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Dean Testa and Donna Testa v. Ground Systems

February 4, 2011

DEAN TESTA AND DONNA TESTA, PLAINTIFFS-APPELLANTS,
v.
GROUND SYSTEMS, INC. AND STEVE AUSTIN, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-233-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 4, 2010

Before Judges Rodriguez and Grall.

Plaintiffs, Dean and Donna Testa, appeal from the dismissal of their claims for damages based on negligence and breach of a contract to inspect a septic system. The defendants are Ground Systems, Inc. (GSI), and "an inspector for" GSI, Steve Austin, the licensed sanitary inspector who performed the inspection and prepared and signed the report on behalf of GSI.

Austin was granted summary judgment in his individual capacity. The Testas challenge that ruling on appeal.

Additionally, the Testas' claims against GSI were dismissed at trial in the midst of the presentation of plaintiffs' case based on the trial judge's determination that they could not establish liability or damages with expert evidence. The Testas were barred from presenting expert evidence by pretrial orders that they do not challenge on appeal. Although the Testas had survived motions for summary judgment after a different judge barred their expert, the Testas' attorney invited the judge assigned to try the case to take his proffer of plaintiffs' evidence and determine if his clients could reach the jury without expert evidence. The judge accepted that invitation and dismissed the complaint with prejudice. The Testas challenge that ruling on the merits.

The unusual circumstances under which the order dismissing the claims against GSI was entered require us to identify the applicable standard of review. The procedure invoked by plaintiffs' counsel is not authorized by the rules, but this court has noted that the practice is, in effect, an impromptu substitute for summary judgment. Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83-85 (App. Div. 2001) (reversing a sua sponte dismissal of plaintiff's case at trial on the ground that plaintiff did not have notice or a fair opportunity to defend). Because the judge in this case made the dispositive ruling at the urging of plaintiffs' counsel and without objection from the defense, we overlook the procedural irregularity.

Given the circumstances under which the order was entered, we conclude that it is proper to assess the need for expert testimony as we would if the issue had been raised by the defense on motion for summary judgment or at the close of plaintiffs' case. See R. 4:37-2(b); R. 4:46-2(c). In both cases, the inquiry "'is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366, 370, (2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). Under both standards, we must give the Testas the benefit of their evidence and favorable inferences. Id. at 370. There is no question that we must apply that standard to address the Testas' objections to the summary judgment awarded Austin. R. 4:46-2(c).

Having selected the applicable standard, we state the facts in the light most favorable to the Testas. In 1996, the Testas were interested in purchasing a residence in Rockaway, New Jersey but wanted an inspection of its sewage disposal system before they closed. On the recommendation of their home inspector, the Testas called and retained Austin.

Austin inspected the property on March 30, 1996, and Dean Testa was present. According to Dean, Austin asked if the Testas wanted a visual inspection of the tank, and Dean said he did. The lid to the tank was covered, but Dean agreed to do the digging necessary to uncover the tank's lid in order to avoid the delay and expense of an excavation by Austin. Austin showed Dean approximately where the tank would be, and after Dean cleared it, they removed the lid. Dean saw water at the top of a tank composed of concrete and some "wood forms." That was the only tank Austin inspected.

Austin told Dean the system would include features beyond the tank they uncovered - a distribution box and a leach field with gravel and pipes. The water from the tank would flow to a distribution box and through its pipes to a gravel leach field where it would percolate to the rock bed.

Austin's inspection also included testing of the leach field. The water inside the house was turned on to create a flow and dye was placed in the tank. The leach field was then probed to see if its water contained dye, which would mean that the system was failing. According to Dean, Austin told him he approximated the location of the leach field with reference to the location of the tank and his visual observation of the property.

Austin prepared a report on his inspection dated April 8, 1996. He signed that report on behalf of GSI, and it was printed on GSI's stationary. That report is the only evidence in the record connecting Austin with GSI, other than an answer to interrogatories that describes Austin as an "inspector for GSI." In his report, Austin describes what he did to "evaluate the working condition" of the sewage and water disposal system, referencing the dye test, water flow ...


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