August 12, 2011
GLORIA MOORE, PLAINTIFF-APPELLANT,
PETER PULAUCH, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4013-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2011
Before Judges Espinosa and Skillman.
Plaintiff Gloria Moore was a tenant of longstanding at the apartment building owned by defendant Peter Pulauch when she fell on an interior staircase and injured her knee. She appeals from an order that granted summary judgment to Pulauch and dismissed her complaint against him for negligence. We affirm.
Moore resided in a second-floor apartment and had access to the ground level by two staircases, one in the front of the house and the other in the rear that led to the backyard. She had the exclusive use of that portion of the rear staircase where she fell in July 2007. Moore used the rear stairs only occasionally, perhaps two times per month, to do her laundry or take out garbage.
On July 2, 2007, at approximately 11:30 p.m., Moore walked down the stairs to take her dog out. Because her pet was a pit bull, she decided to use the rear stairs after she saw people sitting on the front steps. She had taken just a few steps down when her left foot hit the molding on one of the steps and the molding "gave away." She had never noticed anything wrong with the molding before that evening. Her boyfriend, Donny Bunting, also used the steps and had not said anything to her about them either. She testified that she had never complained to Pulauch about the step before her accident because she "didn't see anything wrong with it to complain to him about the step." Moore went to the hospital for her knee injury that evening and eventually had a knee replacement.
Pulauch came to the apartment building each month to collect rent and made monthly inspections of the property. He testified he was unaware of any defect in the rear staircase and that Moore did not tell him about her accident until several weeks afterward.
Moore filed a complaint against Pulauch, alleging that he was liable for her injuries because he had maintained the premises in a careless, reckless and negligent manner causing a dangerous and hazardous condition to exist. In answers to interrogatories, she stated that defendant's negligence "specifically allowed the nose molding on the stairs to deteriorate, creating a hazardous and dangerous tripping condition." She stated further that she had not noticed the condition and believed the condition was "a result of a sudden failure" as set forth in her expert's report.
Stephen J. Dale prepared a one-page preliminary report*fn1
on behalf of Moore. His analysis and conclusion are set forth
here in their entirety:
Based upon my review of the file material provided and my inspection of the subject stairs, it is my opinion that Ms. Moore's accident was a result of an improperly installed and maintained stair nose molding. It is my further opinion that based upon the paint wear pattern (see photo #3), lack of dirt build-up, and the location of the nose molding fastener (see photo #4), the nose molding suddenly separated from the staircreating a tripping hazard which resulted in Ms. Moore's fall. [Emphasis added.]
Moore also provided a report by Anthony J. Adrignolo, P.E., who inspected the stairs approximately two years after the accident. Mr. Adrignolo's report included four one-sentence observations about the condition of the stairs at the time of his inspection and the following conclusion:
Based upon my review of the file materials provided, my interview with [Moore], and my inspection of the subject stairs, it is my opinion that Ms. Moore's accident was a result of the failure to properly design, install and maintain the nose molding system which is described above. The failure of this system created a tripping hazard when the nose molding became dislodged and she was caused to fall. As a result of my review of the photographs which were taken shortly after the accident, I agree with Mr. Dale's conclusion that the molding became dislodged suddenly as Ms. Moore was descending the stairs. [Emphasis added.]
Pulauch filed a motion for summary judgment. The trial judge granted the motion and provided a written statement of reasons. The judge observed there was no dispute that "the defect in the nose molding of the staircase was latent and occurred suddenly[,]" and, because defendant had no prior notice of the defect, he could not be held liable. As to the allegation that defendant may have created the alleged defective condition, the court noted the absence of proof that Pulauch's actions created the defective condition. Finally, the court found plaintiff's expert opinions to be "net" opinions.
In this appeal, Moore argues that the court erred in finding the expert opinions to be inadmissible net opinions and in granting summary judgment because genuine issues of fact exist. We disagree.
In reviewing an order granting summary judgment, this court employs the same standard of review as the trial court, Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009), which grants summary judgment if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
As the trial court noted, there was no evidence that the landlord here created the defective condition. As a result, plaintiff's action depended upon a showing that Pulauch breached his duty "to conduct a reasonable inspection to discover latent dangerous conditions" and "to guard against any dangerous conditions . . . that the owner either knows about or should have discovered." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 121 (2005) (internal citations omitted) (quoting Parks v. Rogers, 176 N.J. 491, 497--98 n.3 (2003)). Although plaintiff contends an issue of fact exists as to defendant's opportunity to discover the latent defect in the nose molding, the evidence fails to demonstrate such an issue, even when viewed in the light most favorable to plaintiff. Defendant testified that he made monthly inspections of the premises and was unaware of any problem with the staircase. As previously noted, Moore had exclusive use of the portion of the stairs where she fell, admitted she was unaware of the defect prior to her accident, and did not notify defendant of any defect. The expert reports presented by plaintiff did not cure this deficiency in the proofs. First, both experts concluded that the nose molding dislodged suddenly - at the very moment Moore was walking down the stairs, a conclusion that belied plaintiff's allegation that the defect was observable upon reasonable inspection prior to her fall.
Moreover, as the trial court noted, the expert opinions failed to create a genuine issue of fact because they were no more than inadmissible net opinions. See Brill, supra, 142 N.J. at 529. To be admissible, an expert opinion must "'give the why and wherefore' of his or her opinion, rather than a mere conclusion." Creanga v. Jardal, 185 N.J. 345, 360 (2005) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)). Without the facts and reasoning upon which the opinion is predicated, the expert's opinion is no more than an inadmissible net opinion. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
Here, each expert concluded that the accident was caused by improper design, installation and maintenance of the stair nose molding. However, neither identified the applicable standard for proper design, installation and maintenance of the molding or how defendant had deviated from that standard. Without an explanation of the "why and wherefore" of their opinions, their conclusions were merely bare conclusions, unsupported by either factual evidence or reference to a standard of conduct applicable to landlords generally, rather than their own personal opinions. Their opinions were, therefore, inadmissible net opinions, incompetent to permit plaintiff to withstand summary judgment. See Brill, supra, 142 N.J. at 529.