Pasquale Volpe v. Clusters at Washington

• Court: New Jersey Superior Court Appellate Division
• Decided: January 7, 2026
• Docket: A-3068-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3068-23

PASQUALE VOLPE and ARLENE VOLPE, husband and wife,

Plaintiffs-Appellants,

v.

CLUSTERS AT WASHINGTON,

Defendant-Respondent. _____________________________

Submitted November 3, 2025 – Decided January 7, 2026

Before Judges Sabatino and Bergman.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-0637-22.

Law Offices of Stephen Guice PC, attorney for appellants (Stephen W. Guice, on the brief).

Cutolo Barros LLC, attorneys for respondent (Jaclyn M. Kavendek, of counsel and on the brief; Matthew Forys, on the brief).

PER CURIAM Plaintiffs Pasquale and Arlene Volpe 1 appeal from an order granting

summary judgment to defendant Clusters at Washington and dismissing their

complaint seeking recovery for personal injuries resulting from Pasquale's fall

on the steps leading to their condominium unit. Plaintiff's further appeal from

an order denying reconsideration. Having considered the parties' arguments in

light of the record and applicable legal principles, we affirm.

I.

Plaintiffs are long-time residents of the defendant condominium complex.

Plaintiff alleges he was injured when a sleeve on the stairway railing to his

condominium slid down as he attempted to use it, causing him to lose his

balance, fall and sustain injuries. Plaintiff's complaint asserts defendant was

negligent in failing to properly install and maintain the railing, which was

located in a common area of the complex. During discovery, which included

several extensions, plaintiff did not provide an expert report on liability or

causation, nor did he depose any witnesses or representatives of defendant.

After discovery concluded, defendant moved for summary judgment,

contending plaintiff could not establish a prima facie case of negligence

1 We refer to Mr. Volpe by his first name due to the parties common surname. We mean no disrespect. For the remainder of the opinion, we refer to Mr. Volpe as plaintiff, as Ms. Volpe's claim is per quod only. A-3068-23 2 because, in this instance, defendant's alleged breach of duty and causation were

required to be provided by expert opinion. Plaintiff opposed the motion,

contending the case was not so "esoteric" as to require expert opinion and an

inference of negligence is presumed based on his res ipsa loquitur claim, which

precludes the grant of summary judgment. Plaintiff also moved for an extension

of the discovery period.

The court granted defendant's motion and denied plaintiff's motion to

extend discovery as moot. In its written decision, the court emphasized, to

establish negligence, plaintiff must establish duty, breach, causation, and

damages by a preponderance of the evidence. The court acknowledged the

defendant owed a duty of reasonable care to the plaintiff and the stairs and

railing where the accident occurred were under the defendant's exclusive

control.

However, when assessing whether there was a breach of duty, the court

found that the plaintiff failed to provide the necessary expert opinion or any

other competent evidence regarding the basis of defendant's alleged breach of

its duty of care. Viewing the facts most favorably to the plaintiff, the court

found expert opinion was required to prove defendant breached its duty of care.

The court also found plaintiff had failed to show defendant had notice of the

A-3068-23 3 alleged dangerous condition of the railing despite plaintiff using the stairs

numerous times without incident nor having shown any prior complaints about

the railing. The court also rejected plaintiff's argument concerning res ipsa

loquitor, finding the incident did not "bespeak negligence" since there are

multiple ways a fall might occur unrelated to a property owner's negligence.

Given the lack of competent proof satisfying the breach element, the court

granted summary judgment to defendant and entered an order dismissing

plaintiff's complaint with prejudice.

Plaintiff moved for reconsideration and provided new evidence consisting

of a video, rail installation instructions, work orders, and a new certification . In

its decision, the court applied the standard set forth in Rule 4:49-2 and found

reconsideration is warranted only in instances where the court's decision was

palpably incorrect or irrational, or if the court failed to appreciate significant,

competent evidence, and plaintiff's motion failed to meet these standards. The

court also found the new evidence submitted by plaintiff was not provided in

discovery or in opposition to defendant's motion for summary judgment, and

plaintiff failed to justify why this information was not previously submitted.

Finding its basis for reconsideration must be limited to the evidence that was

A-3068-23 4 initially before the court, it did not consider the new evidence, and denied

plaintiff's motion.

On appeal, plaintiff contends the court erred by granting summary

judgment and denying reconsideration because "genuine non-esoteric issues of

material fact and law were required to be addressed by a jury." Plaintiff

specifically asserts the court erred because (1) a jury member's common

knowledge and experience is sufficient to allow it to find a breach of duty of

care without expert testimony; and (2) res ipsa loquitor applied, as plaintiff's

accident bespeaks of negligence, which precludes the grant of summary

judgment.

II.

A trial court shall grant summary judgment if "the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that 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." R.

4:46-2(c).

On appeal, we employ the same summary judgment standard. Townsend

v. Pierre, 221 N.J. 36, 59 (2015). If there is no factual dispute, and only a legal

issue to resolve, the standard of review is de novo and the trial court rulings "are

A-3068-23 5 not entitled to any special deference." Manalapan Realty v. Manalapan Twp.

Comm., 140 N.J. 366, 378 (1995).

A.

We first address plaintiff's contention summary judgment was improperly

granted because expert opinion was not required to show a breach of the

applicable standard of care for installing, maintaining, or inspecting railing

sleeves. Plaintiff contends the fall, which he claims was exclusively caused by

the loose railing sleeve, is not an "esoteric" occurrence that requires expert

opinion.

Plaintiff specifically contends defendant improperly installed the railing

sleeve, causing the dangerous condition, and a juror using common knowledge

and experience is capable of concluding defendant breached its duty of care to

plaintiff. Plaintiff asserts a jury would be able to determine defendant had

breached its duty of care to properly install the railing and to inspect and

maintain it per the condominium association's rules and regulations. We are not

persuaded by this argument.

A cause of action for 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.

A-3068-23 6 Co., 212 N.J. 576, 594 (2013). The plaintiff "bears the burden of establishing

those elements 'by some competent proof.'" Davis v. Brickman Landscaping

Ltd., 219 N.J. 395, 406 (2014) (citing Buckalew v. Grossbard, 87 N.J. 512, 524

(1981), then quoting Overby v. Union Laundry Co., 28 N.J. Super. 100, 104

(App. Div. 1953)). A breach of the duty of care occurs when a person's "conduct

. . . falls below a standard recognized by the law as essential to the protection

of others from unreasonable 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)). "Although the existence of a duty is a question of law, whether the

duty was breached is a question of fact." Jerkins v. Anderson, 191 N.J. 285, 305

(2007) (citing Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56

(App. Div. 1994)).

A landowner generally has "a non-delegable duty to use reasonable care

to protect invitees against known or reasonably discoverable dangers." Rigatti

v. Reddy, 318 N.J. Super. 537, 541 (App. Div. 1999) (quoting Kane v. Hartz

Mountain Indus., Inc., 278 N.J. Super. 129, 140 (App. Div. 1994)). When an

invitee is injured by a dangerous condition, the owner is liable for such injuries

if the owner had actual or constructive knowledge of the dangerous condition

that caused the accident. Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257

A-3068-23 7 (2015). However, notice is not required if the injured plaintiff can establish that

the defendants created the dangerous condition. Craggan v. Ikea USA, 332 N.J.

Super. 53, 61 (App. Div. 2000).

"In most negligence cases, the plaintiff is not required to establish the

applicable standard of care." Davis, 219 N.J. at 406 (citing Sanzari, 34 N.J. at

134). "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.'" Id. at 407

(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 v. NJ 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.'" Davis, 219 N.J. at 407

(alteration in original) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283

A-3068-23 8 (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.

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.

We concur with the trial court that plaintiff established defendant, as

owner of the common area where the railing was located, had a duty of care

requiring it to safely install and maintain the railing in a reasonably safe

condition for its normal use. However, without expert opinion, the jury will be

left to speculate whether defendant breached this duty of care. We reject

plaintiff's "common knowledge" contention because the cause as to the reasons

the railing sleeve dislodged and whether this was a proximate cause of plaintiff's

A-3068-23 9 fall were required to be presented through expert opinion. We conclude the

proper installation of a railing is not within the common knowledge of a juror.

Although the loose rail sleeve creates factual issues that a dangerous condition

may have existed, plaintiff has failed to provide competent expert evidence

showing a genuine issue of material fact exists that defendant created the

dangerous condition by faulty installation, failed to properly maintain the railing

or that it had actual or constructive notice of the alleged dangerous condition.

Although we recognize plaintiff submitted additional evidence including

a video, instructions for the railing installation, and work orders in his motion

for reconsideration, the court properly excluded this evidence because it was not

part of the record in the motion for summary judgment nor was it new evidence

that could not have been previously provided. See Palombi v. Palombi, 414 N.J.

Super. 274, 289, (App. Div. 2010) (determining facts known to party prior to

entry of an original order did not provide an appropriate basis for

reconsideration); See also Fusco v. Bd. of Educ. of Newark, 349 N.J. Super.

455, 462 (App. Div. 2002) (determining a party is not entitled to

reconsideration where evidence was available but not submitted to the court on

the motion for the original order). We conclude the court did not err by not

A-3068-23 10 considering this new evidence presented in plaintiff's motion for reconsideration

as its basis to deny the motion.

B.

We now turn to plaintiff's contention that the court erred by rejecting his

res ipsa loquitor claim. The doctrine of res ipsa loquitur, which means "the thing

speaks for itself," is an "evidentiary rule grounded in principles of equity."

Jerista v. Murray, 185 N.J. 175, 191-92 (2005) (quoting Myrlak v. Port Auth. of

N.Y. & N.J., 157 N.J. 84, 95 (1999)). "Res ipsa loquitur is grounded in

probability and the sound procedural policy of placing the duty of producing

evidence on the party who has superior knowledge or opportunity for

explanation of the causative circumstances." Buckelew v. Grossbard, 87 N.J.

512, 526 (1981) (italicization omitted). The res ipsa doctrine "allows the

factfinder to draw an inference of negligence against the party who was in

exclusive control of the object or means that caused the accident." Jerista 185

N.J. at 192.

To establish res ipsa loquitur, a plaintiff must show "(a) the occurrence

itself ordinarily bespeaks negligence; (b) the instrumentality was within the

defendant's exclusive control; and (c) there is no indication in the circumstances

A-3068-23 11 that the injury was the result of the plaintiff's own voluntary act or neglect."

Jerista 185 N.J. at 192 (quoting Buckelew 87 N.J. at 525).

The first element of the doctrine is satisfied if plaintiff establishes "that it

is more probable than not that the defendant's negligence was a proximate cause

of the mishap." Jerista 185 N.J. at 192 (quoting Brown v. Racquet Club of

Bricktown, 95 N.J. 280, 291-92 (1984)). "Whether an accident bespeaks

negligence 'depends on the balance of probabilities.'" Ibid. (quoting Buckelew,

87 N.J. at 526). Thus, the doctrine is available to a plaintiff "if it is more

probable than not that the defendant has been negligent." Myrlak, 157 N.J. at

95.

The court found the doctrine of res ipsa loquitor was not satisfied, stating:

[A] fall does not ordinarily bespeak negligence. The [c]ourt finds there can be many reasons for which people fall daily. People may fall due to losing their balance, a pain in their leg or foot, inattention, poor shoe traction, wet conditions, to name just a few. The [c]ourt finds that a slip and fall does not ordinarily bespeak negligence, and no reasonable fact finder could find that in the ordinary course of events the incident would not have occurred if the [d]efendant had exercised reasonable care. The [c]ourt further finds no reasonable fact finder could find the [d]efendant’s conduct or absence thereof led to unsafe conditions that were the proximate cause of the fall. This conclusion is based on the findings on breach above.

A-3068-23 12 We conclude the court's sound assessment of the first prong of the above

enunciated test was not error. We further note, on de novo review, that the

slipping of a railing sleeve does not "bespeak" negligence as a number of reasons

are possible for its cause, including normal wear and tear or damage brought

about by a third-party resulting in the rail loosening and eventually dislodging,

among other reasons. No evidence in the record was presented by plaintiff that

eliminated other possible reasons for the rail slippage other than defendant's

negligent installation or improper maintenance to support the accident bespoke

negligence and the trial court's dismissal of this claim on summary judgment

was not erroneous.

To the extent we have not addressed any of defendant'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-3068-23 13