The opinion of the court was delivered by: Simandle, District Judge.
Plaintiffs filed the instant lawsuit claiming that, as a result
of the defendants' negligence and creation of a nuisance,
plaintiff Thomas B. Bennett fell while in the line of duty as a
police officer on defendants' premises, causing him great pain,
emotional anguish, and expenses. Now before the Court is the
defendants' motion to exclude plaintiffs' proffered expert's
report and testimony, or, in the alternative, for summary
judgment. Discovery has been concluded and the Court has
carefully considered the submissions of the parties and the oral
arguments of counsel. For the reasons stated herein, part of the
proffered expert's report will be excluded, and part will not be
but nevertheless, summary judgment is appropriate and will be
granted in defendants' favor.
Plaintiff, Thomas Bennett, was injured on October 28, 1995,
when searching for an alleged criminal possibly hiding in the
utility crawl space below apartment 196 on defendants' premises.
Plaintiff fell through the access hole in the floor, which was
normally protected by a sturdy cover, which had apparently been
pried open and left uncovered in the dark closet in which it was
located. Defendant Real Property Services Corp. ("RPS"), a
Delaware Corporation, has owned Burlington Manor Apartments
("Burlington"), an apartment complex in Bridgeton, New Jersey,
since 1981. (Bernhart Certif. ¶¶ 2, 6.) RPS did not design, plan,
layout, or construct the apartment complex, but rather purchased
it from a previous owner. (Id. at ¶ 7.)
At the time of purchase, the majority of the first floor
apartments contained no more than one access hole in the floor,
leading to crawlspaces which run the length of the apartments and
contain plumbing, heating, electric, and phone equipment. (Id.
at ¶ 8.) The holes themselves are approximately two feet by two
feet in dimension, and they go down approximately three feet.
(Gray Certif. ¶ 10.) The access holes, which are located in areas
such as closets and other areas not heavily trafficked by people
(Bernhart Certif. ¶ 10), are covered by heavy wooden covers,
designed to sustain the weight of whatever might be placed upon
them (Gray Certif. ¶ 11), and which fit flush with the
surrounding floor except for a narrow lip bordering the access
hole cover; they do not present a tripping hazard, and they
cannot be accidentally or mistakenly removed, but rather must be
intentionally pried open. (Bernhardt Certif. at ¶ 9.) The covers
are not hinged to the floor or otherwise bolted down. (Posusney
Aff. ¶ 6.) They are removed by contractors when work needs to be
done to plumbing and sewerage pipes, heater pipes, electric
wiring, and telephone wires. (Gray Certif. ¶ 17.)
The accident and injury to the plaintiff were most unfortunate.
On October 28, 1995, at approximately 11:45 a.m., Bridgeton
police officer Thomas Bennett (plaintiff) responded to a call at
Burlington in order to assist with an incident in which Ms.
Lakesha Goldsboro was struck in the head with a board. (Iacovone
Certif. Ex. H [Bridgeton Police Report].) Another officer
arrested the woman who struck Goldsboro, while plaintiff
accompanied Goldsboro to the hospital. (Id.) In the meantime,
the police learned that another individual, Mr. Doug Taylor, was
involved in the altercation, and that Taylor was hiding in
Goldsboro's apartment, apartment number 196 at Burlington. (Ott
Dep. at 12:12-18; Bennett Aff. ¶ 3.) Plaintiff and Ott went to
arrest Taylor. (Id.)
They arrived at unit 196 at about 1:30 p.m., and they found
another man in the apartment but did not immediately see Taylor.
(Bennett Dep. at 33-35; Bennett Aff. ¶¶ 4-6; Ott Dep. at 14-17.)
Plaintiff described the mood as excited — Goldsboro was excited
and he was rushing. (Id.) Eventually, Ott entered through the
back door and began searching upstairs; finding nothing, he
returned downstairs, and both officers entered the kitchen.
(Id.) There, the unidentified older man pointed toward a closet
or pantry, which both officers understood to mean that Taylor was
hiding inside. (Id.)
There is no evidence that defendants or defendants' contractors
left this access cover open, and, as discussed below, there is no
inference that this might be so based on all that is known about
these access covers at the Burlington Apartments over the years.
Indeed, as discussed, the only available inference is that the
apartment dweller (Ms. Goldsboro) or the fleeing perpetrator (Mr.
Taylor) had pried the access hole cover open and thereby created
the danger to Officer Bennett.
C. Access Hole Safety at Burlington
Burlington and RPS had no knowledge that the access hole was
uncovered at the time of the accident. (Gray Certif. ¶ 22.) The
access hole in apartment 196, which was uncovered on the day of
the accident, was covered when the apartment was rented to
Goldsboro, and inspections and maintenance visits to the
apartment during her tenancy showed that the access hole cover,
as far as RPS, HUD, and the City knew, was never missing or
needed to be repaired. (Bernhart Certif. at ¶ 48.)
Jerry Gray, the maintenance supervisor at Burlington at the
time of the accident and superintendent for the last eighteen
years, testified that he was not aware of any rules or
regulations that prohibit tenants from using the access openings.
(Lincoln Reply Certif. ¶ 9.) Additionally, there are no warnings
written in the apartment that there is an access cover which must
remain on at all times. (Iocovone Aff. ¶¶ 12-13.) However, Gray
also said that when tenants are shown the apartments when they
first move in, they are verbally instructed by the Building
Manager about the existence of the access openings and are
instructed not to store their property on top of the access
openings or to go down into the crawlspace. (Gray Reply Certif. ¶
5.) In particular, Ms. Lakesha Goldsboro, the tenant of the
apartment in question in this case, Apartment 196, was aware,
based on her interaction with Mr. Gray, that the access opening
was for maintenance purposes and that she was not supposed to
take the cover off, go down into the crawlspace, or store
property on top of the opening. (Id. at ¶ 6.)
According to Ernest Higgs, a building inspector for the City of
Bridgeton for the last ten years who has a working knowledge of
both the Uniform Construction Code and the 1993 Building
Officials and Code Administrators National Building Code ("BOCA
Code") (Higgs Aff. for Defs. ¶ 2), the use of trap doors in an
apartment building is in a gray area, meaning that no specific
code section governs the use of them, but that they must be
closed or guarded at all times, for an open, unguarded trap door
is a hazard which would violate the Uniform Construction Code.
(Higgs Aff. for Pls. ¶ 4.) Mr. Higgs indicated that if he were to
observe an open, unguarded trap door at Burlington, he would cite
the owner for a violation of the code. (Id.) Mr. Higgs also
indicated, however, that the access panels that exist at
Burlington do not violate any section of the Uniform Construction
Code or the 1993 BOCA Code, and that the City of Bridgeton has
never cited Burlington for any violation related to the access
panels. (Higgs Aff. for Defs. ¶ 3.)
The Burlington apartment complex had been inspected regularly
over the years, by the United States Department of Housing and
Urban Development ("HUD") (Bernhardt Certif. ¶ 16), by RPS itself
when tenants move in and out and on a yearly basis (id. at ¶
17), and by the City of Bridgeton during changeovers of tenants.
(Id. at ¶ 21.) Never, during any of
those inspections and over the years, have there been reported
accidents, complaints, or requests for maintenance with regard to
the access panels or their covers in any apartment, (id. at ¶
20; Gray Certif. ¶ 13), and Burlington has never been cited by
its own internal inspections, city ...