July 14, 2009
DORIS BYRD AND HAYDEN BYRD, H/W, PLAINTIFFS-APPELLANTS,
SALEM COMMUNITY COLLEGE, AND/OR NEW JERSEY COMMUNITY COLLEGE AND/OR SALEM COMMUNITY COLLEGE FOUNDATION, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, L-172-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 9, 2009
Before Judges Axelrad and Winkelstein.
In this slip and fall personal injury case, plaintiff appeals from an August 8, 2008, order barring her expert from testifying regarding the existence of a foreign substance on the floor where plaintiff fell, and from an October 3, 2008 order granting defendants summary judgment. We affirm.
Plaintiff fell and sustained injuries on August 19, 2005, while catering the International Flameworking Conference, an event held at Davidow Hall at the Salem County College (the College). She had been hired by the College Foundation (the Foundation), a nonprofit corporation, which sponsored the event. Plaintiff fell in a restroom on the College campus in the building where the conference was held. At her deposition, she testified that she did not know how she fell. She said she walked into the ladies' room, used the toilet, and as she was walking to the sink to wash her hands, she fell. She did not remember falling, "all [she knew] was [she] was on the floor."
While she was on the floor, other people entered the restroom, and walked around the floor "testing it" with their feet. Plaintiff heard them say that the bathroom floor was slippery in some places, and not slippery in others; that "something" was on the floor; they did not, however, describe what the "something" was and she did not see anything on the floor, and no substance was on her clothing from the floor. Although she heard someone mention that a can of Pledge was on the sink, she did not see it.
Amy Friant-Mumink, one of plaintiff's employees, had been in the same restroom approximately three minutes before plaintiff fell, and as she was walking out, she lost her footing. She believed that the floor was slippery in front of the sinks. She did not tell anyone that the floor was slippery.
According to Teri Harrison, a College employee who went to the restroom after plaintiff fell, Dr. Contini, the College President, rubbed his foot on a part of the floor and said it felt "different" from other parts of the floor. Harrison, who was on the floor assisting plaintiff, testified that she rubbed the floor with her hand, and it was like a different texture in the tile in front of the sink versus the rest of the floor. . . . it was not wet, it was not slippery. It was just the texture of the tile felt smoother than the rest of the tile floor. As if like your tile, grouted tile floor has like a sand kind of roughness texture to it and the other part of it felt smoother, not necessarily slippery.
Harrison completed an incident report in which she stated that the area in front of the sinks was not wet, but "seemed to feel slippery in comparison to the rest of the floor."
One or more College employees saw a can of Pledge, or another type of polish, on the counter in the bathroom. Harrison testified that "it wasn't really Pledge, I don't think, but it was some polish." When she was questioned whether a can of polish would have been in the ladies' room, she testified that she would not have been surprised to hear that someone had washed a piece of glass in the ladies' room; however, when she looked at the floor, and when she felt the floor, she could not see or feel any foreign substance in the area where plaintiff fell. No one associated with the conference had ever asked her where to wash a piece of glass.
Dennis Breining, a College employee, testified that during his seven-year association with the conference, no one had ever asked him where they could find water to rinse off, polish, or clean their glass. Consequently, he believed that there was no need for a warning or prohibition against sponsors cleaning or washing the glass in the ladies' or men's room. He had never seen any participant clean or polish glassware with a polishing agent. The only polishing he had ever observed was when someone simply wiped a glass with a cloth. In fact, he testified that Pledge would not make glass look shiny, but rather would make it look oily.
During his deposition, Bruce Watkins, the manager of campus operations, testified that for the eleven years he had been with the College, he had never seen anyone cleaning or polishing glass. When asked where he would direct someone who needed to wet glass, he responded: "I honestly wouldn't direct them anywhere. We do not clean glass at the facility." A College janitor, Matthew Roman, confirmed that no conference participant had ever asked to borrow Pledge or a polishing agent or other cleaning product during the conference. William Clark, the director of public relations and an executive assistant to the president of the College, also testified that no one ever asked for a place to clean glass, nor did he ever recall seeing any person wipe down glass at a conference.
The Foundation had sponsored the International Flameworking Conference for several years. The Foundation primarily consists of a Board of Directors who are members of the community. All Foundation employees are also employees of the College, which pays the employees for their work for the Foundation. Two of the College employees, Mildred McAllister and Linda Smith, are also employees of the Foundation.
During the conference, the Foundation was not responsible for maintenance or upkeep of the physical structures at the College; the College staff was responsible for overseeing and setting up the facilities for the event. Watkins's department was responsible for cleaning and maintaining the campus buildings, including the restroom where plaintiff fell.
Harrison planned the day-to-day logistics of the conference. The College received the glass for the conference before the conference date. Mary Rodgers, a College employee, placed the glass in display cases. By the day plaintiff fell, the glass had all been delivered and placed in the cases. According to Harrison, Rodgers would have been the only person handling the glass pieces; thus, if there was any polishing and cleaning of the glass, it would have been done in front of the glass cases, not in the restrooms.
In support of her claim, plaintiff retained a professional engineer, Wayne F. Nolte, Ph.D. After reviewing Harrison's incident report, the attachments, and the depositions of plaintiff and Harrison, Nolte rendered the following opinions:
1. Salem Community College maintained a hazardous condition on the day of this accident.
2. The hazardous condition was the presence of polish used for glassware on the tile floor inside the ladies room.
3. Contributing to the hazard of the polish on the floor was the smooth finish of the tile. This tile appears to be the type that is typically used in a residential setting with a smooth, untextured, unabrasive finish.
4. Salem Community College failed to inquire of the Flameworking Conference materials they would be using inside the facility so that special considerations could be made to maintain the property in a safe condition.
5. Salem Community College was aware of this event and had an opportunity to review with event personnel activities associated with the conference and prepare against any hazards these activities would create.
6. It is not uncommon to wash and polish glassware for presentation. A staging area for such an activity was needed.
7. Salem Community College was familiar with this conference, had an opportunity to review special needs for this conference and should have supplied mats in the ladies room to protect against hazards caused by the glass polish finding its way onto the floor.
8. Salem Community College's failure to become aware of products being brought into the building for this conference and to provide services and spaces to eliminate or limit the hazard associated with activities and materials associated with the conference was palpably unreasonable.
9. Salem Community College failed to recognize the hazard associated with polish on the floor and failed to provide warning that such a condition might be present in the ladies room.
10. The accident experienced by Doris Byrd is the type of accident expected when a polish finds its way onto a smooth, hard, tile floor and where warning of that condition is not present.
11. Doris Byrd slipped and fell as a result of Salem Community College failing to maintain a safe environment during the Flameworking Conference.
We turn first to the order precluding Nolte from rendering an opinion that the "presence of polish used for glassware on the tile floor inside the ladies room" created a hazardous condition in the bathroom, which the College should have protected against, or warned the users of the bathroom that it existed. The trial judge concluded that the opinion was a net opinion, in that the expert was speculating that there was a foreign substance on the floor that led to plaintiff's fall. The judge found no factual support for that assumption and consequently barred the expert from rendering an opinion on that basis.
An expert's opinion unsupported by factual evidence is a "net opinion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). The expert is required to give "the why and wherefore of his expert opinion, not just a mere conclusion." Ibid. Here, even drawing all inferences in favor of plaintiff as to this issue, to conclude that a foreign substance contributed to plaintiff's fall is speculation. Plaintiff's argument appears to be that because there was a can of Pledge, or another type of polish, on the counter in the bathroom, someone must have spilled some of the polish on the floor. A jury could not arrive at such a conclusion without speculating.
Plaintiff did not see or feel such a substance. Harrison, who was on the floor with plaintiff, similarly did not see or feel such a substance. Breining, who had been employed with the conference since its inception, testified that no one ever had a need to rinse, polish or clean glass. He asserted that using Pledge, or a similar substance, would make the glass oily, not shiny. Watkins confirmed that no one had ever asked where they could clean or polish glass. Clark, the executive assistant to the president, and Roman, a janitor at the College, could not recall ever being asked by an exhibitor for a place to wipe down glass at the conference or to borrow a polishing agent for the glass. Given that there was no testimony of a foreign substance on the floor, and no testimony that any attendee at the conference had ever asked for a place to polish glass or had been observed polishing glass beyond simply using a cloth, a reasonable factfinder could not, without speculating, conclude that a polish was on the floor making the floor slippery and causing plaintiff to fall.
Despite that there was no evidence that a polish was on the floor, Nolte concluded that some polishing agent had been dropped on the floor and that "polish on a tile floor with a [c]oefficient of [f]riction at or near the threshold value clearly reduces the [c]oefficient of [f]riction below the threshold value." That is a net opinion. There is no evidence as to what type of polish, if any, is used on the glass to polish it, or that any of the polish fell to the floor.
Consequently, we conclude that the court did not abuse its discretion in barring plaintiff's expert from testifying that a foreign substance caused or contributed to the floor being slippery, resulting in plaintiff's fall. See State v. Davis, 390 N.J. Super. 573, 591 (App. Div.) (appellate court accords trial judge substantial deference on review of evidentiary rulings), certif. denied, 192 N.J. 599 (2007).
We turn next to plaintiff's argument that a genuine issue of material fact existed as to whether the College is liable to plaintiff within the meaning of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 9-7. To render a public entity liable for an injury caused by a condition of its property under the TCA, a plaintiff must establish that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under [§] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
The parties concede that the College is subject to the TCA as it is a public institution, and that it had no actual notice of a dangerous condition in the restroom. As the trial judge put it, "[t]he issue is constructive notice and or negligence by the supervisor at the College." The judge found no facts to support either constructive notice or negligence by a College employee.
A dangerous condition "means 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. 59:4-1a. Although whether a property is in a dangerous condition is generally a question for the factfinder, whether a dangerous condition exists is subject to a preliminary assessment by the court of whether a reasonable factfinder could conclude from the evidence presented that the property was, in fact, in a dangerous condition. Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 123-24 (2001).
Plaintiff's theory of the case appears to be that the College should have recognized that the conference exhibitors would have a need to polish and clean their glass pieces, and the College should have established a designated cleaning area where the exhibitors could do so. That theory fails in that plaintiff has not identified facts from which a jury could reasonably conclude that a polishing agent was on the floor as to make it slippery and cause plaintiff to fall. In other words, plaintiff has failed to establish what the dangerous condition was. The only dangerous condition identified by plaintiff is that included in Nolte's report, which, as we have indicated, relies on the presence of polish on the floor as creating the dangerous condition. And that opinion is inadmissible.
Alternatively, plaintiff implies that because there was testimony that the floor was slippery, the slippery floor would be sufficient to establish a dangerous condition for purposes of defeating defendant's summary judgment motion. In that regard, plaintiff claims that Harrison's inspection was negligent, in that she simply checked to see if supplies were present and the bathroom smelled clean and did not check to see if the floor was slippery. Plaintiff claims this was a violation of the TCA, specifically N.J.S.A. 59:2-6, which provides that a public entity may be liable for negligence "during the course of, but outside the scope of, any inspection conducted by it," or for its "failure to protect against a dangerous condition." Plaintiff's argument ignores, however, that even if the floor was slippery, to survive the summary judgment motion plaintiff would have to establish either actual or constructive notice of that condition. N.J.S.A. 59:4-2b. Plaintiff has not done so.
As we have indicated, there is no testimony that the College had actual notice. Nor is there evidence of constructive notice, which requires a plaintiff to show that "the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3b. Although after plaintiff's fall, a number of persons felt the floor and found it to be slippery in spots, that evidence does not indicate how long the slippery condition existed, or that it was of such an obvious nature that it should have been discovered before plaintiff fell. Although Friant-Mumink slipped immediately before plaintiff fell, she did not tell anyone. Simply put, the evidence is not sufficient to establish constructive notice as defined by N.J.S.A. 59:4-3b.
Finally, we turn to whether the court erred in granting summary judgment to the Foundation. The Foundation sponsored the conference and two of its employees were present at the conference. It was the Foundation that contracted directly with plaintiff as the caterer. The trial judge found that the Foundation had a duty to plaintiff, but because it had no responsibility for the upkeep of the restroom, and did not retain control over the manner in which the restroom was cleaned or maintained, it did not breach its duty as a matter of law. Although we agree with the trial judge's conclusion, we do so because, even though in a general sense the Foundation had a duty to plaintiff, that duty did not extend to maintenance of the bathroom.
The factual setting here is analogous to that in Bango v. Carteret Lions Club, 12 N.J. Super. 52, 55-56 (App. Div.), certif. denied, 7 N.J. 347 (1951), where the defendant, the Lions Club, sponsored a soapbox derby to be held on a public street. The defendant advertised the event in the newspapers. Id. at 56. The plaintiff was a police officer who was assigned to duty on the street where the event took place. Id. at 55.
One of the contestants lost control of the soapbox and ran into the plaintiff, injuring him. Ibid. We concluded that the sponsor of the event owed no duty to the plaintiff. Id. at 56. Although we observed that "[a] person who induces others to come upon his premises is under a duty to exercise reasonable care for their protection," we found that in order for the defendants to be held liable, they must have had "such degree of control that they could have averted the danger, or such superior knowledge that they should have foreseen and given warning of a danger not apparent to the plaintiff." Id. at 55 (emphasis added).
The Bango decision is consistent with precedent holding that ordinarily, when a person engages an independent contractor who conducts an independent business using his own employees, the landowner is not liable for the negligent acts of the contractor in performance of the contract except "where the landowner retains control of the manner and means of the doing of the work which is the subject of the contract;" or the land owner "engages an incompetent contractor;" or where "the activity contracted for constitutes a nuisance." Majestic Realty Assocs., Inc. v. Toti Contracting Co., Inc., 30 N.J. 425, 431 (1959).
Here, the Foundation had no control over how the College maintained the restroom where plaintiff fell, nor did it have knowledge sufficient to have foreseen the accident and given warning of the perceived danger. The testimony is undisputed that the responsibility for maintaining and inspecting the bathroom was with the staff of the College. The Foundation's duty to plaintiff did not extend to ensuring that the bathroom floor was not slippery.
Even if we were to conclude that the Foundation's duty extended to maintaining and inspecting the bathroom, common-law negligence requires notice and an opportunity to cure the defect before liability can be imposed. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993). Here, like the College, the Foundation did not have actual or constructive notice that the bathroom floor was slippery before plaintiff fell. In that plaintiff has failed to establish what caused the slippery condition, the evidence is insufficient to establish how long the condition existed so as to place the Foundation on constructive notice of the condition.
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