                                NOT FOR PUBLICATION WITHOUT THE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-5610-17T4

APRIL L. MCBRIDE, a/k/a
APRIL MCBRIDE and KYLE
MCBRIDE, her spouse,

          Plaintiffs-Appellants,

v.

STEPHANIE FAIR-
WILLOUGHBY,

          Defendant-Respondent,

and

CITY OF JERSEY CITY,
COUNTY OF HUDSON
and STATE OF NEW
JERSEY,

     Defendants.
________________________

                    Argued October 2, 2019 – Decided February 4, 2020

                    Before Judges Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-4641-15.
            Jorge R. DeArmas argued the cause for appellants
            (Davis, Saperstein & Salomon, PC, attorneys; David A.
            Drescher, on the briefs).

            John V. Mallon argued the cause for respondent
            (Chasan Lamparello Mallon & Cappuzzo, PC,
            attorneys; John V. Mallon, of counsel and on the brief;
            Kelly A. Weber, on the brief).

PER CURIAM

      Plaintiffs 1 appeal from the Law Division order dismissing their complaint

against defendant,2 after a jury returned a no-cause verdict in their negligence

action arising out of a slip-and-fall accident on defendant's ice-covered

sidewalk. Plaintiffs contend the trial court erred in allowing defendant's expert

to render improper testimony. For the reasons that follow, we reverse and

remand for a new trial.

                                        I.

      We begin by summarizing the most pertinent trial evidence. The parties

reside on the same street in Jersey City, about eight houses apart. On the

morning of Sunday, January 18, 2015, plaintiff planned to take her dog for a



1
  In this opinion, we refer to April and Kyle McBride collectively as "plaintiffs"
and April McBride individually as "plaintiff." Plaintiff's husband sues per quod.
2
 Since defendant Stephanie Fair-Willoughby was the only remaining defendant
when the case went to trial, we refer to her as defendant.
                                                                          A-5610-17T4
                                        2
walk. Because "it looked wet outside," plaintiff first stuck her hand "out the

window to see if there was any rain, or anything coming down." Feeling no

precipitation, she decided to walk her dog "before it start[ed] to rain again." As

plaintiff walked her dog in the direction of defendant's home, the sidewalk

looked wet but she did not see any ice and had no difficulty walking. Upon

walking onto the sidewalk in front of defendant's home, plaintiff slipped and fell

on ice that covered the sidewalk; in the fall, she sustained a severe fracture of

her right ankle. 3

      With the assistance of a passerby and Darren Robinson, a long-time

neighbor of defendant, plaintiff managed to get up off the sidewalk. The pair

then helped plaintiff over to a fence, where she held on, "standing on . . . one

leg." From there, plaintiff called her husband on her cell phone and told him

she had fallen.

      According to plaintiff's husband, he arrived at the scene "fairly quickly."

As he came down the block, he observed the pavement "looked . . . wet." When

he viewed the area where plaintiff fell, "at first glance, it looked exactly the way




3
   Before trial, the parties agreed to a stipulation regarding the amount of
plaintiffs' damages. As a result, the trial addressed only the issue of liability.
                                                                            A-5610-17T4
                                         3
it looked when [he] walked down the street. . . . It just looked wet." Upon

taking a closer look, he concluded "it was definitely ice. . . . black ice."

      Plaintiffs also called Robinson as a witness.         While he provided a

statement to plaintiff's investigator within a month of the accident, by the time

of trial, he required a subpoena to compel his appearance. In the statement he

gave shortly after the accident, Robinson said it was "rainy and cold" the day of

plaintiff's accident and that he observed "black ice on the ground." At trial,

however, he described "[t]he whole block" as "solid ice," and claimed "it was

raining ice." He further denied there was any difference in the thickness of the

ice in the area where plaintiff fell. At that point, plaintiff's counsel confronted

Robinson with testimony he gave at his deposition:

             Q:    Mr. Robinson . . . in your deposition you were
                   asked a question . . . 'Do you know how far away
                   she was from [the] gate at the time she fell'? And
                   your answer was, 'She was right on – next to the
                   gate. Right next to it. But, like I said, she stepped
                   into that part, because you got to remember it's a
                   drain. A lot of water is coming down. In that part
                   the ice was probably twice as thick as on the
                   regular ground, and that when, boom, it was very
                   slippery that morning. Very[,] state of
                   emergency.'

                   Now does – does that refresh your recollection
                   that – that the ice was twice as thick?

             A:    Not really, but maybe I did.

                                                                               A-5610-17T4
                                         4
    After Robinson testified, plaintiffs presented the de bene esse video-taped

testimony of their liability expert, Michael Natoli, P.E. 4 According to Natoli,

water from defendant's roof would accumulate in the gutters of defendant's

home, and proceed through the downspout drainpipe onto defendant's driveway;

at that point, "since the driveway is pitched towards the sidewalk[,] it just flows

right across the sidewalk. . . . [D]uring the summer months, it's just water on

the sidewalk. . . . [D]uring the winter months, it's water on the sidewalk that

can turn to ice. And that's exactly what happened here."

    Natoli identified two alternatives that defendant could have utilized to avoid

discharging roof-runoff water across the public sidewalk – the downspout could

have been piped underground to provide curbside discharge, or defendant could

have created

            a drywell in the driveway where the downspout would
            empty into their drywell and it would just then percolate
            back into the ground. A drywell is nothing more than
            carving a hole in the ground . . . putting in some gravel
            rocks and then have the downspout pipes go into there,
            and what it does is it recharges the soil, but it doesn't
            add water to the sidewalk. And that's a very simple
            procedure . . . . to avoid discharging [onto] the public
            sidewalk.



4
   Plaintiffs took the deposition in September 2017, seven months before trial;
in January 2018, Natoli passed away.
                                                                           A-5610-17T4
                                        5
      Defendant did not testify. The only defense witness was a liability expert,

David Behnken, P.E., who took issue with the opinions expressed by plaintiff's

expert. Behnken inspected the accident site in March 2017, a little over two

years after plaintiff's accident.   Behnken's report included photographs of the

accident site and defendant's house; in some of the photographs, neighboring

houses can be seen.

      Behnken testified that Natoli's suggestions for avoiding the discharge of

water across the public sidewalk were not practical, citing the small size of

defendant's lot. Relevant to this appeal, the following exchange occurred on

direct examination between defense counsel and Behnken:

             Q:    Based on your examination of the downspout,
                   and your experience and education, is there
                   anything improper about the construction of that
                   downspout?

             A:    There's not. In this particular case, both adjacent
                   neighbors to the left and right have the exact
                   same conditions. I'm sure if you were to look
                   around at all the neighboring houses –

At that point, plaintiff's counsel objected since Behnken's response provided an

opinion not contained in his report regarding neighboring houses, which he did

not inspect. The judge overruled the objection, after concluding that Behnken

already established that "it's the proper way to do it."


                                                                         A-5610-17T4
                                         6
      Following the judge's ruling, Behnken testified that the houses on either

side of defendant's house had "the same thing. They had downspouts at the front

of the building . . . and they came down, discharged at grade . . . . [onto]

driveways or walkways that flowed toward the street." At that point, plaintiff's

counsel renewed his objection, again noting that Behnken's report contained no

"mention of any comparison to the neighboring houses." The judge again

overruled the objection, stating that Behnken "isn't tied to the corners [of his

report]. It's his observation."

      Behnken went on to dismiss Natoli's suggestion of installing a drywell to

drain the runoff water, asserting it "would be extremely difficult to put in a

drywell" and not have water go into the basement. Behnken did not address

Natoli's alternate suggestion of avoiding the surface of the sidewalk by running

a pipe from the downspout underground – and underneath the sidewalk – out to

the street.

      On cross-examination, Behnken acknowledged that, with freezing

temperatures, discharging roof runoff across the public sidewalk creates a

hazard:

              Q:   Now can we agree, just as a general principle,
                   that when the water flows from a drainpipe down
                   a driveway and across a sidewalk during the


                                                                        A-5610-17T4
                                       7
                   wintertime there's a potential for that - - that
                   freezing over in a thin layer of ice. Is that correct?

            A:     Yeah. There would be that potential for anything.

                   ....

            Q:     So you certainly would want to – if you can avoid
                   it, a situation where water flows down a drain and
                   across a sidewalk, creates – and creates a thin
                   layer of ice during the winter. Correct?

            A:     Yes.

                   ....

            Q:     So . . . you would agree that having a drainpipe
                   that runs water across a sidewalk in winter adds
                   some element of – of hazard or danger to the
                   sidewalk?

            A:     Potentially, it can, yes.

      After the jury returned its verdict, finding that defendant was not

negligent, plaintiffs filed a motion for a new trial, which the trial judge denied.

This appeal followed.

                                         II.

      The question of sidewalk liability for pedestrian accidents turns on the use

of the property abutting the sidewalk. Owners of properties used for commercial

purposes owe a duty of care to pedestrians to keep the sidewalk abutting their

property in a safe manner. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 152-

                                                                            A-5610-17T4
                                         8
53 (1981). By contrast, "[r]esidential homeowners can safely rely on the fact

that they will not be liable unless they create or exacerbate a dangerous sidewalk

condition . . . ." Luchejko v. City of Hoboken, 207 N.J. 191, 210 (2011)

(emphasis added).

      We review decisions to admit expert testimony "against an abuse of

discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,

371 (2011) (citing Kuehn v. Pub Zone, 364 N.J. Super. 301, 319-21 (2003)).

"However, [w]hen the trial court fails to apply the proper test in analyzing the

admissibility of proffered evidence, our review is de novo." Konop v. Rosen,

425 N.J. Super. 391, 401 (App. Div. 2012) (alteration in original) (internal

quotation marks omitted). When reviewing a trial court's evidential rulings, we

will only reverse if the error "is of such a nature as to have been clearly capable

of producing an unjust result." Parker v. Poole, 440 N.J. Super. 7, 16 (App. Div.

2015) (quoting R. 2:10-2).

      Plaintiffs argue the trial court committed harmful error when it allowed

Behnken to testify regarding matters not contained in his report. Plaintiffs

further contend that not only did this testimony come as a surprise, but it was

also based on photographs of the area, as opposed to an actual investigation, and




                                                                           A-5610-17T4
                                        9
served no legitimate basis for ascertaining whether or not defendant was

negligent. We agree.

      Expert testimony that deviates from the pretrial expert report may be

excluded if the trial court finds "the presence of surprise and prejudice to the

objecting party." Velazquez ex rel. Velazquez v. Portadin, 321 N.J. Super. 558,

576 (App. Div. 1999). A trial judge has the discretion to preclude expert

testimony on a subject not covered in the written reports furnished in discovery.

Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990);

however, such a determination "must be just and reasonable." Mauro v. Owens-

Corning Fiberglas Corp., 225 N.J. Super. 196, 206 (App. Div. 1988), aff'd sub

nom, Mauro v. Raymark Industries, Inc., 116 N.J. 126 (1989).

      Although an expert witness is generally confined to the opinions contained

in his or her report provided in discovery, Conrad v. Robbi, 341 N.J. Super. 424,

440-41 (App. Div. 2001), "the logical predicates for and conclusions from

statements made in [an expert] report are not foreclosed."          McCalla v.

Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div. 1987).

      Because Behnken testified that there was nothing improper about the

design of defendant's downspout, the judge overruled the objection, explaining

that Behnken "established that it's a proper way of doing it." While Behnken


                                                                         A-5610-17T4
                                      10
gave his opinion that defendant did nothing improper, his testimony did not

establish that placing a downspout so that it pours substantial water onto a sloped

driveway, knowing the water will first cross a public sidewalk before reaching

the street, is "a proper way of doing it."

      In addition, we do not find that Behnken's opinions regarding adjacent

houses, or other houses in the neighborhood, was a logical predicate of the

information and opinions set forth in his expert report. Since Behnken did not

examine any of these other homes, nor reference them in his report, plaintiffs

had no reason to expect that Behnken would offer these extra opinions. The new

opinions came as a complete surprise to plaintiffs and resulted in certain

prejudice. See Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd

o.b., 78 N.J. 308 (1978) (noting that the opposing party must be protected from

the effect of surprise and prejudice).

      Behnken's testimony regarding the houses near defendant with similar

drainage systems was essentially offered to prove that defendant was not

negligent because "everyone does it."         We are unpersuaded that this claim

constitutes a valid defense.    The defense that "everyone does it" is not an

acceptable ground to absolve a defendant from liability in the absence of a

reasonable justification for defendant's conduct or for the conduct of similarly-


                                                                           A-5610-17T4
                                         11
situated persons. See Ashby v. Farmer's Ins. Co., 565 F. Supp. 2d 1188, 1214-

15 (D. Or. 2008); see also, Via Christi Reg'l Med. Ctr., Inc. v. Reed, 298 Kan.

503, 527 (2013).

      In addition, plaintiffs were deprived of the ability to verify the information

Behnken presented with regard to the other properties which were not the subject

of this lawsuit.   As a result, plaintiff could not adequately cross-examine

Behnken as to his newly-formed opinions or prepare an adequate response to

such testimony. 5 We are satisfied that the trial judge mistakenly exercised her

discretion in permitting Behnken's testimony and opinions commenting on other

houses in the parties' neighborhood.

      Lastly, we must consider whether the trial court's decision to allow

Behnken to testify regarding other houses on the parties' street was "clearly

capable of producing an unjust result[.]" R. 2:10-2.

      The trial testimony of both parties' experts concluded that the drainage

system on defendant's property caused roof-runoff water to stream down the

driveway, over the public sidewalk, and thereafter into the street. Both experts

confirmed that with freezing temperatures, this configuration creates a danger



5
   Because of the death of plaintiffs' expert before trial, they lacked the ability
to recall their expert to try and rebut Behnken's surprise testimony.
                                                                            A-5610-17T4
                                       12
or hazard. As a result, the record contains substantial evidence that defendant

"create[d] or exacerbate[d] a dangerous sidewalk condition." Luchejko, 207

N.J. at 210. Notwithstanding this evidence in favor of plaintiffs, the record

contains conflicting testimony regarding the nature, extent, and location of the

icy conditions that caused plaintiff's fall.

      We are satisfied the proofs in this case do not overwhelmingly favor one

party or the other; hence, Behnken's improper testimony regarding other houses

on the parties' street could have been the deciding factor in defendant's favor.

Cf. State v. Frost, 158 N.J. 76, 87 (1999) (noting that where credibility is the

central issue and the "jury must choose which of two opposing versions to credit,

it simply cannot be said that the evidence is overwhelming[ly]" against one

litigant or the other). The risk that the jury was improperly influenced by the

trial court's decision to allow Behnken to present the challenged testimony is

particularly high here because the jury was faced with deciding between the

sharply conflicting opinions of Natoli and Behnken.

      Under the circumstances of this case, we are convinced the trial court's

error was "clearly capable of producing an unjust result[.]"          R. 2:10-2.

Behnken's improper testimony bore directly on the issue of defendant's




                                                                         A-5610-17T4
                                        13
negligence and thus could readily have been outcome determinative. As a result,

a new trial is required.

      Reversed and remanded for a new trial. We do not retain jurisdiction.




                                                                       A-5610-17T4
                                     14
