May 17, 2012
CURTIS WESTOVER AND JOYCE WESTOVER, PLAINTIFFS-APPELLANTS,
JERSEY CENTRAL POWER & LIGHT COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
GREGORY SCURATO, THIRD-PARTY DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1096-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2012 -
Before Judges J. N. Harris and Koblitz.
Plaintiffs Curtis Westover and Joyce Westover appeal from the Law Division's August 16, 2010 order barring their liability expert reports and testimony; the January 20, 2011 order granting defendant Jersey Central Power & Light Company's (JCPL) motion for summary judgment dismissing plaintiffs' negligence and strict liability claims; and the May 3, 2011 order similarly dismissing plaintiffs' breach of contract claim. We affirm.
JCPL provided electricity to the Westovers' property in Hillsborough Township. In June 1999, the Westovers hired third-party defendant Gregory Scurato to perform electrical work on their large metal-clad barn to prepare for JCPL-provided overhead electrical service. Among other things, Scurato installed an electrical meter pan, anchor bolt, conduit, weatherhead, and copper service conductor on the barn. He left approximately three feet of copper service conductor hanging from the weatherhead to allow JCPL to connect its aluminum overhead electrical service conductors to the copper conductors Scurato installed.
On August 3, 2005, a fire broke out on the Westovers' property destroying their barn and all of its contents. Hillsborough Fire Marshall Christopher Weniger was dispatched to the scene to investigate the fire. At his deposition, Weniger testified that although he had an opinion as to how the fire started, he could not point to an "exact scientific cause."
Weniger noted that when he arrived at the scene he observed "power lines actively arcing in the rear of the building." He recalled hearing "loud popping, hissing sounds of . . . high voltage electricity grounding." Weniger further noted that he saw the arcing utility line still connected at one end to a utility pole on the Westover property.
Weniger opined that the electrical supply "wires failed prior to the fire starting," and that the "arcing power line ignited the combustibles and vegetative areas." He noted that it appeared from what he saw that "a fire caused the cables to fall," but conceded that he did not know "what caused that break in the wire."
Weniger's written Fire Inspection Report commented that an "[a]bove ground, pole-mounted electrical supply line failed causing arcing and sparks." The Report concluded: "The cause of this fire has been determined to be: Arcing electrical equipment."
On July 9, 2007, the Westovers filed their complaint alleging that the electrical service conductors owned and maintained by JCPL caused the fire. The Westovers advanced three different theories of liability. First, their negligence claim asserted that JCPL failed to use due care in (1) supplying electrical services; (2) maintaining and inspecting its equipment; (3) allowing an electrical short circuit to occur in its electrical service; and (4) hiring, training, and supervising its employees and independent contractors. The pleading further alleged that JCPL failed to warn the Westovers of a dangerous condition that JCPL knew or should have known existed.
Second, the Westovers contended that JCPL was "strictly liable . . . for selling a product, electricity, in a dangerous and defective condition which caused the . . . fire and the resulting damages." Finally, the Westovers claimed that JCPL had a contract with them to provide electricity, which included either an express or an implied agreement that JCPL had "an obligation to inspect and maintain its equipment and provide electricity in a safe manner." Moreover, JCPL was accused of breaching the contract by "permitting its electrical conductors and/or other equipment to sever and/or arc and cause [the] fire that resulted in damage to [the Westovers'] [p]roperty."
In support of these claims, the Westovers proffered two expert reports authored by professional engineer Sidney Rubin of Plick and Associates, Forensic Engineers. JCPL moved to suppress Rubin's reports and preclude Rubin's testimony at trial because his conclusions amounted to net opinions. Specifically, JCPL urged that Rubin's reports contained critical omissions because he simply asserted -- without providing a basis for each conclusion -- that (1) a short circuit occurred in JCPL's electrical service conductor causing the wire to sever, (2) JCPL should have prevented this from occurring, and (3) the Westovers' electrical installation had no role in causing the fire.
The Law Division agreed with JCPL and barred Rubin's testimony because his reports contained inadmissible net opinions. The court noted that Rubin's reports asserted three conclusions, none of which were adequately supported. Specifically, the court found that Rubin's conclusion about the Westovers' service installation not having caused the fire was:
Ultimately based substantially on the fact that its installation was approved in 1999.
The lack of facts addressing the condition of the electrical service installation at the time of the fire (in 2005), six years later, renders Mr. Rubin's conclusion that [the Westovers'] installation was not the cause of the fire a net opinion.
Next, the motion court turned to Rubin's conclusions that there was an electrical short circuit caused by JCPL's failure to maintain the electrical service conductor. The court reasoned:
The opinions submitted by Mr. Rubin reveal that he does not apply any fact perceived by him to form his conclusion. Moreover, Mr. Rubin sets forth no standards or duty of care governing JCPL and how they were breached. [(emphasis in original).]
The Law Division further explicated the deficiencies in Rubin's reports and why his opinions warranted preclusion:
Mr. Rubin simply states that the fire was caused by a short circuit, and that JCPL's 'failure to maintain the aerial service lines' caused the subject fire. These opinions are bare conclusions unsupported by any factual evidence. No standard or duty of care is discussed by Mr. Rubin, and his opinions are precisely the kind which offer insufficient factual support, undermining the foundation of those opinions and justifying rejection by the trier of fact. Consequently, JCPL moved for summary judgment to dismiss the Westovers' negligence and strict liability claims. JCPL contended that electricity is a complex instrumentality requiring expert testimony to soundly adjudicate the merits of plaintiffs' causes of action. JCPL added that the Westovers' strict liability claim required an expert to establish that the electricity itself, or the electrical service conductor, was defective.
The Westovers' responded that not only did they not need an expert to prove the negligence claim but that they should prevail on a strict liability theory simply because the electricity was in the "stream of commerce." The Westovers added that the existence of a tariff set forth JCPL's duty of care and that JCPL admitted in its answers to interrogatories that it failed to perform any maintenance to the electrical service conductor.
In granting summary judgment on the negligence theory, the Law Division reasoned that expert testimony was required:
Due to the highly technical and complex nature of plaintiffs' claims (electrical short circuiting, arcing, etc.), expert testimony is required for plaintiffs to assert a cognizable negligence claim. Plaintiffs have no expert testimony which opines as to any duty owed by [JCPL] and how that duty was breached. Plaintiffs, instead, rely upon the tariff (contract) pursuant to which [JCPL] provides electricity to plaintiffs. However, viewing the evidence in a light most favorable to plaintiffs, while the tariff suggests the possible existence of some duty, that duty is not defined. Expert testimony is needed to describe how an electric company undertakes to provide its electricity, and how it maintains its equipment and/or facilities. Ultimately, without any expert testimony, plaintiffs have not shown the existence of a duty. Further, plaintiffs have not provided any expert testimony establishing how any (undefined) duty was breached, and proximate causation between the breach and damages. The only evidence in the record is that a fire occurred on plaintiffs' property and that [JCPL's] service drop was severed several feet away from plaintiffs' barn. There is no expert testimony establishing a prima facie negligence cause of action and, further there is no expert testimony linking the fire to [JCPL's] negligence or excluding other possible causes of this accident. Ultimately, without any such expert testimony, plaintiffs' negligence claim fails. [(emphasis in original).]
Next, the Law Division reviewed the Westovers' strict liability claim and found that expert testimony was also required:
In this case involving a complex instrumentality, plaintiffs must provide expert testimony to aid the fact finder in understanding 'the mechanical intricacies of the instrumentality and excluding other possible causes of the accident.' Lauder v.
Teaneck Volunteer Ambulance Corps., 368 N.J.
Super. 320, 331 (App. Div. 2004) . . . .
While plaintiffs claim electricity is not a 'complex instrumentality,' the [c]court is hard-pressed to see how electricity is not beyond the ken of the fact-finder as, by comparison, the Appellate Division in Lauder, supra, found that a hospital gurney's locking mechanism was a complex instrumentality requiring expert testimony to establish the existence of a defect.
The motion court reasoned that there were two possible sources of liability: the overhead electrical service conductor and the electricity itself. However, the court concluded, "[a]s to the overhead service conductor, [JCPL] cannot be strictly liable as it did not manufacture the product. Specifically, Alcan Cable was the manufacturer."
Turning to the electricity itself, the court treated it as a product that entered the stream of commerce but found that the Westovers failed to establish that the electricity was defective. The Law Division ruled that there had been "no showing as to how the electricity deviated from 'the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae.'" The court concluded, "without even a suggestion as to what the defect in the electricity may be, let alone prima facie proof of same, a strict liability cause of action must fail."
At a later time, JCPL moved to dismiss the remaining breach of contract claim. Applying summary judgment jurisprudence, and building upon its earlier rulings, the motion court agreed that its prior conclusion that electricity was a complex instrumentality and that "expert testimony was required to establish [JCPL's] obligations pursuant to the [t]ariff" were the law of the case. The court added "[e]ven viewing the evidence in a light most favorable to the plaintiffs and assuming that the [t]ariff gave rise to a valid contract between the parties, plaintiffs have failed to prove, via expert testimony, that [JCPL] failed to perform under the contract,
i.e., the existence of a breach, and that they suffered damages as a result of the breach." This appeal followed.
Orders granting summary judgment pursuant to Rule 4:46-2 are reviewed de novo, and we apply the same legal standard employed by the Law Division. Canter v. Lakewood of Voorhees, 420 N.J. Super. 508, 515 (App. Div. 2011). We consider, as did the motion court, "'whether the competent evidential materials presented, when viewed in the light most favorable to the nonmoving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Advance Hous., Inc. v. Twp. of Teaneck, 422 N.J. Super. 317, 327 (App. Div. 2011) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. granted, ___ N.J. ___ (Jan. 24, 2012). Similarly, when the legal conclusions of a motion court's Rule 4:46-2 summary judgment decision are reviewed on appeal, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]' and, hence, an 'issue of law is subject to de novo plenary appellate review.'" Estate of Hanges v. Metro. Prop. Cas. Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010)).
Because summary judgment dismissing the complaint was founded upon the outcome of the motion court's evidentiary decision vis-a-vis Rubin's opinions, we must first decide the propriety of the suppression motion before ruling on the summary judgment dispositions. When we review those decisions, we do so separately: the evidentiary ruling using the abuse-of-discretion standard, and the legal conclusions that support the summary judgment ruling de novo. Id. at 384-85. We grant "substantial deference to the evidentiary rulings of a trial judge," Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006), and will not disturb such rulings absent an abuse of discretion, Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008).
Rubin's October 16, 2006 report pertinently offered the following:
The weatherhead was not above the roof line but attached to the wall of the structure under the eave of the roof. Fire Marshall Weniger concluded the fire was caused by electrical failure of the [JCPL] lines 2 feet from the bugs. The [JCPL] lines severed and fell to the ground where they ignited combustible materials.
There was no involvement in the electrical fault by any portion of the installation of the 200 ampere service to the barn.
Based on the results of this investigation and within a reasonable degree of engineering certainty, I have concluded the cause of the fire to the barn was an electrical short circuit on the aerial service lines owned and maintained by [JCPL].
Rubin's April 15, 2010 supplementary report, in relevant part, stated:
As I stated in my October 16, 2006 report, I concluded, based upon the results of my investigation within a reasonable degree of engineering and scientific certainty, the cause of the fire to the barn was an electrical short circuit on the aerial service lines owned and maintained by [JCPL]. It is my further opinion the subject fire was caused by [JCPL's] failure to maintain the aerial service lines to the Westover property.
These opinions, without more, are classic net opinions because they fail to systematically explain how and why the short circuit occurred. Are we to assume that short circuits occur spontaneously? If not, what was it about JCPL's alleged lack of maintenance (whatever that maintenance should have been) that contributed to the happening of a short circuit? These critical unanswered questions, along with several others,*fn1 highlight the conclusory -- and impermissible -- nature of Rubin's opinions.
It is well-settled by the net opinion rule that "an expert's bare conclusions, unsupported by factual evidence, is inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). An expert's opinion must be supported by factual evidence, not speculation. Froom v. Perel, 377 N.J. Super. 298, 317 (App. Div.), certif. denied, 185 N.J. 267 (2005). "The net opinion rule is a prohibition against speculative testimony. Grzanka v. Pfiefer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997). A net opinion can be created by the "failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Buckelew, supra, 87 N.J. at 524.
The Law Division properly identified and appropriately suppressed Rubin's unsupported musings. Nowhere in Rubin's reports are there any detailed technical or scientific explanations of how the short circuit occurred. Rubin merely proffers that the fire was caused by an "electrical short circuit." He fails to explain what causes an electrical short circuit. Moreover, the reports neglect to provide the requisite "whys and wherefores" that our jurisprudence requires from an expert's opinion. Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (internal citation omitted).
We further agree that the Law Division rightly concluded that in the absence of an expert opinion, plaintiffs' theories of liability could not be sustained. As for the first cause of action, plaintiffs would be required to affirmatively prove negligence on the part of the defendant. See Buckelew, supra, 87 N.J. at 525. The Westovers were required to prove: (1) that there was a duty owed to them by the JCPL, (2) that JCPL breached that duty, (3) that there was a causal connection between the breach and the complained injuries, and (4) damages. See Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008).
Expert testimony was required to illuminate the first three elements because the subject matter was such that "jurors of common judgment and experience" would not be able to "form a valid judgment as to whether the conduct of the party was reasonable." Rocco v. N. J. Transit Mkts., Inc., 89 N.J. 270, 283 (1982). The Westovers' grievances focus on complex electrical issues and as our courts have reasoned, where "a case involves a complex instrumentality, expert testimony is needed in order to help the fact-finder understand 'the mechanical intricacies of the instrumentality' and help to exclude other possible causes of the accident." Rocco v. N.J. Transit Rail Operations, 330 N.J. Super. 320, 341 (App. Div. 2000) (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 546 (App. Div.), certif. denied, 145 N.J. 374 (1996)). Without expert testimony linking the fire to JCPL's negligence or excluding other possible causes, the Westovers' negligence claim fails as a matter of law.
Similarly, the strict liability claim was doomed. To survive summary judgment, the Westovers were required to prove:
(1) that the product in question was defective, (2) that the defect existed when the product left the manufacturer's control, and (3) that the product proximately caused the fire and resulting damage. Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 97 (1999). The Westovers point to the fire and the mere fact that damage occurred but that is not enough to establish the existence of a defect. Id. at 98 (citing Scanlon v. General Motors Corp., 65 N.J. 582, 591 (1974)).*fn2
Not only was there an absence of an expression of exactly what product was defective, the Westovers never demonstrated that the electrical current was defective. There was also no evidence that the electrical service conductor at issue was "not reasonably fit, suitable, or safe for the ordinary or foreseeable purpose for which it [was] sold." Myrlak, supra, 157 N.J. at 96 (quoting N.J.S.A. 2A:58C-2). There is no suggestion by the Westovers as to what the defect warranting strict liability was; accordingly, their strict liability cause of action was properly dismissed.
Lastly, we agree with the Law Division's conclusion as to the breach of contract claim. Viewing the evidence in the light most favorable to the Westovers and assuming that they did, in fact, have an actionable contract with JCPL, they still failed to demonstrate the existence of a breach. See Murphy v. Implicito, 392 N.J. Super. 245, 265 (App. Div. 2007) (to establish a breach of contract, a plaintiff must show the existence of a valid contract, that the defendant failed to perform under the contract and that the plaintiff suffered damages as a result of the breach) (internal citations omitted). Like the motion court, we are unable to detect any evidence of a breach. We concur with the motion court's conclusion that "[e]xpert testimony is needed to describe how an electric company undertakes to provide its electricity, and how it maintains its equipment or facilities." Moreover, the court reasoned that expert testimony was required to consider "what, if any, maintenance was required, what specifically said maintenance would consist of, and, indeed, whether the failure to perform such maintenance proximately caused the fire." Nothing in the Westovers' submissions answers these questions.