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September 29, 1999


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 excluded, but nevertheless, summary judgment is appropriate and will be granted in defendants' favor.


A. In General

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.)

B. The Accident

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.)

The pantry itself was about three feet deep and about five and ¼ feet in length, and it was configured in such a way that if someone wanted to get to the far right side, he would first have to walk inside the pantry. (Iocovone Certif. Ex. G.) As the officers approached the dark closet (Bennett Dep. at 36; Ott Dep. at 19) slowly and cautiously (Ott Dep. at 18-19), plaintiff saw that the closet was full of boxes of items which obscured his view of the far right side of the closet, but he entered the closet to see where he thought Taylor might be hiding. (Bennett Dep. at 36-39.) After entering the closet, plaintiff's first footstep went through the open access hole in the closet floor, which had been left uncovered by persons unknown. (Id.) Ott lifted Bennett from the hole and checked the closet and the crawl space, but Doug Taylor was gone. (Ott Dep. at 22-23.)

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 ...

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