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Samir Baker, A Minor By His Guardian Ad Litem, Sherice Lott, Natural v. Robert Peoples

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 6, 2012

SAMIR BAKER, A MINOR BY HIS GUARDIAN AD LITEM, SHERICE LOTT, NATURAL MOTHER OF THE MINOR, AND SHERICE LOTT, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ROBERT PEOPLES, AND SUNSET MANAGEMENT, LLC., DEFENDANTS, AND WILLYE DANIELS, DEFENDANT-RESPONDENT, AND ROBERT PEOPLES, THIRD-PARTY PLAINTIFF,
v.
WILLYE DANIELS, THIRD-PARTY DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2044-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 17, 2012

Before Judges A. A. Rodriguez and Fasciale.

In this negligence action against a landlord of a residential dwelling, plaintiffs Samir Baker (Baker), a minor by his mother and guardian ad litem Sherice Lott (Lott), and Lott individually, appeal from an order granting summary judgment to defendant Willye Daniels (Daniels), who was their landlord during a portion of their tenancy. They allege that Baker, suffered a neuropsychological injury as a result of his exposure to chipping paint in an apartment they rented from Daniels for approximately nine months. Plaintiffs have not raised a genuine issue of disputed fact that the exposure to the paint in Daniels' apartment proximately caused Baker's injury. We affirm.

Baker was allegedly exposed to lead paint in two apartments. Daniels rented the first apartment to plaintiffs when Baker was between six months and one year old. Daniels then sold the property to defendant Robert Peoples (Peoples), and plaintiffs continued to live in the first apartment for about ten months. They then moved out and rented the second apartment, which was owned by defendant Sunset Management, LLC, (Sunset).*fn1

In her deposition, Lott offered the following testimony concerning the location of chipping paint in their first apartment:

Q: Where was the flaking paint located within the apartment?

A: Inside [Baker's] playroom. I had actually put like wallpaper over it.

Q: So when you say inside the playroom, was it on the walls or was it on the windowsills[?]

A: It was like around the windowsills.

Q: And you said you had put something over it? . . .

A: Yeah. I put wallpaper around the walls and like around the windowsill just so like [Baker] won't be able to get it.

Q: When you moved in, do you recall seeing any paint chipping or peeling paint in any other areas of the apartment other than the window that you mentioned?

A: No.

Q: During the first year that you lived at [the first apartment], do you recall seeing any chipped paint or peeling of paint in any other areas?

A: No.

Q: What about during the entire time that you were living [in the first apartment], did there ever come a time that you saw any other chipped paint or peeling paint?

A: No.

Q: All right. So the time that [Baker] got behind the wallpaper and got the paint chip in his mouth was shortly right before you left [the first apartment when Peoples was the landlord]?

A: Yeah, yes.

Q: Okay. Were there any other times when you were at [the first apartment] that you saw [Baker] put paint chips or peeling paint in his mouth?

A: No.

Baker underwent at least twelve blood tests from before plaintiffs moved into the first apartment to after they moved out of the second apartment. The tests were performed to determine whether Baker's blood lead levels were elevated above a limit of 10.0 ug/dl.*fn2 Before plaintiffs moved into the first apartment, Baker's blood lead level was 9.0 ug/dl. Three months after Daniels sold the property to Peoples, Baker's level was 10.0 ug/dl. The rest of the blood tests, indicating blood lead levels above 10.0 ug/dl, were performed after Daniels sold the property and after plaintiffs moved out of the second property. During Daniels' ownership of the first apartment, however, no test results indicated that Baker had blood lead levels above 10.0 ug/dl.

Plaintiffs retained Idit Trope, Ph.D., a forensic pediatric and adult neuropsycholgist, "to determine whether and to what extent [Baker] suffers any ongoing impairment in mental and cognitive functioning attributable to lead intoxication." Trope performed a neuropsychological evaluation of Baker and opined that "[Baker's] medical history is significant for lead exposure in early childhood, resulting in elevated blood lead levels . . . [resulting] in neuropsychological deficits." Trope did not opine that any exposure to lead paint during Daniels' ownership of the first apartment caused Baker's condition.

Daniels filed a motion for summary judgment and argued that plaintiffs failed to offer any proof that Baker's injury was caused by exposure to lead during the nine months that Daniels owned the first property. Plaintiffs contended that Baker's injury could be proven circumstantially because lead paint existed in the apartment when Daniels rented it to them. The judge disagreed, granted the motion, and stated:

[Plaintiffs] really need some kind of expert testimony, medical testimony of how ingestion of lead does cause individuals to have neuropsychological deficits. Does it occur right away, . . . later, et cetera?

This appeal followed.

Plaintiffs contend that the judge erred by failing to (1) afford them all reasonable inferences, (2) follow the holdings in Sholtis v. American Cynnamid Co., 238 N.J. Super. 8, 28-29 (1989) (applying a "frequency, regularity and proximity" medical causation test in a strict liability asbestos case), and James v. Bessemer Processing Co., 155 N.J. 279, 304 (1998) (extending the Sholtis holding to an occupational exposure toxic tort case), and (3) accept testimony from Trope.

In order to establish a claim of negligence, a plaintiff must demonstrate: (1) a duty of care, (2) breach of that duty, (3) proximate causation, and (4) injury. Weinberg v. Dinger, 106 N.J. 469, 484 (1987) (citing W. Page Keeton et al, Prosser and Keeton on the Law of Torts, § 30 at 164-65 (5th ed. 1984)). In this appeal, the primary focus is on the third element, whether plaintiffs demonstrated that Baker's injury was proximately caused by Daniels' negligence.

Summary judgment is appropriate when no genuine issue of material fact exists. Rule 4:46-2(c). The "determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Thus, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

We review the disposition of a summary judgment motion de novo and apply the same standard as the trial court. LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 6 (App. Div. 2011) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We first consider whether a genuine issue of material fact exists and then whether the trial court correctly applied the law. Henry v. N.J. Dep't of Human Serv., 204 N.J. 320, 330 (2010) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)).

Although proximate cause is an issue normally reserved for the jury, "[t]hat rule . . . is far from absolute." Shelcusky v. Garjulio, 172 N.J. 185, 206 (2002). It is well-settled that courts may decide the issue of proximate cause on a motion for summary judgment where "reasonable minds could not differ on whether that issue has been established." Fleuhr v. City of Cape May, 159 N.J. 532, 543 (1999).

Furthermore, "a jury should not be allowed to speculate without the aid of expert testimony in any area where laypersons could not be expected to have sufficient knowledge or experience." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2010) (citing Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997); see also N.J.R.E. 702 (permitting expert opinion to "assist the trier of fact to understand the evidence or to determine a fact in issue"). Thus, "[e]xpert medical testimony often is used to demonstrate a causal link between the defendant's allegedly negligent conduct and the plaintiff's injury." Creanga v. Jardal, 185 N.J. 345, 354 (2005).

Here, plaintiffs failed to offer any medical testimony establishing that exposure to paint in the first apartment, when Daniels owned the property, caused or contributed to Baker's injury. Trope testified:

Q: [A]re you opining that [Baker] was exposed to lead while residing at any particular location?

A: No.

Q: You're not a medical doctor, correct?

A: No.

Q: . . . You're not qualified to answer how lead is metabolized in the human body? . . . A: I'm not a medical doctor. I guess I should say no.

The evidence is insufficient to create a jury question on proximate causation because plaintiffs offered no evidence that Baker's injury was caused by the chipped lead paint in the first apartment during Daniels' ownership. As a result, the judge did not err by granting summary judgment to Daniels.

We decline to extend the holdings in Sholtis and James to this negligence case against Daniels, a residential landlord. Sholtis involved claims against numerous defendants alleging injury as a result of exposure to asbestos over four decades. Sholtis, supra, 238 N.J. Super. at 14. The plaintiffs in Sholtis were subjected to various products containing asbestos, exposures that "created and then cumulatively exacerbated [their injuries]". Id. at 23. In the context of a strict liability asbestos case, we stated:

If the evidence establishes that reasonable jurors could infer that . . . plaintiffs were exposed to a defendant's friable asbestos frequently and on a regular basis, while they were in close proximity to it . . . ; and if competent evidence, usually supplied by expert proof, establishes a nexus between the exposure and plaintiff's condition, then that defendant's summary judgment motion must be denied. [Id. at 31 (emphasis added).]

Likewise, in James, a case involving continued occupational-exposure to cancer-causing substances manufactured by numerous defendants who failed to warn of dangers, our Supreme Court held that a plaintiff may prove medical causation by establishing:

(1) factual proof of the plaintiff's frequent, regular and proximate exposure to a defendant's products; and (2) medical and/or scientific proof of a nexus between the exposure and the plaintiff's condition. [James, supra, 155 N.J. at 304. (emphasis added).]

In both Sholtis and James, unlike here, the plaintiffs were exposed to multiple products of multiple defendants over an extended period of time. Id. at 301. As a result, "the burden of proving that the plaintiff's exposure to the products of any single defendant was a 'substantial factor' causing or exacerbating the plaintiff's illness is a formidable one." Ibid.

Here, Baker's exposure to chipped paint in the first apartment during Daniels' ownership was for approximately nine months, rather than prolonged over years. Plaintiffs did not assert claims against numerous parties who simultaneously caused exposure to lead paint resulting in a disease that manifested years later. Thus, Sholtis and James are factually distinguishable and inapplicable.

We have reviewed the arguments presented by plaintiffs in light of the record and conclude that the remaining issues presented by plaintiffs are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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