May 9, 2008
DOROTHY TARUTIS, PLAINTIFF-APPELLANT,
ALAN ACKERMAN, DEFENDANT-RESPONDENT, AND GREGORY WISOTSKY, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-3603-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 22, 2008
Before Judges Skillman and Winkelstein.
In this legal malpractice case, plaintiff appeals from a May 3, 2007 summary judgment dismissing her complaint with prejudice against defendant Alan Ackerman.*fn1 On appeal, plaintiff argues that the trial judge erred in concluding that expert testimony was required for plaintiff to prove her claim. We conclude that plaintiff's argument is without merit and affirm the summary judgment.
The material facts are substantially undisputed. On September 8, 1999, plaintiff was a patron at Resorts International Casino in Atlantic City. While using the ladies' room, she claims that she slid on the wet floor and fell.
Represented by defendant Ackerman, on September 4, 2001, plaintiff filed suit against Resorts; she alleged that the floor in the public restroom created a dangerous condition, causing her to fall and sustain injuries for which she sought damages. Ackerman did not retain an expert to testify to the coefficient of friction of the floor, nor did he propound interrogatories, depose any witnesses, request documents, or request admissions from Resorts.
Following a trial from January 13 to January 15, 2004, the jury returned a verdict that Resorts was not negligent. At trial, plaintiff testified, but no expert witness testified on her behalf.
Plaintiff subsequently sued Ackerman for legal malpractice. In support of her claim, she provided an affidavit of merit from Thomas P. Frascella, Esquire. In part, the affidavit of merit states:
I hereby affirm that I believe there exists a reasonable probability that the care, skill and knowledge exercised and exhibited in the practice or work that is the subject of the Complaint; i.e. Defendants[']s failure to request, obtain or inquire as to supportive or potentially supportive discovery and failure to obtain friction experts, fell outside the acceptable professional or occupational standards or practices of a personal injury attorney, as to the Defendant's attorneys, respectively.
In the malpractice case, discovery expired on March 22, 2007, and trial was scheduled for May 21, 2007. Plaintiff's counsel did not procure an expert to appear at trial. Consequently, on March 29, 2007, Ackerman moved for summary judgment on the grounds that plaintiff required an expert to establish the standard of practice and to opine that Ackerman breached the standard. Judge Perskie granted the motion, making the following material findings:
The issue before me here, as I've indicated in discussion with counsel, is whether on this record, as a matter of law, the plaintiff presents a claim that can be presented to a jury. That, in turn, focuses on the question of whether an expert as to the deviation from the standards of practice is necessary on the facts of this case, and secondly, if it's necessary, whether the material submitted in this record in support of that requirement, specifically, the Affidavit of Merit, is sufficient as a matter of law to present the claim to the jury. . . . I'm satisfied in the first instance that expert evidence is required and that this is not the kind of case such as, for example, the allowing of the expiration of the statute of limitations in which professional negligence is manifest to a jury. A [duty] to investigate which generally is, of course, an element of any attorney's undertaking under circumstances such as this will vary in terms of what is required in any given case from case to case and it is not reasonable to assume that a lay jury otherwise uninformed would be in a position to evaluate what form of what kind of investigation would be necessary or required in any given case. Therefore, I'm satisfied that a report, or testimony, rather, by an expert, a qualified expert, with respect to the legal obligations of the defendant would be required.
The court also found that the affidavit of merit was not sufficient to qualify as an expert opinion. Plaintiff does not contest that finding in this appeal. Her argument on appeal is that no expert was necessary in the malpractice action because Ackerman failed to conduct any pretrial investigation. The trial court disagreed with that argument, as do we.
The elements of a cause of action for legal malpractice are "(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation." Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996) (citations omitted). "Because the duties a lawyer owes to his client are not known by the average juror, a plaintiff will usually have to present expert testimony defining the duty and explaining the breach." Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 14 (App. Div.), certif. denied, 188 N.J. 489 (2006); Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001) (party asserting malpractice required to "present expert testimony that establishes the standard of care against which the attorney's actions are to be measured").
There are exceptions to this general rule. No expert is needed "where the questioned conduct presents such an obvious breach of an equally obvious professional norm that the fact-finder could resolve the dispute based on its own ordinary knowledge and experience and without resort to technical or esoteric information." Brach Eichler, supra, 345 N.J. Super. at 12. For example, no expert testimony was required when the attorney entirely failed to submit a legal argument in his client's defense, Sommers v. McKinney, 287 N.J. Super. 1, 8-12 (App. Div. 1996), or where the attorney failed to comply with the controlling statute of limitations, Brizak v. Needle, 239 N.J. Super. 415, 429, 431-33 (App. Div.), certif. denied, 122 N.J. 164 (1990).
This case does not, however, present such an obvious breach of an obvious professional norm that no expert would be necessary to establish the standard of practice against which Ackerman's actions are to be measured. This is not a case, such as a medical malpractice case, where it is obvious that the failure to conduct any pretrial discovery, and the failure to present an expert witness, would result in a breach of the attorney's duty of practice. Cf. Brizak, supra, 239 N.J. Super. at 429 (holding that the plaintiff did not "need an expert to refute defendant's obviously incorrect belief that the limitations period did not begin to run until an expert medical opinion was obtained"). The question presented in the underlying suit was whether the bathroom floor was wet and caused plaintiff to slip and fall. Whether plaintiff required an expert to prove her claim, and whether pretrial investigation and discovery were necessary, requires expert testimony.
It is also notable that while plaintiff claims that an expert to determine the coefficient of friction of the floor should have been obtained, plaintiff has not provided proof that if such an expert had been obtained, the expert would have provided an opinion supporting plaintiff's cause of action.