Opinion
DOCKET NO. A-4276-14T2
07-20-2016
BRIAN GREAVES, Plaintiff-Appellant, v. INLINE SKATING CLUB OF AMERICA, LLC, Defendant-Respondent.
Christopher T. Howell attorney for appellant. Nicholas S. Brindisi, PC, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Haas. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-006449-12. Christopher T. Howell attorney for appellant. Nicholas S. Brindisi, PC, attorney for respondent. PER CURIAM
Plaintiff Brian Greaves appeals from the Law Division's June 5, 2015 order dismissing his complaint after he failed to present a liability expert report in this negligence action. We affirm.
The trial judge granted defendant Inline Skating Club of America, LLC's in limine motion to dismiss plaintiff's complaint on the first day of trial before opening statements. Although the judge cited Rule 4:37-2(b) during his oral decision, we believe he meant to refer to Rule 4:46-2, governing motions for summary judgment. The judge found there were no material facts in dispute and because plaintiff could not present an expert, he determined that defendant was entitled to judgment in its favor as a matter of law.
I.
We derive the following facts and pertinent procedural history from the record. Plaintiff was a goalie on an indoor soccer team that participated in an organized league with other teams. League games were held in defendant's facility. Plaintiff alleges that defendant was responsible for retaining a referee for each league game.
During a game on August 19, 2010, plaintiff alleged
he was severely injured while playing soccer as goalie for "Kiss the Baby" team. At the time, plaintiff was in the process of picking up the ball inside the goalie box. He had the ball for approximate[ly] [five] to [ten] seconds when he was tackled/kicked and/or pushed to the ground in a violent manner by . . . a player on the opposing soccer team. Plaintiff struck his head on the hard surface losing brief [sic] consciousness. At the same time and place, the game was being refereed by [the referee] who was working as an agent and/or employee of [defendant].On August 17, 2012, plaintiff filed a complaint against the player who made contact with him, the referee, and defendant. However, plaintiff never served the player or the referee with the complaint and the allegations against them were dismissed.
Plaintiff subsequently filed two amended complaints.
In count six of his complaint, plaintiff alleged that defendant "was responsible for maintaining a safe facility and failed to supervise and provide security at the facility[.]" As a result of defendant's alleged negligence, plaintiff claimed it was responsible for the injuries he sustained due to the player's conduct and the referee's failure to officiate the game properly.
Through a series of case management orders, the court established October 2, 2014 as the discovery end-date. The court ordered plaintiff to serve his expert liability report on defendant no later than September 2, 2014. Plaintiff did not produce an expert report.
As a result of these orders, the parties had a total of 694 days to complete discovery.
On October 8, 2014, the matter went to arbitration. After an adverse decision by the arbitrator, plaintiff requested a trial de novo.
On November 3, 2014, plaintiff attempted to serve a liability expert report upon defendant. Defendant objected because the discovery period had ended, and the court had scheduled trial for January 14, 2015. On November 5, 2014, plaintiff filed a motion to reopen discovery so he could amend his answers to interrogatories and provide a liability expert report. On November 21, 2014, the court denied plaintiff's motion and barred him from submitting the expert report at the trial. On appeal, plaintiff does not challenge the court's November 21, 2014 ruling.
On January 29, 2015, the court bifurcated the matter, and set a trial date for liability only for April 13, 2015. On March 25, 2015, the court denied defendant's motion for summary judgment, finding there were issues of material fact as to the role of the referee and whether defendant breached any duty it may have had to plaintiff. The court reiterated its earlier ruling that plaintiff was barred from presenting an expert report at trial.
The matter was then assigned to a new judge for trial. --------
On April 6, 2015, defendant filed an in limine motion to dismiss plaintiff's complaint because plaintiff was "unable to establish a standard of care or cause of action against [d]efendant at trial without a liability expert." In response, plaintiff argued that he did not need a liability expert, and sought to present his previously-proposed expert as a "lay witness." On the first day of trial, the judge conducted a Rule 104 hearing on the witness's proffered testimony. At the end of the hearing, the judge found that "because [the witness's testimony was] not based on perceptions reached by this witness at the time of the game, at the game, [or] during the game, nothing the witness can say as a lay [witness] is going to assist the trier of fact." Therefore, the judge barred the witness's proposed "lay testimony."
The judge then granted defendant's motion to dismiss the complaint because without expert testimony, plaintiff could not prove that defendant was negligent or that any of its actions were the proximate cause of plaintiff's injury. In his ruling, the judge distinguished the facts of this case from those in Crawn v. Campo, 136 N.J. 494, 496 (1994), where one player in an informal, pickup softball game was injured when a player on the other team slid into him at home plate. Under those circumstances, where the players set the rules for the game themselves, the Court determined that the plaintiff did not need a liability expert's testimony on the general rules of the sport to establish that the defendant was negligent. Id. at 509-10.
In this case, however, the judge noted that
this is not a player versus player lawsuit. This is not a situation where we have, although named, [the other player] was never served, and therefore, the other player was not a party. This is a situation where the allegations are made against the league organizer. And a league organization occupies a different position than an
opposing player in [a] game. And the allegation -- if the allegation is one of supervision or lack thereof and the lack of security, a jury is not going to be able to supply the standard that they would have to know to apply to a league organization and how it should be set up, how it should set up a league, what facilities it should use[,] . . . and what type of referees it should use.The judge continued:
Nor is it a situation where without an expert, the facility or the -- league organizer could really be criticized [about] this referee in this case. How would a jury know what appropriate [refereeing] is and whether the use of a red card or a yellow card should have been done or some other action should have been taken? It is really a niche sort of issue with respect to [this] sport, and it doesn't fall within the general rule[s] of a pickup game, much the same way that a jury wouldn't need to know the rules and the standard of care that would apply to apply to a pickup basketball game in a schoolyard, as opposed to the organization of a formalized league with teams and referees who should or should not be certified, how should it be run, how should the security issue be handled? How should supervision be handled?
The judge determined that these issues were "all matters that a jury of lay people are not going to know [about] without the benefit of expert opinion, and to ask them to reach a conclusion would really be asking them to guess or speculate." Based upon his ruling that plaintiff needed an expert to proceed with his case, and because plaintiff had no expert, the judge dismissed plaintiff's complaint. This appeal followed.
II.
On appeal, plaintiff argues that his complaint "should have not have been dismissed for lack of a liability expert because there is no general rule or policy requiring expert testimony to establish the standard of care." We disagree.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015) (citing Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)). "Summary judgment must be granted 'if the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, 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." Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Applying this well-established standard of review, there is no dispute as to the material facts underlying plaintiff's complaint. We therefore turn to plaintiff's legal contention that an expert report was not necessary because "a layperson's common knowledge would have been sufficient to permit a jury to find that defendant . . . had breach[ed] its duty of care to [its] soccer players[.]" This argument lacks merit.
The need for expert testimony in a tort action depends on "whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment[.]" Scully v. Fitzgerald, 179 N.J. 114, 127 (2004) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982)). Its purpose is to "assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. Accordingly, jurors should have the assistance of experts when required to determine issues necessitating specialized knowledge. See Jobes v. Evangelista, 369 N.J. Super. 384, 398-99 (App. Div.), certif. denied, 180 N.J. 457 (2004). However, "when the subject can be understood by jurors utilizing common knowledge and experience[,]" it is not necessary. Campbell v. Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002).
Relying on Crawn, supra, plaintiff argues that an expert was not needed to explain the duty of care owed to a player by a referee or the facility in which the game was played. However, the trial judge properly distinguished Crawn from the present case because Crawn involved an informal pickup game in which the players set their own rules. Crawn, supra, 136 N.J. at 496. Under those circumstances, the Court held that a liability expert was not needed because the expert's knowledge of the general rules governing the sport would do nothing to explain what should have occurred in a game in which those rules were not applied. Id. at 509-10.
Here, on the other hand, plaintiff was injured in a scheduled game in an organized league that was officiated by a referee. In Crawn, the Court differentiated between pickup games and "games played in organized leagues with umpires and referees," noting that other jurisdictions had allowed expert testimony in such cases. Id. at 509 (citing Nabozny v. Barnhill, 334 N.E.2d 258, 260 (Ill. App. Ct. 1975) (allowing expert testimony on conduct of amateur soccer players regarding FIFA rules); Picou v. Hardford Ins. Co., 558 So. 2d 787, 791 (La. Ct. App. 1990) (allowing expert testimony in organized league softball injury case)). The Court further noted that such cases "involved games . . . governed by a set of specific rules or conventions of which an expert had knowledge that was not generally shared by the average person or even fully understood by all the participants." Ibid.
To illustrate, in Santopietro v. City of New Haven, 682 A.2d 106, 107 (Conn. 1996), a spectator watching a formal game in a softball league was hit by a bat "intentionally flung" by a player. Id. at 107-08. The plaintiffs sued the umpires of the game, asserting that the umpires had breached a duty to them by not maintaining adequate control of the game. Id. at 113-14. The trial court ruled that "expert testimony was required to establish a breach of [a] duty and that such a breach caused harm to the plaintiffs." Id. at 115. In affirming the trial court's determination, the Connecticut Supreme Court found that:
An umpire obtains, through formal training and experience, a familiarity with the rules of the sport, a technical expertise in their application, and an understanding of the likely consequences of officiating decisions. As a result, the umpire
possesses knowledge of the standard of care to which an umpire reasonably may be held, and of what constitutes a violation of the standard, that is beyond the experience and ken of the ordinary fact finder. Moreover, the fact finder's lack[] of expertise is exacerbated by the highly discretionary nature of the umpire's task. Thus, the fact finder must determine, not just whether in hindsight the umpire erred, but also whether the umpire's error constituted an abuse of his broad discretion. In such cases in which the fact finder's decision requires specialized knowledge, expert testimony is necessary[.]
[Id. at 115-16.]
We find this reasoning persuasive. Soccer referees have a familiarity with the rules of the sport, a technical expertise in their application, and an understanding of the likely consequences of officiating decisions which ordinary jurors lack. Plaintiff's claim rests on a supposed error in officiating by the referee, and an alleged failure by defendant to properly select and supervise the referee who made the error. Determining whether defendant breached the applicable standard of care without expert testimony would require the jury to "speculate . . . in [an] area where laypersons could not be expected to have sufficient knowledge or experience." Biunno, Weissbard, and Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2016). Accordingly, the trial judge correctly determined that plaintiff's case could not survive without expert testimony.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION