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Swiecicki v. Township of Old Bridge Board of Education

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 1, 2008

CRYSTAL SWIECICKI, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF OLD BRIDGE BOARD OF EDUCATION, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-8860-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 17, 2008

Before Judges Stern and Coburn.

Plaintiff, Crystal Swiecicki, sued defendant, Township of Old Bridge Board of Education, alleging that its negligence caused her personal injury. On defendant's motion, the Law Division judge entered summary judgment dismissing the complaint with prejudice. Plaintiff appeals, and we affirm.

The facts are uncomplicated. On June 11, 2004, plaintiff was a tenth grade student attending Old Bridge High School. Around 10:00 a.m., the fire alarm sounded, and all the students began leaving the school. When plaintiff reached a door leading outside, she put her hand on the door to hold it open. The door closed forcefully on her hand partially severing and amputating the tip of her right middle finger. Plaintiff's professional engineer inspected the door, observing that it was controlled by a mechanical "door operator." The purpose of the door operator was to control the speed and force with which the door closed. The engineer concluded that the door was in a hazardous condition because the door operator caused the "door to close in a short period of time with force sufficient to cause the amputation of a fingertip." But that conclusion was reached without reference to any engineering or safety standard and without a detailed description of either the force or speed with which the door closed.

The Law Division judge granted defendant summary judgment because of plaintiff's failure to offer any evidence other than the happening of the accident to establish that the door was defective and that the defect resulted in a dangerous condition of the property.

After carefully considering the record and briefs, we are satisfied that the judgment was based on findings of facts which are adequately supported by the evidence and that plaintiff's arguments on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). In short, we affirm substantially for the reasons expressed by the Law Division judge. Nevertheless, we add the following comments.

In the Law Division, plaintiff argued that the evidence showed a dangerous condition of public property. A dangerous condition of public property is defined as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a). Obviously plaintiff used less than due care when she placed her finger in an area where the door could close on it. Moreover, the expert witness failed entirely to express anything other than a net opinion; namely, that the door closed too fast and too forcefully. An expert's conclusions must be based on accepted standards. Taylor v. DeLosso, 319 N.J. Super. 174, 179-180 (App. Div. 1999). Here, there was no reference to any specific standard. Instead, the expert simply concluded that the door closing was too fast and too forceful, and he reached that conclusion without even providing measurements of the speed or force with which the door closed. Consequently, there was no evidence of a dangerous condition, and, needless to say, no evidence that defendant knew or should have known of the so-called dangerous condition.

For the first time on appeal, plaintiff argues that defendant failed to properly supervise plaintiff's passage through the door. That point was not raised below and plaintiff is not entitled to have it considered here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Furthermore, plaintiff failed to provide any evidence of negligent supervision.

Affirmed.

20080701

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