On appeal from Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-1185-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Graves.
Plaintiffs Joy Bell and Robert Bell*fn1 appeal from a summary judgment dismissing their negligence complaint and a subsequent order denying their motion for reconsideration. We affirm.
At approximately 10:45 a.m. on July 30, 2005, plaintiff Joy Bell, a resident of New Jersey, tripped over a concrete abutment located at the end of a pedestrian crosswalk at the intersection of Townsfair Way and Eastern Loop, at a commercial shopping center known as the Easton Town Center located in Columbus, Ohio. At her deposition, plaintiff testified: "Out in the road is an abutment that I had to go over. Apparently my left foot was over it. I recall looking to make sure there was no oncoming traffic. . . . [I recall] the very tip of my right sneaker catching on the top of the abutment, and trying to gain my balance, and then the next thing I recall is being down in the middle of the lane . . ."
Plaintiff fractured her right femur, injured her left collar bone, and suffered a concussion. She was transported from Easton Town Center to St. Ann's Hospital in Westerville, Ohio, on the day of the accident and underwent surgery the same day. A titanium rod was inserted into her femur and the fracture was set with titanium screws inserted at the hip and knee. Plaintiff was hospitalized for approximately a week and spent another week at a rehabilitation center before returning to New Jersey.
On February 8, 2007, plaintiff filed a premises liability action alleging that Easton Town Center, LLC, the owner of the shopping center, and Steiner & Associates, Inc. (Steiner), the company that managed the shopping center, were negligent. Plaintiff's claim against the shopping center was dismissed on June 8, 2007, and the matter proceeded against defendant Steiner. As to Steiner, plaintiff alleged that the abutment in the pedestrian crosswalk constituted "a dangerous condition" and that Steiner failed "to use reasonable care to make the premises reasonably safe."
After discovery ended on October 13, 2008, Steiner filed a summary judgment motion. The primary issue before the trial court was whether plaintiff could establish a prima facie case of negligence without the testimony of an expert witness. Defendant's attorney argued plaintiff's complaint should be dismissed because "the mere happening of an accident" was not proof of negligence, and plaintiff did not have an expert witness to establish that anything defendant did or failed to do was a proximate cause of her accident. On the other hand, plaintiff's attorney argued expert testimony was not needed because the case involved "simple, common facts that anyone can understand."
Following oral argument, the court determined that without expert testimony, plaintiff's proofs were insufficient to show that defendant breached any duty owed to plaintiff at the time of the accident. The court also found that without expert testimony, a jury "would have to speculate as to whether or not there was negligence on the part of the defendant in locating the curb where it was located and failing to maintain it and failing to make it the right color, the right height, whatever." Consequently, the court granted defendant's summary judgment motion.
When reviewing a summary judgment order, we apply the same standard that governed the trial court. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. We must first determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct. Id. at 537.
To successfully pursue a cause of action for negligence, plaintiff must establish that: (1) defendant owed her a duty of care; (2) defendant breached that duty; and (3) plaintiff suffered an injury proximately caused by defendant's breach. Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). Negligence will not be presumed; rather, it must be proven. Rocco v. N.J. Transit Rail Ops., Inc., 330 N.J. Super. 320, 338-39 (App. Div. 2000). There is a presumption against negligence, and the burden of establishing such negligence is on plaintiff. Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).
In the present matter, there was no evidence that other persons had tripped and fell where plaintiff's accident occurred, or that defendant's inspection and maintenance procedures were deficient. Additionally, we agree with the trial court's determination that expert testimony was needed to show that defendant had either created a dangerous condition or had constructive notice of a dangerous condition that proximately caused plaintiff's fall. Under these circumstances, plaintiff failed to present a prima facie case of negligence and summary ...