NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0642-23
KATINA WALKER,
Plaintiff-Appellant,
v.
CITY OF IRVINGTON, and STATE OF NEW JERSEY,
Defendants,
and
SMITH SONDY ASPHALT CONSTRUCTION COMPANY, COUNTY OF ESSEX, RIVERVIEW PAVING, PACIFIC CONSTRUCTION, and STATEWIDE STRIPING,
Defendants-Respondents. _________________________________
Submitted December 19, 2024 – Decided December 30, 2024
Before Judges Mawla and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-5148-19. Schiller, Pittenger & Galvin, PC, attorneys for appellant (James R. Korn, of counsel and on the briefs).
Lewis Brisbois Bisgaard & Smith, LLP, attorneys for respondents Smith Sondy Asphalt Construction Company and County of Essex (Colin P. Hackett, of counsel and on the brief).
PER CURIAM
Plaintiff Katina Walker appeals from an August 18, 2023 order, which
granted defendants Smith Sondy Asphalt Construction Company and the County
of Essex summary judgment dismissal of her negligence complaint. She also
challenges an October 20, 2023 order denying her motion for reconsideration.
We affirm.
In July 2017, plaintiff was injured when she stepped off a curb and into
the roadway at the intersection of Madison and Stuyvesant Avenues, in the City
of Irvington. The county owned the roadway and had retained Smith Sondy as
the general contractor to repave it. In turn, Smith Sondy hired three
subcontractors to perform the milling, construction, and striping for the job.
Plaintiff sued several of the entities involved with the project. She
resolved her claims against all defendants except the county and Smith Sondy.
Her complaint alleged the county was negligent because it failed to maintain the
"crosswalk and/or street and/or sidewalk, so as to create and/or permit a
A-0642-23 2 dangerous condition to exist which resulted in [p]laintiff . . . stepping into a[n]
uncovered and/or unprotected pothole and/or depression and/or hole . . . ." The
second count alleged Smith Sondy was negligent as the "[g]eneral [c]ontractor
and/or regulator and/or controller and/or supervisor for the restoration,
remolding, removing and/or renovation of the property so as to create and/or
permit a dangerous condition to exist," resulting in plaintiff's injury.
At her deposition, plaintiff testified she stepped down onto the roadway,
into an indentation, and fell. She observed "a lot of gravel" on the ground around
her.
The president of the company in charge of the milling was also deposed.
He explained the milling process involves the grinding of the top layer of
asphalt. The milling company then sweeps and removes the chunks of asphalt
from the roadway, so it is accessible to the public. Thereafter, Smith Sondy
"would come in at the end . . . of every day . . . [to] do[] all the ramping . . . so
[the path from the curb to the roadway is] accessible to traveling public." The
ramping process was designed to prevent the public from tripping on manholes
around which the asphalt had been milled and the areas where the curb meets
the milled roadway surface.
A-0642-23 3 The president of Smith Sondy also testified at deposition. He described
the resurfacing process as follows: 1) addressing the concrete work on the
roadway, which in this case involved the handicap ramps; 2) milling; 3) casting,
i.e.; leveling of manholes and catch basins with the roadway; and 4) paving the
roadway with asphalt. If the roadway contained millings, Smith Sondy would
have the milling company sweep the roadway with a street sweeper.
Plaintiff's theory of liability was that there was temporary loose asphalt
left in the hole without cones or signage to warn pedestrians to enable them to
safely cross the road, which caused her fall. Smith Sondy was responsible for
installing temporary asphalt ramping at the base of the curbs, and plaintiff
alleged the ramping did not properly extend to the curb, causing millings and
stones to gather at the base of the curb.
Defendants moved for summary judgment. They argued plaintiff had not
established prima facie negligence because she did not have an expert to explain
to the jury the complexity of milling and repaving, the standard of care, duty,
and whether there was a breach of duty. Defendants asserted a jury would
speculate regarding the cause of plaintiff's fall.
Plaintiff's statement of material facts in opposition to summary judgment
relied on the deposition testimony of the milling company and Smith Sondy
A-0642-23 4 representatives. She claimed their testimony established: the paver begins
paving the road within three days of the milling in order to protect the public; if
there was a hazard located at the base of the curbing, Smith Sondy should have
placed temporary asphalt because it was responsible for the paving; Smith Sondy
was responsible to address the hazard by placing a traffic cone; "[a] depression
in the roadway would be an unsafe condition[,] which can occur during the
milling process"; "[i]f someone were to use a pickaxe along the base of the curb
to clean it out, and then did not fill it back, that would have increased the
depression"; the county should have had an inspector present on a daily basis;
and if the road was milled, but not paved, Smith Sondy should have put cones
and warning signs at any hazardous area. Defendants alleged these facts called
for expert testimony to establish the standard of care and whether it was
breached by them in plaintiff's case.
Following oral argument, the motion judge granted defendants summary
judgment. He found plaintiff's case was unlike Jacobs v. Jersey Central Power
& Light Co., 452 N.J. Super. 494 (App. Div. 2017). There, the defendant utility
company had removed a streetlight, resulting in a hole in the ground. Id. at 497.
The utility company workers placed a safety cone over the hole, which
disappeared a few days later. Ibid. Two months later, the plaintiff was walking
A-0642-23 5 to retrieve the mail, fell into the hole, and was injured. Ibid. On appeal, the
defendant argued, among other things, that the trial court should have granted it
a directed verdict "on liability because plaintiff did not present a liability expert
on utility industry standards . . . ." Ibid.
We affirmed the trial judge's ruling to allow plaintiff to proceed without
an expert, noting he "rightly left it to the jury's common sense to decide the
negligence issues, based on the evidence and general principles of reasonable
care." Id. at 508. The question for the jury was not esoteric or technical because
the plaintiff "simply fell into . . . a hole in the ground, . . . which the jurors
reasonably found to have been left unattended too long without durable warnings
or barriers." Ibid.
The motion judge distinguished Jacobs, because the facts here did not
involve the mere removal of a utility pole leaving behind a hole, but a different
question of what would be the standard . . . and whether the standard was breached in circumstances where you have a multi-party and somewhat[] complex road resurfacing operation that involved milling, temporary resurfacing, . . . and how those matters might be impacted by the different conditions in the . . . road at any particular point and . . . how they get addressed and what's the responsibility of the different participants ....
Plaintiff needed
A-0642-23 6 an expert to explain to a jury . . . these processes and procedures and . . . different work obligations . . . and what it was that [Smith Sondy] . . . should have been doing . . . and . . . how that . . . relates to a standard within the paving[,] . . . the concrete base to which the milling is done[,] and . . . the temporary asphalt ramping . . . that Smith[]Sondy installed to protect the drop off . . . .
An expert was necessary to explain Smith Sondy's responsibilities as a
general contractor, including the responsibilities of its foreperson and safety
personnel during the milling process, and whether they "should have seen that
the road was no[t] ramped all the way across, placing a cone at certain spots, the
depth of the drop off that would have been unacceptable and . . . [that] a [twelve]
inch step off is unacceptable . . . ." Expert testimony was also necessary to
explain how the hole "should have been capped or what should have been done
or how often people should have been going to review it to [e]nsure the safety
of the worksite . . . ." The judge concluded these issues required "technical
knowledge" possessed only by an expert.
Plaintiff moved for reconsideration. She argued the judge erred by relying
on Jacobs and ignoring the other cases cited in her brief in opposition to
summary judgment. The judge also failed to consider the "probative competent
evidence" in the record.
A-0642-23 7 Plaintiff asserted the judge misinterpreted Jacobs because the facts in her
case were just as simple and undisputed. Therefore, even under Jacobs,
summary judgment was improper because the fact of plaintiff falling into a hole
would be easily understood by a jury. The curb height was therefore immaterial.
Furthermore, the deposition testimony established a prima facie case of
negligence. The president of Smith Sondy testified the installation of temporary
asphalt was Smith Sondy's responsibility, and the temporary asphalt did not
extend to the curb and should have until the road was fully paved to assure
pedestrian safety.
The motion judge denied reconsideration. He reiterated this case was
unlike Jacobs, and an expert was necessary to establish the standard of care and
deviation from it, because the issues were esoteric and would cause a jury to
speculate. An expert was also required to explain "the different component
parts, different levels[] of the strata, . . . the asphalt substrata[,] . . . the other
materials, and the obligation of different persons. The . . . milling and . . . the
resurfacing, and the temporary surfacing, and . . . the implications of all
that . . . . "
I.
A-0642-23 8 Our review of an order granting summary judgment is de novo. Graziano
v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). We consider all the
evidence submitted "in the light most favorable to the non-moving party" and
determine if the moving party is entitled to summary judgment as a matter of
law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
"Motions for reconsideration are granted only under very narrow
circumstances . . . ." Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462
(App. Div. 2002). Reconsideration should be used only for those cases where
"either (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." Ibid.
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). We
review a trial court's denial of reconsideration for abuse of discretion.
Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
II.
Plaintiff asserts summary judgment was improperly granted because the
evidence established each defendant's duty and the breach thereof. Smith Sondy
had a duty to exercise reasonable care to maintain a construction site in safe
condition, including handle the curb ramping, and failed to do so. The county
A-0642-23 9 was also liable because it had constructive notice of the dangerous condition left
by Smith Sondy, and should have had an inspector on site daily, who should
have discovered the dangerous condition.
Given these facts, plaintiff argues liability expert testimony is
unnecessary because specialized knowledge would not assist the jury in
understanding the evidence. The case had nothing to do with the responsibilities
of multiple entities. And the fact that plaintiff fell into a hole or depression also
was not so esoteric as to be beyond the ken of a jury.
Plaintiff reiterates the motion judge erred because he focused only on
Jacobs, ignored the other case law she cited, and compounded the error on
reconsideration. Those cases were: Raimo v. Fischer, 372 N.J. Super. 448 (App.
Div. 2004); Maison v. New Jersey Transit Corporation, 460 N.J. Super. 222
(App. Div. 2019); Butler v. Acme Markets, Inc., 89 N.J. 270 (1982); and Scully
v. Fitzgerald, 179 N.J. 114 (2004).
To defeat a motion for summary judgment in a negligence action, a
plaintiff must present competent evidence of a duty, breach of the duty,
causation, and damages. Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div.
2005). Breach occurs when a defendant's "conduct . . . falls below a standard
recognized by the law as essential to the protection of others from unreasonable
A-0642-23 10 risks of harm." Marshall v. Klebanov, 378 N.J. Super. 371, 378 (App. Div.
2005) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)). The question is
"'whether [a] reasonably prudent person at the time and place should recognize
and foresee an unreasonable risk or likelihood of harm or danger to others' by
[their] conduct." Est. of Narleski v. Gomes, 244 N.J. 199, 226 (2020) (quoting
Kelly v. Gwinnell, 96 N.J. 538, 543 (1984)).
"In most negligence cases, the plaintiff is not required to establish the
applicable standard of care." Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 406 (2014) (citing Sanzari, 34 N.J. at 134). "It 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 (first and second alterations in
original) (citation omitted). "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
A-0642-23 11 '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); see also N.J.R.E. 702 (permitting
expert testimony "[i]f scientific, technical, or other specialized 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, 460 N.J. Super. at 232. "[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.'" Davis, 219 N.J. at 407 (alteration in original)
(quoting Butler, 89 N.J. at 283); 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.,
A-0642-23 12 342 N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly v. Berlin, 300 N.J.
Super. 256, 268 (App. Div. 1997)). This is especially true when the alleged
negligent act or omission involves technical or specialized matters. Davis, 219
N.J. at 407.
The following cases are examples of where expert testimony was required
to establish the standard of care: "ordinary dental or medical malpractice,"
Sanzari, 34 N.J. at 134-35; "the responsibilities and functions of real-estate
brokers with respect to open-house tours[,]" Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 444 (1993); "the safe conduct of a funeral procession," Giantonnio,
291 N.J. Super. at 44; the "conduct of those teaching karate[,]" Fantini v.
Alexander, 172 N.J. Super. 105, 108 (App. Div. 1980); "applying pertinent
skydiving guidelines[,]" Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205,
215 (App. Div. 2002); the "repair and inspection" of automobile engines, Ford
Motor Credit Co. v. Mendola, 427 N.J. Super. 226, 237 (App. Div. 2012); "the
inspection of fire sprinklers by qualified contractors[,]" Davis, 219 N.J. at 408;
and the duties of a licensed nurse when "a patient dislodges [their] [medical]
tube and refuses its reinsertion," Cowley v. Virtua Health System, 242 N.J. 1, 9
(2020).
A-0642-23 13 Conversely, expert testimony was not required to establish the standard of
care as to: "the dangers that might follow when a lit cigarette is thrown into a
pile of papers or other flammable material[,]" Scully, 179 N.J. at 127; whether
an attorney in a malpractice suit should have "briefed an issue[,]" "report[ed]
. . . settlement discussion[s] accurately[,]" or "recommend[ed] a disposition of
the case" after settlement discussions, Sommers v. McKinney, 287 N.J. Super.
1, 12 (App. Div. 1996); or the "risk involved in [a chiropractor] repeating the
further neck adjustment[s]" after the chiropractor knew the patient became
uncharacteristically dizzy and unwell after treatment, Klimko v. Rose, 84 N.J.
496, 505 (1980).
At the outset, we reject plaintiff's assertion the motion judge did not
address the case law she cited. The judge found the cases were inapposite when
he adjudicated the reconsideration motion.
Indeed, Maison pertained to the legal obligation of a bus driver to act
before one passenger struck another with a bottle. 460 N.J. Super. at 229-30.
We held an expert was not required since the facts did not involve a "complex
instrumentality" because "[j]urors without any advanced knowledge could have
determined that [the bus driver] should have done something, rather than
nothing." Id. at 233.
A-0642-23 14 Scully involved a negligence claim by a first-floor tenant against his
landlord for fire and water damage to the tenant's property. 179 N.J. at 119.
The landlord stored gasoline-operated yard equipment, gasoline, mulch, old
papers, refuse, debris, and garbage in a storage area, which then caught fire when
his "second-floor tenants [who] regularly smoked cigarettes on the deck above
the storage area" threw their discarded butts near the storage area. Id. at 119-
20. The Supreme Court rejected the defendant's argument that the standard of
care had to be established by expert testimony because "[a] jury does not need a
fire expert to explain to it the dangers that might follow when a lit cigarette is
thrown into a pile of papers or other flammable material." Id. at 127.
Butler involved a claim against a supermarket owner by a plaintiff who
was attacked outside the supermarket. 89 N.J. at 274. The plaintiff alleged the
defendant was negligent in failing to warn her and failing to provide a safe place
to shop and park because there had been several muggings in the same location
prior to plaintiff's incident. Ibid. The Supreme Court ruled the absence of expert
testimony was not fatal to the plaintiff's ability to establish negligence because
the defendant as a "business invitor is in the best position to provide either
warnings or adequate protection for its patrons when the risk of injury is
A-0642-23 15 prevalent under certain conditions, and because the public interest lies in
providing a reasonably safe place for a patron to shop . . . ." Id. at 284.
In Raimo, we addressed a contractor's duty to maintain the premises where
it performs work in a reasonably safe condition for a person whom it may
reasonably expect to come onto the site. 372 N.J. at 454. There, the plaintiff
and his brother entered a construction site to meet with an employee of the
builder. Id. at 451. When they learned the employee was not there and began
to descend a staircase to exit the property, it gave way causing the plaintiff to
be severely injured. Ibid. Plaintiff subsequently sued the homeowners, the
general contractor, and the builder who was subcontracted, for negligence. Ibid.
We reversed summary judgment in favor of the subcontractor on grounds
of the common law doctrine of premises liability and held the trial court should
have applied general negligence principles to decide liability under the facts
presented. Id. at 452. The facts showed the subcontractor had attached the
temporary staircase the plaintiff used to enter the building. Id. at 451. The
subcontractor knew the staircase had been detached from the home the night he
left the site, and when he returned the following day, it was resting against the
home again, but he admitted he failed to check whether the staircase was
reaffixed to the house by screws and nails in the same manner he had originally
A-0642-23 16 attached it. Id. at 457. We concluded "a trier of fact could find [the
subcontractor] was negligent in failing to inspect the staircase on the morning
of [the] plaintiff's accident to ensure that it was properly reattached to the
house." Id. at 458.
The motion judge correctly found these cases were inapposite. On their
face, the facts in Maison and Scully simply were not so esoteric as to require the
input of an expert. And the facts in Butler demonstrated the defendant knew of
the danger to its customers because it had hired off-duty police officers to patrol
the supermarket yet posted no warning signs for its patrons and had no one on
duty in the parking lot when the plaintiff was attacked. 89 N.J. at 274-75.
Moreover, there were countervailing public interest issues unique to a business
invitee that did not apply here. Id. at 284. The dispute in Raimo did not regard
whether expert testimony was necessary. See 372 N.J. Super. at 450.
Regardless, the facts of the case clearly established liability given the
subcontractor's admissions and were not esoteric.
Finally, the judge did not err by relying upon Jacobs to measure whether
expert testimony was required here. Like plaintiff's case, that case involved a
similar modality of injury and similar questions regarding the defendant's
responsibilities. See 452 N.J. Super. at 496-97. However, unlike here, Jacobs
A-0642-23 17 did not involve multiple defendants, engaged in a complex road paving project,
governed by standards that a jury would be able to discern using their "common
knowledge as lay persons . . . ordinary understanding and experience, to
determine a defendant's negligence . . . ." Reed, 168 N.J. at 394. As the motion
judge noted, "[t]he negligence asserted has to do with the manner in which the
defendants conducted . . . the street rehabilitating operation. The . . . milling,
the temporary asphalt surfaces. The different levels. The different strata of
materials." The standard of care for a roadway milling and repaving project,
defendant's roles in the project, and whether they deviated from the standard of
care was esoteric and could not be established without the aid of an expert.
Affirmed.
A-0642-23 18