July 11, 2008
ALBERT WELCOME, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
JUST APARTMENTS, LLC, R.C. DOLNER CONSTRUCTION, BRIAN TREMETORE PLUMBING AND HEATING, INC., POWER ELECTRIC, AND THE PEGASUS GROUP, DEFENDANTS-RESPONDENTS, AND RICHARD MILLER, COINMACH LAUNDRY, ZIGURDS JACKOVICS, SCOTT JOHNSON, TIM FLANAGAN, CENTURY TOWERS, PUBLIC SERVICE ELECTRIC & GAS CO., STRAIGHT EDGE CONTRACTORS, INC. AND DAVID RIVERA, DEFENDANTS, AND ROBERT BARRY, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
JUST APARTMENTS, L.L.C, RICHARD MILLER AND TIM FLANAGAN, THIRD-PARTY PLAINTIFFSRESPONDENTS/CROSS-RESPONDENTS,
COINMACH CORP., ROYAL INSURANCE COMPANY OF AMERICA, R.C. DOLNER, INC., HARTFORD CASUALTY & INSURANCE COMPANY, THIRD-PARTY DEFENDANTS.
HARTFORD CASUALTY & INSURANCE COMPANY, FOURTH-PARTY PLAINTIFF,
GREATER NEW YORK MUTUAL INSURANCE COMPANY, UNITED STATES FIRE INSURANCE COMPANY, ROYAL & SUNALLIANCE, ONEBEACON AMERICA INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY, ROBERT BARRY AND TIG INSURANCE COMPANY, FOURTH-PARTY DEFENDANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 20, 2008
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 a certification of one of the experts. The trial court declined to consider the expert's certification on the grounds that it contained conclusions outside the scope of the original expert report. The motion for reconsideration was denied.
Although defendant Barry was granted summary judgment, he nevertheless has also appealed the denial of his motion on the basis that he had no duty to plaintiff and was not negligent in the performance of any act.
On appeal, plaintiff raises the following issues.
THE TRIAL COURT ERRED IN ITS DETERMINATION THAT PLAINTIFF'S EXPERTS' REPORT CONSTITUTED A NET OPINION AS TO THE IGNITION SOURCE OF THE EXPLOSION.
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO JUST APARTMENTS, BARRY, DOLNER AND TREMETORE BASED ON ITS PRIOR DETERMINATION THAT WELCOME'S EXPERTS' REPORT CONSTITUTED A NET OPINION AS TO THE SOURCE OF IGNITION SINCE THE LIABILITY OF THESE DEFENDANTS STEMMED FROM BREACHES OF CONTRACTUAL AND COMMON LAW DUTIES THAT WERE UNAFFECTED BY WELCOME'S CLAIMED INABILITY TO IDENTIFY A SOURCE OF IGNITION.
THE TRIAL COURT ERRED IN ITS EXPANDED RULING THAT PLAINTIFF'S EXPERTS' REPORT CONSTITUTED NET OPINION AS TO THE LIKELY CONSEQUENCE OF NOT INSTALLING THE GAS PRESSURE REGULATORS AND IN ITS GRANT OF SUMMARY JUDGMENT TO JUST APARTMENTS, DOLNER, BARRY AND TREMETORE ON SAID ERRONEOUS DETERMINATION.
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT SINCE THOSE RULINGS INVOLVED IMPROPER RESOLUTIONS OF QUESTIONS OF FACT RELATED TO THEIR CONTRACTUAL DUTIES, COMMON LAW DUTIES OR DUTIES VOLUNTARILY UNDERTAKEN.
THE TRIAL COURT ERRED IN BARRING PLAINTIFF'S EXPERTS' REPORT WITHOUT A RULE 104 EVIDENTIARY HEARING.
In reviewing an appeal from a decision on a summary judgment motion, this court employs the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Such a motion must be granted where "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The motion will be granted if, after viewing the evidence in the light most favorable to the nonmoving party, no rational fact-finder could resolve the dispute in that party's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Accordingly, we will review the record in the light most favorable to plaintiff and determine whether, based on these proofs, a rational fact-finder could hold for plaintiff.
Regarding the summary judgment entered in favor of defendant Barry, a Dolner construction superintendent, plaintiff maintains that Barry failed to exercise reasonable care on the day of the accident and that his conduct was a proximate cause of the accident. On the day of the accident, Jakovics asked Barry to find out whether the gas was on and Barry reported back that it was. Barry contended that he traced the gas line down to the main valve and saw that it was on. Plaintiff suggests that Barry turned on the gas, and argues that a material question of fact is present on whether Barry turned on the gas.
While a question of fact may be present, it certainly is not material. Even if Barry turned the gas on, plaintiff can make no showing that doing so was negligent. The gas was supposed to be turned on in order for the dryers to function. Nothing in the record suggests that the gas should have been turned off at the time of the accident.
Plaintiff argues that if the gas had been turned on initially, then the dryers would have worked and Jakovics never would have opened the gas valve to determine if gas were flowing. However, the negligence under that scenario would have been on the part of someone who turned the gas off or who failed to turn it on. Barry cannot be held negligent for turning on gas which should have been turned on. We find no basis to hold Barry negligent for either telling Jakovics that the gas was on or for turning on the gas, if in fact he did so.
Plaintiff also seeks to hold Barry liable for conduct of Dolner, stating that as Dolner's agent in charge at the time of the accident, Barry bears the same liability as Dolner. This argument seeks to impose the doctrine of respondeat superior in reverse. Barry cannot be held personally liable for the conduct of his employer. 27 AmJur 2d Employment Relationship § 410 (2004) ("The doctrine of respondeat superior does not operate to impose vicarious liability upon an employee for his or her employer's tortious conduct."). Rather he is liable only for his own conduct. We affirm the granting of summary judgment in favor of defendant Barry.
Plaintiff's experts assert that two independent acts of negligence led to the accident. The first is that the electrical wires in the laundry room were negligently left exposed. As a result, the exposed electrical wires generated a spark that ignited the gas and caused the explosion. The second negligent act was the failure to adjust the pressure in the gas lines for the dryers. Due to this failure, a large quantity of gas entered the room and led to the explosion.
We note that the trial court in its original decision and some of the defendants in their arguments before this court maintain that plaintiff's claim fails if he cannot prove the source of ignition. Certainly, if plaintiff cannot prove the source of ignition, then claims against any defendant based upon negligence in leaving the electrical wires exposed fails. Since plaintiff's claim against Power Electric is based solely on the exposed electrical wires, that claim would have to be dismissed.
However, plaintiff also claims that the other defendants were negligent in failing to adjust the pressure in the gas lines. If, indeed, a defendant were negligent in failing to do so, and if the increased pressure in the gas lines was a proximate cause of the accident, then that defendant may be held liable. These two factors, the spark from the electrical wires and the large quantity of gas due to the high pressure in the lines, together led to the explosion. They are thus two concurring causes of the accident.
In the event there are two concurring causes of harm, plaintiff need not prove that each was the "but-for" cause of the harm, rather, liability will be imposed if the negligent conduct in question "was a substantial factor in bringing about the injuries," even where the other intervening causes are foreseeable, or are "normal incidents of the risk created." Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-10 (App. Div.), certif. denied, 156 N.J. 386 (1998). Thus, plaintiff need not show that the negligence of a defendant caused both the exposed wires and the failure to adjust the pressure in the gas lines.
We now turn to the trial court's determination that the opinions of plaintiff's experts, namely, that the exposed electrical wires and the absence of the regulators caused the explosion accident, were net opinions.
A net opinion has been described as "an opinion based on bare conclusions untethered to facts." Creanga v. Jardal, 185 N.J. 345, 349 (2005). Rules of evidence require that an expert's opinion be based upon "facts or data . . . perceived by or made known to the expert before the hearing." N.J.R.E. 703. "An expert's conclusion is considered to be a 'net opinion,' and thereby inadmissible, when it is a bare conclusion unsupported by factual evidence. In other words, an expert must '"give the why and wherefore" of his or her opinion, rather than a mere conclusion.'" Creanga v. Jardal, supra, 185 N.J. at 360 (citations omitted). The rule is intended to prevent speculative testimony. Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997).
Regarding the exposed electrical wires, plaintiff's expert opined that an exposed piece of electrical wiring likely struck a grounded piece of metal, thereby causing a spark that ignited the gas. In support of this conclusion, the report refers to a singed gas whip tag found near the gas valve turned on by Jakovics and in close proximity to an exposed electrical receptacle. The report, however, acknowledges that "[o]ther possible ignition sources . . . cannot be excluded." The report does not explain why the experts determined that the tag was singed due to a spark from the electrical receptacle rather than due to its location close to the source of the gas that ignited. An investigation by the Hoboken Fire Department and the State of New Jersey Bureau of Fire Safety did not determine the source of the ignition. Without further explanation, based on these statements in the expert report, we cannot ascertain if the conclusion reached by plaintiff's experts is a net opinion or based on scientific data and analysis.
Regarding the absence of the regulators, the gist of plaintiff's claim is that Just Apartments, Dolner and Tremetore Plumbing failed in their respective roles to assure that regulators were installed in the gas pipes. Had that been done, no sudden rush of gas would have entered the room when Jakovics opened the pipe, and no explosion would have occurred. This theory of liability then assumes that the increased quantity of gas caused the explosion and that no explosion would have occurred had the regulator been in place and a smaller quantity of gas entered the room. In reaching the conclusion that the absence of the regulators led to the accident, plaintiff's expert's report states:
By failing to provide the proper regulated gas pressure to the dryers, the dryers could not operate correctly and the excessive pressure caused an excessive amount of gas to enter the room when the gas cock was opened. Given the limited time that the gas cock was opened, had an in-line regulator (such as that required by the Installation Manual) or separate gas regulators after each of the gas cocks in the laundry room (as was ultimately done after the accident) been installed prior to Coinmach being advised that the room was ready for their work, the subject accident in all likelihood would not have occurred.
In a certification to the court on plaintiff's motion for reconsideration, one of plaintiff's experts provided mathematical calculations of the increased quantity of gas that filled the laundry room due to the absence of the regulators.*fn4
He further expressed the opinion that had the regulators been in place, the quantity of gas that would have escaped would have been insufficient to cause an explosion, because the gas would have dissipated.
Thus, the expert's conclusion that the presence of the regulators would have made a difference is based on the fact that the regulators controlled the quantity of gas entering the room, and that difference in quantity is calculated mathematically.
However, as the defense notes, plaintiff's experts provide no factual basis for the conclusion that no explosion would have occurred if the regulators were in place. While the regulators would have reduced the quantity of gas entering the room, plaintiff's experts do not provide a factual basis to conclude that the lesser quantity of gas would not have ignited. Based on this record, we do not know whether or not the experts have a factual basis to reach that conclusion or whether they merely have not been given an opportunity to provide an explanation.
As noted above, the record before us does not contain sufficient explanations from plaintiff's experts to determine whether their opinions on the source of ignition or absence of the regulators are net opinions or not. Plaintiff's experts were not deposed. No Rule 104 hearing was conducted. As a result, plaintiff's experts never had an opportunity through testimony to explain fully the basis for their conclusions.
While plaintiff did have an opportunity to submit certifications from his experts, when that was finally done, the certification was rejected by the court, and the defense raised a further issue, namely, that the expert did not sufficiently explain why an explosion would not have occurred if the regulator had been in place and a smaller quantity of gas was present. The certification should have been considered by the trial court, and plaintiff should have been permitted to respond to the defense's additional contention.
Under these circumstances, additional certifications could have been allowed. The trial court also had the discretion to conduct a Rule 104 hearing. Kemp ex rel. Wright v. State, 174 N.J. 412, 432-33 (2002) ("[I]n cases in which the scientific reliability of an expert's opinion is challenged and the court's ruling on admissibility may be dispositive of the merits, the sounder practice is to afford the proponent of the expert's opinion an opportunity to prove its admissibility at a Rule 104 hearing."); see also Koruba v. American Honda Motor Co., Inc., 396 N.J. Super. 517, 523 (App. Div. 2007) (noting that the trial court, relying on Kemp ex rel. Wright v. State, 174 N.J. 412 (2002), held a Rule 104 hearing on a motion for summary judgment and determined that plaintiff's expert's opinion was a net opinion), certif. denied, 194 N.J. 272 (2008); Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3rd Cir. 1999) (holding that, on a summary judgment motion, the lower court should have held a hearing to determine the admissibility of an expert's opinion regarding guarding of blades in defendant's machine where the grounds for the expert's opinion were "insufficiently explained and the reasons and foundations for them inadequately and perhaps confusingly explicated". See generally McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 531 (2003) (reversing the granting of summary judgment in order that a Rule 104 hearing be held to determine whether a gesture constituted an adoptive admission).*fn5
A Rule 104 hearing would not be necessary, however, where the experts had an opportunity to explain the basis for their opinions at depositions. See Feit v. Great-West Life & Annuity Ins. Co., 460 F. Supp. 2d 632, 637-38 (D.N.J. 2006) (holding that a Rule 104 hearing was unnecessary where plaintiff's experts had ample opportunity at their depositions to explain their analyses and respond to challenges to their methods and opinions). Here plaintiff's experts were not deposed.
On this record, the granting of summary judgment was premature, and we reverse and remand. At the discretion of the trial court on remand, the plaintiff may be allowed to submit further explanatory certifications from his experts, or the trial court may allow defendants to depose the experts, or a Rule 104 hearing may be held, in order to ascertain whether or not there is a sufficient foundation for the opinions of plaintiff's experts.
We reject Just Apartments' argument that it breached no legal duty to plaintiff and cannot be found negligent. If we view the evidence from the perspective most favorable to plaintiff as we must when deciding a motion for summary judgment, Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 540, then Just Apartments' contractual duty to provide a laundry room for the installation of the machines included the obligation to provide the correct gas pressure needed for the machines. Its failure to do so may render it liable in negligence. Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230, 241 (2001) ("[I]n a contractual relationship, an individual may be liable in tort if he or she undertakes 'gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things.'"). The fact that Just Apartments hired Dolner to oversee the construction, including this aspect of the work, does not relieve Just Apartments of its contractual obligation and related tort liability.
In summary, we affirm the granting of summary judgment in favor of defendant Barry. We reverse summary judgment for Just Apartments, Dolner, Tremetore Plumbing and Power Electric and remand for further factfinding on the admissibility of plaintiff's experts' opinions.