July 31, 2012
MARIA QUARTELLO AND MARK QUARTELLO, PLAINTIFF-APPELLANTS,
ENGLEWOOD BOAT BASIN AND/OR GHI OWNERS AND/OR OPERATORS OF THE GAS DOCK AND FACILITIES, PETER MONTE, SR., PETER MONTE, JR., J.M. ENGLEWOOD MARINA, LLC, MONTE'S MARINE SERVICE I, LLC, DEFENDANTS-RESPONDENTS, AND DEF INDEPENDENT CONTRACTORS AND/OR SUBCONTRACTORS, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3977-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012 Before Judges Graves and Yannotti.
Plaintiffs Maria Quartello (Maria) and her husband Mark Quartello (Mark) appeal from orders entered by the Law Division on August 19, 2011, granting summary judgment in favor of defendants J.M. Englewood Marina, L.L.C. (J.M. Marina), Monte's Marine Service, I, L.L.C. (Monte's Marine), Peter Monte, Sr. (Peter, Sr.), and Peter Monte, Jr. (Peter, Jr.). We affirm.
This matter arises from the following facts. Sometime in 2005, Mark purchased a twenty-seven-foot vessel from its prior owner. At the end of the 2005 boating season, the boat was winterized and stored at the J.M. Marina, which is located in Englewood Cliffs, New Jersey. Monte's Marine provides services to vessels at J.M. Marina. Peter, Jr. owned and operated Monte's Marine, and Peter, Sr. was the manager of the gas dock operation. On August 12, 2007, Mark brought the vessel to J.M. Marina for fueling. Maria was on board, along with Mark, Maria's son Brad Zanardelli (Zanardelli), and his girlfriend.
The dock attendant handed Mark the fuel hose and nozzle, and he began to fill the vessel with fuel. When he was finished, Mark returned the hose and nozzle to the attendant. Mark paid the attendant, and turned the key to start the engine. He heard an explosion. The vessel's engine hatch had blown open, and Maria was thrown into the water by the force of the explosion. Maria was helped out of the water. Maria and Mark were waiting for emergency assistance in the marina's office when there was another explosion on the vessel.
Detective Alexander Perry (Detective Perry) of the New Jersey State Police investigated the explosion and issued a report, which concluded that:
The origin was determined to be on the starboard side in the gunnel[*fn1 ] area where the fuel tube was enclosed. After the vessel was fueled the blower was turned off allowing gas vapors to build up in the gunnel and cabin area. All windows and hatches were closed, not allowing the gas vapors to vent. The vessel blower should remain on before, during, and after fueling. All hatches and windows should be open. By the blower being off, the gas vapors were contained inside the vessel. The engine was then started, which ignited the vapors, and caused the explosion. The pressure from the explosion blew both hatches open in the stern and the bow.
Detective Perry said that the "gas vapors were accidentally ignited when the engine was started."
On August 4, 2009, plaintiffs filed a complaint in the Law Division. Plaintiffs alleged that defendants failed to properly maintain, inspect and/or repair the vessel and were otherwise negligent in the performance of their respective duties regarding the vessel. They claimed that defendants' negligence was a proximate cause of the explosion and the personal injuries and property damage they sustained.
At his deposition, Mark testified that in 2006, Peter, Sr. informed him that it was taking an inordinate amount of time to refuel the vessel. Peter, Sr. reportedly said there might be something wrong with the fuel vent or it might be clogged with seaweed or a twig. Mark conceded that he did not ask Monte's Marine to repair the vent at the time. However, he said that in late summer of 2006, he asked Peter, Jr. to check on the vent. At the end of the boating season in October 2006, the vessel was taken out of the water.
In the spring of 2007, Monte's Marine performed certain work on the vessel in anticipation of its return to the water. Mark claimed that his secretary faxed Monte's Marine a list of repairs for the vessel, dated May 10, 2007, which mentioned the slow refueling and possible clogged vent line. Monte's Marine claimed that it never received the fax.
Moreover, the list of repairs dated May 26, 2007, that Monte's Marine performed on the vessel does not mention any repairs to the vent line. Mark testified that he raised the matter with Peter, Sr., who reportedly told him he had received the May 10, 2007 list and he would get to the repairs when he had time.
Mark further testified that Monte's Marine improperly failed to make repairs to the fuel vent that he had requested. He also said that Monte's Marine failed to ensure that the vessel's fire suppression system was working properly. He acknowledged that an operable fire suppression system would not have prevented the explosion, but he said it would have lessened the damage. Mark conceded that he did not specifically request Monte's Marine to check or repair the vessel's fire suppression system.
Mark additionally stated that he was not qualified to determine J.M.'s responsibility for the explosion. He said that the refueling method was "questionable." He asserted that because it was low tide and another boat was refueling, Peter, Sr. instructed him to pull the vessel into the dock "nose first[.]" This required the gas line to be pulled across the vessel. Mark stated that the heel of the fueling spout was upside down and this placed downward pressure on the gas line.
He said that the nozzle did not have a vapor recovery system, and "you do have a smell of gasoline."
Mark also testified concerning the blower. He explained that the blower is in the engine compartment next to the motor. The blower is turned on fifteen minutes prior to starting the boat's engine in order to exhaust the fumes or vapors from the engine compartment. Mark said that he does not turn the blower off until the boat is under way. He said that he "would never shut the blower motor off." He further testified that, after the first explosion, he turned the engine off, but did not turn anything else on or off.
In March 2011, Monte's Marine, Peter, Sr. and Peter, Jr. filed a motion for summary judgment. In April, 2011, J.M. Marina filed a cross-motion for summary judgment. The motion judge stated that plaintiffs failed to present any evidence to support a claim against J.M. Marina on the basis of premises liability, but concluded that plaintiffs should be afforded an opportunity to present an expert report in support of their negligence claims. The motion judge entered orders dated May 27, 2011, denying defendants' motions without prejudice.
Plaintiffs thereafter presented an expert report from Captain Rob Cozen (Cozen), a marine surveyor. In his report, Cozen stated that, although he did not inspect the vessel shortly after the accident, he was inclined to agree with the findings of the State Police. Cozen said that the explosion occurred when the engine was started, causing gas vapors to accidentally ignite. He stated that the numerous complaints of the difficulty in fueling the tank were "consistent with a blocked vent hose or vent fixture."
Cozen opined that Monte's Marine was negligent because it failed to make necessary repairs to address the "fuel tank venting problem" even though it was "obvious to everyone" that this problem was present in 2006 and 2007. He stated that Mark had requested verbally and in writing that the fueling problem be addressed. In addition, he opined that Peter, Sr. should have understood that a "novice boater" like Mark needed "guidance and proactive intervention when the possibility of grave injury existed." Cozen also opined that J.M. Marina "should be considered somewhat negligent in not clearly explaining to [Mark] the potential for explosion and resultant injuries that existed with a constricted fuel tank vent hose."
In July 2011, defendants renewed their summary judgment motions. The motion judge considered the motions on August 19, 2011, and on that date placed its decision on the record. The judge concluded that Cozen's report was an inadmissible net opinion because he had not cited any industry regulations or standards with which defendants failed to comply. The judge stated that Cozen had not set forth the basis for his conclusion that defendants had a duty to fix the allegedly blocked fuel hose and warn plaintiffs of the potential danger arising from the condition of the hose. The judge further concluded that defendants would be entitled to summary judgment even if Cozen's report was not barred because there was insufficient evidence for a reasonable juror to conclude that defendants acted negligently in the fueling process or otherwise.
The judge accordingly filed orders dated August 19, 2011, granting summary judgment in favor of defendants. This appeal followed.
Plaintiffs argue that the motion judge erred by finding that Cozen's report constituted an inadmissible net opinion. We disagree.
It is well established that an expert's bare conclusion, unsupported by factual evidence or other data, is inadmissible as a "net opinion." Pomerantz Paper Corp. v. New Comm. Corp., 207 N.J. 344, 372 (2011). The net opinion rule requires that the expert "'give the why and wherefore'" that supports the opinion, "'rather than a mere conclusion.'" Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008) (quoting State v. Townsend, 186 N.J. 494, 394 (2006)).
Furthermore, the expert must provide evidential support for the existence of a standard of care, and a "'standard which is personal to the expert is equivalent to a net opinion.'" Pomerantz, supra, 207 N.J. at 373 (quoting Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999)). See also C.W. v. Cooper Health System, 388 N.J. Super. 42, 65 (App. Div. 2006) (noting that experts in negligence cases must establish the "actual existence" of a standard of care instead of simply declaring their personal preferences).
In his report, Cozen stated that defendants breached certain duties owed to Mark with respect to the services provided for his vessel. Cozen opined that Monte's Marine should have repaired the allegedly clogged fuel vent on the boat, explained the danger to Mark of operating the vessel under those conditions, and refused to allow him to fuel the vessel at the marina until the problem was fixed.
He also opined that Peter, Sr. should have understood that a "novice boater" like Mark needed "guidance and proactive intervention when the possibility of grave injury existed." In addition, Cozen stated that J.M. Marina was "somewhat negligent" because it had not explained to Mark that there was a potential for explosion from the "constricted fuel tank vent hose."
The motion judge correctly found that Cozen's views were impermissible net opinions because he failed to support his assertions with reference to standards or practices applicable to the marine services industry. We note that, despite plaintiffs claims to the contrary, there is insufficient evidence to show that the explosion was, in fact, caused by the allegedly constricted fuel tank vent hose. As we pointed out previously, the State Police concluded that the explosion occurred because the blower in the engine compartment had been turned off, allowing the gas vapors to collect in the engine.
In any event, Cozen cited no industry standards or practices that would have required Monte's Marine to make repairs to the vessel under these circumstances or refuse to allow Mark to refuel or operate his vessel out of the marina. Moreover, Cozen cited no industry standards or practices that would have required J.M. Marina to warn Mark of the alleged danger in operating his vessel with a clogged fuel vent line.
We accordingly conclude that the motion judge correctly determined that Cozen's report constituted an inadmissible net opinion.
Plaintiffs next argue that the motion judge erred by granting summary judgment in favor of defendants. Plaintiffs contend that the motion judge erroneously determined that they had not presented sufficient evidence to support their negligence claims, even if Cozen's report is considered. Again, we disagree.
In reviewing an order granting summary judgment, we apply the same standard as the motion judge applied. Henry v. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
R. 4:46-2(c). In determining whether there is a genuine issue of material fact, the non-moving party is entitled to the benefit of all legitimate inferences that can be drawn from the evidence. Ibid.; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
We note that there is a genuine issue of material fact as to the cause or causes for the explosions. In his report, Detective Perry concluded that the explosion occurred because, after the vessel was fueled, the engine's blower was turned off, allowing gas vapors to build up in the vessel's gunnel and cabin areas. According to Detective Perry, when the engine was started, the gas vapors accidentally ignited.
Plaintiffs claim, however, that the blower was not turned off after the vessel was fueled. Mark testified that the blower was running before, during and after the fueling process. In addition, Zanardelli submitted a certification to the trial court in which he stated that during the refueling process, he "always" makes sure that the blower motors are on and running. Zanardelli said that on the date at issue, the blower was "on the whole time" from the "time of the pre-start up until the first explosion." Mark also notes that someone might have turned off the blower at some point after the explosions.
In any event, plaintiffs claim that a blockage of the fuel vent caused the explosion. We note that in his report, Cozen indicated that he agreed with Detective Perry's statement that the explosions were caused by the ignition of gas vapors that had collected in the engine compartment. Cozen stated that the "numerous complaints of difficulty in fueling the tank is consistent with a constricted or blocked vent hose or vent fixture." Cozen does not state, however, that the allegedly constricted or blocked vent hose or vent fixture was the probable cause of the explosion.
Mark also claimed in his deposition testimony that Monte's Marine was negligent in failing to ensure that the vessel's fire suppression system was working prior to the explosion. Mark asserts that, after the explosion, the vessel's fire suppression system was not operable. However, plaintiffs have not presented any evidence showing that the system was inoperable prior to the explosion, that the system was not rendered inoperable by the explosion, or that the condition of the system was a cause of any of the fire damage sustained as a result of the explosions.
Moreover, there was insufficient evidence to support the claims against J.M. Marina. Plaintiffs failed to present any evidence to support a claim against J.M. Marina on the basis that there was a dangerous condition on the marina property. In addition, plaintiffs failed to present sufficient evidence to support a claim against J.M. Marina on the basis of some defect in the refueling process.
As we noted previously, when Mark pulled his boat into the dock, he was told to pull the vessel into the dock "nose first" and, as a result, the dock's fuel hose had to be pulled across the vessel for fueling. Mark testified that the heel of the fuel spout was upside down, which he claimed placed downward pressure on the gas line.
Mark said the nozzle did not have a vapor recovery system, and "you do have a smell of gasoline." However, there was no evidence indicating that the manner in which the vessel was fueled had anything to do with the collection of gas vapors in the vessel's engine compartment or the resulting explosion.