May 31, 2011
GERALDINE POTEAT, PLAINTIFF-APPELLANT,
C-PENN ROOFING, PENN CONSTRUCTION COMPANY,
AND AMEL INC., T/A PENN CONSTRUCTION, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8654-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 15, 2011
Before Judges Wefing and Baxter.
Plaintiff appeals from a trial court order granting defendant's motion to dismiss her complaint pursuant to Rule 4:37-2(b). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff owns a home in Newark, and she hired defendant to repair her roof to cure the problems she had been experiencing with leaks. The parties differed with respect to the scope of the work defendant had been engaged to perform. Plaintiff testified that the roof of her house was slate and that defendant was to install a new slate roof on a dormer, a turret roof over the front porch, do some flashing around the chimney and fix a particular hole that she pointed out. Plaintiff said that her house was located in a historic district in Newark, and it was important that the work be performed to conform to the district's requirements.
Plaintiff dealt with defendant's estimator, Robert Young. Young testified, on the other hand, that plaintiff's entire roof was not slate but, rather, the dormer roof and the turret porch roof were rubberized roofs. Young said that he told plaintiff that to install an entire new slate roof on the house would cost $50,000. Plaintiff demurred at the cost. He testified that he then told her a smaller repair job could be done for significantly less money. The proposal plaintiff signed called for defendant to install a new rubber roof over the dormer and the "front lower roof," flash around the chimney and vent pipe, reseal the rear edge of the flat roof and replace missing slate for a total price of $1950.
Defendant's work crew came on April 19, 2006, and did the work set forth in the written proposal. Plaintiff complained at the end of the day that the hole she had pointed out had not been repaired, and the crew returned and attended to that. Plaintiff paid the entire sum in cash.
Plaintiff testified that the leaks she had experienced did not abate but continued. Young testified that he told plaintiff that she had to replace the gutters around her front porch if she wanted to stop the leaks in that area. Plaintiff also testified that slate and what she termed "construction debris" began to fall from the roof. She said she called repeatedly to complain, but the problem persisted and she would continually have to clean up the "construction debris" from the area around her front porch. Young denied that any debris was left on the roof. He testified that the last step in the installation of a rubberized roof is to paint it silver to deflect the heat and that would have been impossible if debris were left.
Plaintiff said that on Sunday, September 17, 2006, she saw some slate on the front porch and swept it up. Later in the day she went out to take a walk, and there were more pieces of slate on the porch and the steps. She said she tried to step around but slipped on a piece of slate and fell, fracturing her ankle. She suffered a comminuted trimalleolar fracture and underwent repeated surgeries. By the time the matter went to trial in 2010, she still required the assistance of a cane and still had pain and swelling in her ankle. She sued defendant for damages, contending it had negligently performed repairs to her roof, causing her accident.
Plaintiff testified on Thursday, June 17, 2010. She described her roof, and told the jury that she knew that it was entirely slate. She continued that she and her son had, on the previous evening, gone on the roof of the garage to visually inspect the roof of the house to assure themselves that it was indeed completely slate. Based upon that testimony, defense counsel approached the trial court and requested that it sign an order permitting her expert to examine the roof. After considering plaintiff's objections, the trial court granted the request. That inspection revealed that the roof was not completely a slate roof but that the dormer roof and front porch roof were indeed rubberized.
Based upon the evident disparity between plaintiff's testimony and the results of the physical inspection, defendant moved for a dismissal. The trial court denied the motion, concluding that to grant it would require an improper incursion into the jury's fact-finding responsibility. The trial continued, and plaintiff presented additional witnesses, including her expert medical witness and her expert on liability, Michael Natoli, an engineer. Following that testimony, and plaintiff resting her case, defendant again moved for dismissal. Following argument, the trial court granted the motion, and this appeal followed.
Plaintiff has presented a number of arguments in support of her appeal. These can be separated into two categories: plaintiff's complaint that the trial court improperly permitted defendant's expert to physically examine her roof during the trial and her complaint that the trial court improperly granted the motion to dismiss. As to the first, the matter rested within the trial court's discretion, and we are unable to perceive any abuse of that discretion when it permitted this examination to take place.
As to the second, we are equally unpersuaded. We note first the standard governing motions under Rule 4:37-2(b), which is well known. When considering such a motion, "[t]he trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). The Supreme Court recently restated the standard. "A motion for involuntary dismissal only should be granted where no rational juror could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie element of a cause of action." Godfrey v. Princeton Seminary, 196 N.J. 178, 197 (2008) (citing Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001)).
Plaintiff's expert testified that defendant's workers must have loosened slate tiles by walking across them while working on plaintiff's roof. There was no evidence, however, that defendant's workmen did indeed walk on the slate roof, and Young denied that they did so, saying it would be far too dangerous to walk on a slate roof. When asked what defendant should have done to prevent slate and debris from falling, the expert responded they should not have walked on the roof. Plaintiff was present while the work was being performed and never testified that defendant's workmen walked across the slates. Plaintiff's expert did not identify anything defendant did that served as a causal link to plaintiff's accident, merely concluding that if slate had not fallen from the roof prior to defendant's work, plaintiff's fall must have been caused by defendant's work.
We reject plaintiff's contention that she was entitled to have her case continue under the doctrine of res ipsa loquitor.
To be entitled to invoke res ipsa, a plaintiff must establish three elements: "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality causing the injury was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect." Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 398 (2005). Plaintiff has not established all three elements, and certainly not the second. In addition, res ipsa is only available to permit a jury to infer negligence; it is not available to permit a finding of proximate cause. Cockerline v. Menendez, 411 N.J. Super. 596, 615-16 (App. Div. 2010).
In our judgment, the trial court correctly recognized that plaintiff's proofs failed to establish a proximate link between defendant's repair of plaintiff's roof in April 2006 and her fall five months later, in September, and we affirm the order dismissing her complaint.
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