                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1053-18T1

DANIEL MARTINEZ, A Minor,
By His Guardian Ad Litem,
NANCY MARTINEZ, and
NANCY MARTINEZ,
Individually,

          Plaintiffs-Appellants,

v.

CITY OF ELIZABETH
BOARD OF EDUCATION,

     Defendant-Respondent.
____________________________

                    Submitted December 4, 2019 – Decided February 3, 2020

                    Before Judges Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Docket No. L-2064-16.

                    Icaza, Burgess, & Grossman, PC, attorneys for
                    appellants (Douglas David Burgess, of counsel and on
                    the briefs; Randi S. Greenberg, on the briefs).

                    Methfessel & Werbel, attorneys for respondent
                    (William Bloom and Leslie Koch, on the brief).
PER CURIAM

      Plaintiff Daniel Martinez 1 appeals from a September 27, 2018 order

granting summary judgment to defendant after finding plaintiff's expert report

constituted a net opinion. We affirm.

      Plaintiff was injured at Halsey House-Elizabeth High School on March

27, 2015. When exiting the cafeteria through a set of doors, he pushed against

the glass panel window, rather than utilizing the door or handle. The glass panel

window, which contained reinforcing wire, broke, and plaintiff's right hand went

through the broken wired window causing injuries requiring surgery.

      Plaintiff filed suit against defendant, the Elizabeth Board of Education, on

June 22, 2016.    During discovery, plaintiff supplied an expert report from

Terence J. Fischer, P.E., dated September 11, 2017. In his report, Fischer

asserted the door in question (Door 12) had been replaced in 2014, and that the

glass in Door 12 did not comply with applicable building codes or American

National Standards Institute standards. Fischer opined the dangers of wired

glass were widely known in the school industry, and that if defendant had




1
   Plaintiff's guardian, Nancy Martinez, is also a plaintiff. For purposes of
efficiency we only refer to Daniel as plaintiff in this opinion.
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                                        2
apprised itself of this readily available information and replaced the wired glass

with safety glass, plaintiff's injury would not have occurred.

      In April 2018, after the end of discovery, defendant moved for summary

judgment. Defendant argued Fischer's expert opinion was inapplicable because

Door 12 was the original door installed in 1976, and since it had never been

replaced, the contention the door did not meet building codes updated in 2003

was irrelevant. Fischer then submitted a subsequent, supplemental report, where

he acknowledged that Door 12 was not replaced, that the wired glass met the

codes in effect in 1976, and that building codes did not require retrofitting to

meet updated safety standards. However, Fischer opined the dangers of wired

glass were widely known to those in the school industry when the doors were

originally installed, and, given the availability of the information pertaining to

the dangers of wired glass, the failure of defendant to replace Door 12 with

safety glass prior to the date of loss "created an unnecessary exposure to hazard

for its students and employees," and thus, his ultimate conclusion remained

unchanged.

      The motion judge conducted a Rule 104 hearing on the admissibility of

plaintiff's expert's opinion. During the hearing, Fischer testified regarding his

qualifications as a forensic engineer. Fischer had never previously issued a


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                                        3
report in a case involving wired glass, and for this report he relied on the 2004

article entitled "Shattering the Myth of Wired Glass" by Greg Able. Fischer

testified the article discussed the inadequacies of wired glass—specifically how

wired glass is effective for fire safety but is not necessarily impact resistant.

While standards for the required "strength" of glass panes were upgraded in New

Jersey in 2006, the New Jersey Building Code did not require retrofitting of

existing doors.

      Notably, plaintiff could not qualify the Able writing as reliable or as a

learned treatise, and Fischer testified that until he came upon it in preparing his

report, he was completely unfamiliar with Able or the periodical in which the

article appeared. Fischer conceded that until the middle of the 1990s, traditional

wired glass was the only fire-rated glass available, that many building and fire

officials believe the incorporation of wire makes glass stronger, and that wired

glass manufacturers were still permitted to market wired glass as safety glazing.

However, he concluded within a reasonable degree of certainty, it was negligent

for the defendant not to have replaced the glass in the door, as the door was a

dangerous condition.

      The judge found Fischer's opinion that defendant was negligent was not

accompanied by objective support and was therefore a net opinion. The judge


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                                        4
determined "there was no record proof that any teacher, principal, administrator,

or member of the Board of Education had actual knowledge of the potential

danger of the door based upon post-installation studies or [of] that door's glass

breaking and causing injuries previously." Further, the court stated there was

no evidence of constructive knowledge about the danger the door presented.

Without an expert to attach liability to the defendant, the motion judge

concluded that plaintiff could not sustain a claim under the New Jersey Tort

Claims Act (TCA), N.J.S.A. 59:4-1(a). For this reason, the court granted

defendant's motion for summary judgment. This appeal followed.

      On appeal, plaintiff argues the motion judge erred in finding Fischer's

opinion was a net opinion, and that the record supported a finding defendant had

knowledge of the dangerous condition. We disagree.

                                       I.

      "[W]e apply an abuse of discretion standard to decisions made by [] trial

courts relating to matters of discovery." Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 371 (2011) (citing Bender v. Adelson, 187 N.J. 411, 428

(2006)). "We generally defer to a trial court's disposition of discovery matters

unless the court has abused its discretion or its determination is based on a

mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J.


                                                                         A-1053-18T1
                                       5
Super. 68, 80 (App. Div. 2005) (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524,

559 (1997)).   "[W]e apply the same deferential approach to a trial court's

decision to admit expert testimony, reviewing it against an abuse of discretion

standard." Pomerantz Paper Corp., 207 N.J. at 371.

      "When the legal conclusions of a trial court on a 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 therefore, we review an issue of law de novo.

McDade v. Siazon, 208 N.J. 463, 473 (2011) (alteration in original) (quoting

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010)).

      "When . . . a trial court is 'confronted with an evidence determination

precedent to ruling on a summary judgment motion,' it 'squarely must address

the evidence decision first.'"   Townsend v. Pierre, 221 N.J. 36, 53 (2015)

(quoting Estate of Hanges, 202 N.J at 384-85). Our review of the trial court's

decision "proceeds in the same sequence, with the evidentiary issue resolved

first, followed by the summary judgment determination of the trial court." Ibid.

(citing Estate of Hanges, 202 N.J. at 385).

      Where an expert's findings are not supported by proper factual evidence,

it is a net opinion. Id. at 58-59. An expert's opinion "is excluded if it is based


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                                        6
merely on unfounded speculation and unquantified possibilities." Grzanka v.

Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997) (quoting Vuocolo v.

Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300 (App. Div. 1990)).

Because a jury may give significant weight to expert testimony, "a trial court

must ensure that an expert is not permitted to express speculative opinions or

personal views that are unfounded in the record." Townsend, 221 N.J. at 55.

An expert must provide the "why and wherefore" of his or her opinion and

failing to do so renders the expert "nothing more than an additional juror."

Jimenez v. G.N.O.C., Corp., 286 N.J. Super. 533, 540 (App. Div. 1996). If the

trial court determines the expert's report is a net opinion, the testimony of the

expert is inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). "[A]n

expert's bare opinion that has no support in factual evidence or similar data is a

mere net opinion which is not admissible and may not be considered."

Pomerantz Paper Corp., 207 N.J at 372.

      We have rejected a trial court's reliance on an expert's personal "rule of

thumb" regarding fair market valuation as violating N.J.R.E. 703. Alpine

Country Club v. Borough of Demarest, 354 N.J. Super. 387, 395-96 (App. Div.

2002) (holding that an expert's "rule of thumb" approach was neither based on

any accepted methodology used by other appraisers nor referenced or adopted


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                                        7
by authoritative texts or case law).         Applying these standards, we have

concluded that a trial court may not rely on expert testimony that la cks an

appropriate factual foundation. Dawson v. Bunker Hill Plaza Assocs., 289 N.J.

Super. 309, 323-25 (App. Div. 1996); see also Suanez v. Egeland, 353 N.J.

Super. 191, 203 (App. Div. 2002) (finding the trial court erred in admitting

expert testimony because the expert demonstrated no foundation established by

scholarly literature or persuasive judicial decisions).

      As for Fischer's initial report, the bulk of the report is spent reviewing the

particulars of the accident. Reaching the issue at hand, Fischer asserts, with

little support, that wired glass is a common sight in schools, businesses, and

hotels, serving as a fire retardant by preventing the glass from shattering under

heat stress but making the glass more susceptible to breakage. Fischer then cites

to "Shattering the Myth of Wired Glass," which says children and young adults

are injured every year by wired glass panels where safety glass should be used

instead. Fischer states that wired glass does not meet the standards found in the

2003 International Building Code nor the 2006 International Building Code ,

which would require safety glazing to control how the glass breaks.

      Fischer calculated that the force created by plaintiff when his hand

impacted the glass would have been less than the force necessary to shatter glass


                                                                            A-1053-18T1
                                         8
with safety glazing. In his conclusion, Fischer determined if the window in Door

12 was made of safety glass, the injury would not have occurred. He also

concluded

            [defendant] failed to ensure the subject windows were
            compliant with applicable federal regulations, building
            codes and industry safety standards. The [defendant]
            failed to recognize the dangers of wired glass in impact
            areas in light of the information available on the
            internet, in trade publications, and other sources, not to
            mention the number of injuries sustained by exposure
            to wired glass windows.

In essence, Fischer's determination is defendant did not comply with applicable

safety standards and should have been on notice that the wired glass was

dangerous. While he gives his basis for the determination that if there was safety

glass the injury would not have occurred, his basis for liability was that

defendant did not replace the glass with proper safety glass.

      As for Fischer's later, supplemental report, he acknowledges Door 12 had

not been replaced since its initial installation in 1976, and thus was not in

violation of the applicable building codes. However, his conclusion remained

unchanged, and he still concluded defendant "failed to maintain the subject

facility in a reasonably safe condition by not replacing the subject windows with

properly rated safety glass."



                                                                          A-1053-18T1
                                        9
      The trial court considered Fischer's conclusion a net opinion because there

was no code requiring defendant to retrofit the door with safety glass, yet,

without further support, Fischer opined it was unreasonable not to retrofit the

door. Fischer's initial conclusion was based on the mistaken belief defendant

had replaced Door 12 in 2014, but failed to install glass which met the applicable

safety standards; however, it was later determined that this was not the case, and

the doors installed in 1976 were not in violation of safety standards. For this

reason, Fischer's conclusion the door did not meet safety standards is not

grounded in a factual basis. See Townsend, 221 N.J. at 58.

      In Fischer's initial report, the noncompliance with safety standards

provides the "why and wherefore" to support his opinion. However, when it was

determined the defendant was in fact compliant, Fischer did not provide

additional reasoning and explanation for why the wired glass window was

dangerous. He offers no industry standard or custom to show defendant was

"failing to maintain the subject property in a reasonably safe condition" by not

retrofitting the windows. See Davis v. Brickman Landscaping, Ltd., 219 N.J.

395, 411-12 (2014) (stating industry standards, while not conclusive, may be

used as evidential support for an expert's conclusions on standard of care).




                                                                          A-1053-18T1
                                       10
                                       II.

      We now review the entry of summary judgment. Under the TCA, a public

entity is immune from liability except for an "injury proximately caused by an

act or omission of a public employee," N.J.S.A. 59:2-2, an injury caused by a

dangerous condition of its property, N.J.S.A. 59:4-2, or an injury caused by its

failure to provide emergency signals, N.J.S.A. 59:4-4. To succeed in this claim,

plaintiff must satisfy the requirements of N.J.S.A. 59:4-2, which states:

            A public entity is liable for injury caused by a condition
            of its property if the plaintiff establishes that the
            property was in dangerous condition at the time of the
            injury, that the injury was proximately caused by the
            dangerous condition, that the dangerous condition
            created a reasonably foreseeable risk of the kind of
            injury which was incurred, and that either:

            a. a negligent or wrongful act or omission of an
            employee of the public entity within the scope of his
            employment created the dangerous condition; or

            b. a public entity had actual or constructive notice of
            the dangerous condition under section 59:4-3 a
            sufficient time prior to the injury to have taken
            measures to protect against the dangerous condition.

            Nothing in this section shall be construed to impose
            liability upon a public entity for a dangerous condition
            of its public property if the action the entity took to
            protect against the condition or the failure to take such
            action was not palpably unreasonable.



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                                       11
A "dangerous condition" is defined in the TCA as "a condition of property that

creates a substantial risk of injury when such property is used with due care in

a manner in which it is reasonably foreseeable that it will be used." N.J.S.A.

59:4-1(a).

      Thus, to hold a defendant liable under this statute, plaintiff must prove: 1)

that a dangerous condition existed; 2) that the condition created a foreseeable

risk of the kind of injury that occurred; and 3) that the dangerous condition

proximately caused the injury. Garrison v. Twp. of Middletown, 154 N.J. 282,

286 (1998).    Plaintiff must also prove either that defendants created the

dangerous condition, or that they had actual knowledge or constructive notice

of the dangerous condition for a sufficient time prior to the injury to eliminate

the danger. N.J.S.A. 59:4-2(a)-(b); see also Carroll v. N.J. Transit, 366 N.J.

Super. 380, 386-87 (App. Div. 2004).          Lastly, plaintiff must prove the

defendant's action or inaction with respect to the dangerous condition was

palpably unreasonable. N.J.S.A. 59:4-2; see also Garrison, 154 N.J. at 286.

      Considering these requirements, and after reviewing the record, we agree

with the motion judge that plaintiff fails to meet the standards of the TCA.

Plaintiff did not introduce evidence that the door or panel was a dangerous




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                                       12
condition of property, and plaintiff did not show defendant had notice of the

dangers of wired glass.

      Affirmed.




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                                    13
