On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-253-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2012
Before Judges Sabatino and Fasciale.
This case, brought against two public entities under the Torts Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3, arises out of a slip and fall that took place at an entrance to a municipal administration building. Plaintiffs, Jody Verdi*fn1 and Paul Verdi, filed suit in the Law Division against defendants, the Hopatcong Board of Education ("the Board"), which owns the building, and the Borough of Hopatcong ("the Borough"). Plaintiff fell and was injured as she stepped up onto a landing when entering the building. She contends that the landing was in an unsafe condition that caused her to fall, and she obtained a report from a liability expert to support that contention. She fractured her upper arm and also sustained a rotator cuff injury, eventually undergoing surgery after her shoulder did not heal completely.
Following discovery, defendants moved on various grounds for summary judgment. Among other things, they argued that plaintiff had failed to establish a permanent injury arising from her fall and thus was barred by N.J.S.A. 59:9-2(d) from recovering non-economic damages. Defendants also moved to bar plaintiffs' liability expert from testifying, contending that his views comprise inadmissible net opinion. The trial court granted defendants' motions, resulting in the dismissal of the complaint and the preclusion of the liability expert. Plaintiffs now appeal. For the reasons stated that follow, we reverse the entry of summary judgment and remand for a trial on the contested permanency issues under N.J.S.A. 59:9-2(d). We also remand the question of the admissibility of the liability expert's testimony for further consideration by the trial court, including the issuance of a statement of reasons as required by Rule 1:7-4.
Viewed in a light most favorable to plaintiffs as the non-moving parties, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the record contains these pertinent facts.
On March 26, 2008, plaintiff was planning to attend a school board meeting at the Hopatcong administration building. The meeting was scheduled for 7:00 p.m., and she left her home at roughly 7:15 p.m. She left her car at the building's parking lot and approached the front entrance.
The building is uphill from the parking lot. Plaintiff followed a walkway from the parking lot and went up a flight of stairs as she approached the door. The stairs are not immediately in front of the door but rather are part of the walkway leading to it.*fn2 Directly in front of the door is a landing, which is raised up about four inches above the walkway.
As plaintiff was stepping up onto the landing and reaching for the door, she fell down, face forward. She did not brace herself because she said she did not realize that she was falling. According to her deposition testimony, she struck her head on the door and then her "whole body hit the ground."
At first, plaintiff thought she had broken her leg. No one witnessed her fall. Plaintiff said she could not use her cell phone to call for help because her right arm had been injured.
Emil Binotto, the high school principal, was among the people who came outside when they heard plaintiff shouting. According to Binotto's deposition testimony, it "wasn't very late" at the time, and he "didn't have a problem seeing."*fn3 He stated in his deposition that "there was a light outside of the doorway" in the alcove where plaintiff fell, and that the light was on.
Plaintiff acknowledged at her deposition that she was familiar with the building and its entrance, having worked there for the Board from September 2003 through June 2005. Plaintiff stated that she had "probably" been through the doorway in question more than a hundred times before her fall. She explained that "there is a dark rug [on the landing] and truthfully when you do come up to this step if you are not aware that it is there you would be unaware that it is there."
The Board owns the building. It was erected in or around 1970.*fn4 According to Binotto, the Board, not the Borough, is responsible for maintaining the building. Another local official, William O'Connor, similarly testified at his deposition that no Borough employees perform maintenance on the building, although the Borough's fire marshal does make inspections there.*fn5
Plaintiff was admitted to Saint Clare's Hospital in Dover on the day after her fall. Her admission record to the hospital reflects that her admitting diagnosis was a "commimuted [sic] right humerus." On March 29, 2008, an orthopedist affiliated with the hospital, Steven Stecker, M.D., issued a report regarding plaintiff's medical condition. The report indicated that plaintiff had a right segmental humeral shaft fracture with minimal comminution.*fn6 Dr. Stecker's plan for treatment was to provide surgical stabilization by way of an "IM rod v. open reduction internal fixation."*fn7
A few days later, on April 1, Dr. Stecker noted that plaintiff had been placed in a coaptations splint in the operating room, and that the wound was "well aligned," but that she had swelling in her right hand.*fn8 An x-ray confirmed the fracture to be well-aligned and that there was no interval change from the initial splinting.*fn9 Dr. Stecker also noted that plaintiff had previously suffered a fracture of her right wrist.
In a follow-up report dated July 9, 2008, Dr. Stecker noted that plaintiff had no new complaints and that she was undergoing physical therapy. He observed that her fracture was "moving as a unit" and that she had almost full range of motion of the elbow. However, plaintiff still had some digital swelling and she had difficulty bringing her hand up to her mouth. Moreover, Dr. Stecker observed that plaintiff's shoulder range of motion was actively limited.
On October 15, 2008, Dr. Stecker reported that plaintiff was improving, but that she was complaining of cervical pain, numbness, and pain in her left hand. He also observed that she could actively forward flex her right shoulder to only about ninety degrees, and that her passive range of motion for forward flexion was limited to 165 degrees and forty degrees of abduction.*fn10 In addition, Dr. Stecker found that plaintiff had a positive Tinel's sign and a Phalen's maneuver, indicating the presence of carpal tunnel syndrome in her left upper ...