whether they] are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party.'" Town of Kearny v. Brandt, 214 N.J. 76, 91

(2013) (quoting Brill, 142 N.J. at 540); see also R. 4:46-2(c).

A party cannot defeat a properly supported motion for summary judgment

with bare conclusions lacking factual support, Petersen v. Twp. of Raritan, 418

N.J. Super. 125, 132 (App. Div. 2011), self-serving statements, Heyert v.

Taddese, 431 N.J. Super. 388, 414 (App. Div. 2013), or disputed facts "of an

insubstantial nature," Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1

on R. 4:46-2 (2025). If "the evidence 'is so one-sided that one party must prevail

as a matter of law,'" courts will "not hesitate to grant summary judgment." Brill,

142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986)).

A plaintiff bears the burden to prove negligence, which is never presumed.

Khan v. Singh, 200 N.J. 82, 91 (2009). "[T]he mere showing of an accident

causing the injuries sued upon is not alone sufficient to authorize an inference

of negligence." Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365,

370 (App. Div. 1954) (quoting Hansen v. Eagle-Picher Lead Co., 8 N.J. 133,

A-0910-24 7 139-40 (1951)). In order to establish defendants' negligence, plaintiffs must

establish: "(1) a duty of care, (2) breach of that duty, (3) actual and proximate

causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util.

Co., 212 N.J. 576, 594 (2013).

Our Supreme Court has stated, "[i]n ordinary negligence actions, . . . [t]he

applicable standard of conduct" is left to the jury which, in such a case, "is

competent to determine what precautions a reasonably prudent [person] in the

position of the defendant would have taken." Fernandes v. DAR Dev. Corp.,

222 N.J. 390, 404 (2015). "In some cases, however, the collective experience

of the jury is not sufficient to measure the defendant's conduct." Id. at 404-05

(citing Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961)). In those cases where

jurors' collective experience renders them incompetent to determine the

applicable precautions due by a person in the defendant's position, "the plaintiff

must establish the standard of care governing the defendant's conduct and the

deviation from that standard through reliable expert testimony." Id. at 405

(citing Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 407 (2014)). In

determining whether expert testimony is necessary to establish the necessary

elements of a cause of action, a court must consider "whether the matter to be

dealt with is so esoteric that jurors of common judgment and experience cannot

A-0910-24 8 form a valid judgment as to whether the conduct of the [defendant] was

reasonable." Davis, 219 N.J. at 407 (alteration in original) (quoting Butler v.

Acme Mkts., Inc., 89 N.J. 270, 283 (1982)).

Further, a "jury should not be allowed to speculate without the aid of

expert testimony in an area where laypersons could not be expected to have

sufficient knowledge or experience." Kelly v. Berlin, 300 N.J. Super. 256, 268

(App. Div. 1997) (quoting Biunno, Current N.J. Rules of Evidence, cmt. 2 on

N.J.R.E. 702 (1996-1997)). In contrast, where "a layperson's common

knowledge is sufficient to permit a jury to find that the duty of care has been

breached," an expert is not required. Davis, 219 N.J. at 407 (quoting Giantonnio

v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)). That is because "some

hazards are relatively commonplace and ordinary and do not require the

explanation of experts in order for their danger to be understood by average

persons." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993).

Applying these principles, we conclude from our de novo review of the

record, viewed in a light most favorable to plaintiff, that the motion record failed

to create a triable question of fact regarding defendant's negligence and affirm

substantially for the reasons expressed in the court's thorough and well-reasoned

oral opinion. We provide the following brief comments to amplify our decision.

A-0910-24 9 First, we agree with the court that plaintiff's negligence-based claims

against defendant lack competent support in the record. It was undisputed based

on defendant's unrebutted certification that she merely hired two different pool

companies to open and close her pool. She did not instruct the employees

regarding their duties, provide them with materials, have any involvement in

their operations, or possess any information that either company or its

employees were not competent and capable of performing their normal and usual

job responsibilities.

More specifically, there was no evidence that defendant left the chlorine

tablets in the filter or otherwise failed to maintain any part of the pool's operating

system. And there were certainly no proofs, other than plaintiff's counsel's

unsupported assertions as the court correctly observed, that chlorine gas was

ever emitted from the filtration system or that defendant smelled it or was

capable of doing so. In fact, plaintiff's only proofs, the OSHA report with all its

hearsay-laden concerns, does not conclude otherwise and actually points to

plaintiff's errors as a potential contributing cause of the incident, not any actions

or inactions of defendant.

Second, plaintiff's claims against defendant required expert proofs as they

involve, among other complex issues, an understanding of the precise cause of

A-0910-24 10 the explosion to support plaintiff's claim defendant should have been aware of a

latent dangerous condition, as well as the applicable standard of care owed by a

residential homeowner to a third party because the proper standard of care

applicable to defendant, and any breach is not "commonplace," Hopkins, 132

N.J. at 450, and given the complexity of the cause of the explosion, as well as

any indicia of a dangerous condition, this case is not one where "the collective

experience of the jury is . . . sufficient to measure the defendant's conduct."

Fernandes, 222 N.J. at 404. That expert, be it an engineer, or pool equipment

specialist, would need to detail for the jury and the court the chemical reaction

that caused the explosion and explain how the lack of water effected the dormant

chlorine tablets resulting in pressure buildup to establish that the explosion was

not caused by a mechanical defect or if it involved the negligence of a third

party.

In addition, an expert with experience in chemical odors would

necessarily need to opine on the thresholds for chlorine gas and at what extent

it would be noticeable by a residential homeowner or someone in the regular

vicinity of the filter. Of course, such an expert would also need to explain if

such an odor could be detected in a closed system like the one here. Leaving

the jury to opine on the standard of care and any breach would therefore invite

A-0910-24 11 the jury "to speculate without the aid of expert testimony in an area" that is

highly technical and about which "laypersons could not be expected to have

sufficient knowledge or experience." Kelly, 300 N.J. Super. at 268.

Affirmed.

A-0910-24 12