June 30, 2011
STANLEY L. WILLIAMS, PLAINTIFF-RESPONDENT,
COUNTY OF CUMBERLAND AND CUMBERLAND COUNTY JAIL, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1034-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2011 - Decided
Before Judges Parrillo and Skillman.
Plaintiff, who was an inmate in the Cumberland County Jail, slipped on a wet spot in the jail gymnasium while playing basketball and severely injured his knee. Plaintiff subsequently brought this action against Cumberland County under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, claiming that improper flooring material in the gymnasium and proximity of toilet facilities to the gymnasium created a "dangerous condition of public property" within the intent of N.J.S.A. 59:4-1, 2. Plaintiff named Cumberland County and the Cumberland County Jail as defendants in the action.
Defendants filed a motion for summary judgment, which the trial court denied. After discovery, defendants renewed their motion for summary judgment, which the court again denied. We granted defendants' motion for leave to appeal from the order memorializing that denial and now reverse.
The evidence before the court on the motion for summary judgment consisted primarily of plaintiff's deposition testimony and the report and deposition testimony of his expert, Burroughs Perkins.
Plaintiff injured his knee while dribbling a basketball towards the basket to take a lay-up in a pick-up basketball game played on June 1, 2008 between teams of inmates. As described by plaintiff, as he approached the rim of the basket: "I felt my foot slip. And it slid a little bit. Then I just heard my leg pop. It popped while I was still standing up. Then I just fell on the floor."
According to plaintiff, while he was lying on the gymnasium floor, he noticed that it was "wet" and "slippery." This wet area "wasn't like a puddle" but instead consisted of "little sprinkles of water." Plaintiff also testified that when his foot hit the water, he did not "slide far at all," and the injury occurred when his foot "like twisted a little bit."
Plaintiff stated that there had been flat carpeting on the gymnasium floor on one of the prior occasions he was incarcerated in the Cumberland County Jail, but that the carpeting had been replaced by the current flooring material two or three years before his accident. Plaintiff testified that this flooring material had "more traction" when it was first installed than at the time of his accident.
Plaintiff did not know how the water that caused him to slip got on the gymnasium floor, but he surmised that it was probably from the hands or feet of an inmate walking onto the floor from the nearby bathroom, which did not contain towels or a drying apparatus. Plaintiff did not know how long the wet spot may have been on the floor before his accident. However, plaintiff testified that he and other inmates would often complain to the guards about the water on the gymnasium floor, but their complaints were rebuffed by the guards who told the inmates to engage in some other activity.
Plaintiff's expert, Burroughs Perkins, an architect, expressed the opinion that the seamless resilient vinyl flooring installed on the floor of the jail gymnasium was the wrong material to use in a room used for exercise that involves running and jumping. In support of this opinion, Perkins noted that one manufacturer's recommended uses for such flooring did not include gymnasiums and exercise rooms. However, Perkins acknowledged at his deposition that there were ANSI standards for measuring slip resistance and that he had not undertaken to measure the slip resistance of the gymnasium floor to determine whether it complied with those standards. In addition, Perkins testified that he was unaware of any other standard for slip resistance that the gymnasium floor failed to satisfy.
Perkins also expressed the opinion that the location of the bathroom, which lacked any towels or other drying apparatus, directly adjacent to the gymnasium magnified the danger created by the vinyl flooring because it increased the likelihood inmates would walk onto the gymnasium floor with wet hands or feet. However, Perkins did not identify any applicable standard regarding the location of a bathroom in relation to a gymnasium or other exercise area. Perkins also acknowledged that the spot of water on which plaintiff slipped could have been caused by sweat dripping off the body of one of the inmates participating in the pick-up basketball game.
N.J.S.A. 59:4-2 provides:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
Plaintiff claimed that the gymnasium floor on which he slipped and injured his knee constituted a dangerous condition for two reasons: first, that the vinyl flooring was an unsafe material to place on the floor of a gymnasium because it becomes slippery when wet; and second, that the bathroom, which did not have any drying apparatus, was located too close to the gymnasium because inmates walking from the bathroom to the gymnasium would be likely to carry water onto the floor on their hands or feet.
Plaintiff relied upon Perkins' opinions regarding both of these alleged permanent dangerous conditions. We conclude that those opinions were "net opinions" that could not support a claim under N.J.S.A. 59:4-2.
"[T]he net opinion rule . . . forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)). This rule "requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion." Ibid. (quoting Townsend, supra, 186 N.J. at 494). Therefore, "opinion testimony 'must relate to generally accepted . . . standards, not merely to standards personal to the witness.'" Taylor v. DeLorso, 319 N.J. Super. 174, 180 (App. Div. 1999) (quoting Fernandez v. Baruch, 52 N.J. 127, 131 (1968). "A standard which is personal to the witness is equivalent to a net opinion." Ibid.
In expressing his opinion that the vinyl flooring that was installed on the floor of the jail gymnasium was an improper material to use on a surface intended for running or jumping, Perkins failed to identify any accepted industry standard. He simply noted that this use was omitted from the list of approved uses for such flooring issued by one manufacturer (the manufacturer of the flooring on which plaintiff slipped was not identified) and expressed his personal opinion that vinyl flooring should not be installed in a gymnasium. Moreover, Perkins admitted at his deposition that even though there was an ANSI standard for the slip resistance of the flooring, he had not conducted any testing of the floor on which plaintiff slipped and consequently did not know whether it complied with the ANSI standard. Perkins also was unable to identify any other standard the vinyl flooring failed to comply with.
Similarly, Perkins did not identify any standard that was violated by the location of the bathroom immediately adjacent to the gymnasium. Indeed, Perkins acknowledged that there were no standards relevant to the location of a bathroom in relation to a gymnasium.
In the absence of any competent supporting expert opinion evidence, we conclude that plaintiff failed to present sufficient evidence from which a reasonable trier of fact could find that either the gymnasium flooring or the location of the bathroom in proximity to the gymnasium constituted a "dangerous condition" of public property, N.J.S.A. 59:4-2(b), that is, "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used," N.J.S.A. 59:4-1(a), or that it was "palpably unreasonable" for Cumberland County not to install a different material on the gymnasium floor or to locate the bathroom a greater distance from the gymnasium. N.J.S.A. 59:4-2.
Plaintiff also failed to present sufficient evidence to survive summary judgment with respect to his claim that the transient condition of water on the gymnasium floor at the time of his accident constituted a dangerous condition of public property. Plaintiff admitted that he could not identify the source of the water on which he slipped or how long that water had been on the gymnasium floor before his accident. Plaintiff also admitted that the wet spot on the floor could have come from sweat dripping off the bodies of the inmate-basketball players rather than being tracked from the bathroom. Under these circumstances, plaintiff failed to present sufficient evidence from which a reasonable trier of fact could find that defendant had either "actual" or "constructive" notice of the wet condition of the gymnasium floor that allegedly resulted in his fall. See Carroll v. N.J. Transit, 366 N.J. Super. 380, 387-89 (App. Div. 2004); DeBonis v. Orange Quarry Co., 233 N.J. Super. 156, 169-71 (App. Div. 1989).
Accordingly, we reverse the order denying defendants' motion to dismiss plaintiff's complaint.
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