March 22, 2012
ALFRED B. ABRAMS, PLAINTIFF-APPELLANT,
111 S. CAMBRIDGE AVE., L.L.C., A/K/A 111 S. CAMBRIDGE, L.L.C., D/B/A THE CAMBRIDGE HOUSE, AND MICHAEL SAMSCHICK, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
AND SANDS CONDOMINIUM ASSOCIATION, THIRD-PARTY DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2526-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011
Before Judges Sapp-Peterson and Ostrer.
Plaintiff, Alfred B. Abrams, appeals from the Law Division order granting summary judgment to defendants, 111 S. Cambridge Avenue, L.L.C. (Cambridge) and Michael Samschick (collectively referred to as defendants), and dismissing plaintiff's complaint in which plaintiff alleged that defendants' renovations, undertaken in a building adjacent to his condominium unit, caused his air conditioner and his building's elevator to malfunction, resulting in damages to plaintiff. We affirm.
Abrams is the owner of a condominium unit located at the Sands Condominiums (Sands) in Ventnor. Cambridge owns a multi-unit residential building commonly known as "The Cambridge House," located immediately adjacent to the Sands. Samschick is the principal member of Cambridge. In his complaint, plaintiff asserted claims of negligence, violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -84, and the False Claims Act, 31 U.S.C.A. §§ 3729-3731. In addition to compensatory damages, plaintiff also sought injunctive relief and punitive damages.
Defendants filed an answer denying plaintiff's allegations and instituted a third-party action against the Sands. Discovery ensued, during which depositions occurred.
When deposed, Samschick testified that after he purchased the Cambridge House, he noticed there were two separate transformers in his building's basement, one providing electricity to the Cambridge House and one providing electricity to the Sands. He anticipated that the planned renovations for the Cambridge House would require electrical upgrades and advised the Sands. He was also told by a "representative of the electric company that came out to look at [Cambridge House's] electric requirements" that the Sands would need to "either independently" or simultaneously upgrade its electrical system in order for the Cambridge House to upgrade its system. In May 2009, through emails from Bill Ollek, the Sands superintendent, Samschick became aware that the Sands was experiencing electrical problems. The Sands' electrical problems were resolved sometime in September of that year.
In his deposition testimony, Ollek explained that prior to renovations being undertaken at the Cambridge House, there was sufficient electrical power for the Sands. He expressed the opinion that Samschick "could have gotten off of those transformers and went on to a separate transformer anywhere else and [Sands] would have had the power supply needed."
Plaintiff was also deposed. He was eighty-six years old at the time his air conditioner and building elevator malfunctioned. His condominium unit is located on the second floor. Plaintiff testified that his air conditioner was an individual built-in unit, but he was unable to provide specific details regarding the air conditioner's malfunction, beyond testifying that when he turned it on, it did not work. Similarly, plaintiff testified that the elevator, which he believed was at least twenty-five years old or "maybe [fifty] years old," had malfunctioned prior to summer of 2009.
As a result of the malfunctioning air conditioner and elevator, plaintiff testified he was forced to use the stairs to gain access to his condominium unit, often carrying groceries. He also spent a number of nights at a casino hotel in order to obtain relief from the lack of air conditioning in his condominium. Although requested in interrogatories to identify the expert expected to testify regarding the causal connection between the renovations undertaken at the Cambridge House and the loss of electrical power in the Sands, plaintiff failed to name any such expert. Likewise, plaintiff failed to identify any expert expected to render an opinion as to the causal connection between plaintiff's claimed injuries and the malfunctioning of his air conditioner and building elevator. Finally, although plaintiff testified that during the period he was without air conditioning and the ability to use the building elevator, he lost income, he failed to produce documentation supporting his wage loss claim.
At the conclusion of discovery, defendants moved for summary judgment. Plaintiff filed two cross-motions. One motion sought partial summary judgment on the issue of liability and the other motion moved to strike defendants' answer for alleged discovery violations. In his brief in opposition to defendants' motion, plaintiff abandoned his claims arising under the False Claims Act. Additionally, plaintiff submitted no substantive opposition on the issue of punitive damages.
In granting summary judgment to defendants, Judge James E. Isman found plaintiff's contention that he suffered physical and mental anguish as a result of the lack of reliable electricity in his apartment to be unsupported by any expert report and testimony. The judge reasoned:
The ability of a lack of air conditioning and electricity to cause "mental anguish" is not within the common range of experience. . . . These claims, and their causation, are outside the realm of common experience and beyond the ken of the average juror, and therefore cannot be proven absent expert testimony.
The judge similarly concluded, notwithstanding requests for proof of plaintiff's wage loss claims, plaintiff failed to produce any evidence of lost wages. The court further noted that the discovery end date had already passed.
Turning to plaintiff's CFA claim, the court found the claim lacked merit since the CFA requires that the alleged fraud occur within the context of "the sale or advertisement of any merchandise or real estate." Finally, beyond bare allegations, the judge determined that plaintiff presented "absolutely nothing . . . to indicate that [d]efendants acted with malice when they planned their renovations or that they disregarded a risk to [p]laintiff or his building." The ensuing appeal followed.
On appeal, plaintiff raises the following points for our consideration:
THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF'S PARTIAL SUMMARY JUDGMENT MOTION.
THE TRIAL COURT ERRED IN CONCLUDING THAT AN EXPERT IS ESSENTIAL IN PROVING CAUSATION IN LIGHT OF DEFENDANTS' ADMISSIONS THAT ELECTRICAL SHORTAGES COULD ENSUE FROM PROCEEDING TO AUTHORIZE RENOVATIONS AND ELECTRICAL UPGRADES TO THE ADJACENT BUILDING WITHOUT FIRST COMPELLING THE NEIGHBORING BUILDING OWNERS BY COURT ACTION TO JOIN IN FACILITATING THE CONSEQUENTIAL ELECTRICAL LOAD INCREASES; IN FACT[,] SUCH FORESEEABLE SUMMER LONG HABITABILITY ADVERSITIES WERE CURED IN SEPTEMBER 2009 AFTER PLAINTIFF'S FILING [OF] THE SUBJECT COURT ACTION.
FOR PURPOSES OF THE MOTION FOR SUMMARY JUDGMENT BELOW[,] PLAINTIFF MET HIS BURDEN OF PROOF THAT HE SUSTAINED DAMAGES (FOR EXAMPLE, BEING TRAPPED IN AN ELEVATOR - SLEEPING ELSEWHERE DURING HOT EVENINGS DURING THE SUMMER) SUFFICIENT TO ALLOW A FACT FINDER TO ASSESS THE WEIGHT AND EXTENT OF HIS DAMAGES; MOREOVER, GIVEN (A) THE UNDISPUTED ADMISSIONS OF DEFENDANT AS TO FORESEEABLE CONSEQUENCES OF HIS ACTIONS REGARDING RENOVATIONS FOR WHICH ELECTRICAL UPGRADES WOULD BE NECESSARY, (B) A SUPERINTENDENT'S TESTIMONY THAT ACTUAL INCREASES IN ELECTRICAL SUPPLY WERE CAUSED BY DEFENDANTS' ACTIONS, AND (C) GENERAL RES IPSA LOQUITOR PRINCIPLES, THE PLAINTIFF WAS ENTITLED TO PARTIAL SUMMARY JUDGMENT AS TO LIABILITY AND THE MATTER OUGHT TO HAVE BEEN SCHEDULED FOR A PROOF HEARING AS TO DAMAGES. POINT IV
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BASED, IN PART, ON MOVING DEFENDANTS' SUGGESTION THAT INDEPENDENT CONTRACTORS SHOULD BE SOLELY LIABLE FOR DAMAGES[,] YET THE MOVING DEFENDANTS FAILED TO IDENTIFY THEM IN REQUESTED DISCOVERY; THE COURT ERRED IN FAILING TO GRANT PLAINTIFF'S DISCOVERY MOTION AND, MOREOVER, DEFENDANTS' FAILURE TO IDENTIFY OR IMPLEAD THOSE INDEPENDENT CONTRACTORS REQUIRED THAT . . . DEFENDANTS' PLEADING BE STRICKEN FOR[,] INTER ALIA, FAILURE TO IMPLEAD INDISPENSABLE PARTIES PURSUANT TO [RULE] 4:28-1.
We have considered the points raised in light of the record and applicable legal principles and reject the arguments advanced. We affirm substantially for the reasons expressed by Judge Isman in his cogent and well-reasoned written opinion accompanying his December 17, 2010 order. We add the following comments.
Our review of a trial court's grant or denial of a motion for summary judgment is de novo. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). Under our de novo standard of review, we employ the same standard as that of the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a "light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Because our review of issues of law is de novo, we accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
The evidence, viewed most favorably to plaintiff, establishes that the Sands and Cambridge House shared electrical systems and defendants believed that upgrades were necessary to the electrical systems in light of the renovations to the Cambridge House. At the same time defendants undertook renovations at Cambridge House, plaintiff began to experience problems with his air conditioner, an individual unit installed below one of his apartment windows. Also at this time, the elevator in his building started to malfunction.
"The mere showing of an incident causing the injury sued upon is not alone sufficient to authorize the finding of an incident of negligence. Negligence is a fact which must be shown and which will not be presumed." Long v. Landy, 35 N.J. 44, 54 (1961). "In an ordinary negligence case, the plaintiff bears the burden of showing the unreasonableness of the defendant's conduct (in other words, the defendant's breach of a duty owed)." Feldman v. Lederle Lab., 132 N.J. 339, 349-50 (1993). A defendant's actions also must be the proximate cause of the injury suffered by the plaintiff. Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157, 161 (1969).
Apart from presenting no expert testimony establishing a causal connection between the renovations undertaken and the malfunctioning air conditioner and elevator, plaintiff also failed to present any expert testimony linking defendants' actions to plaintiff's claimed psychological and physical injuries. In short, plaintiff has failed to prove that defendants' conduct is the proximate cause of his injuries.
We find no merit to plaintiff's claims that the doctrine of res ipsa loquitur applies, which, if applicable, would establish a prima facie case of liability. Res ipsa loquitur, a Latin phrase meaning "the thing speaks for itself," permits an inference of negligence, thus obviating the necessity of expert testimony to establish a prima facie case of negligence. Jerista v. Murray, 185 N.J. 175, 191-92 (2005). In order to invoke the doctrine and thereby obviate the need for expert testimony, a plaintiff must establish that "'(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality 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.'" Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)); see also Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 398-400 (2005) (setting forth contours of res ipsa doctrine).
Here, plaintiff has failed to satisfy the first two prongs. Other than the fact of the malfunctioning air conditioner and elevator, plaintiff offers no evidence that the malfunctions were due to negligent conduct of defendants. Samschick's deposition testimony acknowledging that he was aware the two buildings shared electrical systems and his belief, at the time, that both buildings should upgrade the electrical service, does not bespeak negligence in undertaking the Cambridge House renovations nor establish that any power fluctuations in plaintiff's building could only be attributable to the renovations. While plaintiff was not required to exclude all other possible causes of the malfunctions in the air conditioning unit and elevator, he was at least required to establish that it is more probable than not that defendants' renovations were the proximate cause of the malfunctions. That was not done here. See Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291-92 (1984).
Further, Cambridge and its employees did not have exclusive control over the electrical transformer. Sands also had access, and it had notice of Cambridge's plans. The record also establishes that Samschick suggested that the Sands and Cambridge House work together to ensure that both buildings functioned properly during the renovations, thereby reinforcing the fact that defendants did not have exclusive control over the electrical transformer. Thus, plaintiff was not entitled to invoke the doctrine of res ipsa loquitur in lieu of presenting expert testimony on the issue of defendants' negligence. Therefore, the court properly disregarded this contention as a basis to deny summary judgment to defendants or to grant summary judgment on the issue of liability to plaintiff.
Finally, we review the denial of plaintiff's cross-motion to strike defendants' answer for discovery violations under an abuse-of-discretion standard. See Bender v. Adelson, 187 N.J. 411, 428 (2006) (applying an abuse of discretion standard to trial court's decision to bar interrogatory answers and deny discovery extension). In so doing, we find no abuse of discretion. The discovery period ended on September 14, 2010. Plaintiff filed his cross-motion on December 2, 2010. Prior to the discovery end date, plaintiff did not file a motion to compel defendants' compliance with discovery demands or seek an order suppressing defendants' answers for non-compliance with discovery demands. See R. 4:24-2 (Motions to compel discovery must be made returnable prior to the expiration of the discovery period.) Nor did plaintiff at any time seek an extension of the discovery end date. R. 4:24-1(c). Therefore, the motion judge properly denied plaintiff's cross-motion.
To the extent we have not specifically discussed the remaining arguments advanced by plaintiff, we conclude they are without sufficient merit to warrant discussion in this opinion.
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