On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-9821-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Grall and Chambers.
Plaintiff Albert Welcome appeals from the summary judgment orders dismissing this personal injury action on the basis that his expert report sets forth only a net opinion.
On June 16, 2000, plaintiff, employed by Coinmach Laundry Corporation ("Coinmach"), was installing washers and gas powered dryers in a newly constructed building. When one of his co-workers opened a gas line to see if the gas was flowing, a large quantity of gas rushed out and an explosion occurred. Plaintiff was severely burned. It was later discovered that the pressure in the gas line was significantly higher than needed for the dryers. In addition, electrical wires were exposed in the room at the time of the accident.
Welcome brought this suit against various defendants, including Just Apartments, L.L.C., Richard Miller, and The Pegasus Group ("Just Apartments"), the owners of the building; R.C. Dolner Construction ("Dolner"), the general contractor for the construction of the building; Robert Barry ("Barry"), one of Dolner's construction superintendents on the project; Brian Tremetore Plumbing and Heating Inc. ("Tremetore Plumbing"), the plumbing subcontractor that installed the gas lines for the laundry room; and Power Electric, the electrical subcontractor that did the electrical work in the laundry room.*fn1
Plaintiff's experts attributed the explosion to the exposed electrical wires which they contended caused a spark. They also attributed the explosion to the large quantity of gas that rushed into the room, maintaining that if the pressure of gas had been at the proper level, the smaller quantity of gas entering the room would have dissipated without causing an explosion.
In a series of motions, the trial court granted summary judgment in favor of the defendants, finding that plaintiff's experts report merely set forth net opinions. Plaintiff appeals. Although he was granted summary judgment, defendant Barry has filed a cross-appeal, maintaining that his motion should have been granted on alternative grounds.
We affirm the granting of summary judgment in favor of defendant Barry and reverse the granting of summary judgment for the other defendants and remand for further factfinding on whether plaintiff's experts have set forth net opinions.
Plaintiff's accident occurred while washers and dryers were being installed in the laundry room of Century Towers, a high rise apartment building being constructed in Hoboken (the Project). Defendant Just Apartments owned the property. It had hired defendant Dolner as the construction manager for the Project. Dolner's responsibilities included general coordination of the work on the Project. Defendant Tremetore Plumbing was the only plumbing contractor for the Project. The original design for the Project required each individual apartment unit to have its own washer and dryer. However, during the course of construction that plan changed, and a decision was made to have a central laundry room for all tenants.
As a result, Just Apartments entered into a lease agreement with plaintiff's employer, Coinmach. Under that agreement, Just Apartments would lease the laundry room to Coinmach. Coinmach was obligated to install a specified number of coin-operated washers and dryers there. The lease agreement required Just Apartments to provide the electricity, heat, gas and water necessary for the laundry room and allowed Coinmach to connect its equipment to the lines in the building for these utilities.*fn2
The dryers were gas powered, and thus needed to be hooked up to the gas line in the laundry room. The installation manual for the gas dryers required that the "[i]ncoming supply pressure must be consistent between a minimum of 6.0 inches (14.92 mb) and a maximum of 12.0 inches (29.9 mb) water column (W.C.) pressure." Due to the height of the building, the gas line for the hot water heaters on the roof required 28 inches W.C. pressure. As a result, pressure regulators*fn3 were needed to lower the pressure for the gas for the dryers. They were not installed.
The record is murky as to why the regulators were not installed. Deposition testimony from a representative of Coinmach indicates that Coinmach expected a "turnkey" operation, so that Coinmach personnel would merely have to "put the machines in place and hook up a flex gas line to the [gas] manifold." Defendant Barry, a construction superintendent for Dolner, indicated that Coinmach was expected only to hook up their machines. Copies of the installation manual containing the machine specifications, including the gas pressure requirements for the dryers, were given to Dolner and Tremetore Plumbing. Tremetore submitted a change order to Dolner to cover the additional work in the laundry room, namely to "[s]upply and install the required piping" for the washers and dryers. The deposition testimony is confusing on whether the change order was approved by Just Apartments and whether or to what extent the work was done. Further, a sales representative for Coinmach testified at his deposition that Frank Buonanno, Coinmach's coordinator, advised the plumber that the machines had regulators, but Buonanno testified at his deposition that he was not sure whether he discussed the need for regulators with the plumbing foreman.
In any event, on the day plaintiff and his co-workers brought the washers and dryers to the laundry room to be installed, the gas pressure in the pipes to the laundry room had not been adjusted to accommodate the needs of the dryers. When they arrived, the room was not ready for installation. Debris was then cleared away. Power Electric installed some of the receptacles in the electrical boxes, but was unable to complete this work since it did not have enough electric box covers on hand. As a result, electrical receptacles were left uncovered with electrical wires exposed.
Coinmach personnel then proceeded with the installation. Plaintiff was connecting the vent tubing from the gas dryers to an exhaust line in the ceiling. His supervisor from Coinmach, Zigurdis Jakovics, was connecting the gas intakes on the dryers to the main gas line in the room installed by Tremetore. When Jakovics tested some dryers, he discovered that they were not heating up. To confirm his suspicion that the gas was not flowing, he opened a valve on the header to a gas line, and no gas escaped. When Barry came to the laundry room, he was told by Jakovics that the gas was not feeding into the room. Barry testified that he traced the gas line and then returned to the laundry room to tell Jakovics that the gas seemed to be on. After being told the gas was on, Jakovics opened the line again, at which point there was a loud noise, the smell of gas, and the explosion occurred.
Without reviewing the complex procedural history involving the motions for summary judgment, suffice it to say that the trial judge initially granted summary judgment in favor of defendants on the basis that plaintiff could not prove the source of ignition. Plaintiff's expert report states that the exposed electrical wiring was the source of the ignition. The trial court found that this was a net opinion, and that without proof of the source of the ignition, plaintiff's claims failed. Thereafter, the trial court sua sponte reconsidered the motion and, after additional oral argument, determined that plaintiff's expert report also failed to sufficiently explain how the presence of the regulators would have prevented the explosion. As a result, the trial judge concluded that plaintiff's experts offered merely a net opinion, and summary judgment for defendants was granted. Plaintiff then filed a motion for reconsideration and submitted ...