November 8, 2010
CANDI MINCEY, PLAINTIFF-APPELLANT,
PARSIPPANY INN AND SHREE SWAMIJI, LLC, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1823-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 4, 2010
Before Judges Rodríguez and LeWinn.
Plaintiff was injured when she slipped and fell on a wet bathroom floor while she and her husband were staying at defendant motel. Plaintiff sued the motel and its owners, claiming negligence and seeking compensatory damages. She now appeals from the November 20, 2009 order of the trial court granting summary judgment to defendants dismissing her complaint. The sole issue presented is whether plaintiff's expert report was sufficient to create a material factual dispute to defeat summary judgment. We affirm.
The pertinent factual background is summarized from the deposition excerpts and other exhibits appended to the motion papers. Plaintiff and her husband arrived at the Parsippany Inn on July 16, 2007, and stayed there through the date of plaintiff's accident on July 22, 2007. On the morning of July 22, plaintiff was in the bedroom "eating something" and she "went to wash [her] hands" in the bathroom; she was barefoot. As she headed towards the sink, she "just took a couple of steps and fell on something that felt like ice." She did not observe any water on the floor. Plaintiff stated that the last time she and her husband took a shower in that bathroom had been the previous morning.
Plaintiff's husband testified that he found his wife "[l]aying back flat on the floor." He observed water on the floor and indicated its location on a photograph of the bathroom; however, the record does not reflect the precise description of the location he so identified. He estimated that the amount of the water was "more than a cup, but [he did not] know. [He could not] measure the water"; nor did he know how the water got there. He concluded that the water was the cause of his wife's fall because "she had slipped down so that's the only thing [he] could see that could have made her f[a]ll."
Plaintiff's husband helped her to get onto the bed. She complained that her ankle and foot were hurting. Plaintiff "sat on the bed for a while" and then apparently "went... back to sleep." When plaintiff awoke she complained that "her leg was hurting so bad, she called the [m]otel... manager." Someone from the motel staff arrived and, upon observing plaintiff, "they called 911." An officer from the Parsipanny-Troy Hills Police Department arrived at the motel room at approximately 9:00 a.m. and transported plaintiff to St. Clare's Hospital "for further medical evaluation."
Bansi Papaiya, the manager and one of the owners of the motel, testified in deposition that he arrived on the premises at approximately 9:00 a.m. on the morning of plaintiff's accident and saw an ambulance. He was informed that a guest in room 107 was being taken to the hospital; however, he did not go to the room at that time. He stated that the only staff who would have entered plaintiff's room were "[m]aids who cleaned the room."
Papaiya described the bathroom in room 107 as having a ceramic tile floor; he stated that the bathroom floor should not "get wet" because the shower has a sliding door, adding that "[i]f the door is open, obviously [a] little bit [of] water come[s] outside." He added that every room has a "[t]owel bath mat" to "protect the shower" and that "generally [when] people take [a] shower, the water doesn't come out."
Plaintiff proffered an expert report by Ronald L. Saxon, a licensed engineer. Saxon conducted his inspection of the accident scene on October 1, 2007. He performed "[s]lip resistance measurements" on the bathroom tile, once while the tile was dry, "and again with the tile wet with distilled water." He measured the "dry slip resistance" at "0.74" and the "wet slip resistance" at "0.24." Saxon opined:
Maintaining premises safe for the known and foreseeable uses, in particular maintaining floors free of hazards, involves anticipating hazards that will develop under some conditions of use. Water is a foreseeable floor contaminant in a bathroom, and a bathroom floor should be a surface which remains reasonably slip resistant regardless of the presence of water. In this context, reasonably slip resistant refers not so much as to the absolute value of slip resistance, but to uniformity of the slip resistance, i.e.[,] similarity of the dry and wet slip resistances.
Unperceived areas of lower slip resistance, on an otherwise apparently safe walking surface, is [sic] a discrepancy between expectation and reality, and thus a cause of a fall. It is recognized that unperceived conditions which result in a change in the slip resistance of a walking surface are fundamentally hazardous.
Various conditions will result in a change of slip resistance of a walking surface, e.g. a change in the surface itself, or lubricants on an otherwise slip resistance [sic] surface. Foreign substances on floors, whether the floors are inherently slippery or not, are recognized to be contributors to falls. Where foreign substances can be anticipated, slip-resistant surfaces are recommended. While it is inherently better to provide a surface that is intrinsically slip resistant, in the absence of that, mats are recognized to minimize slipping hazards.
The bathroom floor in the motel had been finished or renovated with a variety of ceramic tile that was not slip resistant when wet. As it was eminently foreseeable that the bathroom floor would become wet at various times and for various reasons, the persons responsible for maintaining the safety of the motel unit bathroom floor had created and perpetuated a fundamentally dangerous condition. That condition had caused [plaintiff's] fall. [Emphasis added.]
At oral argument, the judge noted Saxon's range between the tile floor's dry slip resistance, 0.74, and wet slip resistance, 0.24, and queried at what point along that spectrum from 0.24 to 0.74 would "a safety hazard" come into existence. Noting that Saxon relied upon data from the Ceramic Tile Institute of America, plaintiff conceded that "there is no number for him to rely on because no such number exists."
In granting summary judgment, the judge stated:
There's no assertion that... defendant had a duty to maintain the floor in a sense that they should have known the water was there and they didn't clean it up, such as if it happened in a hallway. The... plaintiff's theory rests solely upon... defendant's selection of the... type of tile, and the only support for a breach of duty is set forth in the expert report... prepared by Ronald Saxton [sic], dated January 17, 2008.... [A]nd as I understand the report, he, basically, tested... the wet floor, the dry floor, and found there to be a point five difference.... Dry slip resistance is point seven-four which does more than exceed the industry standard as I understand it and the wet slip resistance is point two-four.
My interpretation [of Saxon's report] is, if a floor is wet and you don't know it, you're going to fall. That's not an opinion that can be taken to the jury. It's an attempt to come up with a theory that just isn't there. He simply says the floor was slippery or wet and dry and, therefore, because she didn't know it, she fell. Well, that doesn't establish a standard, that doesn't establish a duty, and, therefore it is a net opinion.... [T]he link between the slippery floor or the wet floor and the dry floor and the fall just isn't there.
It's purely his speculation. It's purely some degree he throws out. That is the definition of a net opinion.
There is, therefore, no valid claim that... plaintiff has against... defendant for breach of duty.
On appeal, plaintiff contends that her expert report "created an issue of material fact for the jury," and that the trial judge "erred in determining that plaintiff's expert rendered a net opinion."*fn1
In reviewing an appeal from a decision on summary judgment, we employ the same standard applied by the trial judge. 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).
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). "[T]he rules governing expert opinion testimony do not allow the wholesale admission of every expert's opinion, even those of qualified experts opining in an area appropriate for expert opinion." Polzo v. Cnty. of Essex, 196 N.J. 569, 582 (2008).
N.J.R.E. 703 requires an expert to base his/her opinion on "facts or data."
The corollary of that rule is the net opinion rule, which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.... Simply put, the net opinion rule requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion. [State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)) (internal citations omitted)].
An expert opinion lacking "a proper factual foundation" and "consist[ing] of bare conclusions unsupported by factual evidence is inadmissible as a net opinion." Anderson v. A.J. Friedman Supply Co., 416 N.J. Super. 46, ___ (App. Div. 2010).
Applying these standards to Saxon's report, we are satisfied that the trial judge properly concluded that it constituted a net opinion. Saxon essentially opined that a dry tile floor will have greater "slip resistance" than a wet tile floor. He was, however, unable to posit any opinion, to a reasonable degree of engineering certainty, as to a standard for determining when the tile floor at issue would create a safety hazard.
The purpose of expert testimony is to "assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. This rule "embodies the salutary policy that a lay finder of fact should be permitted to have the assistance of an expert's explanatory testimony when making determinations in areas of specialized knowledge." Phillips v. Gelpke, 190 N.J. 580, 590 (2007). "The primary justification for permitting expert testimony is that the average juror is relatively helpless in dealing with a subject that is not a matter of common knowledge." State v. Kelly, 97 N.J. 178, 209 (1984); see also State v. Fortin, 189 N.J. 579, 596 (2007) (noting that expert testimony is "required... to explain complex matters that would fall beyond the ken of the ordinary juror").
Saxon's analysis and conclusions patently failed to meet these requirements. No reasonable "trier of fact" would be able to determine the "fact in issue" of defendants' negligence on the basis of his opinion. N.J.R.E. 702.
The "facts or data" on which Saxon based his opinion were that: (1) "[s]mooth ceramic tile is... generally recognized as being slippery when wet"; (2) the "Ceramic Tile Institute of America recommends that tile have a minimum slip resistance... of 0.6"; and (3) there "are a profusion of products in common use for preventing slips and falls in bathrooms, including special textures in tubs, tub and shower mats, appliqués, and fabric bath mats." However, as noted, Saxon identified no industry standard against which to measure the tile in question. Moreover, the record demonstrated that defendants provided at least one of the "products in common use for preventing slips and falls in bathrooms" identified in Saxon's report, namely bath mats.
In sum, we are satisfied that the motion judge properly granted summary judgment to defendants on the basis that plaintiff's expert had proffered, at best, a net opinion.