NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3268-23
JOSEPH COSTIGAN,
Plaintiff-Appellant,
v.
GURPRIT BAINS and SNEH BAINS,
Defendants-Respondents. __________________________
Submitted September 25, 2025 – Decided October 29, 2025
Before Judges Mawla and Marczyk.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1968-22.
Brandon J. Broderick, LLC, attorneys for appellant (Christopher A. Bradley, on the brief).
Colquhoun & Colquhoun, PA, attorneys for respondents (Kevin F. Colquhoun and Moira E. Colquhoun, on the brief).
PER CURIAM Plaintiff Joseph Costigan appeals from the trial court's April 25, 2024
order granting defendants Gurprit Bains1 and Sneh Bains' motion for summary
judgment, dismissing his complaint with prejudice. Plaintiff also appeals from
the June 12, 2024 trial court order denying his motion for reconsideration. We
affirm.
I.
This matter arises from a February 18, 2021, slip and fall incident.
Plaintiff claims he was walking on a sidewalk toward a diner in Bayonne when
he slipped and fell on a patch of ice in front of defendants' residence and struck
his head. He testified at his deposition he remembered the weather that day was
cold, with wind blowing the snow, but did not recall if snow was falling at the
time. He recounted he did not have any difficulty seeing where he was going.
Plaintiff stated he did not look down at the sidewalk to determine if any potential
hazards were present and only saw the ice after he slipped.
Plaintiff testified he "ha[d] no idea" where the ice came from or how long
the condition existed. He stated in his interrogatory responses, he "believe[d]
the drainage system on [d]efendants' property that runs down the driveway from
1 Because the parties share the same last name, we refer to them by their first name. We intend no disrespect. A-3268-23 2 . . . along the side of [defendants'] house . . . across the sidewalk . . . [was]
faulty." He testified that sometime after the accident, he took a picture of water
coming out of the downspout of the drainage system. However, these
photographs were not produced in discovery.
Sneh testified she was home with her husband Gurprit on the day of the
accident because they had to cancel their plans due to the weather. She indicated
they had work performed on their property in or around 2018, which included a
new sump pump to prevent flooding in their basement and a new downspout
drainage system, with additional PVC pipes placed inside and around the home.
On the afternoon of plaintiff's fall, she stated her neighbor was at her property
clearing snow and ice, and a family friend salted her property later that day.
Plaintiff retained Mark Marpet, Ph.D., P.E., as an engineering expert. Dr.
Marpet authored a two-page report, relying on a website for information about
the weather on the day of the fall. He described the drainage system on the right
side of defendants' home as having a "[four]-inch PVC drain pipe that was fed
by rain gutters and a basement sump." Dr. Marpet opined, "[t]he drain pipe
created a hazard by leading [the] drain water from the gutters and basement
sump onto the driveway and sidewalk, where it c[ould] freeze and create a slip
hazard." He opined the elements did not cause the hazard because it had been
A-3268-23 3 two days since any precipitation fell. Instead, Dr. Marpet determined "the
location and configuration of this . . . drainage system . . . created [the] hazard,"
which could be ameliorated by relocating the pipe to drain elsewhere.
Defendants retained Stephen Pellettiere, a certified meteorologist from
I*ON Weather, to provide an expert opinion regarding the weather conditions
on February 18, 2021. Relying on certified weather reports from the National
Oceanic and Atmospheric Administration (NOAA), Pellettiere opined there had
been a "winter storm and snow/ice event" on the day of the incident, with
approximately a half inch of snow on the ground when plaintiff slipped and fell.
He disagreed with Dr. Marpet's report that it was not snowing at that time, noting
Dr. Marpet "use[d] erroneous 'weather underground data'" that contradicted the
certified NOAA observations. Pellettiere opined "it [wa]s highly unlikely that
preexisting ice and snow was at the place and time of incident" because "rainfall
of less than an inch ended [forty] hours before . . . plaintiff's alleged incident
and temperatures were well above freezing and winds were strong for [twelve]
hours after rain ended on February 16, 2021."
Defendants further retained an engineering expert, David Caruso, P.E.,
who provided a report based on relevant codes and standards, and his review of
the NOAA weather data. He concluded the sidewalk was properly maintained,
A-3268-23 4 safe, and did not violate any applicable codes, standards, or ordinances. He also
opined the topography of the driveway and sidewalk would not cause puddles to
form along their surfaces because the property sloped downwards toward the
street. Caruso, therefore, concluded "any water flowing from the residence
toward [the s]treet, whether discharged from the PVC downspouts or as a result
of precipitation, would not form a puddle along the sidewalk surface."
Caruso further disagreed with Dr. Marpet's report, finding his opinions
"speculative and without basis" because Dr. Marpet "provided no engineering
analysis to substantiate his opinion that water that discharged from the PVC
downspouts created an ice condition along the subject sidewalk." He also stated
Dr. Marpet did not cite any applicable code, standard, or ordinance requiring the
PVC downspouts to discharge water into a drywell or the street, as the City of
Bayonne had no such code.
Defendants moved to strike Dr. Marpet's report as a net opinion and for
summary judgment. They contended Dr. Marpet's opinion that the drainage
system created a hazard lacked any measurements or "demonstration of any
slopes or angles or anything about water capacity" and failed to provide any
discussion about the sidewalk, which Dr. Marpet claimed had ice on it. They
also asserted Dr. Marpet used erroneous data indicating there was no
A-3268-23 5 precipitation on the day of the fall "when, in fact, there[ was] an ongoing storm."
They claimed Dr. Marpet's reliance on uncertified information was "insufficient
to vault the governmental records" referenced in Pellettiere's report, which
indicated an active snow and ice storm shortly before plaintiff's fall. Defendants
further argued Dr. Marpet's opinion failed to satisfy any of the requirements for
an expert report because it contained "nothing . . . but his pure conclusion [s]."
On April 25, 2024, the trial court rendered an oral decision and entered an
accompanying order granting defendants' motion to strike Dr. Marpet's report as
a net opinion and for summary judgment. The court found Dr. Marpet's report
constituted an inadmissible net opinion because it failed to explain "the pertinent
scientific principles" and how he applied them to formulate the basis for his
opinion. It noted Dr. Marpet did not analyze the rates of evaporation for
rainwater under the conditions of freezing temperatures, provide any
measurements of the slope of defendants' property, calculate the volume of water
that could have exited the drain, or offer scientific support from a qualified
meteorologist. The court found the report also "fail[ed] to reference any
generally accepted objective standards of practice." Thus, the court determined
A-3268-23 6 Dr. Marpet did not provide the "why and wherefore of his opinion" but rather
offered only "a mere conclusion." 2
With respect to the summary judgment motion, the court found plaintiff
failed to offer any competent evidence to raise a genuine issue of material fact.
Because it found Dr. Marpet's report was an inadmissible net opinion, plaintiff
needed to present competent evidence to show defendants created a hazardous
condition different from that created by the storm. It rejected plaintiff's
contention the drainage system worsened the conditions of the sidewalk beyond
the natural hazards created by the storm. The court was unconvinced by
plaintiff's argument the drainage system on defendants' property made the
sidewalk condition worse because it allowed water to pool in certain areas which
led to frozen patches. It determined, absent admissible expert testimony, "all
[of] plaintiff's allegations [we]re speculative" and lacked evidentiary support.
Accordingly, the court found there was no genuine issue of material fact that
could defeat defendants' summary judgment motion.
2 Plaintiff's case information statement lists as an issue to be raised on appeal whether the court erred in striking plaintiff's expert report. However, plaintiff did not brief this issue and therefore it is waived. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Drinker Biddle & Reath LLP v. N.J. Dep't of L. & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011). A-3268-23 7 Thereafter, plaintiff moved for reconsideration, arguing the court made an
improper factual determination that an active storm was underway at the time of
plaintiff's fall, and he did not need an expert to survive summary judgment. The
court clarified it did not weigh the credibility of the competing experts in
deciding the prior motion, but rather found Dr. Marpet's report was an
inadmissible net opinion, and plaintiff's testimony failed to create a genuine
issue of material fact. The court noted, "[w]hether there was an active storm at
the time of [p]laintiff's fall was not a material or dispositive factor" in its
decision. It assumed the sidewalk was icy when plaintiff fell. Regardless, the
court noted plaintiff could not provide specific evidence of causation with
respect to defendants' drainage system causing his fall.
The court also rejected plaintiff's argument he could proceed without an
expert. It noted plaintiff's argument defendants created the hazard was
"completely unsupported by any competent evidentiary material." Plaintiff
"merely speculated" the drainage system somehow caused the sidewalk
conditions. The court stated, "[p]laintiff repeatedly argues it is possible there
was a pooling of water on the sidewalk," but "a mere possibility of something is
insufficient to overcome" a summary judgment motion, and the case cannot
proceed to trial without expert testimony because the jury would be left to
A-3268-23 8 speculate. Thus, the court determined plaintiff could not overcome the
residential homeowner sidewalk immunity without presenting any evidence to
support a logical inference of negligence.
II.
Plaintiff argues the court erred by deciding the issue of whether there was
an active storm at the time of his fall by "siding with . . . defendants and their
expert" and ignoring plaintiff's testimony. He asserts he fell on a frozen puddle,
at a location where defendants' drainage system routed and pooled water, when
it was not actively storming. Plaintiff contends his testimony "seems clear that
no active precipitation was occurring, and certainly not any rain[,]" because he
testified that "he remember[ed] no active precipitation . . . [or] wetness on the
ground where he fell." He asserts there is sufficient evidence in the record for
a jury to conclude he fell due to defendants' drainage system, which allowed
water to migrate onto the sidewalk.
Relatedly, plaintiff avers the trial court erred in ruling his case could not
proceed without an expert. He asserts a jury does not need an expert to tell it a
drainage system causing water to collect on the sidewalk could be a hazard when
the weather is cold.
A-3268-23 9 "Our review of a summary judgment ruling is de novo. We apply the same
standard as the trial court." Conley v. Guerrero, 228 N.J. 339, 346 (2017)
(citation omitted). "That is, summary judgment will be granted if there is no
genuine issue of material fact and 'the moving party is entitled to a judgment or
order as a matter of law.'" Ibid. (quoting Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)).
A trial court's decision to grant or deny a motion for reconsideration is
reviewed for abuse of discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567,
582 (2021). A trial court should grant reconsideration when "1) the [c]ourt has
expressed its decision based upon a palpably incorrect or irrational basis, or 2)
it is obvious that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." Castano v. Augustine, 475 N.J.
Super. 71, 78 (App. Div. 2023) (alterations in original) (quoting Triffin v. SHS
Grp., LLC, 466 N.J. Super. 460, 466 (App. Div. 2021)).
"To sustain a cause of action for negligence, a plaintiff must establish four
elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and
(4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo
v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). A "plaintiff bears the burden of
establishing those elements 'by some competent proof.'" Ibid. (quoting Davis v.
A-3268-23 10 Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)). Courts will "not
presume[] that every injurious mishap that one encounters is necessarily
attributable to the negligence of another." Overby v. Union Laundry Co., 28
N.J. Super. 100, 104 (App. Div. 1953).
"[A]t common law, property owners had no duty to clear the snow and ice
from public sidewalks abutting their land." Luchejko v. City of Hoboken, 207
N.J. 191, 201 (2011) (citing Davis v. Pecorino, 69 N.J. 1, 4 (1975)). "That rule
. . . survives today for residential property owners . . . ." Ibid. Thus, unlike
commercial property owners, "[r]esidential property owners are immune from
sidewalk liability." Wasserman v. W.R. Grace & Co., 281 N.J. Super. 34, 38
(App. Div. 1995).
Indeed, our State adheres to this no-duty rule because "residential property
owners stand on different footing than commercial owners who have the ability
to spread the cost of the risk through the current activities of the owner."
Luchejko, 207 N.J. at 206. Our Supreme Court has articulated, "we may have
grappled with what was or was not commercial property, but we have not
deviated in our holdings or in our discussions of the law from the basic principle
that residential property owners are not liable for sidewalk injuries." Id. at 204.
The Court recognized the "fundamental choice not to impose sidewalk liability
A-3268-23 11 on homeowners," and declined to "break with a line of decisions that has
promoted settled expectations on the part of residential property owners." Id. at
208.
Nevertheless, residential property owners may be liable if their actions
create an artificial, dangerous condition on an abutting sidewalk, thereby
negligently introducing a new element of danger other than one created by
natural forces. See id. at 201; Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 152
(1981). In other words, homeowners have no duty to maintain the sidewalks
abutting their property so long as they have not affirmatively created a
hazardous condition. See Deberjeois v. Schneider, 254 N.J. Super. 694, 696,
700-01 (Law Div. 1991) (denying a motion for summary judgment where the
plaintiff fell on a raised slab that was defective due to a tree planted by the
owners of the abutting residential property); see also Lodato v. Evesham Twp.,
388 N.J. Super. 501, 507 (App. Div. 2006) (holding residential landowners
remain protected by common-law public sidewalk immunity). Accordingly,
"[r]esidential homeowners can safely rely on the fact that they will not be liable
unless they create or exacerbate a dangerous sidewalk condition." Luchejko,
207 N.J. at 210.
A-3268-23 12 "In most negligence cases, the plaintiff is not required to establish the
applicable standard of care." Brickman Landscaping, 219 N.J. at 406 (citing
Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)). "[I]t is sufficient for [the]
plaintiff to show what the defendant did and what the circumstances were. The
applicable standard of conduct is then supplied by the jury[,] which is competent
to determine what precautions a reasonably prudent [person] in the position of
the defendant would have taken." Id. at 406-07 (second and third alterations in
original). "Such cases involve facts about which 'a layperson's common
knowledge is sufficient to permit a jury to find that the duty of care has been
breached without the aid of an expert's opinion.'" Id. at 407 (quoting Giantonnio
v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)).
"In some cases, however, the 'jury is not competent to supply the standard
by which to measure the defendant's conduct,' and the plaintiff must instead
'establish the requisite standard of care and [the defendant's] deviation from that
standard' by 'present[ing] reliable expert testimony on the subject.'" Ibid.
(alterations in original) (citations omitted) (first quoting Sanzari, 34 N.J. at 134-
35; and then quoting Giantonnio, 291 N.J. Super. at 42); see also N.J.R.E. 702
(permitting expert testimony "[i]f scientific, technical, or other specialized
A-3268-23 13 knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue").
"The necessity of expert testimony is determined by the sound exercise of
discretion by the trial judge." Maison v. N.J. Transit Corp., 460 N.J. Super. 222,
232 (App. Div. 2019). "[W]hen deciding whether expert testimony is necessary,
a court properly considers 'whether the matter to be dealt with is so esoteric that
jurors of common judgment and experience cannot form a valid judgment as to
whether the conduct of the [defendant] was reasonable.'" Brickman
Landscaping, 219 N.J. at 407 (second alteration in original) (quoting Butler v.
Acme Mkts., Inc., 89 N.J. 270, 283 (1982)); see also Hubbard ex rel. Hubbard
v. Reed, 168 N.J. 387, 394 (2001) (holding expert testimony was not needed
when the jury's "common knowledge as lay persons is sufficient to enable them,
using ordinary understanding and experience, to determine a defendant's
negligence" (quoting Est. of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454,
469 (1999))).
In cases where "the factfinder would not be expected to have sufficient
knowledge or experience[,]" expert testimony is needed because the jury "would
have to speculate without the aid of expert testimony." Torres v. Schripps, Inc.,
342 N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly v. Berlin, 300 N.J.
A-3268-23 14 Super. 256, 268 (App. Div. 1997)). This is especially true when the alleged
negligent act or omission involves technical or specialized matters. See
Brickman Landscaping, 219 N.J. at 407.
Here, the parties do not dispute defendants are owners of a residential
property. As such, to overcome defendants' immunity from sidewalk liability,
plaintiff must present competent evidence showing defendants created or
exacerbated a hazardous condition on the sidewalk. 3 Plaintiff asserts defendants'
drainage system routed precipitation from a prior storm causing it to pool on the
sidewalk, which then froze to form a sheet of ice. However, without expert
testimony to establish measurements of the slope of the property and whether
the water from defendants' drainage system caused water to pool on the sidewalk
in the location where plaintiff alleges he slipped on ice, we conclude the trial
court did not err in determining plaintiff failed to present any competent
evidence in support of his claim that the drainage system caused this accident.
In other words, with respect to the court's granting defendants' summary
3 The court noted in ruling on the reconsideration motion, "[w]hether there was an active storm at the time of [p]laintiff's fall was not a material or dispositive factor" in its decision. We assume, for the purpose of deciding this appeal, there was not an active storm at the time of plaintiff's fall. A-3268-23 15 judgment motion, plaintiff provided insufficient evidence the drainage system
caused water to drain and pool on the sidewalk.
Plaintiff did not do any testing or measurements of the property and there
is no indication he has any engineering expertise to support his "belief"
expressed in his interrogatory responses that the drainage system was "faulty."
It is difficult to understand how plaintiff, without the aid of any expert, could
independently assert essentially the same opinion as Dr. Marpet, which was
rejected by the court as a net opinion. There is no competent evidence the ice
on which plaintiff slipped was caused by defendants' actions so as to implicate
the exceptions to sidewalk immunity. Plaintiff failed to show defendants'
negligence introduced a new element of a danger or hazard. Thus, the trial court
did not err in granting summary judgment or denying plaintiff's motion for
reconsideration.
We likewise conclude the court did not misapply its discretion in
concluding the common knowledge exception was not applicable and that
plaintiff was required to provide expert testimony to survive summary judgment.
The topography of defendants' property, the relative slope and manner in which
water drained off the property, and whether the drainage system led to water
pooling on the sidewalk, under the facts presented here, required an expert's
A-3268-23 16 specialized and technical knowledge to establish defendants' negligence was a
proximate cause of plaintiff's slip and fall injury. A jury would not be competent
to supply the requisite standard by which to measure defendants' conduct and
would be left to speculate. Accordingly, the court did not err in finding
defendants' negligence could not be established without the aid of an expert.
Therefore, we are satisfied the court did not err in granting summary
judgment and did not misapply its discretion in denying plaintiff's motion for
reconsideration. We further determine the court did not misuse its discretion in
finding plaintiff "cannot proceed to trial without an expert."
To the extent we have not specifically addressed any remaining arguments
raised by plaintiff, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3268-23 17