Wayne Davis v. Brickman Landscaping (071310)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

Wayne Davis v. Brickman Landscaping, Ltd. (A-22/23/24-12) (071310)

Argued March 4, 2014 -- Decided September 15, 2014

FERNANDEZ-VINA, J., writing for a unanimous Court.

In this appeal, the Court considers whether expert testimony must be offered to establish the standard of
care applicable to fire sprinkler inspectors who performed their inspections pursuant to relevant provisions of the
New Jersey Uniform Fire Code (UFC), N.J.A.C. 5:70-1.1 to -4.20. If such expert testimony is required, the Court
considers whether plaintiffs’ expert adequately supported his asserted standard of care, and a breach thereof.

Plaintiff Irene Davis and her two children resided in a second-floor suite at the Staybridge Suites Hotel,
which had a storage closet without a fire sprinkler beneath a staircase leading to the second-floor. Defendants
Atlantic Fire Service (Atlantic), Cintas Corporation (Cintas), and Master Protection L.P., d/b/a FireMaster L.P.
(FireMaster) each performed sprinkler inspections at the hotel and did not advise the hotel owner that the storage
closet required a fire sprinkler. A fire subsequently occurred at the hotel, causing serious injury to Davis and killing
her two children. Plaintiffs Davis and her husband, individually and on behalf of the estates of their children,
brought claims against Atlantic, Cintas, and FireMaster alleging that defendants’ inspectors had negligently failed to
inform the hotel owner of the need to install a sprinkler in the storage closet.

Plaintiffs and defendants each presented an expert during pretrial proceedings to address the proper
standard of care for defendants’ inspectors. Defendants’ expert asserted that a standard developed by the National
Fire Protection Association (NFPA) and adopted by reference into the UFC -- NFPA 25 -- represented the full extent
of the responsibilities of private sprinkler maintenance inspectors. Defendants’ expert concluded that defendants’
inspectors had properly complied with NFPA 25, which did not require them to evaluate the need for an additional
sprinkler or to notify the hotel owner about any such need. Plaintiffs’ expert agreed that NFPA 25 did not require
defendants’ inspectors to identify or report the need for an additional sprinkler, but stated that sprinkler inspectors
must exercise reasonable care, a standard that requires precautions beyond compliance with NFPA 25. He
concluded that defendants’ inspectors failed to exercise reasonable care when they neglected to notify the hotel
owner that a sprinkler was needed in the storage closet.

Following discovery, defendants moved for summary judgment, arguing that NFPA 25 constituted the
applicable standard of care and that plaintiffs could not prove that defendants’ inspectors breached that standard.
They also asserted that defendants’ expert’s view -- that a higher standard of reasonable care must be satisfied --
constituted an impermissible net opinion. The trial court found that defendants’ inspectors were not required to
satisfy any standard of care beyond that contained in NFPA 25, and that plaintiffs had failed to establish that
defendants had breached that standard. Therefore, the trial court granted summary judgment in favor of Atlantic,
Cintas, and FireMaster. The Appellate Division reversed, finding that compliance with safety regulations, such as
NFPA 25, was not dispositive on the issue of negligence. The panel found that reasonable care constituted the
relevant standard, and whether defendants exercised adequate care remained a question of material fact for the jury
to decide. The Court granted defendants’ petitions for certification. 212 N.J. 459 (2012).

HELD: Plaintiffs were required to establish the applicable standard of care through expert testimony. The standard
of care set forth by plaintiffs’ expert constituted an inadmissible net opinion because it lacked objective support.
Summary judgment in defendants’ favor was appropriate because, as a result of plaintiffs’ failure to support their
asserted standard of care, they were unable to establish the required elements of their negligence claim.

1. Summary judgment is appropriate when the record demonstrates 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). The
Court considers “whether the competent evidential materials presented, when viewed in the light most favorable to

1
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). “[A] negligence cause of
action 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). In most negligence cases, the plaintiff is not required to establish the applicable standard of care because “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.” Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996). In cases in which
“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,” Butler v. Acme Mkts., Inc., 89 N.J. 270, 283
(1982), however, the plaintiff must “establish the requisite standard of care and [the defendant’s] deviation from that
standard” by “present[ing] reliable expert testimony,” Giantonnio, 291 N.J. Super. at 42. (pp. 10-13)

2. The inspection of fire sprinklers by qualified contractors “constitutes a complex process involving assessment of
a myriad of factors” that “is beyond the ken of the average juror.” Cf. Giantonnio, 291 N.J. Super. at 44. The
average juror would be unfamiliar with the training that sprinkler inspectors receive, what training would be
necessary for an inspector to properly identify system design flaws such as the need for an additional sprinkler, and
the regulatory scheme applicable to sprinkler inspectors. In fact, the fire codes and standards relevant to sprinkler
inspectors are particularly complex. In 1983, the Legislature enacted the Uniform Fire Safety Act and directed the
Department of Community Affairs (DCA) to promulgate a uniform fire safety code that included requirements for
fire suppression systems. N.J.S.A. 52:27D-198(a) and (b). Pursuant to those legislative instructions, the DCA
promulgated the UFC. As part of the UFC, the DCA later adopted by reference the Building Officials and Code
Administrators’ (BOCA) 1996 National Fire Prevention Code (1996 BOCA Code), which required water sprinkler
systems to be inspected in accordance with NFPA 25. BOCA National Fire Prevention Code/1996, § F-506.1.
Thus, NFPA 25 became part of the UFC through the adoption, by reference, of the 1996 BOCA Code. Because
familiarity with New Jersey’s complex regulatory scheme, as well as the role of fire sprinkler inspectors in that
system, is necessary to determine the appropriate standard of care by which to assess defendants’ inspectors
conduct, plaintiffs were required to produce an expert to establish the standard of care and any departure from that
standard. (pp. 13-16)

3. Compliance with NFPA 25 does not, as a matter of law, prevent a finding of negligence. “The customs of an
industry are not conclusive on the issue of the proper standard of care; they are at most evidential of this standard.”
Wellenheider v. Rader, 49 N.J. 1, 7 (1967). Similarly, a regulatory code or standard “is evidence of due care but is
not conclusive on the subject.” Black v. Pub. Serv. Electric & Gas Co., 56 N.J. 63, 77 (1970). In Black, when
considering whether a utility company could be found negligent for failing to post danger signs not required by the
National Electric Safety Code, which had been adopted into the relevant regulations, the Court explained that
“safety codes represent minimum standards and do not establish the complete duty of the utility under all
circumstances.” Id. at 76-77. Here, because the DCA promulgated the UFC at the Legislature’s direction to create a
uniform fire safety code with requirements for fire suppression systems, the UFC or its successor provides the
standard of care for defendants’ inspectors absent competent expert testimony that a different standard of care is
generally recognized in the fire prevention field. (pp. 18-20)

4. An expert may not provide “mere net opinion.” Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372
(2011). An expert offers an inadmissible net opinion if he or she “cannot offer objective support for his or her
opinions, but testifies only to a view about a standard that is ‘personal.’” Ibid. Plaintiffs’ expert’s assertion that
defendants’ inspectors had a duty beyond NFPA 25 to report the need for an additional sprinkler lacked objective
support. None of plaintiffs’ expert’s sources addressed the role of sprinkler inspectors. Although he maintained that
NFPA 25 is “written wrong” and should have included a requirement for reporting design flaws, he did not
“reference any written document or unwritten custom accepted by the [fire safety] community” to buttress that
opinion. Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001). The standard of care set forth
by plaintiffs’ expert represented only his personal view, and therefore constituted inadmissible net opinion. Because
plaintiffs did support their asserted standard of care and a breach of that standard with admissible expert testimony,
they are unable to establish the required elements of their negligence cause of action. Defendants are therefore
entitled to summary judgment. (pp. 16-18, 20-23).

The judgment of the Appellate Division is REVERSED, and the trial court’s orders granting defendants’
motions for summary judgment are REINSTATED.

2
 CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and ALBIN, and JUDGES RODRÍGUEZ
and CUFF (both temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE
PATTERSON did not participate.

3
 SUPREME COURT OF NEW JERSEY
A-22/23/24 September Term 2012
071310

WAYNE DAVIS and IRENE LAVERNE
DAVIS, individually and on
behalf of the ESTATES OF
COURTNEY DAVIS and MYLES
DAVIS, deceased,

Plaintiffs-Respondents,

v.

BRICKMAN LANDSCAPING, LTD.,
d/b/a BRICKMAN LANDSCAPING,
GENERATED MATERIALS, LLC,
NORTHERN FIRE AND SAFETY,
TOWNSHIP OF FRANKLIN, COUNTY
OF SOMERSET, JOHN GOODMAN,
DENISE GOODMAN, JANET DEMARY,
ANN KINGSTON, CONNIE GORDON,
KAY STYLES-TIMMONS, WENDY
LAFORTUNE, and TYSHEE STYLES,

Defendants,

and

ATLANTIC FIRE SERVICE, CINTAS
CORPORATION and MASTER
PROTECTION LP, d/b/a
FIREMASTER LP,

Defendants-Appellants.

Argued March 4, 2014 – Decided September 15, 2014

On certification to the Superior Court,
Appellate Division.

Michael B. Devins argued the cause for
appellant Cintas Corporation (McElroy,
Deutsch, Mulvaney & Carpenter, attorneys;
Mr. Devins, Walter R. Krzastek, and Joseph
G. Fuoco, on the briefs).

1
 Michael L. Trucillo argued the cause for
appellant Atlantic Fire Service (Lewis
Brisbois Bisgaard & Smith, attorneys; Martin
J. Sullivan, of counsel; Mr. Trucillo and
Mr. Sullivan, on the briefs).

Charles C. Eblen argued the cause for
appellant Master Protection LP d/b/a
FireMaster LP (Shook, Hardy & Bacon,
attorneys; Mr. Eblen and Karen A. Read, a
member of the Missouri bar, on the briefs).

G. Martin Meyers argued the cause for
respondents (Law Offices of G. Martin
Meyers, attorney; Mr. Meyers and Susan S.
Singer, of counsel and on the briefs).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

This appeal presents two questions related to the standard

of care that private fire sprinkler maintenance inspectors are

required to exercise. First, we are asked to consider whether

plaintiffs must offer expert testimony to establish the standard

of care applicable to fire sprinkler inspectors who performed

their inspections pursuant to relevant provisions of the New

Jersey Uniform Fire Code (UFC), N.J.A.C. 5:70-1.1 to -4.20. If

such expert testimony is required, we are then called upon to

address whether plaintiffs’ expert adequately supported his

asserted standard of care, and a breach thereof, or whether he

offered an inadmissible net opinion.

The defendants in this case are private fire sprinkler

inspection companies that were hired to assess the operating

2
condition of a hotel’s sprinkler system. Following a fatal fire

at the hotel, the parents of the victims, individually and on

behalf of the estates of the decedents, alleged that defendants

had negligently failed to inform the hotel owner about a flaw in

the design of the hotel’s sprinkler system.

At the trial level, the court granted defendants’ motions

for summary judgment. The court explained that defendants’

inspectors had possessed no duty to report any sprinkler system

design flaws to the hotel owner because applicable State

regulations did not necessitate any such reporting. The

Appellate Division reversed, agreeing with plaintiffs’

contention that defendants’ compliance with regulatory

requirements was not dispositive of the issue of negligence.

The appellate panel explained that defendants owed plaintiffs a

duty of reasonable care and that a jury should decide whether

defendants had been obliged to exceed the dictates of the

regulations in their exercise of reasonable care.

After considering the complex nature of the Uniform Fire

Code and other factors relevant to sprinkler inspections, we

conclude that a jury should not be allowed to speculate as to

the proper standard of care in this case. Instead, we hold that

plaintiffs were required to establish the applicable standard of

care through expert testimony. Although plaintiffs presented an

expert during pretrial proceedings, the standard of care he set

3
forth represented only his personal view and was not founded

upon any objective support. His opinion as to the applicable

standard of care thus constituted an inadmissible net opinion.

As a result of plaintiffs’ failure to support their asserted

standard of care with admissible expert testimony, they were

unable to establish the required elements of their negligence

cause of action. We therefore reverse the judgment of the

Appellate Division and reinstate the trial court’s grant of

summary judgment to defendants.

I.

A.

Defendants Atlantic Fire Service (Atlantic), Cintas

Corporation (Cintas), and Master Protection L.P., d/b/a

FireMaster L.P. (FireMaster) were each hired to perform

sprinkler inspections at the Staybridge Suites Hotel in Somerset

in the years preceding the fire. FireMaster completed the

inspections between 1992 and 1997. Atlantic inspected the

sprinklers between 1997 and 2004. After Cintas purchased

Atlantic, Cintas completed the inspections between November 2004

and May 2005.

A fire occurred at the Staybridge Suites Hotel on May 13,

2005. On that date, Irene Davis was temporarily residing in a

second-floor suite with her two children. The primary means of

egress from that suite was an external, combustible staircase

4
that led from the second-floor suites to the hotel’s parking

lot. Beneath that staircase, the hotel had constructed a

storage closet but had not installed a sprinkler in the closet.1

The May 2005 fire was sparked by a lit cigarette butt,

which someone threw into the landscaping mulch beside the hotel.

The fire spread to the storage closet and then up the stairs to

the second floor. Davis and her children became trapped in

their suite. Tragically, the two children did not survive the

fire. Davis was rescued by emergency personnel after suffering

serious injuries from smoke inhalation.

B.

Following the fatal fire, plaintiffs Irene Davis and her

husband, Wayne Davis, filed suit individually and on behalf of

the estates of their deceased children against various

defendants. In addition to their claims against the hotel and

the hotel’s landscaping contractor, among others, plaintiffs

brought negligence claims against Atlantic, Cintas, and

1 The parties disagree over whether the hotel owner was required
to install a sprinkler in that closet. Plaintiffs assert that
the applicable regulatory standard was National Fire Protection
Association (NFPA) 13, which applies generally to all buildings.
NFPA 13, § 1.1. That standard instructs that sprinklers must be
installed “throughout the premises,” with only limited
exceptions. NFPA 13, §§ 8.1.1(1), (4). In contrast, defendants
contend that NFPA 13R governed the sprinkler system
requirements. NFPA 13R applies only to low-rise residential
buildings. NFPA 13R, § 1.1. That standard does not call for
sprinklers in “closets on exterior balconies,” unless those
closets directly connect with, or penetrate into, a dwelling
unit. NFPA 13R, § 6.8.6.
5
FireMaster.2 Plaintiffs alleged that defendants’ inspectors had

negligently failed to inform the hotel owner of the need to

install a sprinkler in the storage closet beneath the staircase.

Plaintiffs asserted that, had such a sprinkler been installed,

Davis and her children would have been able to escape the fire.

Both plaintiffs and defendants obtained expert reports that

addressed the proper standard of care by which the performance

of defendants’ inspectors should be measured.

Defendants’ expert, Russell Fleming, asserted that

applicable provisions of the Uniform Fire Code delineated the

extent of the care that defendants’ inspectors were required to

exercise. Specifically, Fleming pointed to one standard

developed by the National Fire Protection Association (NFPA) and

adopted by reference into the Uniform Fire Code -- NFPA 25 -- as

representing the full extent of the responsibilities of private

sprinkler maintenance inspectors. Fleming concluded that

defendants’ inspectors had properly complied with all

requirements of NFPA 25 and that NFPA 25 obligated them neither

to evaluate the need for an additional sprinkler nor to notify

the hotel owner about any such need.

2 This appeal involves only plaintiffs’ negligence claims against
Atlantic, Cintas, and FireMaster. All claims against other
defendants have been otherwise resolved.
6
 Plaintiffs’ expert, Jack Mawhinney,3 agreed that NFPA 25 did

not require defendants’ inspectors to identify or report defects

in the design of a sprinkler system, such as the need for an

additional sprinkler. However, he further asserted that “NFPA

25 . . . [i]s just written wrong,” and that reasonable care

obligates sprinkler inspectors to take additional precautions

beyond those set forth in NFPA 25. He admitted that he was “not

familiar with the law in New Jersey,” but nonetheless believed

that “[t]here is an expectation of [a] standard of reasonable

care which applies throughout the country that . . . thought and

experience and knowledge has to be applied in following the

requirement of the regulations.” He thus concluded that

defendants’ inspectors failed to exercise reasonable care when

they neglected to notify the hotel owner that a sprinkler was

needed in the storage closet beneath the staircase at issue.

Following discovery, defendants moved for summary judgment.

They argued that they could not be found negligent because NFPA

25 constituted the applicable standard of care and that

plaintiffs could not point to any evidence that defendants’

inspectors had failed to satisfy the requirements of that

standard. They also asserted that Mawhinney’s view -- that a

3 Plaintiffs also obtained a report from a second expert, Joseph
McCarey, but the trial court granted defendants’ motion to
strike that report as a net opinion. Plaintiffs did not appeal
that outcome.
7
higher standard of reasonable care must be satisfied --

constituted an impermissible net opinion.

The trial court agreed with defendants that there existed

no genuine issue of material fact as to whether they had

negligently inspected the Staybridge Suites Hotel. The court

did not strike Mawhinney’s opinion but nonetheless held that

defendants had not been required to satisfy any standard of care

beyond that contained in NFPA 25. Therefore, because plaintiffs

had failed to establish that defendants had breached the duty of

care set forth by NFPA 25, the trial court granted summary

judgment to Atlantic, Cintas, and FireMaster.

On appeal, the Appellate Division reversed the trial

court’s grant of summary judgment to all three defendants.4 The

panel explained that compliance with safety regulations, such as

NFPA 25, was not dispositive on the issue of negligence.

Instead, reasonable care constituted the relevant standard, and

whether defendants exercised adequate care remained a question

of material fact for the jury to decide.

Each of the three defendants petitioned this Court for

certification, and we granted their petitions. 212 N.J. 459

(2012).

II.

4 The appellate panel also affirmed the trial court’s denial of
summary judgment to plaintiffs. That issue is not relevant to
this appeal.
8
 Defendants urge this Court to reverse the Appellate

Division and reinstate the trial court’s grant of their motions

for summary judgment. They contend that plaintiffs bear the

burden of establishing defendants’ breach of the appropriate

standard of care and that plaintiffs have failed to demonstrate

that the proper standard exceeds the requirements of NFPA 25.

Although plaintiffs’ expert, Mawhinney, asserted that reasonable

care required defendants to report the need for an additional

sprinkler, defendants characterize his assertion as an

impermissible net opinion because it was not supported by

sufficient objective authority. Therefore, defendants maintain

that plaintiffs failed to demonstrate a prima facie case of

negligence.

In contrast, plaintiffs ask this Court to affirm the

Appellate Division’s reversal of summary judgment. Plaintiffs

argue that NFPA 25 sets forth only the minimum requirements for

sprinkler inspectors and that compliance with that standard is

thus not dispositive on the issue of negligence. Instead,

defendants’ sprinkler inspectors may be held to a higher

standard of care if a jury determines that reasonable care

necssitated additional precautions beyond the dictates of NFPA

25. Plaintiffs point to Mawhinney’s opinion as support for the

existence of such a higher standard of care. They contend that

Mawhinney referenced sufficient authority when he opined that a

9
reasonable inspector would have notified the hotel owner about

the absence of a needed sprinkler and thus that his conclusion

should not be characterized as a net opinion. For those

reasons, plaintiffs maintain that summary judgment is

inappropriate and that the case should proceed to trial so that

a jury can determine what reasonable care required.

III.

A.

A ruling on summary judgment is reviewed de novo.

Manahawkin Convalescent v. O’Neill, 217 N.J. 99, 115 (2014). We

thus “apply the same standard governing the trial court,” Murray

v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012), and do not

defer to the trial court’s or Appellate Division’s

interpretation of “the meaning of a statute or the common law,”

Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Our court rules require summary judgment to be granted when

the record demonstrates 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.” Rule 4:46-

2(c). This Court thus considers “whether the competent

evidential 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.

10
of Am., 142 N.J. 520, 540 (1995). In applying that standard, a

court properly grants summary judgment “when the evidence ‘is so

one-sided that one party must prevail as a matter of law.’”

Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

259, 106 S. Ct. 2505, 2516, 91 L. Ed. 2d 202, 219 (1986)).

“[A] negligence cause of action 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). The plaintiff bears the burden of establishing those

elements, Buckelew v. Grossbard, 87 N.J. 512, 525 (1981), “by

some competent proof,” Overby v. Union Laundry Co., 28 N.J.

Super. 100, 104 (App. Div. 1953), aff’d o.b., 14 N.J. 526

(1954).

B.

Plaintiffs and defendants disagree over whether plaintiffs

have adequately established defendants’ duty to plaintiffs and

defendants’ breach of that duty. Although defendants do not

deny the existence of their legal duty to plaintiffs, they

assert that plaintiffs have not adequately defined the contours

of that duty. Specifically, defendants contend that plaintiffs

must set forth the applicable standard of care and a breach of

that standard through admissible expert testimony.

11
 In most negligence cases, the plaintiff is not required to

establish the applicable standard of care. Sanzari v.

Rosenfeld, 34 N.J. 128, 134 (1961). In those cases, “[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 man in the

position of the defendant would have taken.” Ibid. 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.”

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,” Sanzari, supra, 34 N.J. at 134-35, 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,” Giantonnio, supra,

291 N.J. Super. at 42. This Court has previously explained

that, when 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.” Butler v. Acme Mkts., Inc., 89

12
N.J. 270, 283 (1982). In such cases, 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).

Cases requiring the plaintiff to “advance expert testimony

establishing an accepted standard of care” include “the ordinary

dental or medical malpractice case.” Sanzari, supra, 34 N.J. at

134-35; accord Bender v. Adelson, 187 N.J. 411, 435 (2006). In

addition, our courts have recognized other esoteric subject

matters requiring expert testimony, such as “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), precautions necessary to ensure “the

safe conduct of a funeral procession,” Giantonnio, supra, 291

N.J. Super. at 44, the appropriate “conduct of those teaching

karate,” Fantini v. Alexander, 172 N.J. Super. 105, 108 (App.

Div. 1980), the proper application of “pertinent skydiving

guidelines,” Dare v. Freefall Adventures, Inc., 349 N.J. Super.

205, 215 (App. Div.), certif. denied, 174 N.J. 43 (2002), and

the proper “repair and inspection” of an automobile, Ford Motor

Credit Co. v. Mendola, 427 N.J. Super. 226, 236-37 (App. Div.

2012).

Similar to previous cases in which New Jersey courts have

required the plaintiffs to establish the standard of care

through expert testimony, the inspection of fire sprinklers by

13
qualified contractors also “constitutes a complex process

involving assessment of a myriad of factors” that “is beyond the

ken of the average juror.” Cf. Giantonnio, supra, 291 N.J.

Super. at 44. Therefore, plaintiffs were required to produce an

expert in fire prevention engineering to explain New Jersey’s

complex regulatory scheme as well as the role that fire

sprinkler inspectors properly play amidst that system. The

average juror would be familiar with neither the training that

such sprinkler inspectors receive nor what training would be

necessary for an inspector to properly identify system design

flaws and recognize the need for an additional sprinkler.

Similarly, the jury would be unfamiliar with the Uniform Fire

Code, N.J.A.C. 5:70-1.1 to -4.20, including NFPA 25 and other

standards adopted by reference into that code.

New Jersey’s fire codes and standards are particularly

complex, as illustrated by the history of NFPA 25. In 1983, the

Legislature enacted the Uniform Fire Safety Act. See L. 1983,

c. 383 (codified as amended at N.J.S.A. 52:27D-192 to -198.6).

The express purpose of that statute was to create a “uniform,

minimum, fire safety code” to prevent loss of life, ensure fire

safety inspections, and provide for penalties for violations.

N.J.S.A. 52:27D-195. The Legislature specifically instructed

the Department of Community Affairs (DCA) to “promulgate . . .

regulations to [e]nsure the maintenance and operation of

14
buildings and equipment in such a manner as will provide a

reasonable degree of safety from fire and explosion.” N.J.S.A.

52:27D-198(a). The Legislature required that those regulations

“shall include a uniform fire safety code primarily based on the

standards established by the Life Safety Code ([NFPA] 101) and

any other fire codes of the [NFPA] and the Building Officials

and Code Administrators International (BOCA) Basic Fire

Prevention Code, both of which may be adopted by reference.”

Ibid. The Legislature further directed that the fire safety

code would include requirements for fire suppression systems.

N.J.S.A. 52:27D-198(b).

Pursuant to those legislative instructions, the DCA

promulgated a Uniform Fire Code. N.J.A.C. 5:70-1.1 to -4.20.

As part of that fire code, the DCA later adopted by reference

the 1996 BOCA National Fire Prevention Code (1996 BOCA Code),

which thereafter constituted “the State Fire Prevention Code for

New Jersey.” N.J.A.C. 5:70-3.1(a) (pre-2008 amendment5). The

1996 BOCA Code instructed that “[a]ll water sprinkler . . .

systems shall be periodically inspected, tested and maintained

in accordance with the requirements of NFPA 25.” BOCA National

Fire Prevention Code/1996, § F-506.1 (emphasis removed). In

short, through the DCA’s adoption of the 1996 BOCA Code, the

5 In 2008, the DCA amended N.J.A.C. 5:70-3.1(a) to instead adopt
by reference the “2006 International Fire Code” as the State
Fire Prevention Code. N.J.A.C. 5:70-3.1(a) (2014).
15
provisions of NFPA 25 were also given the force of law in New

Jersey. NFPA 25, set forth the requirements for the

“inspection, testing, and maintenance of water-based fire

protection systems.” NFPA 25, § 1.1. Thus, familiarity with

that standard, as well as other provisions of the fire code, is

necessary to determine the appropriate standard of care by which

to assess defendants’ conduct, and identification of the

relevant standard and any departure from that standard requires

expert testimony.

C.

Having concluded that expert testimony is required to

establish the standard of care in this case, we next turn to the

question of whether plaintiffs adequately supported the standard

of care that they asserted through admissible expert testimony.

An expert may not provide an opinion at trial that

constitutes “mere net opinion.” Pomerantz Paper Corp. v. New

Cmty. Corp., 207 N.J. 344, 372 (2011). The rule prohibiting net

opinions is a “corollary” of New Jersey Rule of Evidence 703,

State v. Townsend, 186 N.J. 473, 494 (2006), which provides that

an expert’s testimony “may be based on facts or data derived

from (1) the expert’s personal observations, or (2) evidence

admitted at the trial, or (3) data relied upon by the expert

which is not necessarily admissible in evidence but which is the

type of data normally relied upon by experts in forming opinions

16
on the same subject,” Weissbard & Zegas, Current N.J. Rules of

Evidence, cmt. 1 on N.J.R.E. 703 (2014). Thus, the net opinion

rule can be considered a “restatement of the established rule

that an expert’s bare conclusions, unsupported by factual

evidence, [are] inadmissible.” Buckelew, supra, 87 N.J. at 524.

The net opinion rule “requir[es] that the expert ‘give the

why and wherefore’ that supports the opinion, ‘rather than a

mere conclusion.’” Pomerantz Paper Corp., supra, 207 N.J. at

372 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).

For example, “a trial court may not rely on expert testimony

that lacks an appropriate factual foundation and fails to

establish the existence of any standard about which the expert

testified.” Id. at 373. Therefore, an expert offers an

inadmissible net opinion if he or she “cannot offer objective

support for his or her opinions, but testifies only to a view

about a standard that is ‘personal.’” Ibid.

Plaintiffs’ expert, Mawhinney, asserted in both his report

and deposition that a reasonable sprinkler inspector would have

informed the owner of the Staybridge Suites Hotel about the need

for an additional sprinkler in the storage closet beneath the

external staircase. That conclusion, however, represented an

impermissible net opinion because it lacked objective support.

Mawhinney referenced several NFPA standards in his report,

but they were not sufficient to support his opinion as to the

17
applicable standard of care. For example, he discussed NFPA 25

and its 2008 handbook, which address the responsibilities of

sprinkler inspectors when completing a sprinkler maintenance

inspection of the kind that defendants performed at the

Staybridge Suites Hotel. NFPA 25 defines “inspection” as “[a]

visual examination of a system or portion thereof to verify that

it appears to be in operating condition and is free of physical

damage.” NFPA 25, § 3.3.19. Mawhinney acknowledged that NFPA

25 makes no mention of any duty by sprinkler inspectors to

report deficiencies in the design of a sprinkler system, such as

the need to install an additional fire sprinkler. Thus

defendants’ inspectors did not violate NFPA 25 by failing to

identify such design flaws.

Compliance with NFPA 25 does not, as a matter of law,

prevent a finding of negligence. Cf. Kane v. Hartz Mountain

Indus., Inc., 278 N.J. Super. 129, 142 (App. Div. 1994), aff’d

o.b., 143 N.J. 141 (1996). This Court has long held that “[t]he

customs of an industry are not conclusive on the issue of the

proper standard of care; they are at most evidential of this

standard.” Wellenheider v. Rader, 49 N.J. 1, 7 (1967). Such

industry standards are not dispositive because “to allow [an

industry] to set its own standard of conduct is tantamount to

allowing it to set the limits of its own legal liability, even

though those limits are below a level of care readily

18
attainable.” Estate of Elkerson v. N. Jersey Blood Ctr., 342

N.J. Super. 219, 230 (App. Div.), certif. denied, 170 N.J. 390

(2001). Similarly, this Court held in Black v. Pub. Serv.

Electric & Gas Co., 56 N.J. 63, 77 (1970), that a regulatory

code or standard “is evidence of due care but is not conclusive

on the subject.” The question in that case was whether a

utility company could be found negligent for failing to post

danger signs even though the National Electric Safety Code,

which had been adopted into the regulations of this State, did

not require the posting of such warnings. Id. at 76-77. In

holding that the utility could be found negligent, this Court

explained that “safety codes represent minimum standards and do

not establish the complete duty of the utility under all

circumstances.” Id. at 77.

The Legislature, however, directed the DCA to promulgate a

uniform fire safety code, N.J.S.A. 52:27D-198(a), and also

directed that the fire safety code must include requirements for

fire suppression systems, N.J.S.A. 52:27D-198(b). The UFC, and

the later adopted State Fire Prevention Code, are a piece of a

comprehensive legislative effort to establish uniform codes for

residential and commercial construction throughout the State.

See, e.g., N.J.S.A. 40:55D-40.4 (directing adoption of uniform

residential site improvement standards); N.J.A.C. 5:21

(promulgating uniform residential site improvement standards).

19
To that end, the UFC or the current State Fire Prevention Code

provides the standard of care absent competent expert testimony

that a standard of care other than the UFC or its successor is

generally recognized in the fire prevention field.

Despite their compliance with NFPA 25, Mawhinney asserted

that defendants’ inspectors had a duty to satisfy a higher

standard of care and report design flaws. Although Mawhinney is

correct that defendants may be required to exercise care beyond

the requirements of NFPA 25, his assertion that a reasonable

sprinkler inspector would have identified design deficiencies

represents an impermissible net opinion because he failed to

provide objective support for that conclusion. Mawhinney’s

report referenced several other NFPA standards -- NFPA 13, NFPA

13R and its appendix, and NFPA 101 -- and also provided a brief

discussion of a few fatal fires that may have been fueled by the

storage of combustible materials in stairwells. None of those

sources, however, address the role of sprinkler inspectors or

lend support to Mawhinney’s conclusion regarding what actions a

reasonable inspector would have taken. Instead, they relate

only to whether the hotel owner may have had a duty to install a

sprinkler in the storage closet beneath the staircase.

In support of his conclusion that reasonable care required

defendants’ inspectors to identify and report the need for an

additional sprinkler, Mawhinney relied upon nothing more than

20
his personal opinion about what the inspectors should have done.

Thus, just as in Kaplan v. Skoloff & Wolfe, P.C., 339 N.J.

Super. 97, 103 (App. Div. 2001), “[p]laintiff[s’] expert offered

no evidential support establishing the existence of a standard

of care, other than standards that were apparently personal to

himself.”

During his deposition, Mawhinney stated that NFPA 25 has

been adopted by most states in the country and acknowledged that

it is generally recognized as the standard of care for sprinkler

inspectors in New Jersey. Despite that admission, he maintained

that “NFPA 25 . . . [i]s just written wrong.” His report

explained that NFPA 25 should have been drafted to include a

requirement for reporting such deficiencies instead of

“allow[ing] the inspector[s] to turn a blind eye to design

flaws” while “conducting inspections of a limited scope.”

However, Mawhinney “failed to reference any written document or

unwritten custom accepted by the [fire safety] community” to

buttress that opinion. Kaplan, supra, 339 N.J. Super. at 103.

Mawhinney also expressed his view that, although NFPA 25

recognizes that sprinkler maintenance inspectors may not have

received the training necessary to identify design flaws, they

should nevertheless be required to acquire such training. Those

conclusory statements, however, “lacked any foundation of the

sort required for admissibility.” Pomerantz Paper Corp., supra,

21
207 N.J. at 374. Again, Mawhinny made “[n]o reference . . . to

any written document, or even unwritten custom or practice.”

Kaplan, supra, 339 N.J. Super. at 103. “In this stark absence

of supporting authority, [Mawhinney] provided only his personal

view, which . . . ‘is equivalent to a net opinion.’” Ibid.

(quoting Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div.

1999)).

Having reviewed Mawhinney’s report and deposition, it is

clear that his opinion as to the applicable standard of care for

sprinkler inspectors was a “mere conclusion” that “lack[ed] an

appropriate factual foundation.” Cf. Pomerantz Paper Corp.,

supra, 207 N.J. at 372-73. Therefore, we reject as an

inadmissible net opinion Mawhinney’s assertion that the exercise

of reasonable care required defendants’ inspectors to identify

sprinkler system design flaws and report the need for an

additional sprinkler.

D.

Absent Mawhinney’s expert opinion to support a standard of

care beyond that prescribed in the UFC, plaintiffs are unable to

satisfy their burden of establishing the applicable standard of

care and a breach of that standard. Plaintiffs thus fail to

satisfy the elements of their negligence claim, and we hold that

defendants are entitled to judgment as a matter of law. Rule

4:46-2(c).

22
 IV.

For the reasons set forth above, we reverse the judgment of

the Appellate Division and reinstate the orders of the trial

court, granting defendants’ motions for summary judgment and

thus dismissing with prejudice plaintiffs’ negligence claims

against defendants Atlantic, Cintas, and FireMaster.

CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, and ALBIN, and
JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in
JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE PATTERSON did not
participate.

23
 SUPREME COURT OF NEW JERSEY

NO. A-22/23/24 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

WAYNE DAVIS and IRENE LAVERNE
DAVIS, individually and on
Behalf of the ESTATE OF
COURTNEY DAVIS and MYLES
DAVIS, deceased,
Plaintiffs-Respondents,

v.

BRICKMAN LANDSCAPING, LTD.,
d/b/a BRICKMAN LANDSCAPING,
GENERATED MATERIALS, LLC,
NORTHERN FIRE AND SAFETY,
TOWNSHIP OF FRANKLIN, COUNTY
OF SOMERSET, JOHN GOODMAN,
DENISE GOODMAN, JANET DEMARY,
ANN KINGSTON, CONNIE GORDON,
KAY STYLES-TIMMONS, WENDY
LAFORTUNE, and TYSHEE STYLES,
Defendants,

and

ATLANTIC FIRE SERVICE, CINTAS
CORPORATION and MASTER
PROTECTION LP, d/b/a
FIREMASTER LP,
Defendants-Appellants.

DECIDED September 15, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST REVERSE/REINSTATE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6

1