NOT FOR PUBLICATION WITHOUT THE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.
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