Opinion
DOCKET NO. A-1082-12T4
03-17-2014
DANILO E. MEJICANOS, Plaintiff-Respondent, v. HADDAD PLUMBING & HEATING, INC. and FIELDS HI-RISE CONSTRUCTION COMPANY, Defendants-Appellants.
Law Offices of Jared E. Stolz, L.L.C., attorneys for appellants (Jared E. Stolz, on the brief). Seigel Capozzi Law Firm L.L.C., attorneys for respondent (James P. Kimball, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1687-10.
Law Offices of Jared E. Stolz, L.L.C., attorneys for appellants (Jared E. Stolz, on the brief).
Seigel Capozzi Law Firm L.L.C., attorneys for respondent (James P. Kimball, of counsel and on the brief). PER CURIAM
Defendant Haddad Plumbing & Heating Co. (Haddad) appeals from the June 29, 2012 order denying its motion for summary judgment, which sought to dismiss plaintiff Danilo E. Mejicanos' complaint for damages resulting from a workplace injury. After reviewing the facts and applicable legal principles, we affirm.
Plaintiff worked as an electrical helper for San-Tec Electric, Inc. (San-Tec) at a condominium construction site in Jersey City. San-Tec was the electrical subcontractor for the project, defendant Fields Hi-Rise Construction Co. (Fields) was the general contractor, and defendant Haddad was the plumbing subcontractor.
On December 4, 2008, a Haddad employee working at the construction site was cutting PVC pipe and discarding excess pieces onto the floor in the area where plaintiff was standing on a ladder to perform electrical work. A piece of this pipe ended up directly underneath the last step of plaintiff's ladder. As he descended the ladder, plaintiff stepped onto the pipe and fell, seriously injuring his back.
On April 13, 2010, plaintiff filed a complaint against Fields and Haddad, alleging that both defendants had a duty to maintain a safe workplace for all workers on the site. After discovery ended, Haddad filed a motion for summary judgment seeking to dismiss plaintiff's complaint for failure to retain a liability expert to testify about construction industry standards for work and safety along with applicable Occupational Safety and Health Administration (OSHA) regulations. On June 29, 2012, Judge Edward T. O'Connor, Jr., heard oral argument and denied the motion.
A stipulation of dismissal was executed between plaintiff and Fields on November 14, 2011.
On July 18, 2012, Haddad filed a motion for leave to appeal, which we denied on August 7, 2012.
Judge O'Connor found that summary judgment was inappropriate for what he termed a "slip-and-fall negligence case" because material issues of fact existed as to Haddad's duty of care and any breach related to plaintiff. Moreover, the judge rejected Haddad's claim that expert testimony was required to establish its negligence or a duty of care. The judge concluded that the jury could make a determination as to whether there was negligence "based upon their own common knowledge and experience."
The case proceeded to trial in September 2012. On September 24, 2012, the jury found Haddad 32.5% negligent, Fields 32.5% negligent, and plaintiff 35% negligent, and awarded $1,000,000 in gross damages. The court molded the verdict, reducing Haddad' net liability to $349, 648. This appeal followed.
On appeal, Haddad's sole contention is that the trial judge should have granted its summary judgment motion because plaintiff failed to produce a liability expert to explain to the jury "the nature of the construction industry and those standards of safety that both general contractors and subcontractors must follow on site." We disagree.
First, we note that, while "[o]rders denying motions for summary judgment are intrinsically interlocutory," Rendon v. Kassimis, 140 N.J. Super. 395, 398 (App. Div. 1976), once a case reaches its final disposition, all interlocutory matters become appealable. See R. 2:2-3(a); Vitanza v. James, 397 N.J. Super. 516, 518 (App. Div. 2008). Thus, Haddad's appeal is properly before us.
We review summary judgment decisions de novo, Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013), utilizing "'the same standard [of review] that governs the trial court.'" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). The evidence must be viewed "in the light most favorable to the non-moving party" and must be analyzed to determine "whether the moving party was entitled to judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)); see also R. 4:46-2(c).
"[A] qualified expert may testify and offer an opinion '[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.'" State v. Sowell, 213 N.J. 89, 99 (2013) (quoting N.J.R.E. 702). In order for expert testimony to be admissible, it "should 'relate[] to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge.'" Ibid. (quoting State v. Odom, 116 N.J. 65, 71 (1989)). "If the matter is within the competence of the jury, expert testimony is not needed." Ibid. (citing Odom, supra, 116 N.J. at 76).
To prove negligence, the evidence must establish that the "'defendant breached a duty of reasonable care, which constituted a proximate cause of the plaintiff's injuries.'" Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 398 (2005) (quoting Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984)). With few exceptions, "there is no general rule or policy requiring expert testimony as to the standard of care." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982); see also O'Shea v. K. Mart Corp., 304 N.J. Super. 489, 494 n.2 (App. Div. 1997). To determine when expert testimony is required, the test is whether "the subject matter to be dealt with 'is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.'" Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 341 (App. Div. 2000) (quoting Butler, supra, 89 N.J. at 283).
We reject Haddad's argument that the issue of whether Haddad breached a duty of reasonable care was so complex or specialized that the jurors were unable to understand it without an expert witness. On the contrary, common knowledge and experience of the jurors generally allows them to determine negligence without an expert's opinion. Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999) (noting that reliance on the common knowledge of jurors is appropriate "where the 'carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience'" (citation omitted)); see also Jerista v. Murray, 185 N.J. 175, 197 (2005) (jury did not need expert to explain that automatic doors do not close on patron absent negligent maintenance); Palanque v. Lambert-Woolley, 168 N.J. 398, 406-07 (2001) (no expert required regarding doctor misreading a laboratory report); Mayer v. Once Upon a Rose, Inc., 429 N.J. Super. 365, 376-77 (App. Div. 2013) (expert not necessary to explain that "excessive pressure placed on glass can cause it to shatter").
Here, the carelessness of Haddad's employee is not "so esoteric that jurors of common judgment and experience" could not determine whether his actions constituted negligence. Rocco, supra, 330 N.J. Super. at 341. A jury does not need an expert to explain that leaving pipe under a ladder at a busy construction site may breach a duty of care to the other workers.
Haddad's reliance on Brody v. Albert Lifson & Sons, Inc., 17 N.J. 383 (1955), and Mautz v. J.P. Patti Co., 298 N.J. Super. 13, 16-17 (App. Div.), certif. denied, 151 N.J. 472 (1997), is misplaced as both cases are easily distinguishable. Brody did not require expert testimony about "the inherent slippery characteristics of terrazzo," but merely held such testimony was permissible. 17 N.J. at 392. And Mautz concerned violations of OSHA regulations, which plaintiff here did not invoke at trial. 298 N.J. Super. at 17.
Haddad also cites Kidd v. Pedersen Bldg. Sys., LLC, No. A-1067-10 (App. Div. May 8, 2012). This case is not binding, nor does it constitute precedent. R. 1:36-3. Haddad did not provide us with a copy as required by Rule 2:6-1(a)(1)(H), and the case is factually distinguishable.
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We are convinced that, when Haddad moved for summary judgment, issues of material fact existed which the jury was capable of deciding concerning Haddad's duty of care and whether it breached that duty. Therefore, Judge O'Conner properly denied the motion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION