On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6080-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Weissbard.
Plaintiffs, Andres Contreras, Jose Montalvo and Maria Serrano appeal from the dismissal of their suit against defendant, Spiniello Companies. We affirm in part, reverse in part, and remand for trial.
Defendant was hired by the City of Newark to reconstruct sewer lines in the vicinity of plaintiffs' homes. On the evening of August 2, 2002, employees of defendant ruptured a sewer line on North 13th Street, causing water and sewage to overflow onto North 13th Street, resulting in damage to the basements and first floors of homes on the street, including those of plaintiffs. The accident was immediately reported, and representatives of defendant responded, observing and taking photographs and a videotape of the damage. Contreras lived at 69 North 13th Street, Montalvo lived at 82 North 13th Street, and Serrano lived at 84 North 13th Street.
On July 30, 2004, plaintiffs, along with Rafael Casanova, Hector Coon, Roberto Marques and Denise Mendez, initiated suit against defendant and the City of Newark. In March 2005, the case was consolidated with an earlier suit arising out of the same incident instituted by Mark Stokes. In January 2006, the consolidated cases were bifurcated as to liability and damages.
On January 18, 2006, in response to a motion in limine, Judge Schott ruled that defendants were liable to plaintiffs. On April 13, 2006, however, defendants' unopposed motion for summary judgment was granted as to Stokes, but denied as to the remaining plaintiffs who did oppose it.
On June 5, 2006, the case was assigned for trial on the issue of damages. On defendants' in limine motion, the judge ruled that plaintiffs were unable to prove their damages by competent evidence and dismissed the complaint with prejudice, entering a judgment of no cause in favor of defendants against plaintiffs Contreras, Marques, Mendez, Montalvo, and Serrano.
At the same time, the judge entered judgment in favor of plaintiff Casanova in the amount of $2609, and in favor of plaintiff Colon in the amount of $12,598.07. Contreras, Montalvo and Serrano appeal, arguing that expert testimony was not necessary to prove their damages and they should have been permitted to present their damage proofs to a jury. We agree in part with that contention.
There were three categories of damages at issue; claims for lost rental income, claims for loss or damage to personal property, and claims for repair or replacement of certain property. Plaintiffs have not appealed dismissal of their claims for personal injuries.
In ruling against plaintiffs, the judge said the following:
Now, all of the other claims, and I think the Court has already expressed its views upon the lost rents, there is no evidence at all that would support the damage claims made by the plaintiffs for lost rents. Plaintiffs are not entitled to a gross amount. From the amount [would] have to be deducted various expenses, and there is no evidence as to what those expenses are. Plaintiffs have just set forth gross amounts and cannot prove what their actual profit would have been on the rents. I don't see how a jury could possibly make a damage award for lost rents based upon the evidence that has been submitted to the Court.
And the same holds true for the personal property claim, and the repairs claim, and in some instances the lost property claims . . . there's no competent evidence, . . . there are no documents, there are no reports from experts or public adjusters, or even a realtor that could give guidance as to what the actual damages are in this case for the various items claimed by the plaintiffs. There's no proof that the plaintiffs paid anybody to do any ...