JARRET RASNOW VS. HARMON COVE TOWERS CONDOMINIUM ASSOCIATION (L-4942-16, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 9, 2019
• Docket: A-4994-17T3
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4994-17T3

JARRET RASNOW,

Plaintiff-Appellant,

v.

HARMON COVE TOWERS CONDOMINIUM ASSOCIATION,

Defendant,

and

HARMON COVE TOWERS I CONDOMINIUM ASSOCIATION, and TAYLOR MANAGEMENT COMPANY,

Defendants-Respondents,

HARMON COVE TOWERS CONDOMINIUM ASSOCIATION, HARMON COVE TOWERS I CONDOMINIUM ASSOCIATION, and TAYLOR MANAGEMENT COMPANY, Defendants/Third-Party Plaintiffs,

DELTA BUILDING SERVICES,

Third-Party Defendant. ________________________________

Argued March 19, 2019 – Decided April 9, 2019

Before Judges Rothstadt and Natali.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4942-16.

Martin F. Kronberg argued the cause for appellant.

Laura A. Lelio argued the cause for respondents (Faust Goetz Schenker & Blee, LLP, attorneys; Laura A. Lelio, on the brief).

PER CURIAM

In this slip-and-fall personal injury matter, plaintiff Jarret Rasnow

appeals from a summary judgment order dismissing his complaint against

defendants Harmon Cove Towers I Condominium Association (Association)

and Taylor Management Company (Taylor), and from an order denying his

motion for reconsideration. After reviewing the record, the parties' arguments,

and the applicable legal principles, we reverse and remand for further

proceedings.

A-4994-17T3 2 I.

We discern the following facts from the record. Plaintiff slipped on an

allegedly wet stair in a stairwell in Harmon Cove Towers I, the condominium

building where he lived, fracturing his right ankle. While at the bottom of the

stairwell, plaintiff saw a liquid dripping from the stair upon which he slipped.

According to plaintiff, on several prior occasions he saw people carrying

beverages while using the stairwell.

Mark Steih, who performed maintenance work at the condominium,

testified at his deposition that he was called to respond to prior incidents in

which someone "spilled something in the elevator," and had responded to

multiple reports that someone, or an animal, urinated in the elevator. Sergio

Baptise, a building security officer, similarly testified that he received calls

about animals urinating in an elevator around "once every two weeks." In

addition, plaintiff's expert, Robert S. Bertman, a New Jersey licensed engineer,

stated in his report that he conducted a site inspection of the condominium

building, and "witnessed several residents descending the incident stairs with

small dogs that were allowed in the building."

At or near the close of discovery, defendants filed a motion for summary

judgment. Relying on Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003),

A-4994-17T3 3 they argued that plaintiff's claims should be dismissed because neither the

Association, who was responsible for maintenance, nor Taylor who was hired

by the Association to manage the common elements, including the stairways,

had actual or constructive notice of any wetness on the stairs , or of a

dangerous condition. In addition, defendants claimed Bertman's expert report

contained inadmissible net opinions.

In opposition to the motion, plaintiff argued that defendants "had a

perfectly good set of stairs made out of concrete … [b]ut what [defendants] did

was they painted [the stairs] and they made [the stairs] more slippery." That

conduct, according to plaintiff, converted this case into "an intrinsic substance

case" under Brody v. Albert Lipson & Sons, Inc., 17 N.J. 383 (1955). Plaintiff

explained that in such cases notice is not required.

In support of his argument, plaintiff relied upon Bertman's expert report,

which Bertman prepared after his site inspection and after interviewing

plaintiff. Bertman's report provided that at the time of the accident, plaintiff

was wearing sneakers with "rubber soles that were in excellent condition and

would normally prevent any slip and fall from a dry surface or from a surface

that had any type of traction surface." Bertman inspected the stairwell and

A-4994-17T3 4 noted the landings and stairs were constructed of concrete and the concrete

floor was painted with a dark brown epoxy paint.

According to Bertman, the Building Officials and Code Administrators

International, Inc.'s model code, known as the BOCA National Building Code,

requires all "walking surfaces, including . . . stairways . . . [to] have a slip

resistant surface." In addition, Bertman relied upon an American National

Standards Institute (ANSI) standard that provides that "unless otherwise

specified, . . . interior spaces expected to be walked upon when wet shall have

a wet [dynamic coefficient of friction (COF)] of 0.42 or greater." Bertman

also relied upon the American Society of Testing Material (ASTM) "Standard

Practice for Safe Walking Surfaces," which states that "painted walkways shall

contain an abrasive additive, cross cut grooving, texturing or other appropriate

means to render the surface slip resistant where wet conditions may be

reasonably foreseeable."

Bertman measured the COF of the painted concrete floor both when the

floor was dry and after wetting it with water. He determined the COF of the

dry floor yielded a result of 0.66, which he conceded would "meet the

minimum criteria for being classified as slip-resistant." He found "[t]he test

results for the wet painted concrete floor were significantly lower and varied in

A-4994-17T3 5 the range from 0.47 – 0.50" in dynamic COF. Bertman acknowledged that this

score "marginally met the minimum criteria for being classified as slip

resistant when exposed to water and likely would have created a significant

slip and fall hazard with any foreign fluid that was more viscous or more

slippery than water." However, he further opined that his:

[i]nspection confirmed that the painted concrete steps were indeed slippery when wetted with a foreign substance. The paint that was applied did not contain any grit or abrasive material that would have dramatically improved the traction surface of the stair tread. In fact, the paint that was applied on top of the concrete actually made the tread surface smoother and less porous so than any liquid that was applied would sit on top of the painted surface and would not wick into the more porous concrete.

Further, according to Bertman, he "dragged the heel of [his] boot across

the wetted step and the step did not prevent slippage due to the absence of any

grit, grooves, or traction surface in the painted surfaces of the step." In

addition, he stated in his report that "[t]he floor should have contained grit or

grooves to provide the proper traction surface, especially considering that the

incident floor surface was within a stairwell that [was] part of the primary

means of egress for the building and should have designed to accommodate

people hurrying down the stairs in the event of an actual emergency." Finally,

Bertman concluded that "[h]ad the incident stairway been designed with the

A-4994-17T3 6 grit, abrasive surface, or grooves in the tread surfaces, [plaintiff's] injuring

incident would likely not have occurred."

The court issued an order on April 27, 2018, granting defendants

summary judgment. In an addendum to that order, the court relied on

Nisivoccia, and explained that summary judgment was appropriate because

there was no evidence from which a jury could reasonably infer that

defendants had constructive notice of the particular wetness that was allegedly

on the stairway. Notably, the court did not base its decision on defendant's

argument that Bertman's expert report included inadmissible net opinions.

Plaintiff filed a motion for reconsideration and argued that in granting

summary judgment, the court overlooked the Brody decision. During oral

arguments, the court characterized Bertman's opinion that the floor

"marginally met the minimum criteria for being classified as slip resistant

when exposed to water and likely would have created a significant slip and fall

hazard with any foreign fluid that was more viscous or more slippery than

water," as a net opinion.

The court denied plaintiff's reconsideration application and in an

accompanying written statement of reasons concluded:

The [c]ourt considered the arguments pursuant to Brody v. Albert Lipson & Sons, Inc., 17 [N.J.] 383

A-4994-17T3 7 (1955) and found them inapplicable to the case at bar. Plaintiff's expert here found that the stairs where [p]laintiff's alleged injury took place met the minimum standard to be considered "slip resistant" when water was applied to the surface. The arguments related to other safety requirements, i.e. crosscuts in the stairs, are not per se requirements such that without them the stairwell at issue is rendered "defective." Indeed, the Brody [c]ourt noted that there was evidence presented from which a jury could "reasonably infer that the construction of the floor rendered it peculiarly liable to become slippery by virtue of the introduction of water thereon and that the defendant omitted precautions which would have been practical or reasonable under the circumstances of [that] case." The [c]ourt determines that [p]laintiff's expert's finding that, even with water applied, the surface at issue meets the accepted standards to be considered "slip resistant" could not lead a reasonable jury to find that the construction of the surface rendered it peculiarly liable. Thus, this case falls outside of the rationale of Brody, and thus notice would be required.

II.

On appeal, plaintiff asserts the trial court erred when it rejected his

argument that because defendants were responsible for creating the dangerous

condition on the stairway, he was not required to prove either actual or

constructive notice. He also maintains the court committed error when, on

reconsideration, it concluded Bertman's expert report contained an

inadmissible net opinion.

A-4994-17T3 8 A prima facie case of negligence "requires the establishment of four

elements: (1) a duty of care, (2) a 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). "[A] condominium association has a duty to

exercise reasonable care to protect the condominium's residents from a

dangerous condition on property within the ambit of the common elements,"

McDaid v. Aztec W. Condo. Ass'n, 234 N.J. 130, 141–42 (2018), which

includes stairways, N.J.S.A. 46:8B-3(d)(ii). "Specifically, N.J.S.A. 46:8B-

14(a) states that a condominium association shall be responsible for the

performance of 'the maintenance, repair, replacement, cleaning and sanitation

of the common elements.'" Lechler v. 303 Sunset Ave. Condo. Ass'n, Inc., 452

N.J. Super. 574, 585–86 (App. Div. 2017) (quoting N.J.S.A. 46:8B-14(a)); see

id. at 577 (holding the condominium association "had a statutory duty to

maintain the common areas, including a duty to identify and correct dangerous

conditions, and that duty extended to residents of the condominium building").

The issue raised by this appeal requires the court to address the second

element of plaintiff's prima facie case - whether defendants breached a duty of

care. Under New Jersey law, there are two distinct theories of recovery in a

slip-and-fall personal injury action. When an alleged dangerous condition is

A-4994-17T3 9 not caused by defendant, a plaintiff must establish actual or constructive

notice. However, where the defendant's actions create a foreseeable risk of

harm, an injured plaintiff need not prove either actual or constructive notice.

Tymczyszn v. Columbus Gardens, 422 N.J. Super. 253, 264 (App. Div. 2011);

Smith v. First National Stores, 94 N.J. Super. 462, 466 (App. Div. 1967);

Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202, 203 (3d Cir.

1966); Model Jury Charge (Civil), 5.20F(5), (9) (rev. Mar. 2017). Because a

reasonable jury could find defendants created a dangerous condition that

caused plaintiff to slip and fall, and that the wetness in the staircase was

foreseeable, we conclude the court erred in requiring plaintiff to establish

defendants had actual or constructive notice. See Brody, 17 N.J. at 389-91.

In Brody, plaintiff sustained injuries when she slipped and fell in the

exterior vestibule of a retail store. Id. at 386–88. The floor of the vestibule

was made of "terrazzo" tile "composed of a mixture of Portland cement, sand,

water and marble chips, laid rough and then ground down and polished to

produce a smooth surface . . . ." Id. at 386. In addition to its polished surface,

the tile floor was sloped down, at a grade of three-eighths of an inch to a foot.

Ibid.

A-4994-17T3 10 Plaintiff's expert testified that there were no abrasive materials on the

surface of the floor and "if water were applied to its surface 'it would become

considerably slippery.'" Ibid. The expert also testified that it was standard

industry practice to add carborundum chips to the "surface of the material to

cut down the slipperiness of the surface," which had not been done. Ibid.

The Court in Brody determined that actual or constructive notice was not

required under the circumstances because plaintiff had presented sufficient

evidence "from which a jury could reasonably infer that the construction of the

floor rendered it peculiarly liable to become slippery by virtue of introduction

of water thereon and that defendant omitted precautions which would have

been practical or reasonable under the circumstances . . . ." Id. at 390. In

reaching its conclusion, the Court noted the presence of water, the "intrinsic

slipperiness" of the terrazzo, the slope of the floor, the location of the

vestibule, and the failure to use "customary precautions to prevent slipping

. . . ." Ibid.

The Nisivoccia decision relied upon by the trial court does not compel a

contrary result. In that mode-of-operation case, the Court stated the general

rule that to establish a breach of duty in a premises-liability action, a plaintiff

ordinarily must show the defendant "had actual or constructive knowledge of

A-4994-17T3 11 the dangerous condition" that caused the plaintiff's injuries. Nisivoccia, 175

N.J. at 563. However, the Court explained that in circumstances where "a

dangerous condition is likely to occur as the result of the nature of the

business, the property's condition, or a demonstrable pattern of conduct or

incidents," a plaintiff is relieved of the obligation to establish actual or

constructive notice. Ibid. (emphasis added). As noted, the improperly painted

floor was a condition of the property that, according to Bertman, was a

dangerous condition created by defendants.

Moreover, the presence of a foreign substance on the stairway does not

alter our analysis. A reasonable interpretation of Bertman's report permits a

finding that the liquid plaintiff saw dripping from the step "was only a catalyst

for the dangerous condition" created by painting the concrete stairs without

applying an abrasive additive to provide traction when the floor became wet.

See Graham v. Cedar Point, Inc., 707 N.E.2d 554, 555, 557 (Ohio Ct. App.

1997) (a factfinder could conclude that defendants breached a duty of care by

repeatedly painting concrete stairs without replenishing an abrasive additive

embedded in the initial paint when wetness was foreseeable).

We need not discuss at length the principle that courts reviewing

summary judgment motions must "consider whether the competent evidential

A-4994-17T3 12 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 Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

Although the non-moving party must have "more than a scintilla of evidence"

in its favor to defeat the motion, Pressler & Verniero, Current N.J. Court

Rules, cmt. 2.1 on R. 4:46-2 (2019), the court's function is not "to weigh the

evidence and determine the truth of the matter but to determine whether there

is a genuine issue for trial." Brill, 142 N.J. at 540 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). We review summary judgment

rulings de novo, under the same standard governing the motion judge's initial

decision. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).

Here, plaintiff's complaint asserted defendants negligently maintained

the premises "so as to cause a dangerous condition to exist" on the premises,

and that he sustained permanent injuries as a "direct and proximate" result.

Affording plaintiff all reasonable inferences from the summary judgment

record, the floor of the stairway where plaintiff fell was painted with an epoxy

material that did not contain "an abrasive additive, cross cut grooving,

texturing or other appropriate means to render the surface slip resistant where

A-4994-17T3 13 wet conditions may be reasonably foreseeable" as required by applicable

ASTM standards. Bertman concluded that "the wetted condition of the stair

tread artificially created an unsafe surface and an unsafe condition which was

the root cause" of plaintiff's slip and fall and had the stairway been "designed

with the grit, abrasive surface, or grooves in the tread surfaces," plaintiff's

injury "would likely not have occurred." As defendant created the dangerous

condition that caused plaintiff's fall, (i.e., an improperly painted stairway),

constructive or actual notice was not a required element of plaintiff's cause of

action and genuine issues of material fact existed as to whether defendants

breached their duty of care sufficient to deny summary judgment.

We also agree with plaintiff that on the record before us, Bertman's

conclusion that the stairwell was maintained in a dangerous condition was not

an inadmissible net opinion, notwithstanding his finding that the floor

marginally met the minimum COF metric under the ANSI standard.1

1 As noted, when it granted defendants' summary judgment motion, the court based its decision on defendant's lack of constructive notice. It did not conclude that Bertman's report constituted an inadmissible net opinion. Further, at the reconsideration hearing, the court merely stated that Bertman's COF opinion was a "net opinion." We understand from defendants' briefs and counsel's representations at oral argument that defendants advanced additional arguments during the summary judgment proceedings to support their position that Bertman's report contained inadmissible net opinions. Nothing in our (continued) A-4994-17T3 14 "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids

the admission into evidence of an expert's conclusions that are not supported

by factual evidence or other data." Townsend v. Pierre, 221 N.J. 36, 53-54

(2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)). "The rule

requires that an expert 'give the why and wherefore’ that supports the opinion,

‘rather than a mere conclusion.'" Id. at 54 (quoting Borough of Saddle River

v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). However, "[t]he failure of

an expert to give weight to a factor thought important by an adverse party does

not reduce his [or her] testimony to an inadmissible net opinion if he [or she]

otherwise offers sufficient reasons which logically support his [or her]

opinion." Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App. Div. 2002)

(citing State v. Freeman, 223 N.J. Super. 92 (App. Div. 1988)). "Rather, such

an omission merely becomes a proper 'subject of exploration and cross-

examination at a trial.'" Ibid. (citing Rubanick, 242 N.J. Super. 36, 55 (App.

Div. 1990)).

Here, defendants' expert report acknowledged the ANSI standard set

forth the "industry standard for safe walking surfaces under wet conditions."

(continued) opinion should be interpreted as precluding defendant from renewing those additional arguments on remand.

A-4994-17T3 15 The ANSI standard also provided that flooring materials with "a [COF] of 0.42

or greater are not necessarily suitable for all projects" and that "[b]ecause

many variables affect the risk of a slip occurring, the COF shall not be the only

factor in determining the appropriateness of a tile for a particular application."

According to Bertman's report, some of those variables include "type of use,

traffic," and "how drainage takes place if liquids are involved." Further, the

ANSI standard referenced in Bertman's report also states that the COF "does

not predict the likelihood a person will or will not slip," and that the COF is

only one of many factors affecting the possibility of a slip occurring.

Therefore, we disagree with the trial court's determination that Bertman's

finding of minimal compliance with the COF metric when the floor was wet

with water precluded any finding that the floor was in a dangerous condition at

the time of plaintiff's fall.

Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.

A-4994-17T3 16