U.S. BANK NATIONAL ASSOCIATION, ETC. VS. SILVANA SOTILLO(F-4359-14, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0563-15T2

NANETTE ROSENBAUM, HARLAN
ROSENTHAL and MARTIN ROSENBAUM,

Plaintiffs-Appellants,

v.

HIGHLANDS CONDO ASSOCIATION,

Defendant-Respondent.
___________________________________

Submitted February 28, 2017 - Decided March 21, 2017

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-5602-13.

Michael W. Rosen, attorney for appellants.

Marshall Dennehey Warner Coleman & Goggin,
P.C., attorneys for respondent (Walter F.
Kawalec, III, on the brief).

PER CURIAM

Plaintiffs Nanette Rosenbaum, Harlan Rosenthal, and Martin

Rosenbaum appeal the trial court's June 25, 2015 summary judgment

dismissal of their premises liability claim against defendant

Highlands Condo Association. Plaintiffs also appeal the court's
September 4, 2015 order denying plaintiff's motion for

reconsideration. We reverse and remand, finding a genuine issue

of material fact as to whether defendant's conduct breached the

standard of care.

I.

Viewed in the light most favorable to plaintiffs, Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the facts

are as follows. On November 22, 2012, plaintiff Martin Rosenbaum

exited a relative's condominium unit and fell on a driveway outside

the unit. The driveway was maintained by defendant. Martin's

daughter plaintiff Nanette Rosenbaum came to her father's aid and

also fell.

Plaintiffs filed a premises liability action against

defendant alleging Martin and Nanette fell due to a "dangerous and

defective condition on the premises," caused by defendant's

negligent "ownership, operations management, maintenance and

control of the premises."1 Plaintiffs alleged Martin and Nanette

fell due to a transitional slope between two driveways that created

a substantial height differential.

After the completion of discovery, defendant moved for

summary judgment arguing plaintiffs could not establish defendant

1
Plaintiffs also alleged a loss of consortium claim on behalf of
Nanette's spouse Harlan Rosenthal.

2 A-0563-15T2
breached its duty to plaintiffs without expert testimony as to how

the slope was dangerous or defective. The court agreed and granted

summary judgment in defendant's favor, concluding plaintiffs'

complaint alleged a design defect that plaintiff was required to

establish with expert testimony.

Plaintiffs filed a motion for reconsideration arguing the

court read the complaint too narrowly to allege only a design

defect claim. Plaintiffs' counsel argued the complaint alleged a

dangerous condition, the discovery showed defendant was on notice

of the condition, and the court therefore erred in its initial

determination that expert testimony was required. The court denied

plaintiffs' reconsideration motion, finding that "an expert should

be required to talk about whether or not [there was] a dangerous

condition."

II.

We review a trial court's grant of summary judgment de novo.

Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403,

414 (2016). "[The] trial court's interpretation of the law and the

legal consequences that flow from established facts are not

entitled to any special deference." Manalapan Realty, L.P. v. Twp.

Comm., 140 N.J. 366, 378 (1995). Summary judgment is appropriate

where there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. R. 4:46-2(c).

3 A-0563-15T2
We must "consider whether the competent evidential materials

presented, when viewed in the light most favorable to the non-

moving party in consideration of the applicable evidentiary

standard, are sufficient to permit a rational factfinder to resolve

the alleged disputed issue in favor of the non-moving party."

Brill, supra, 142 N.J. at 523.

To establish a prima facie case of negligence, a plaintiff

must establish that "a defendant owed a duty of care, the defendant

breached that duty, and injury was proximately caused by the

breach." Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005).

A plaintiff bears the burden to prove negligence, which is never

presumed. Khan v. Singh, 200 N.J. 82, 91 (2009). "[T]he mere

showing of an accident causing the injuries sued upon is not alone

sufficient to authorize an inference of negligence." Vander Groef

v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365, 370 (App. Div.

1954) (internal quotation marks omitted).

An owner or possessor of property has a duty to "warn a social

guest of any dangerous conditions of which the owner had actual

knowledge and of which the guest is unaware." Hopkins v. Fox &

Lazo Realtors, 132 N.J. 426, 434 (1993). Thus, "[o]rdinarily an

injured plaintiff asserting a breach of that duty must prove, as

an element of the cause of action, that the defendant had actual

or constructive knowledge of the dangerous condition that caused

4 A-0563-15T2
the accident." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559,

563 (2003).

Plaintiffs do not dispute that an expert would be required

if they alleged a design defect. See D'Alessandro v. Hartzel,

422 N.J. Super. 575, 581 (App. Div. 2011) ("mere allegations of a

design flaw or construction defect, without some form of

evidentiary support, will not defeat a meritorious motion

for summary judgment"). Rather, plaintiffs argue an expert was not

required because their complaint does not allege a design defect,

but instead alleges that defendant maintained a dangerous

condition about which it had actual knowledge.

In the court's oral opinion on defendant's summary judgment

motion, the court found, "the fact of the matter is, the

plaintiff[s] allege[] a design defect." We disagree. The complaint

does not expressly allege a design defect. It asserts Martin and

Nanette fell because of a "dangerous and defective condition on

the premises" and they were injured as a result of defendant's

"ownership, management, maintenance and control of the premises."

Plaintiffs' counsel argued they were required only to show a

dangerous condition and notice, plaintiffs "[did not] need experts

to say what's dangerous," and they were not obligated "to get into

design."

5 A-0563-15T2
 The court appears to have concluded plaintiffs alleged a

defective design claim because the court determined the alleged

dangerous condition existed as a result of its design. However,

the fact that an alleged dangerous condition may have been

constructed in accordance with its original design does not require

that a plaintiff claiming a dangerous condition show that it

resulted from a defective design, or that it deviated from an

applicable standard of construction. See Garafola v. Rosecliff

Realty Co., 24 N.J. Super. 28, 39 (App. Div. 1952) (evidence of

"[c]onstruction in accordance with a standard practice or

deviation therefrom" was not required to establish a foreseeable

danger and was "merely one indication of absence or presence of

elements tending to establish negligence").

We next consider whether plaintiffs' claim that the slope

constituted a dangerous condition required the aid of expert

testimony. In determining whether expert testimony is necessary,

a court must consider "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 v. Brickman Landscaping, Ltd., 219 N.J. 395,

407 (2014) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283

(1982)). In some cases the "jury is not competent to supply the

standard by which to measure the defendant's conduct," and thus

6 A-0563-15T2
the plaintiff must establish the defendant's standard of care and

breach of that standard by presenting expert testimony. Ibid.

(quoting Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961)); see,

e.g., id. at 408 (expert required to explain fire code provisions

and standards); D'Alessandro, supra, 422 N.J. Super. at 582-83

(expert required to explain dangerous condition of a step down

into a sunken living room near the entrance because allegations

of a design flaw or construction defect are "so esoteric or

specialized that jurors of common judgment and experiences cannot

form a valid conclusion"); Vander Groef, supra, 32 N.J. Super. at

370 (plaintiff "failed to introduce any evidence that the

construction of a platform 44 inches high without steps or a ladder

was in any way a deviation from standard construction, or that it

was unsafe").

Conversely, in cases in which "a layperson's common knowledge

is sufficient to permit a jury to find that the duty of care has

been breached," an expert is not required. Davis, supra,

219 N.J. at 408 (quoting Giantonnio v. Taccard, 291 N.J. Super.

31, 43 (App. Div. 1996)). In other words, "some hazards are

relatively commonplace and ordinary and do not require the

explanation of experts in order for their danger to be understood

by average persons." Hopkins, supra, 132 N.J. at 450 (expert not

required to establish dangerous condition of camouflaged step);

7 A-0563-15T2
see also Scully v. Fitzgerald, 179 N.J. 114, 127-28 (2004) (expert

not required to explain danger of throwing a lit cigarette onto a

pile of papers or other flammable material); Campbell v. Hastings,

348 N.J. Super. 264, 270-71 (App. Div. 2002) (expert not required

to establish danger of unlit sunken foyer); Murphy v. Trapani,

255 N.J. Super. 65, 74-75 (App. Div.) (expert not required to

establish navigational hazard of a deck hung over water and close

to a shared property line), certif. denied, 130 N.J. 17 (1992);

Berger v. Shapiro, 30 N.J. 89, 101-02 (1959) (expert not required

to explain dangerous condition caused by a missing brick in top

step of porch).

Considering the evidence presented here viewed in the light

most favorable to plaintiffs, a rational factfinder could

determine that the slope constituted a dangerous condition without

the aid of expert testimony. The photograph showed a substantial

and abrupt step-down of approximately twelve inches2 between the

levels of black pavement. The slope from the higher level to the

lower level is severe. There is no striping showing the end of the

higher level and the beginning of the step-down to the lower level.

In her deposition, Nanette testified there was a "significant

2
Plaintiff's allegation the step-down is approximately twelve
inches is supported by the photograph that was considered by the
court.

8 A-0563-15T2
slope" that was "unmarked in any way." The identical color of the

pavement at both levels created the type of camouflaged step the

Court in Hopkins determined a jury could find constituted a

dangerous condition without the aid of expert testimony. See

Hopkins, supra, 132 N.J. 450-51 (finding plaintiff's claim that

two steps were dangerous because they shared the identical vinyl

covering pattern thereby camouflaging the lower step did not

require expert testimony).

Expert testimony that the slope deviated from standard

practice or applicable building codes could support plaintiffs'

claim, but such evidence was not required. See Garafola, supra,

24 N.J. Super. at 38-39 (whether the existence of a tree close to

an amusement park train ride was dangerous was a factual issue for

a jury and evidence of a deviation from standard practice was not

required). There is nothing esoteric about understanding the

danger of a height differential between two driveways that was

unmarked in any way and about which defendant had been provided

actual notice. Thus, we find the alleged dangerous condition

"[does] not require the explanation of experts in order for [its]

danger to be understood by average persons." Hopkins, supra,

132 N.J. at 450. Although a jury might conclude the circumstances

are insufficient to establish the dangerous condition alleged in

the complaint, "it is their decision to make, and they are fully

9 A-0563-15T2
capable of making that decision without the assistance of

experts." Id. at 451.

Reversed and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

10 A-0563-15T2