July 20, 2007
BONNIE COLLETTI AND JOSEPH COLLETTI, HER HUSBAND, PLAINTIFFS-APPELLANTS,
COUNTY OF MONMOUTH, MONMOUTH COUNTY PARK SYSTEM, MONMOUTH COUNTY PARK RANGERS, RAYMOND COSTELLO AND BETH COSTELLO, PARENTS OF K. COSTELLO, K. COSTELLO, AND CUMBERLAND MUTUAL INSURANCE COMPANY, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5119-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2007
Before Judges Parker and Messano.
Plaintiffs Bonnie and Joseph Colletti appeal from the March 3, 2006, order granting summary judgment to defendants County of Monmouth, Monmouth County Park System, and Monmouth County Park Rangers (collectively Monmouth County or defendant).*fn1 Plaintiff contends 1) that the motion judge erred in barring her expert engineer's report as a net opinion, and 2) that even without the benefit of an expert opinion, a genuine factual dispute existed as to the dangerous condition of defendant's property and summary judgment was inappropriate. Monmouth County argues that plaintiff's expert's report was a net opinion and the motion judge correctly barred its introduction. Furthermore, defendant contends that plaintiff's injuries were caused by the actions of a third-party and not by any dangerous condition on its property and, therefore, summary judgment was warranted.
We have carefully considered these issues in light of the record and applicable legal standards. We affirm, in part, reverse, in part, and remand the matter for further proceedings.
Since we are reviewing a grant of summary judgment, we consider the facts in a light most favorable to plaintiff.
On December 31, 2000, plaintiff was in Holmdel Park, a facility owned and operated by Monmouth County, watching her children sleigh ride. She was standing in a walkway that was created by the installation of plastic mesh fencing on both sides. The children's sleigh riding hill was on one side of the walkway fence and an area where older children and adults could sleigh ride was on the other side of the opposite walkway fence.
The walkway permitted sleigh riders who had finished their ride to walk back up to the top of the hill without concern for other riders coming down. In addition, it provided an area in which those observing the sleigh riding could stand. The fencing was similar to that used to cordon off a construction site and consisted of plastic posts with hooks on them. The plastic mesh loops of the fencing were placed on the hooks and then tied to the posts with plastic "zip ties." Nothing secured the bottom of the mesh fencing to the ground.
As plaintiff stood in the walkway, defendant Kathryn Costello, who was ten years old at the time, came through, or under, the plastic fencing on her sled and struck plaintiff causing her to fall. She sustained serious injuries as a result.
Park Ranger Brock Ziegler was the first to respond to plaintiff's side and he summoned additional help. In his deposition, Ziegler testified that although he did not install the fence that year, he was involved in the placement and installation of the fence in subsequent years. This was done by the park rangers without manuals or guidelines from Monmouth County. He acknowledged that the fencing was intended to be a barrier to keep those who were sleigh riding from crossing into the walkway.
After tending to plaintiff, Ziegler looked for the sled that struck her and also investigated the condition of the fence. He observed a tear in the plastic fencing, approximately three feet wide, on the side of the walkway facing the children's hill, about five feet from plaintiff's location. Ziegler also admitted that he had seen sleigh riders tear through the plastic fencing five or six times, and, when that occurred, the rangers repaired the fencing with ties.*fn2
Park Ranger Tammy Wiatt's deposition testimony largely corroborated Ziegler's. Defendant Raymond Costello, father of Kathryn, testified that someone at the scene told him his daughter's sled had gone under the mesh fencing and struck plaintiff.
Plaintiff hired Consulting Engineers & Scientists, Inc. to render an expert's report on her behalf. On October 13, 2004, Richard E. Daniels, P.E., authored a report that concluded the defendant had "created a dangerous condition" by "fail[ing] to effectively design and/or construct and/or maintain the fence to perform its intended function which was to separate authorized and approved sledding activities from authorized and approved pedestrian activities, including . . . standing in the walkways observing sledders."
Defendant moved to bar the expert's report as a "net opinion." The motion judge noted that Daniels offered "no engineering or other standards as the basis for this opinion," "no information regarding the alleged defect in the fabric [of the fence]," which he had never inspected, and "provide[d] no factual basis for the claim that the fabric was of insufficient strength." She determined that Daniels reached a conclusion that because "an accident happened . . . there must have been some defect" and that the report "lack[ed] the wherefore and the why for the opinion." The judge entered an order barring Daniels's report.
Monmouth County subsequently moved for summary judgment. It argued that without the benefit of an expert's report plaintiff had failed to demonstrate a dangerous condition on public property as required by N.J.S.A. 59:4-2. Plaintiff countered by arguing that even without the benefit of any expert opinion, a jury question was raised as to that issue and that summary judgment was inappropriate.
The motion judge comprehensively set forth her oral decision as follows:
The Court finds that there is no proof in the record that the fence in and of itself constituted a dangerous conditions o[n] public property. While it was the combination of the fence with the activity of sledding that would have combined in order to create a dangerous condition, the Court finds that this is analogous to the situation raised in [Sharra v. City of Atlantic City, 199 N.J. Super. 535 (App. Div. 1985)] and that without the contemporaneous activity of sledding, the fence or the walkway in and of itself did not constitute a danger.
Moreover, the Court finds that based upon the lack of proof that the fence in question was of the same type that had been breached on previous occasions, that the plaintiff cannot meet [her] burden of proving that the activities of the public entity were palpably unreasonable.
The Court finds that there is no standard in the record from which a jury could gauge whether the fence was sufficiently sturdy for its intended purpose. Any findings that a jury would make in this regard would be impermissibly speculative.
She dismissed plaintiff's complaint against Monmouth County.
Plaintiffs proceeded to trial against Kathryn Costello, the only remaining defendant in the case, and the jury returned a verdict of no cause of action.*fn3 This appeal ensued.
Plaintiff first contends that the motion judge erred in barring Daniels' report as a net opinion.*fn4 We disagree and affirm the judge in this regard.
N.J.R.E. 703 requires that an expert's opinion be supported by "facts and data" either made known "at or before the hearing," or "of a type reasonably relied upon . . . in the particular field." "The net opinion rule reflects the well-established notion 'that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible.'" Scully v. Fitzgerald, 179 N.J. 114, 129 (2004) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)). The expert must give the "why and wherefore of his expert opinion, not just a mere conclusion." Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996).
Daniels's report referenced all the material he reviewed in rendering his opinion. This was limited essentially to discovery in the case. He never inspected the actual type of mesh fencing used that day, and, when he inspected the site, conditions were different from those on the date of the accident.
The report did not reference any national or industry standards for the installation or placement of fencing designed to segregate recreational activities, like sleigh riding, from pedestrian traffic. Daniels did not refer to the adequacy of the material used for the fencing or the manner in which it was attached to the posts, except to state that the material failed to accomplish what it was designed to do -- keep a sleigh rider from crossing into the walkway. We agree with the motion judge that the report was a "classic net opinion" and was properly barred from consideration.
We conclude, however, that even without an expert's opinion, the facts, in a light most favorable to plaintiff, presented a jury question -- whether the walkway was a dangerous condition on defendant's property -- that foreclosed the grant of summary judgment.
We begin by noting the standard of our review which is the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion court's application of the law was correct. Atlantic Mutual Ins. Co., supra, at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Id. at 540.]
To recover under N.J.S.A. 59:4-2, the plaintiff must show 1) that the public property was in a dangerous condition at the time of the injury; 2) that the injury was proximately caused by the dangerous condition; 3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; 4) that a public employee created the dangerous condition or that the public entity had actual or constructive notice of the dangerous condition in a enough time to protect against it; and 5) that the action or inaction of the public entity in protecting against the dangerous condition was palpably unreasonable. Coyne v. N.J. Dept. of Transp., 182 N.J. 481, 489 (2005) (citing Kolitch v. Lindedahl, 100 N.J. 485, 492-93 (1985)). A "dangerous condition" is one that "creates a substantial risk of injury when [the] property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1a.
In granting summary judgment, the motion judge relied upon Sharra, supra, 199 N.J. Super. 535. There, plaintiff was riding his bicycle on a boardwalk crowded with other cyclists. Id. at 538. A third-party riding another bike raced toward and struck plaintiff's cycle, knocking plaintiff off his bike and causing injury. Ibid. Among several theories advanced, the plaintiff argued that the boardwalk was a dangerous condition on public property. Id. at 540. We concluded, however, "[t]he term 'dangerous condition' as defined in N.J.S.A. 59:4-1a refers to the physical condition of the property itself and not to activities on the property," ibid., and affirmed the trial court's grant of summary judgment in favor of the public entity. Id. at 542.
After Sharra, however, we decided Burroughs v. City of Atlantic City, 234 N.J. Super. 208 (App. Div.), certif. denied, 117 N.J. 647 (1989). There, plaintiff dove off the boardwalk into the ocean and sustained serious injury when he struck the ocean floor. Id. at 212. Plaintiff asserted that the boardwalk was a dangerous condition pursuant to N.J.S.A. 59:4-2. Id. at 212-13. We concluded that "whether a dangerous condition is present depends on a combination of factors relating to physical condition, permitted conduct, and objectively foreseeable behavior." Id. at 218-19. We concluded that since the boardwalk was safe for its intended uses, and diving was an expressly unintended use of the boardwalk, the plaintiff could not demonstrate a dangerous condition existed. Id. at 219. See also Levin v. County of Salem, 133 N.J. 35, 37 (1993) (holding that unauthorized use of the public property, diving from a roadway bridge, does not place the property in a dangerous condition pursuant to N.J.S.A. 59:4-1a).
In Roe v. N.J. Transit Rail Operations, Inc., 317 N.J. Super. 72 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999), plaintiff was attacked and raped in a park adjacent to defendant's property. Id. at 75. The defendant had bolted open a gate permitting ingress and egress between the train station, an area of known criminal activity, and the adjacent park, thus allowing the assailant access to the plaintiff. Ibid.
Plaintiff alleged that defendant's property was in a dangerous condition that proximately caused her assault. Id. at 76. We concluded "that a dangerous condition of property may be found to exist when an unreasonable risk of harm is created by the combination of a defect in the property itself and the acts of third parties" id. at 79, and reversed the trial court's grant of summary judgment. Id. at 82.
From these cases, we synthesize the following common thread. In order to prevail, plaintiff must demonstrate a dangerous condition existed on Monmouth County's property which, when the property was being used for its intended purpose, created an unreasonable and foreseeable risk of harm singly or in combination with the acts of third parties. Applying summary judgment standards to the motion record, the evidence presented a jury question on this issue and therefore summary judgment was inappropriate.
While we agree with the motion judge that plaintiff submitted no proof as to whether the mesh fence was adequate to stop a sleigh rider from crashing through, that was not the only basis for liability. It is undisputed that the placement of the walkway at Holmdel Park was a decision made by the park rangers or their supervisor. Monmouth County chose to place plaintiff and others in between two courses it designated for sleigh riding as opposed to any other location alongside or at the bottom of the hills. It is also undisputed that plaintiff was putting the walkway to one of its intended uses, as a place to observe the riders as they came down the two hills. Thus, unlike the facts of Sharra, the activities of a third-party, Kathryn Costello, on the public entity's property were not the sole cause of plaintiff's accident. Rather, her actions, in combination with Monmouth County's decisions to construct the walkway, to place the walkway where it did, to permit observers to remain on the walkway, and to provide a barrier of only plastic mesh fencing, created a dangerous condition. Roe, supra, 317 N.J. Super. at 79.
As to the issue of whether Monmouth County acted in a palpably unreasonable manner, we note that the motion judge concluded plaintiff failed to carry her burden because there was insufficient evidence as to any prior breaches of mesh fencing that was similar to the fencing used on the day in question. As we already noted, whether these other incidents occurred before or after plaintiff's accident is unclear. However, a reasonable inference could be drawn from the deposition testimony that the fencing was the same and that Monmouth County chose to utilize a different, stronger fencing, after plaintiff's accident. In any event, whether the public entity's conduct was palpably unreasonable usually presents a jury question, Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 130 (2001), and we conclude a jury question existed on this issue in this case.
We therefore reverse the motion judge's grant of summary judgment in favor of Monmouth County.
In sum, we affirm the motion judge's order barring the plaintiff's use of the expert report prepared by Daniels. The opinions expressed therein are net opinions and were not admissible. N.J.R.E. 703. We reverse the motion judge's grant of summary judgment to Monmouth County because the motion record presented a genuine factual dispute as to whether the county's property was in a dangerous condition on the day in question and whether its actions or omissions were not palpably unreasonable.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.