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Doug Rishel and Lisa Rishel v. A. P. Construction

January 5, 2011

DOUG RISHEL AND LISA RISHEL, PLAINTIFFS-APPELLANTS,
v.
A. P. CONSTRUCTION, INC.,
DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-296-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 3, 2010 - Decided Before Judges Messano and Waugh.

Plaintiff Doug Rishel (Rishel), and his wife Lisa Rishel suing per quod, appeal the dismissal on summary judgment of their complaint against defendant A. P. Construction, Inc. (A.P.). We reverse.

I.

We discern the following facts and procedural history from the record.

In March 2004, Rishel was employed by Camden County Community College (College) as a boiler operator. A.P. was in the process of doing construction on the College campus. According to the deposition excerpts in the record, A.P. had removed the blacktop from the parking lot between Truman Hall and Roosevelt Hall.

In the early hours of March 22, 2004, Rishel was in the process of leaving Truman Hall, where the College's main physical plant was located, to go to Roosevelt Hall, which was located to the north across the parking lot where the construction was located. Although there were fences in adjacent areas, there were no fences or warnings outside the loading-dock door through which Rishel left Truman Hall. According to one of A.P.'s deposition witnesses, the inside of the door was supposed to have had a sign, placed by the College, that it was only to be used as an emergency exit.

When Rishel left Truman Hall to start across the parking lot, he noticed that there was construction and that the blacktop had been removed. As he proceeded across the lot, his foot went into a rut, which caused him to fall. He alleges that the fall caused a back injury that required surgery and has left him totally disabled.

Plaintiffs filed their complaint on March 21, 2006, alleging that A.P. was negligent and that A.P.'s negligence caused Rishel's injuries. After the filing of an answer and the completion of discovery, A.P. moved for summary judgment, arguing that plaintiffs could not prove negligence without an expert witness. Plaintiffs opposed the motion. Following oral argument on February 5, 2010, the motion judge granted summary judgment and entered an order dismissing the complaint.

This appeal followed.

II.

Plaintiffs argue on appeal that the motion judge erred because their claim could go to the jury without an expert witness. A.P. counters by arguing that an expert witness is required when a plaintiff seeks to rely on regulations promulgated by the Occupational Safety and Health Administration (OSHA).

It is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Consequently, we review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2(c). Liberty Surplus Ins. ...


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