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Calamia v. Kempton


February 13, 2008


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County, L-2404-03.

Per curiam.


Submitted: January 14, 2008

Before Judges A.A. Rodríguez and C.L. Miniman.

Plaintiff Dr. Edith Ann Calamia-Ombrellino appeals from the mid-trial dismissal of her complaint against defendant John Kempton for personal injuries sustained in a fall on a short flight of stairs to the basement of defendant's home. We conclude that the trial judge erred in two respects and reverse.

Plaintiff and her fiancé accompanied by a realtor went to inspect defendant's home, which was listed for sale. They arrived in the afternoon of May 24, 2003, and entered through the front door. Defendant was home at the time. Plaintiff and her companions looked at the bedrooms upstairs and walked back down to the main level. They then went to the basement staircase. The first step down from the landing was awkward and plaintiff lost her footing. She grabbed for a handrail but none was there. Plaintiff fell down all five steps and landed on the basement floor. Plaintiff injured her right ankle, left shoulder, back and neck. She was diagnosed with a torn ligament in her right ankle.

Plaintiff's complaint was filed on September 5, 2003, and an answer was filed the following month. Plaintiff's experts, Tom McNamara and Andrew Nilsen of Hard Facts Investigative Engineering, inspected the premises on February 20, 2004, and issued a report four days later. They opined that the basement staircase revealed several building code violations.

First, the landing length was only twenty-eight inches and should have been thirty-eight pursuant to the building code. Second, the riser heights were not uniform. Although the building code requires a maximum riser height of seven and three-quarter inches with all risers uniform, the first riser at the top was a half inch less then code, the second riser was an inch more than code, the third riser was a half inch more than code and the fourth and fifth risers were three-quarters of an inch more than code. Third, the tread dimensions also were not uniform although the building code requires minimum tread widths of not less than nine inches exclusive of nosing with all treads uniform in width. The first tread was half an inch wider, the second tread was three-quarters of an inch wider, the third tread was one and a quarter inches wider and the fourth tread was one inch wider. Fourth, the building code required at least one handrail for this staircase yet none was provided. Fifth, both sides of the staircase were not enclosed with walls as required by the building code. Sixth, although the staircase was adequately lit, there was insufficient headroom over the staircase.

The experts concluded as follows:

The opinions and conclusions expressed in this report are based on the information available and are within a reasonable degree of engineering probability and scientific certainty.

1. The subject staircase contained numerous code violations specific to the current and applicable building code requirements.

2. The variation of raiser [sic] and tread dimensions in conjunction with the lack of any handrails would be considered a tripping hazard.

Nothing in the record suggests that this report was not served on defendant shortly after it was received.

The matter was first reached for trial on December 11, 2006, although it had been listed for trial more than a dozen times before, and plaintiff and a fact witness testified on December 12, 2006. Plaintiff's expert was scheduled to testify the following day, but the case was mistried when plaintiff's doctor was not available. The case was again reached for trial on February 7, 2007, and plaintiff, a witness and plaintiff's doctor all testified. Plaintiff's husband and her engineering expert, Tom McNamara, were scheduled to testify on February 8, 2007. After plaintiff's husband testified as scheduled, defendant objected to McNamara's qualifications and sought an N.J.R.E. 104 hearing to determine whether he was qualified as an expert.

During the hearing McNamara testified that he had a bachelor's degree in para-technology and a master's degree in mechanical engineering. He worked as an automotive engineer for three car companies and for the past seventeen years he had been the owner of Hard Facts, a forensic engineering firm licensed to practice engineering in New Jersey. He also testified that he had extensive experience in construction projects, including a boat house for Trenton State College, a ten-home subdivision in Arizona and a vocational training complex in Oregon. He also served as the construction foreman for many projects at Fort Dix and co-designed and constructed upscale family homes to withstand Class 3 hurricanes in shore communities in New Jersey. He testified that he was very familiar with the code of Building Officials and Code Administrators International, Inc., known as the "BOCA National Building Code," and has provided forensic engineering services for insurance companies presented with homeowner claims and accident reconstruction for the Port Authority. He holds various teaching and engineering licenses, although not in New Jersey, and has been qualified on a dozen occasions as a construction code compliance officer. He also testified that he has constructed many staircases over the years.

On cross-examination McNamara admitted that he personally did not have an engineering license, having chosen instead to secure the firm license, which he testified empowered him and his employees to do forensic engineering and remain in compliance with the Board of Professional Engineers. He also admitted that he entered into an agreement in lieu of disciplinary proceedings with the Attorney General for practicing engineering without a license and, pursuant to that agreement, he secured the firm license.

After this testimony was elicited, defendant moved to bar testimony from McNamara because he was not a licensed professional engineer and thus not qualified to testify in that field. The judge then conducted some voir dire of McNamara, who testified that as a certified instructor of industrial arts he dealt with the world of construction and has taught classes on constructing bleachers, building houses and railroad tracks and has dealt with structural issues of homeowner claims. He testified that he had been qualified as an expert in court in automotive engineering and fire and construction cases as well as construction code compliance. Furthermore, with respect to the ten-home subdivision in Arizona, McNamara and his brother physically built the houses and he constructed staircases in the homes. He also designed and built a ranch house in New Jersey and was familiar with the building code in New Jersey.

The judge specifically questioned McNamara about the license held by his firm. McNamara acknowledged that the license number is preceded by two letters, "GA." He further admitted that the license form has a legend indicating that "GE" meant professional engineer, "GS" meant land surveyor and "GB" meant professional engineer and land surveyor. The form did not explain the "GA" designation and McNamara could not explain what it meant. The judge then asked counsel what an engineering authorization certificate entitled a person to do and stated that he had a problem with McNamara testifying as an expert in engineering in light of N.J.S.A. 45:8-27*fn1 without having an answer to his query. However, the judge determined that McNamara could testify has an expert in construction code compliance. During a recess, plaintiff's counsel contacted the Board of Professional Engineers and represented that he was told Hard Facts's license was active, that the company is licensed to practice engineering, that employees of the firm were also licensed professional engineers and that anyone in the company can give an engineering opinion. Plaintiff again proffered McNamara as a forensic engineer. The judge, however, was not satisfied with that information and asked to be shown authority in black and white for McNamara to testify as such. Counsel replied, "I would have to brief the issue."

Defendant then objected to testimony from McNamara on the ground that he personally did not do the measurements taken from the staircase; rather, the measurements were done by Nilson, who was no long with Hard Facts. Thus, defendant argued first that the testimony of McNamara would constitute an impermissible net opinion. He argued second that the report did not describe the mechanics of the injury and did not opine on proximate causation based on the alleged code violations. It was at this point that defendant handed his brief in support of the in limine motion to plaintiff and the judge. Plaintiff was given an opportunity to read the brief. Defendant then argued that the report expressed only an impermissible net opinion.

Plaintiff contended that the motion should have been made prior to trial and she objected to its timeliness. She pointed out that "GA" meant "general authorization." She also argued that her expert was qualified to testify because McNamara co-authored the report. It was not a net opinion because it was based on facts gleaned by the expert from discovery and an interview of plaintiff. In the alternative, if it was a net opinion, there was no need for an expert because it was a res ipsa case.

The judge determined that McNamara was qualified as an expert in construction code compliance but could not testify as an engineering expert because he did not have a personal license as a professional engineer. The judge concluded that the report should have been signed by a professional engineer on the staff of Hard Facts and, thus, the report was insufficient. He also determined that the report was a net opinion because the conclusions lacked factual specificity and had no connection to the basis for the conclusions. Specifically, there was no biomechanical relationship between taking the first step down from the landing and having no handrail with plaintiff's fall. The judge concluded that the testimony would not be helpful to the jury and he barred the report and barred McNamara from taking the stand. Next, the judge concluded that it was not a res ipsa case because a fall down a flight of stairs does not bespeak negligence of the owner. He also found that plaintiff could not proceed with the case without a qualified expert. Plaintiff sought an opportunity to have one of the licensed professional engineers on staff at Hard Facts appear and testify, but the judge denied this request because discovery was complete and they were in the middle of a trial. As a result, he dismissed the action with prejudice. The judge thereafter denied plaintiff's motion for a new trial and for discovery.

Plaintiff contends on appeal that the Hard Facts report was not a net opinion, that even if it was a net opinion plaintiff had nonetheless proven that the staircase was defective because it had no handrail, that plaintiff testified to the proximate cause of her fall and that the case should have been submitted to the jury. She also contends that exceptional circumstances mandated the reopening of discovery to permit her to secure a report from one of the engineers on the staff of Hard Facts so that such engineer could testify at the trial.

"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" and, hence, our review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Where a ruling is based on an erroneous view of the law, we need not defer to a trial judge's discretionary ruling. Paradise Enters. v. Sapir, 356 N.J. Super. 96, 102 (App. Div. 2002), certif. denied, 175 N.J. 549 (2003). The decision to bar the testimony of McNamara and the denial of the new-trial motion are legal determinations which we review de novo.

An order of dismissal also is a legal, not a factual, question and we review an involuntary dismissal by the same standard that governs the trial court. The standard of review for granting a motion for an involuntary dismissal is set forth in Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969), where the Court held:

[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deducted therefrom, reasonable minds could differ, the motion must be denied. The point is that the judicial function here is a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. [Ibid. (citations omitted) (emphasis added).]

This standard is to be applied at the close of plaintiff's proofs and at the close of all the evidence. Bell v. E. Beef Co., 42 N.J. 126, 129 (1964); Bozza v. Vornado, Inc., 42 N.J. 355, 357-58 (1964); Walsh v. Madison Park Props., Ltd., 102 N.J. Super. 134, 138 (App. Div. 1968). Our review of the action of the trial judge in dismissing the complaint is guided by the applicable standard of whether the evidence, together with all reasonable and legitimate inferences therefrom, could sustain a judgment in favor of plaintiff.

Finally, with respect to the denial of the post-trial motion to reopen discovery in the event a new trial was ordered, we review the denial for a mistaken exercise of discretion. Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005); Kvaerner Process v. Barham-McBride, 368 N.J. Super. 190, 201-02 (App. Div. 2004) (remanding for additional discovery denied by trial judge); Terrell v. Schweitzer-Mauduit, 352 N.J. Super. 109, 115 (App. Div. 2002).

Before we address the merits of the appeal, we would be remiss if we did not comment upon the surprise and prejudice visited upon plaintiff by defendant's eleventh-hour application. It does not appear that defendant supplied the required pretrial exchange of information to plaintiff seven days prior to the initial trial date, nor did defendant submit it to the court prior to opening statements. See R. 4:25-7(b). The rule expressly requires the exchange of information regarding "[a]ny in limine or trial motions intended to be made at the commencement of trial, with supporting memoranda." R. 4:25-7(a), App. XXIII, ¶ 4 (emphasis added).

Presumably, had defendant complied with this rule, plaintiff and the trial judge would have been alerted long before the start of the first trial on December 11, 2006, to defendant's challenge to McNamara's qualifications and opinions. Plaintiff could then have been prepared to respond to this challenge in an orderly fashion before opening statements and the trial judge would have had an opportunity to review defendant's brief and been prepared to rule upon the issues. Handing a thirteen-page in limine brief dated December 12, 2006, to plaintiff's counsel and the trial judge only after defendant failed to completely bar McNamara from taking the stand on February 8, 2007, deprived plaintiff of a reasonable opportunity to investigate the factual and legal basis for the motion, deprived the judge of an opportunity to review the law applicable to the issue and caused plaintiff to incur the expense of bringing her medical expert to testify at trial the previous day.

Our rules of court are designed to eliminate surprise at trial.

Our procedures for discovery are designed to eliminate the element of surprise at trial by requiring a litigant to disclose the facts upon which a cause of action or defense is based. See Saia v. Bellizio, 103 N.J. Super. 465, 468 (App. Div.), aff'd, 53 N.J. 24 (1968). The search for truth in furtherance of justice is paramount. Caparella v. Bennett, 85 N.J. Super. 567, 571 (App. Div. 1964). This basic principle is designed to ensure that the outcome of litigation shall depend on its merits in the light of all of the available facts, rather than on the craftiness of the parties or the guile of their counsel. Lang v. Morgan's Home Equipment Corp., 6 N.J. 333, 338 (1951). [McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370 (2001).]

See also Humenik v. Gray, 350 N.J. Super. 5, 18-19 (App. Div.), certif. denied, 174 N.J. 194 (2002); Caparella v. Bennett, 85 N.J. Super. 567, 571 (App. Div. 1964).

Clearly, R. 4:25-7(b), incorporating Appendix XXIII, is intended to "eliminate the element of surprise at trial" that is created by in limine and trial motions served on an adversary and handed up to the court in the middle of trial. McKenney, supra, 167 N.J. at 370. In order to ameliorate the surprise and to prevent prejudice to defendant, the trial judge here ought to have sua sponte declared a mistrial or carried the trial to the following Tuesday, February 13, 2007. This would have given the plaintiff's attorney an adequate opportunity to investigate what was permitted by a GA license and secure a certification from the Board, if necessary, on Friday, February 9, 2007. Plaintiff could have prepared and served an opposing brief over the weekend on the issues of net opinion and the necessity of an expert to prove plaintiff's case. Had defendant complied with the rule, plaintiff would have had five days to do this, as the rule only requires a plaintiff to serve opposition two days before trial.

The report prepared by Hard Facts is not a net opinion. We have held that "'[e]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.'" Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.) (citing Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 146 N.J. 569 (1996). Expert testimony is only excluded when it is based on "'unfounded speculation and unquantified possibilities.'" Ibid. An opinion is inadmissible when it lacks reliable data and research and does not identify the factual basis for its conclusion. Hisenaj v. Kuehner, 387 N.J. Super. 262, 275 (App. Div. 2006).

The Hard Facts report here was based on reliable data: plaintiff's description of her fall and measurements and observations of the staircase in question. It was also based on reliable research into the requirements of the applicable building code, which was attached to the report. The conclusion in the report that the staircase presented a tripping hazard was obviously based on the carefully described code violations, information beyond the ken of the average juror. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App. Div. 1961). Furthermore, all of the opinions to which McNamara would testify were well within his area of expertise as a construction code official, even if he could not testify as an engineer.*fn2

Neither are we of the opinion that plaintiff's expert was required to opine on the issue of proximate causation in this particular case. Having established through expert testimony that the staircase presented a tripping hazard, plaintiff herself could and did present proof of proximate causation. She testified that there was something awkward about the step, her foot hit the first step sooner than she would have expected, she lost her balance, she grabbed for the missing handrail and, with nothing to steady herself, fell down the five steps to the basement. The issue of proximate causation was within the ken of the average juror and the case should have been submitted to the jury for its verdict. As a consequence, a new trial is required and the remaining issues advanced by the plaintiff are moot.

Reversed and remanded for a new trial.

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