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Grzymala v. McKeon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 31, 2007

RONALD GRZYMALA AND KATHRYN A. GRZYMALA, PLAINTIFFS-APPELLANTS,
v.
DONALD A. MCKEON, SR., MARY JO MCKEON AND YALE ENTERPRISES, L.L.C., D/B/A RE/MAX SUBURBAN, DEFENDANTS,
AND HARRIETS OIL SERVICE AND PEASE ENGINEERING, INC., DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-328-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 24, 2007

Before Judges Coburn, R. B. Coleman and Gilroy.

Plaintiffs Ronald Grzymala and Kathryn A. Grzymala appeal from: 1) the July 22, 2005, order of the Law Division, granting summary judgment to Pease Engineering, Inc. (Pease Engineering)*fn1 ; 2) the February 3, 2006, order dismissing Count Twelve of the amended complaint as to Harriets Oil Service (Harriets); and 3) a second order of February 3, 2006, denying their cross-motion for leave to file a second amended complaint.*fn2 We affirm in part and reverse in part.

This action arises from plaintiffs' purchase of a single-family dwelling at 8 Carolyn Lane, Southampton, from defendants Donald A. McKeon, Sr., and Mary Jo McKeon on July 27, 2001, following plaintiffs' post-closing discovery that soil, surrounding a portion of the home's foundation located underneath a wooden deck, was contaminated by fuel oil. On February 25, 2003, plaintiffs filed an amended complaint against defendants: McKeons; Harriets, a retail fuel oil company that had delivered fuel oil to the premises during both the McKeons' and plaintiffs' ownership; Pease Engineering, plaintiffs' home inspection company; and Yale Enterprises, LLC, d/b/a Re/Max Suburban (Re/Max), the McKeons' real estate broker.

The first eleven counts of the amended complaint sought damages for property damage only. Counts One through Four asserted negligence, gross negligence, negligent misrepresentation, and intentional misrepresentation against the McKeons. Counts Five through Seven asserted gross negligence, intentional misconduct, and willful, wanton, and reckless misconduct against Harriets. Counts Eight and Nine asserted negligence and gross negligence against Pease Engineering. Counts Ten and Eleven asserted negligence and negligent misrepresentation against Re/Max. Finally, Count Twelve asserted a personal injury claim on behalf of Ronald against all defendants.

On June 23, 2003, the McKeons filed a motion to dismiss the amended complaint. On August 22, 2003, the motion was granted as to Count Twelve, but was denied as to Counts One through Four.*fn3 A confirming order was entered the same day. Following settlement on the property damage claims against Harriets, plaintiffs filed a stipulation of dismissal, dismissing Counts Five through Seven of the amended complaint. The stipulation provided in pertinent part that "[i]t is stipulated and agreed by the parties that this dismissal shall not affect, nor be deemed a dismissal of, [p]laintiffs' claims for personal injury under the amended complaint . . . ." On May 5, 2005, Pease Engineering moved for summary judgment, contending that it had not deviated from its standard of care as a home inspection company, and it was not required to inspect the underground storage tank (UST) or surrounding soil. The motion was granted on July 22, 2005, and a confirming order was entered that day. On November 21, 2005, a stipulation of dismissal with prejudice was filed as to Re/Max.

On December 23, 2005, the McKeons filed a motion for summary judgment seeking to dismiss the property damage claims asserted against them. On January 17, 2006, Harriets filed a motion seeking to dismiss Count Twelve, the only remaining count against it, contending that the count did not state a cause of action for personal injury as evidenced by the court's grant of the McKeons' prior motion on August 22, 2003. Plaintiff opposed, contending that Count Twelve stated a claim for personal injuries; and in the alternative, plaintiffs' cross-moved to file a second amended complaint seeking to assert a personal injury claim on behalf of Ronald. The trial court granted Harriets' motion; denied the McKeons' motion without prejudice; and denied plaintiffs' motion for leave to file a second amended complaint. Confirming orders were entered on February 3, 2006. On March 5, 2006, a stipulation of dismissal was filed, dismissing the complaint with prejudice as to the McKeons.

On appeal plaintiffs argue:

POINT I.

THERE ARE CLEAR ISSUES OF MATERIAL FACT THAT PRECLUDED PEASE [ENGINEERING] FROM OBTAINING A DISMISSAL IN THIS LAWSUIT.

POINT II.

THE COURT INCORRECTLY RULED THAT PLAINTIFFS' CLAIMS AGAINST HARRIET[S] FOR PHYSICAL INJURY HAD BEEN DISMISSED.

POINT III.

THE COURT IMPROVIDENTLY DENIED PLAINTIFFS' MOTION SEEKING LEAVE TO AMEND THE COMPLAINT.

On April 22, 2001, plaintiffs and the McKeons executed a contract for the purchase and sale of the property. The contract provided that plaintiffs could have the home inspected to determine whether any structural problems existed, including "possible environmental conditions affecting the property such as presence of radon gas, . . . toxic chemicals or other pollutants in the soil, air, or water." The contract further provided that plaintiffs could arrange for a test of the existing UST for leakage and the surrounding soil for contamination. Plaintiffs engaged Pease Engineering to perform the home inspection. On May 14, 2001, Pease inspected the property but did not test the UST or its surrounding soil. Pease conducted a radon test in the home from June 13, 2001, to June 15, 2001, during which all windows and doors were kept closed. On June 15, 2001, Pease entered the home and recovered two radon gas testing canisters from the basement. At no time during the inspections did Pease ever detect an odor of fuel oil. Plaintiffs never arranged for an inspection of the UST and of its surrounding soil. Satisfied with the home inspection, the parties closed title on July 27, 2001.

In 1995, Ronald was diagnosed with esophageal cancer and was treated with radiation and chemotherapy. In the summer of 2001, Ronald developed gradual swelling in his neck and closure of his trachea, requiring a tracheotomy. In August 2001, Ronald began detecting an odor of fuel oil inside the home's basement.

On November 5, 2001, plaintiffs received their first post-closing delivery of fuel oil from Harriets. During the delivery, oil flowed onto the ground from the UST's vent pipe located underneath the home's attached wooden deck. Harriets immediately reported the spill to plaintiffs and contacted Meridian Environmental Services, Inc., to perform a cleanup of the spill. On November 7, 2001, Christopher DeLucca of Meridian investigated and concluded that the oil spill was caused by overfilling the UST on November 5, 2001. DeLucca opined that the oil spill was "fresh." "You could see the stain on the ground, exactly where the oil was[,] and you could tell that it was fresh oil that had just spilled out of the tank through the vent pipe. There was a remote fill, a pump through the remote fill, and it came up out of the vent pipe." DeLucca did not find any evidence of a defect in the UST or of any prior soil contamination. The cleanup was extensive, requiring the removal of the wooden deck, because some of the oil had seeped underneath the foundation, found as deep as fourteen-and-one-half feet.

On February 26, 2003, plaintiffs filed an amended complaint, alleging that significant soil contamination had occurred prior to their purchase of the property. Concerning Ronald's personal injury claim, plaintiffs alleged that contaminants contained in the petroleum fumes had caused closure of his trachea.

Defendants first challenge the grant of summary judgment to Pease Engineering, arguing that they had raised material questions of fact, requiring that the motion be denied. Plaintiffs contend that Pease was negligent by failing to follow the standard of care of a home inspector and by failing to detect contaminants in the soil around the UST during his May/June 2001 inspections. In support of their argument that the soil contamination had occurred over a long period of time and not just from the single spill of November 5, 2001, plaintiffs relied on an April 29, 2005, report from George M. Klepp, a hydrologist, in which he stated it was "unlikely that the oil contamination at the Grzymala property was the result of a single overfill event."*fn4 Plaintiffs also relied on a certification and confirming deposition testimony of their friend, Richard L. DeFalco, who stated that he had noticed a diesel fuel smell in August 2001, by the rear of plaintiffs' garage, in the general vicinity of the UST's fill pipe. Plaintiffs argue that Klepp's opinion and DeFalco's statement raised questions as to whether the fuel oil contamination condition existed on the property prior to the closing of title and that the condition should have been noted in Pease's inspection report. Plaintiffs assert that the evidence directly implicates Pease's failure to observe and disclose the contaminated soil condition, warranting a denial of the motion for summary judgment. We disagree.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Plaintiffs did not offer any proofs that there was noticeable evidence of fuel oil contamination when Pease performed the inspection and testing of the property in May/June 2001. Pease never detected the odor of fuel oil when he visited the property, even during the radon testing, which required closed housing conditions. None of the evidence offered through the testimony and statements of Ronald and DeFalco, or in Klepps's report, raised material questions of fact concerning Pease's inspection. Ronald and DeFalco stated they had detected an odor of fuel oil in August 2001, several months after Pease's inspection. Klepps's report simply states, "It is unlikely that the oil contamination at the Grzymalas' property was the result of a single overfill event." At best, the report states that the oil contamination may have happened before November 2001. However, it does not state that any contamination had occurred before Pease's inspection.

Plaintiffs cite to Klepps's supplemental report to support their allegation that Pease had failed to observe the "staining on the foundation wall beneath the deck." As previously stated, we have not considered the report because it was not presented to the trial court at the time of the motion. Moreover, even if we were to have considered the supplementary report, there is no evidence that the stain referenced in the report existed at the time of the home inspection. Klepp observed the stain on the foundation wall after the wooden deck had been removed. He had no knowledge of the condition of the property prior to November 2001, and provides no facts to dispute Pease's testimony that the property was free of fuel oil odors in May/June 2001. Additionally, Klepp failed to state what portion of the wall was visible to Pease at the time of his inspection. There is no reason to expect Pease to have noticed the stain because the stain was on the foundation wall beneath the deck. Klepp was only able to observe the stain because the deck had been removed. Moreover, Ronald had accompanied Pease during the home inspection and never detected the odor of fuel oil in May 2001. Nor did Ronald and his wife detect the odor of fuel oil during their earlier home inspections prior to signing the contract to purchase in April 2001. Therefore, plaintiffs' contention that Pease should have observed the fuel oil contamination at the time of his inspections is not supported by the record.

Lastly, plaintiffs argued that Pease Engineering breached its duty of care in performing the home inspection. We find the argument meritless.

To establish a cause of action in negligence, a plaintiff must prove: "(1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) and injury to plaintiff proximately caused by defendant's breach." Andre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). Generally, negligence is not presumed, and the burden of proving negligence rests on the plaintiff. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 338 (App. Div. 2000). Accordingly, plaintiffs were required to prove that Pease failed to perform the home inspection in accordance with the standard of care required of home inspectors.

We are satisfied that expert testimony on the issue was required. "[A] jury should not be allowed to speculate without the aid of expert testimony in any area where lay persons could not be expected to have sufficient knowledge or experience." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2007). Simply stated, "expert testimony is required when the subject matter is so esoteric that jurors of common judgment and experience cannot form a valid judgment." Ibid. N.J.R.E. 703 requires that an expert's opinion be based upon "facts or data . . . perceived by or made known to the expert at or before the hearing." "An expert's conclusion is considered to be a 'net opinion' and thereby inadmissible when it is a bare conclusion unsupported by factual evidence." Creanga v. Jardal, 185 N.J. 345, 360 (2005) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).

Plaintiffs were required to provide expert opinion as to whether Pease was obligated to inspect the foundation wall, lying beneath the wooden deck, or to test the UST tank and its surrounding soil. Plaintiffs failed to provide this guidance. Although plaintiff produced the April 29, 2005, report of George M. Klepp, a hydrologist, the report does not contain any opinion as to whether Pease deviated from the standard of care required of home inspectors. In fact, the report contains no comments regarding Pease's home inspection or Pease's report. To the contrary, Pease testified that he performed the inspection and prepared his report in accordance with the American Society of Home Inspectors (ASHI) standards, which provide that home inspectors are not required to: 1) determine "the condition of systems or components which are not readily accessible;" 2) determine "the presence of any environmental hazards, including, but not limited to . . . contaminants in soil, water, and air;" and 3) inspect "underground items including, but not limited to, underground storage tanks or other underground indications of their presence, whether abandoned or active." Plaintiffs offered no evidence that Pease failed to perform his inspection in accordance with the ASHI standards, or any other appropriate standard.

Plaintiffs argue next that the trial judge erred in granting Harriets' motion to dismiss Count Twelve of the amended complaint for failure to state a cause of action. In the alternative, plaintiffs contend that the judge should have granted their motion for leave to file a second amended complaint, restating Ronald's personal injury claim. Harriets counters that the order of August 22, 2003, dismissed Count Twelve as to all defendants. Alternatively, Harriets argues that because Count Twelve merely made conclusionary statements against all defendants and the trial judge had previously dismissed that count for failure to state a cause of action as to the McKeons, Harriets was entitled to the same relief. Harriets asserts that the court's prior ruling regarding the McKeons became the "law of the case." We disagree.

On a Rule 4:6-2(e) motion to dismiss a complaint for failure to state a claim, the court applies an indulgent standard. "[T]he plaintiff is entitled to a liberal interpretation of [the] contents [of the complaint] and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn" therefrom. Burg v. State, 147 N.J. Super. 316, 319 (App. Div.) (quoting Rappaport v. Nichols, 31 N.J. 188, 193 (1959)), certif. denied, 75 N.J. 11 (1977). Every reasonable inference is accorded the plaintiff, Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989), and the motion is "granted only in rare instances and ordinarily without prejudice." Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2007).

"Except as may be more specifically provided by these rules in respect of specific actions, a pleading which sets forth a claim for relief, . . . shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement." R. 4:5-2. On a challenge to the adequacy of a complaint, "all facts, reasonable inferences and implications are to be considered most strongly in favor of the pleader." Spring Motors Distributors, Inc., v. Ford Motor Co., 191 N.J. Super. 22, 29-30 (App. Div. 1983), aff'd in part and rev'd in part on other grounds, 98 N.J. 555 (1985). "A complaint . . . is not required to spell out the legal theory upon which it is based." Farese v. McGarry, 237 N.J. Super. 385, 390 (App. Div. 1989). "Each allegation of a pleading shall be simple, concise and direct, and no technical forms of pleadings are required. All pleadings shall be liberally construed in the interest of justice." R. 4:5-7.

Although we are somewhat impeded by the parties' failure to include a copy of the transcript from the August 22, 2003 proceeding, setting forth the trial judge's findings of fact and conclusions of law as to why she granted the McKeons' motion to dismiss Count Twelve, we are satisfied that the order only dismissed that count as to the moving parties, not as to all defendants. Accordingly, we reject Harriets' argument that Ronald's personal injury claim was dismissed by the order of August 22, 2003. We are also satisfied that the claim should not have been dismissed solely because Count Twelve was dismissed as to the McKeons.

On February 26, 2003, plaintiffs filed their amended complaint, setting forth in Paragraphs 7 through 33 general allegations against all defendants. In Paragraphs 27, 28, and 29, plaintiffs alleged that following their purchase of the property, Ronald experienced a medical crisis when his trachea closed, requiring immediate medical assistance; Ronald's medical condition was exacerbated by the petroleum vapors in the residence; and Ronald continues to suffer from the medical condition. Counts Five, Six, and Seven incorporated the prior allegations of the amended complaint and set forth causes of action against Harriets, sounding in gross negligence, intentional misconduct, and willful, wanton, and reckless misconduct. Count Twelve designated "personal injury" again incorporated all previous allegations of the amended complaint and alleged that Ronald suffered a medical emergency, incurred medical costs, and will continue to incur medical costs into the future, following his exposure to the toxic and hazardous constituents found in the heating oil odors in the residence. Count Twelve sought a declaration or judgment that defendants were liable to Ronald for damages.

If Count Twelve stood alone, not incorporating the prior allegations of the amended complaint, we would agree that it failed to state a cause of action, merely setting forth conclusionary statements. However, Count Twelve incorporates all prior allegations of the amended complaint, which when read indulgently in favor of plaintiffs, sets forth a viable claim for personal injuries. Accordingly, Count Twelve should not have been dismissed for failure to state a claim upon which relief would be granted, assuming that was the sole basis for the dismissal as argued by Harriets. However, that issue is not before us. Plaintiffs and the McKeons having settled their differences. Because the order of August 22, 2003, was limited to the McKeons, plaintiffs were not under an obligation to appeal therefrom. Therefore, even if the order of dismissal was improvidently granted as to the McKeons, we determine that the judge mistakenly granted Harriets' motion to dismiss Count Twelve and remand that issue to the trial court for resolution. In remanding the matter, we do not pass upon the merits of Ronald's personal injury claim. Having determined that Count Twelve should not have been dismissed as to Harriets, we consider the denial of plaintiffs' motion for leave to file a second amended complaint moot.

Affirmed in part; reversed in part; and remanded to the trial court for further proceedings.


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