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Jason Malice and Kelly Malice, His Wife v. Laro Service Systems

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 19, 2012

JASON MALICE AND KELLY MALICE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
LARO SERVICE SYSTEMS, INC., AND MODERN FACILITIES SERVICES, INC., DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8593-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2012

Before Judges Sabatino and Fasciale.

Plaintiff Jason Malice, a Port Authority police officer, was injured when a door in a PATH Station closed on him as he was rushing to assist another officer. He and his wife sued the maintenance company and the janitorial services company that were under contract to the Port Authority for the premises, contending that they were each responsible for the alleged door malfunction. The trial court granted summary judgment to both defendants, which plaintiffs now appeal.

For the reasons explained in this opinion, we affirm the entry of summary judgment as to the janitorial services company but reverse summary judgment and remand for a trial as to the maintenance company. We also affirm the trial court's rejection of plaintiffs' res ipsa loquitur argument. Finally, we vacate certain aspects of the court's exclusion of testimony by plaintiffs' liability expert, and remand for a Rule 104 hearing as to other aspects of his proposed testimony.

I.

We summarize the facts presented by the current record in a light most favorable to plaintiffs, against whom summary judgment was entered. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On January 14, 2008, plaintiff,*fn1 who was then on duty as a Port Authority police officer, injured his right arm when a steel and glass compression spring-powered door closed on his arm. The door was located near a newsstand on the concourse level of the Journal Square PATH Station in Jersey City.

Defendant, Laro Service Systems, Inc. ("Laro"), is a maintenance company that was under contract to the Port Authority covering, among other locations, the Journal Square PATH Station. The other defendant, Modern Facilities Services, Inc. ("Modern"), provides janitorial services at the PATH facility, also pursuant to a contract with the Port Authority.

The door that injured plaintiff is manually operated, but it closes using the power of a compression spring. The compression spring causes the door to close, and hydraulic tension counteracts the spring to prevent the door from closing too quickly. The hydraulic system functions by accepting hydraulic fluid through two adjustable needle valves. If the diameter of the valve holes are increased, fluid is passed through the valves at a faster rate, and the door will close more quickly. From a fully open position, a properly working door system should close in approximately four to six seconds.

When the accident occurred, plaintiff and several other officers including Officer Larry Gisulo, were rushing to assist another officer who was near the train platform. Gisulo, who was in front of plaintiff, had run to the door and had pushed it open.

As plaintiff was attempting to pass through the door after Gisulo, the door slammed shut on his right arm. As plaintiff described the incident at his deposition:

PLAINTIFF: Well, when I was going through the door after Officer Gisulo went through, the door came back at me at a high rate of speed, like there was absolutely no tension on the door whatsoever and it stopped me dead in my tracks. Before the door hit me, I was able to get my arm up to block my face and it kind of compressed me. I would say my arm was around my face level and the door struck me across my forearm, my hand, my elbow and stopped me dead, or stopped me in my tracks.

Q.: What was the position of the door when you came into contact with it?

PLAINTIFF: As I was crossing into the threshold of the door, the door had already opened up out towards the escalator area and came back at a very quick speed into me . . . [a]nd I was in the threshold as the door came back right into me.

Plaintiff estimated at his deposition that approximately one second passed between the time that Gisulo touched the door, and when the door struck him.

After the door hit plaintiff, he thought he "had broken [his] arm because it just went completely numb[.]" He "had throbbing pain pretty much from [his] elbow down to [his] hand . . . [he] couldn't feel [his] fingers, like a tingly kind of sensation like [he was] sleeping on [his] arm."

After the collision, two other police officers, who had been immediately behind plaintiff, provided him with assistance. Plaintiff and the other officers then went down to the tracks to aid the officer who had requested their intervention.

At his deposition, plaintiff did not recall ever personally having problems in the past with the door. He stated that he "never had it snap back that quickly . . . before[.]" He had never heard of another officer who had been injured by the doors in the same manner, nor had he responded to a complaint from a pedestrian who had been injured by a door. However, plaintiff did note that he had previously observed the doors on the premises "sometimes being taped off and tied off so you couldn't use them because they had problems with them." Additionally, after his injury, plaintiff had asked other officers about the doors, and they informed him that the doors sometimes had general problems.

As a result of the door-closing incident, plaintiff suffered a torn rotator cuff and impingement of the acromioclavicular joint, requiring surgery. He also sustained a right elbow injury, and a cervical sprain and strain.

During the course of discovery, plaintiffs offered the expert report and testimony of Frank J. Rubino, P.E. Rubino is a licensed engineer in New Jersey, with a B.S. in mechanical engineering, and a Master's Degree in Engineering from Cooper Union School of Engineering.

Rubino issued an eight-page expert report. In that report, Rubino stated that at the time of the incident the door that injured plaintiff was located in a row of sixteen "Blumcraft 1200 series" doors, known as the "newsstand doors." He noted the doors were manually operated, and that each door weighed approximately 250 pounds. The doors were installed in the late 1990s or early 2000s. According to Rubino, the doors used either Jackson or Dorma closers. Such closers "utilized compression spring energy to close the doors. Hydraulic tension was in place to counteract the spring closing force and allow the doors to close at a slow, controlled pace."

The Dorma closers that had originally been installed allowed the doors to open to 180 degrees. To prevent the doors from opening that wide, door stops were installed to stop the doors at ninety degrees. After reviewing photographs of the doors, Rubino noted that the door stops were circular bumpers and about five to six inches in diameter. The door stops were mounted on the ceiling. The door, door closer, and door stop that injured plaintiff were removed after the accident and were not available for Rubino to inspect.*fn2

According to Rubino's report, the Dorma closers apparently had been failing since the time they were installed. As a result, the Dorma closers were being replaced at the site with Jackson closers. Rubino assumed that a Dorma closer still was being used on the door that injured plaintiff, because he had not seen documentation that the closer had been replaced.

Rubino opined that "the cause of the failure of the door closer to close at a controlled (4 to 6 second) closing speed was a failure in the door closer's hydraulic system, specifically leakage in a seal within the hydraulic needle valve." He described that the seals in hydraulic door closers routinely fail and will cause oil to leak up to the floor at the door's base. Once the door stops were installed to prevent the doors from opening beyond ninety degrees, the rubber bumpers essentially pushed the doors closed, thereby causing stress to the hydraulic system. Based on this analysis, Rubino concluded that the Dorma closers had been failing and were being replaced with Jackson closers, which had an automatic ninety-degree door stop that reduced the "'bump back' effect."

Rubino further noted that a hydraulic seal does not fail overnight. Therefore, in Rubino's opinion, routine inspections and maintenance would have prevented plaintiff's accident. According to Rubino, several conditions would have indicated a problem with the door's operation, including the door closing speed, whether the door closer was covered with fluid, and whether the floor at the base of the door contained oil and dirt.

Apart from Rubino's expert report and plaintiff's sworn description of the accident, plaintiffs rely upon portions of the deposition testimony of three other witnesses: Donald Mattson, Charles Brudnicki, and Timothy Ryan.

Mattson is an assistant vice president with Mackenzie Automatic Door ("Mackenzie"), who has worked there for over thirty-nine years. At some point, Mackenzie had a business relationship with Laro, in which Mackenzie performed service calls for Laro.*fn3 Based upon his experience, Mattson provided several observations concerning the operation and failure of hydraulic door closers. Consistent with Rubino's expert opinion, Mattson noted that a worn seal in a hydraulic door closer system can cause it to fail. He explained that a door closer system is in the floor at the base of the door, and the hydraulic fluid will leak up on the floor when the seal fails. Mattson noted that "you can see it [the leaked fluid] if you ever . . . look at the back of doors . . . it tends to make a mess." More specifically, Mattson acknowledged that he was aware that there had been problems with the newsstand doors at the Journal Square PATH Station in the past.

Brudnicki was the highest-ranking Laro employee who worked at the Journal Square location. Brudnicki acknowledged that at the time of plaintiff's accident, Laro was the only maintenance contractor at the site that performed daily maintenance. According to Brudnicki, "if there was a deficiency reported by someone in the Port Authority or by a patron or one of [Laro's] people, one of the things we [would] do . . . [was] walk around observantly looking for deficiencies and things that need to be repaired." He contended that if Laro discovered a problem, its employees would barricade the door and call an outside expert, specifically Mackenzie, which was certified to address the problem. Brudnicki added that Laro would not repair the door itself, because his firm was "not qualified to fix it."

Ryan is a Port Authority*fn4 employee. At the time of his deposition, Ryan was in charge of maintenance at the Journal Square facility, having assumed that role at some point after plaintiff's accident. Although his testimony on the subject was somewhat unclear, Ryan stated that Laro had either been succeeded or supplemented by another maintenance company, ISS, under contract with the Port Authority. Ryan testified that since mid-2009 he decided to document the inspections of doors on the site. According to Ryan, such inspections "were to be taking place all along." However, Ryan stated that he had never directed a Laro employee to perform door inspections, nor was he aware of any memorandum from the Port Authority instructing Laro to inspect the doors by the newsstand.

After considering these and other items from the discovery materials, the trial court granted summary judgment to both Modern and Laro, and denied plaintiffs' cross-motion for summary judgment.*fn5 In a written opinion, the trial court concluded that neither Modern nor Laro breached any duty to plaintiff concerning the condition of the door. With respect to Modern, the janitorial company, the court found that there was "no evidence produced . . . that the [door] closer was leaking or that Modern discovered any malfunction with the door." As to Laro, the court construed its contract with the Port Authority in a manner that only triggered a duty to take corrective steps if Laro actually or constructively discovered that the doors were in an unsafe condition. The court held that the record failed to show that Laro had such notice of a problem with the doors before plaintiff's accident. The court further rejected plaintiffs' reliance upon the doctrine of res ipsa loquitur. Lastly, although it was not necessary to reach the issue because of the entry of summary judgment, the court granted defendants' separate request to bar Rubino's expert testimony at trial as improper net opinion. The court thereafter denied reconsideration.

This appeal ensued, in which plaintiffs seek to reverse the trial court's grant of summary judgment to both Modern and Laro, its denial of a res ipsa loquitur inference, and its exclusion of Rubino's expert testimony.

II.

We first examine the respective summary judgment rulings as to Modern and Laro. In doing so, we 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, supra, 142 N.J. at 540; see also R. 4:46-2(c). The court is not to resolve contested factual issues but instead must determine whether there are any genuine factual disputes. Aqurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). If there are facts that are materially disputed, a motion for summary judgment should be denied. See Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, supra, 142 N.J. at 540. The court must find that the evidence in the record "'is so one-sided that one party must prevail as a matter of law'" in order to grant a motion for summary judgment. Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Our appellate review of a grant of summary judgment observes the same standards, including the obligation that we view the record in a light most favorable to the non-moving party. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). The trial judge's assessment of the record is accorded no special deference because the decision to withhold or grant a motion for summary judgment does not hinge upon a judge's credibility determinations of testimony rendered in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (discussing that no "special deference" applies to the legal determinations of a trial court).

In evaluating summary judgment in this particular case, we must also apply well-established principles of negligence law.*fn6

In order to prove a claim of negligence, a plaintiff must demonstrate: (1) a duty of care, (2) that the duty has been breached, (3) proximate causation, and (4) injury. Weinberg v. Dinger, 106 N.J. 469, 484 (1987) (citing W. Keeton et al., Prosser and Keeton on the Law of Torts § 30 at 164-65 (5th ed. 1984)). A plaintiff bears the burden of proving negligence, see Reichert v. Vegholm, 366 N.J. Super. 209, 213 (App. Div. 2004), and must prove that unreasonable acts or omissions by the defendant proximately caused his or her injuries, Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11 (App. Div.), certif. denied, 156 N.J. 386 (1998).

A critical question in the present case is whether either of the defendants owed a duty of care concerning the condition of the newsstand doors. To assess that question, we must consider the terms of the respective contracts of Laro and Modern with the Port Authority, although the terms of those contracts are not necessarily conclusive with respect to the parties' relationships to plaintiffs. In the analogous context of negligence claims relating to a malfunctioning elevator, "'the ambit of a maintenance contractor's duty to third persons may be measured by the nature and scope of its contractual undertaking.'" Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 303 (App. Div. 2004) (quoting Qualls v. U.S. Elevator Corp., 863 P.2d 457, 462-63 (Okla. 1993)). We therefore consider the Port Authority's respective contracts with Laro and Modern in assessing whether they each owed a duty concerning the safe condition of the doors and, if so, whether there are genuine issues of material fact as to whether those duties were breached.

A.

In its analysis of plaintiffs' negligence claims against Laro, the trial court focused upon several portions of Laro's contract with the Port Authority. The following section expresses Laro's duties upon the "discovery" of unsafe conditions with the doors and other physical elements of the facility:

[Laro] shall immediately inform the Superintendent upon discovery of any industrial equipment, mechanical, electrical, structural or plumbing breakdown, malfunction[,] unsafe condition, damage, crack, break or other sign of disrepair of any of the plumbing fixtures or associated water supply or drainage connections, doors, walls, ceilings, floors, furniture, glass, or any other part of or appurtenance at any Facility structure at which the Contractor is required to perform services under the Specifications. Immediately upon discovery of any such condition the Contractor shall place a sign or in the vicinity of the area, indicating it is "Out of Order" or ["]Under Repair"; such sign shall not be removed until the necessary repairs have been completed. [Emphasis added.]

Nevertheless, other terms of the contract impose additional responsibilities upon Laro. For instance, Laro is charged with a general duty to: apply customary and acceptable management techniques, so as to provide a safe and productive working environment at the Facility and to provide optimum public access, utilization, safety and convenience. [Emphasis added.]

More pointedly, in another section entitled "Maintenance of the Journal Square Transportation Center," the contract obligates Laro to perform "required" tests and inspections on the premises:

[Laro] shall operate and maintain the building system, structures, facilities and equipment in accordance with the provisions of this [c]ontract. [Laro] shall perform all tests and inspections required on the building systems and equipment at the [Journal Square Transportation Center]. [Emphasis added.]

In addition, Laro's role with respect to the condition of the doors and the door closers is specified in another portion of the contract entitled "Scope of Work #7 - General Utility Maintenance."

[Laro] shall furnish and supply the labor, supervision, materials, equipment, supplies and administration necessary or proper for general utility maintenance and repair at the Journal Square Transportation [Center]. [Laro], as directed by the Superintendent, shall also provide a variety of services in the mechanical, plumbing, electrical, structural and general utility areas. Such assistance, repairs and service shall include but not be limited to the following:

B. Repair and/or replace defective hardware, including but not limited to door hinges and closers. If required by the Superintendent, overhaul of door closers by authorized service vendors shall be arranged by [Laro] on a net cost basis.

DD. The maintenance and repair of doors, including hollow metal doors, glass entrance doors, aluminum doors and aluminum roll up doors. [Emphasis added.]

The trial court found these additional provisions insufficient to support plaintiffs' contention of a duty by Laro. The court noted in its reconsideration opinion that the terms of section 7 cross-reference other provisions in the contract, none of which explicitly specify that Laro is required to, as the court put it, "proactively inspect or test the '[n]ewsstand doors.'"

We concur with the trial court's observation that the contract does not expressly require Laro to perform door inspections. Nevertheless, we construe the contract documents, as a whole, as contemplating that Laro had a responsibility to perform some level of reasonable inspection of the doors as an inherent aspect of its overall duty to maintain the premises and, in particular, the doors. Such a duty, unless it is otherwise disclaimed, or limited in the contract, is part and parcel of what is commonly understood as a duty to "maintain" a location or piece of equipment. See Meier v. D'Ambose, 419 N.J. Super. 439, 449 (App. Div.), certif. denied, 208 N.J. 370 (2011) (noting that a duty to maintain a furnace encompassed a duty to conduct "periodic inspections"). Without an obligation to perform reasonable inspection, a maintenance company could simply turn a blind eye to the physical condition and safety of the premises.

We recognize that the contract does not spell out the nature and frequency of inspections by Laro, but simply alludes to inspections that are "required." For purposes of this tort action, we construe the term "required" to embrace not only what the Port Authority may specifically direct Laro to inspect, but also what would be reasonable under the circumstances. Because the contract is non-specific and ambiguous on this point, we conclude that the nature and frequency of such reasonable inspections is properly a question for the jury to evaluate, aided by any relevant parol evidence that bears on the intended meaning. See, e.g., Michaels v. Brookchester, Inc., 26 N.J. 379, 387 (1958); Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 502 (App. Div. 2000); Model Jury Charge (Civil), 4.10H, "Bilateral Contracts, Interpretation Of Contract Terms" (1998); Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 4:46-2 at 1771 (2012).

The trial court erred in concluding that Laro, as the maintenance firm hired for the premises, had no duty whatsoever to inspect the condition of the newsstand doors before plaintiff's accident. We determine that at least some duty of reasonable inspection applies here to Laro, and that the contours of that duty of reasonable care should be evaluated by the jury. The related questions of whether Laro breached that duty and whether plaintiff's injuries were proximately caused by that breach and not instead produced by other factors -- including plaintiff's own alleged comparative fault -- raise genuine issues of material fact for trial. Brill, supra, 142 N.J. at 540. Summary judgment in favor of Laro is therefore vacated, and the case shall be tried against that defendant.

B.

We reach a different conclusion with respect to Modern, the janitorial services company. Plaintiffs argue that Modern owed plaintiff a duty to inspect the newsstand doors pursuant to Modern's contract with the Port Authority because the contract called for Modern to "police" the facility as part of its janitorial services functions. However, in contrast to Laro's undefined contractual duty to provide "required" inspections within its maintenance duties, Modern's contractual obligation to "police" the premises was detailed extensively and with precision:

Policing shall consist of the following as a minimum: removal of gum and picking up and removal of all trash, litter, debris and cigarette butts from all floor surfaces, sidewalks, exterior planters, platforms, subway passageways, corridors, escalators, stairs, elevators at the Site of Work, immediate and complete mopping and sanitizing of floor/ground surfaces resulting from such circumstances as sickness, urine and spillage, emptying and cleaning of ash trays, recycling containers and trash receptacles, including the relining of trash receptacles, as necessary, damp wiping fingerprints, graffiti, smears and soil spots from all walls, glass, ledges, handrails, turnstiles, change vending machines (CVMs), public telephones, lighting fixtures, doors, mirrors, seats, wall signs, fire extinguishers, cabinets, TV monitors, ticket counters, dispatchers booths, sidewalks as necessary, removal and disposal of all trash, reporting all lamp outages at the Site of Work to the Facility Manager, placing of floor mats provided by PATH at entranceways during inclement weather as necessary and the placing of escalator cleaning signs as may be necessary.

We agree with the trial court that Modern's contract did not require it to perform safety inspections of the newsstand doors. To be sure, if one of Modern's janitors became conscious while cleaning a door that it was broken, Modern had a reasonable obligation to report the problem to the Port Authority and place a warning sign by the door. That is consistent with the section of Modern's agreement entitled "Breakdown, Malfunction, or Damage":

Immediately upon the Contractor's discovery of any damage or signs of disrepair to, mechanical breakdown or malfunction of, or cracks or breaks in any item to be cleaned hereunder, he shall advise the Superintendent and shall place such "Out of Order" or warning signs as are appropriate. Such signs will be furnished by PATH and shall remain in place until necessary repairs are completed. [Emphasis added.]

Plaintiffs argue that the term "discovery" within this portion presupposes a responsibility for Modern to "look . . . for mechanical breakdowns or malfunctions." This argument is without merit because, as the trial court noted, "[d]iscovery of a problem does not imply testing or some substantial physical interaction with doors or other objects within the Journal Square PATH station. Rather, discovery implies what a janitor might 'discover' during the course of his duties[.]"*fn7 To the extent that Rubino, as an expert in engineering and not in janitorial services, offers a more expansive view of Modern's role as a janitorial services company, we reject it as lacking in support by any established codes or objective standards. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372-73 (2011).

We therefore agree with the trial court that the record is insufficient to prove that Modern, unlike Laro, owed a duty -- contractual or otherwise -- to inspect the newsstand doors. Summary judgment was therefore properly entered in Modern's favor.

C.

We address plaintiffs' alternative claim that both defendants are liable to them, as a matter of law, under principles of res ipsa loquitur.

Res ipsa loquitur "'permits an inference of defendant's negligence where (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.'" Jerista v. Murray, 185 N.J. 175, 192 (2005) (quoting Buckelew v. Grossbard, 87 N.J. 512, 525 (1981)). "Although res ipsa does not shift the burden of proof to the defendant, it ordinarily assures the plaintiff a prima facie case that will survive summary judgment." Id. at 193.

"Whether an occurrence 'ordinarily bespeaks negligence' depends on the balance of probabilities being in favor of negligence." Buckelew, supra, 87 N.J. at 526. Thus res ipsa loquitur is available to a plaintiff "if it is more probable than not that the defendant has been negligent." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999) (citing Buckelew, supra, 87 N.J. at 526). The Supreme Court has noted that the malfunctioning of the closing of an automatic door is the type of occurrence that bespeaks negligence. Jerista, supra, 185 N.J. at 200 ("[A]n automatic door that closes onto and injures a customer entering a supermarket is an occurrence bespeaking negligence that falls within jurors' common knowledge.").

"The exclusive control prong does not require that a plaintiff exclude all other possible causes of an accident, only that it is more probable than not that defendant's negligence was a proximate cause of the mishap." Luciano v. Port Auth. Trans-Hudson Corp., 306 N.J. Super. 310, 313 (App. Div. 1997). Additionally, res ipsa loquitur's exclusive control prong "has not been interpreted as limiting application of the doctrine only to those situations involving a single defendant." Apuzzio v. J. Fede Trucking, Inc., 355 N.J. Super. 122, 128 (App. Div. 2002). "'Indeed, the courts of this State have decided that an instrumentality causing injury may be in joint control of two defendants in which event the doctrine of res ipsa loquitur will apply against both of said defendants.'" Id. at 129 (quoting Meny v. Carlson, 6 N.J. 82, 94 (1950)); see also Drazin, N.J. Premises Liability § 4:3-2 at 76-77 (2011).

In this case, the trial court properly denied plaintiffs' request for a res ipsa loquitur inference because the accident does not bespeak of negligence. While the trial court did not discuss this factor in its analysis, as Mattson stated in his deposition, hydraulic door closers may malfunction for reasons besides negligent maintenance, including the application of excessive force pressed upon the door:

Q.: If you exceeded that force, is it possible that the closer would not operate properly?

MATTSON: It would break the internal parts of the closer. And if something broke the internal parts of the closer, nothing is going to repair it, it's going to remain broken.

Q.: And if too much force was applied to the door externally and the internal mechanism of the closer broke, what would be the practical result or what would be the manifestation of that with respect to the door, what would happen?

MATTSON: Either the door won't close or the door would slam or depending on what broke in the thing.

Q.: When you say "slam," you mean slam back in the direction that it had opened?

MATTSON: It would.

Q.: Or slam against the thing wide open 180 [degrees]?

MATTSON: Either it would close with excessive force because there's nothing closing it -- stopping it. It could be open -- if the spring broke it could be open. It could be, you know, it could -- there's a number of things. But no matter what happens to it, nothing is going to fix it unless somebody literally changes something or removes something and replaces or re-attaches.

Here, as plaintiff testified, Officer Gisulo ran to the door and pushed it open. It is entirely conceivable that Gisulo damaged the closing system on the door and closer, causing the door to bounce back and close rapidly on plaintiff.

We recognize that plaintiffs' expert Rubino testified that it was not possible for a door closer to break due to excessive force. Rubino opined that the closer did not break instantly, but that the hydraulic fluid leaked out of the door closer over time due to insufficient maintenance. However, Mattson testified that the internal closer mechanism could have failed due to excessive force. Additionally, Mattson appears to suggest in his testimony that the screws attaching the closer to the door could have failed causing the door to "slam," as opposed to the closer malfunctioning over time. The viability of these two alternative explanations precludes the application of a res ipsa loquitur inference.

Plaintiffs point to several cases involving automatic doors where the court noted that a res ipsa loquitur inference may be appropriate. See Jerista, supra, 185 N.J. at 200; Rose v. Port of N.Y. Auth., 61 N.J. 129, 136-37 (1972). The trial court found, and defendants argue, that an automatic door case is not applicable here because this matter involves a manual door. As Mattson testified, excessive force on the door may alternatively have caused the door closer malfunction. Hence, the automatic door cases are distinguishable, because if Mattson's testimony on this point is deemed credible by the jury, a factor other than negligent maintenance may have caused the malfunction.

In addition, the trial court properly did not apply a res ipsa loquitur inference here because Laro and Modern were not in exclusive control of the doors. Mackenzie ultimately performed repairs on the doors, not Laro or Modern. Thus, the defendants did not have exclusive control over the doors.

In sum, we agree with the trial court that this case is not suitable for a res ipsa loquitur inference.

III.

The final issue for our consideration is the trial court's exclusion of Rubino's testimony in its entirety as net opinion. Although the trial court may be correct that certain aspects of Rubino's opinions may ultimately prove to be inadmissible, we do not agree that all of his opinions in this case are inadmissible.

"[A] court must ensure that the proffered expert does not offer a mere net opinion." Pomerantz, supra, 207 N.J. at 372. A net opinion is "an expert's bare opinion that has no support in factual evidence or similar data[.]" Ibid. An expert witness's opinions that are not reasonably supported by the factual record may be excluded as net opinion. See Creanga v. Jardal, 185 N.J. 345, 360 (2005); see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 703 at 671 (2011). Generally, an expert should set forth the "whys and wherefores" supporting his or her analysis. Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002).

There is no doubt that plaintiff's expert Rubino has substantial academic and professional credentials as a mechanical engineer to qualify him as an expert witness under N.J.R.E. 702. The question instead posed by defendants is whether the views that he rendered in his expert report and at his ensuing deposition are all inadmissible as "net opinion." A fair analysis of that question involves considering two aspects of Rubino's proposed testimony: (1) his discussion of general engineering principles relating to doors and door closers, including the mechanisms of such equipment and an explanation of how such devices operate and can malfunction; and (2) what caused the doors to malfunction in this case.

As to the first component of Rubino's analysis, we are satisfied that it contains sufficient "whys and wherefores" to be helpful to a jury of laypersons. See N.J.R.E. 702 (noting the objective of expert testimony is to "assist the trier of fact to understand the evidence or to determine a fact in issue"). Rubino's detailed explanation of how doors and door closers are designed to work, and how they can fail, has been logically presented and adequately supported. His expertise on such matters would undoubtedly be helpful to the jurors, assuming, of course, that they find him to be credible. The trial court's exclusion of such foundational expert testimony was overbroad and not warranted under the net opinion doctrine.

The second aspect of Rubino's proposed testimony, relating to the specific question of what proximately caused the doors to recoil in this case, is more problematic. In barring that testimony, the trial court noted that Rubino "makes the assumption that a leaking door closer was the cause of the accident and that this condition existed for weeks or months prior to the accident with no factual or scientific support for such a conclusion."*fn8 There is, however, some evidential support for a portion of Rubino's assumption, namely Mattson's separate testimony which, among other things, agreed with Rubino that in a majority of instances a hydraulic door closer will leak due to a failure of a seal. We recognize that other possible causes of a door closer failure exist, such as where the unit has been damaged by excessive force. That vulnerability in Rubino's assumption is relevant fodder for cross-examination, but not sufficient to bar his testimony completely. See Hisenaj v. Kuehner, 194 N.J. 6, 23-25 (2008) (noting that alleged flaws in an expert's analysis generally went to his credibility, not admissibility). That said, Rubino's assumption that a leaky seal had existed for a substantial period of time prior to plaintiff's accident is not established by any direct proof but, instead, is based upon circumstantial inference and general experience.

Taking all of this into account, the admissibility of Rubino's expert testimony on specific causation is a close call, and one that may well depend upon how the factual proofs actually unfold at trial. Consequently, it is preferable that a Rule 104 hearing be conducted before Rubino takes the witness stand, in which the parties, the trial judge, and Rubino himself would have a fuller context in which to address these matters. See Kemp ex rel. Wright v. State, 174 N.J. 412, 432-33 (2002) (declaring it the "sounder practice" for trial courts to conduct Rule 104 hearings on the admissibility of an expert's testimony rather than relying upon only the contents of the expert's report and his or her deposition taken by opposing counsel, even where such a hearing is not requested).

In sum, we reverse the trial court's ruling insofar as it precluded Rubino from offering expert testimony about the mechanics of doors and door closers and how such devices commonly may fail. We also vacate the court's order with respect to the aspects of Rubino's testimony concerning specific causation, and defer the final assessment of the admissibility of his opinions on that subject to a Rule 104 hearing at the time of trial.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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