                        NOT FOR PUBLICATION WITHOUT THE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-5211-16T2

TIMOTHY J. KANE,

        Plaintiff-Appellant,

v.

PETER ROBINSON, BERNETTA
HIBBERT, and RUSSELL HIBBERT,

     Defendants-Respondents.
_____________________________

              Argued May 24, 2018 – Decided June 25, 2018

              Before Judges Gilson and Mitterhoff.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Docket No.
              DC-003847-16.

              Timothy J. Kane, appellant, argued the cause
              pro se.

              John P. Gilfillan argued the                cause for
              respondents (Kennedy CMK, LLP,              attorneys;
              Kersten Kortbawi, on the brief).

PER CURIAM

        In this personal injury action, plaintiff Timothy J. Kane

appeals from a May 16, 2017 order granting summary judgment to

defendants because plaintiff failed to produce an expert report
addressing the cause of his alleged injuries.                 We affirm in part

and reverse in part.         We affirm the order to the extent that

plaintiff alleged permanent injuries or the need for corrective

surgery, because without an expert plaintiff could not establish

causation.     We are constrained, however, to reverse the order to

the extent that plaintiff sought to recover the $4,815.06 he

certified he paid for medical treatment related to the alleged

incident.      As   to    those   medical      costs,    plaintiff     presented

sufficient facts to allow a fact finder to rule on causation.

                                        I.

     We discern the facts from the summary judgment record, and

construe them in the light most favorable to plaintiff, the

non-moving party.        Davis v. Brickman Landscaping, Ltd., 219 N.J.

395, 405-06 (2014).        Plaintiff, who was sixty-nine years old at

the time, was walking on a public street near his home on October

31, 2014.    He alleges that a pit bull attacked him.                The dog did

not bite plaintiff, but it did knock him over.                    When plaintiff

fell,   he   felt   pain    in    his   left    knee    and    right   shoulder.

Accordingly, plaintiff went to the hospital that same day.

     At the hospital, plaintiff reported that he had a prior injury

to his left knee.         The hospital records state that plaintiff's

"[p]roblems"     included     "[c]ontusion       of     elbow,"     "superficial

abrasion," and "[c]ontusion of knee."           The "[p]rimary [d]iagnosis"

                                        2                                A-5211-16T2
of the physician assistant and doctor who examined plaintiff at

the hospital was "[c]ontusion of knee."               Plaintiff was informed

that    he   had   a   "knee   sprain,"    and   he    was   discharged   with

instructions that included icing his knee and keeping his knee

elevated for twenty-four hours.            The hospital also instructed

plaintiff to "[a]rrange for a follow up appointment with [his] own

Primary Care Provider."        The hospital charged plaintiff $2177 for

his visit, which included charges for visiting the emergency room

and having an x-ray.

       On November 10, 2014, plaintiff saw Dr. Norman Glassner, a

physician who had previously treated plaintiff.               Dr. Glassner's

notes stated that plaintiff reported he was knocked over by a pit

bull, landed on his left knee, and injured his right shoulder.

The notes also reflect that "[plaintiff] immediately had a lot of

pain.    He is having trouble sleeping.          This was about ten days

ago."    Dr. Glassner directed plaintiff to go to physical therapy

twice a week for eight weeks.             Finally, Dr. Glassner, who was

retiring, recommended that plaintiff follow up with Dr. Michael

Pollack at Hunterdon Orthopedic Institute.              Dr. Glassner charged

plaintiff $350 for that examination.

       In November and December 2014, plaintiff went to physical

therapy at the Kessler Institute for Rehabilitation.                  He was

charged $2,288.06 for that physical therapy.

                                      3                               A-5211-16T2
     Plaintiff did not follow up immediately with Dr. Pollack.                  On

March 10, 2017, however, plaintiff went to see Dr. Pollack, who

ordered a magnetic resonance imaging (MRI) of plaintiff's right

shoulder.1      According to plaintiff, Dr. Pollack contacted him on

March 13, 2017, and told him he would need arthroscopic surgery

to correct his right shoulder.

     The same day that plaintiff was knocked over by the pit bull,

the police were contacted regarding the incident.              The responding

police officer met with plaintiff after he was released from the

hospital on October 31, 2014.        A township animal control officer

informed the investigating police officer that a white pit bull

was picked up on October 31, 2014.            The dog had an expired license,

naming Peter Robinson as its owner and listing Robinson's address.

     On October 28, 2016, plaintiff, representing himself, filed

a complaint in the Special Civil Part.              As defendants, plaintiff

named   Peter    Robinson,   and   his       parents,   Bernetta   and   Russell

Hibbert, who allegedly lived with Robinson at the address listed

on the dog license.     In his complaint, plaintiff alleged that the

pit bull was negligently allowed to run loose, attacked plaintiff,




1
  Plaintiff represents that he visited Dr. Pollack on March 2,
2017, however, we were not provided with any documents relating
to that visit. We only were given the MRI report dated March 10,
2017.

                                         4                               A-5211-16T2
and caused him damages, including "medical bills plus pain and

suffering[.]"

      Defendants initially failed to respond, but eventually they

retained legal counsel and filed an answer in January 2017.

Defendants also sought discovery.          In response to a request for

his   damage   claims,   plaintiff    produced   a   certified    statement

listing his medical bills resulting from the "pit bull attack" as

           St. Peter's Hospital                      1,507.00
           Emergency [Department]                      595.00
           X-ray October 31, 2014 visit                 75.00
           Dr. Glassner M.D. Orthopedic                350.00
           Physical Therapy                          1,016.72
           Kessler Rehab, North Brunswick, NJ        1,271.34

                            Total                    $4,815.06

           Plus additional monies for pain and suffering
           by the plaintiff which the jury shall award
           the [p]laintiff.

           Also please find          the   [c]ertification   of
           Timothy J. Kane.

      In response to a follow up request from defense counsel,

plaintiff obtained and produced a February 13, 2017 letter from

the Center for Medicare and Medicaid Services (CMS).               The CMS

letter attached a payment summary showing that Medicaid paid

$1,187.11 out of the $4,815.06 plaintiff was charged for his

hospital visit, examination by Dr. Glassner, and physical therapy.

The CMS letter also informed plaintiff that the $1,187.11 in

payments "are subject to reimbursement to Medicare from proceeds

                                      5                             A-5211-16T2
[he] may receive pursuant to a settlement, judgment, award, or

other payment."

     Plaintiff also listed the witnesses he intended to call at

trial as the animal control officer, the responding police officer,

Dr. Glassner, and Dr. Pollack.

     The case was first listed for trial on February 23, 2017, but

that date was adjourned.     On March 23, 2017, defendant filed a

motion for summary judgment.2    Defendants contended that plaintiff

had no medical expert and that he needed such an expert to support

causation between the alleged negligence in allowing their dog to

knock over plaintiff and plaintiff's injuries.                Plaintiff filed

opposition   and   cross-moved   to       transfer    the   case   to    the   Law

Division.    Thereafter, on May 12, 2017, the trial court heard oral

arguments.

     On May 16, 2017, the court granted summary judgment to

defendants and issued a written statement of reasons.                   The trial

court ruled that plaintiff needed an expert to establish causation

between   defendants'   negligence        and   the   injuries     and    damages


2
  Counsel for defendant represents that at the trial call on
February 23, 2017, counsel moved, apparently orally, to dismiss
plaintiff's complaint because plaintiff had not produced a medical
expert. According to defense counsel, the court directed plaintiff
to file an expert report by March 16, 2017. We were not provided,
however, with the February 23, 2017 transcript, nor the order
directing plaintiff to produce an expert report.


                                      6                                   A-5211-16T2
plaintiff suffered.         The court then examined the medical records

submitted by plaintiff.        In particular, the court focused on three

documents: (1) a March 2, 2017 letter from Dr. Pollack;3 (2) a

March 10, 2017 MRI report; and (3) the November 10, 2014 office

notes of Dr. Glassner.             The court ruled that none of those

documents "provide[d] an expert opinion/report to a reasonable

degree of medical certainty that Plaintiff's alleged injuries were

proximately        caused     by     Defendant's      alleged   negligence."

Consequently, the court granted summary judgment to defendants and

dismissed plaintiff's complaint with prejudice.

                                       II.

       Plaintiff    appeals    and    argues   that    (1)   defendants   were

negligent in allowing their pit bull to run loose; (2) defendants'

motion for summary judgment did not meet the requirements of Rule

4:46-2; (3) his complaint should be reinstated; and (4) his

injuries and damages were established by his medical records.

Alternatively, plaintiff contends that we should reinstate his

complaint under Rule 2:10-2.

       We will focus on plaintiff's alleged damages and injuries.

We use a de novo standard to review a summary judgment order and

apply the same standard employed by the trial court.              Davis, 219



3
    The record does not contain the March 2, 2017 letter.

                                        7                             A-5211-16T2
N.J. at 405.     Accordingly, we determine whether, viewing the facts

in the light most favorable to the non-moving party, the moving

parties have demonstrated that there are no genuine disputes as

to any material facts and they are entitled to judgment as a matter

of law. R. 4:46-2(c); Davis, 219 N.J. at 405-06; Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

       To establish negligence, a plaintiff must prove: "(1) a duty

of care, (2) a breach of that duty, (3) actual and proximate

causation, and (4) damages."           Davis, 219 N.J. at 406 (quoting

Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576,

594 (2013)).      "[P]laintiff bears the burden of establishing those

elements 'by some competent proof.'"            Townsend v. Pierre, 221 N.J.

36, 51 (2015) (quoting Davis, 219 N.J. at 406).

       To be entitled to an award of damages a plaintiff must prove

that   he   or    she   suffered    some   loss    or   injury.   Nappe     v.

Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 41 n.1 (1984).

"Compensatory damages are designed to compensate a plaintiff for

an actual loss or injury."         Id. at 48.     To demonstrate actual loss

or injury, a plaintiff must provide the fact finder with "some

information from which to estimate the amount of damages, even if

[plaintiff] is unable to prove the exact measure of his [or her]

damages[.]"      Id. at 41 n.1.    Indeed, calculation of damages should

be left "to the good sense of the jury [or fact finder] . . . to

                                       8                             A-5211-16T2
form, from the evidence, the best estimate that can be made under

the circumstances as a basis for compensatory damages."                    Ibid.

(quoting Jenkins v. Pa. R.R. Co., 67 N.J.L. 331, 334 (E. & A.

1902)).

      In   some   cases,   expert    testimony   is    necessary    to     prove

negligence.       N.J.R.E.     702   permits     expert      testimony     "[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."       Thus, expert testimony must "relate[] to a

relevant subject that is beyond the understanding of the average

person of ordinary experience, education, and knowledge."                  State

v. Sowell, 213 N.J. 89, 99 (2013) (quoting State v. Odom, 116 N.J.

65, 71 (1989)).      Expert testimony is not needed where the fact

finder's "common knowledge as [a] lay person[] is sufficient to

enable [him or her], using ordinary understanding and experience,

to determine a defendant's negligence without the benefit of the

specialized knowledge of experts."        Hubbard v. Reed, 168 N.J. 387,

394 (2001) (quoting Estate of Chin v. St. Barnabas Med. Ctr., 169

N.J. 454, 469 (1999); see also Brenman v. Demello, 191 N.J. 18,

35 (2007) (holding that expert testimony is not necessary to prove

the   relationship   between    an   accident    and   the    extent     of   any

resulting injuries).



                                      9                                  A-5211-16T2
     Moreover, a plaintiff may offer testimony from his or her

treating physician to support a claim for negligence.    Our Supreme

Court has held "that a treating physician may be permitted to

testify as to the diagnosis and treatment of his or her patient,

pursuant to N.J.R.E. 701."    Delvecchio v. Twp. of Bridgewater, 224

N.J. 559, 577-78 (2016).     Under N.J.R.E. 701,

            [w]hen treating physicians are called to
            testify about their observations, diagnosis
            and treatment of an injured or ailing
            plaintiff, they are not testifying as expert
            witnesses, even though they may possess the
            requisite qualifications.   This is so even
            when they are asked for their opinions
            concerning the cause of the plaintiff's
            condition.

            [Biunno, Weissbard & Zegas, Current N.J. Rules
            of Evidence, cmt. 4 on N.J.R.E. 701.]

In such cases, the treating physician's testimony is "limited to

issues relevant to the diagnosis and treatment of the individual

patient."    Delvecchio, 224 N.J. at 579.

     Here, viewed in the light most favorable to plaintiff, he has

asserted two types of damage claims: (1) the medical expenses he

incurred as a result of being knocked down by the pit bull, and

(2) ongoing pain and suffering, including an alleged need for

corrective surgery to his right shoulder.    We agree with the trial

court that plaintiff's allegations about permanent injuries and

the need for corrective surgery to his shoulder require expert


                                 10                          A-5211-16T2
medical testimony to establish causation between being knocked

down and those injuries.     Plaintiff has not produced an expert

report and, thus, he cannot pursue those claims.     Accordingly, we

affirm summary judgment as to plaintiff's claims for permanent

injury, including the need for corrective surgery to his right

shoulder.

     We reverse, however, as to plaintiff's claims for recovery

of the $4,815.06 in medical expenses.         In reviewing a summary

judgment order, we must view the facts in the light most favorable

to plaintiff.    Plaintiff has identified and produced his medical

records.    Assuming that plaintiff can submit authenticated records

at trial, he can show that he was charged $2177 for his hospital

visit on October 31, 2014.     Dr. Glassner then charged plaintiff

$350 for his follow-up visit on November 10, 2014.          Finally,

plaintiff was charged $2,288.06 for physical therapy.     Obviously,

plaintiff will have to prove that he paid all those costs beyond

the $1,187.11 paid by Medicare.        If plaintiff did not pay any

costs beyond what was covered by Medicare, then his recovery would

be limited to the $1,187.11, which then would have to be reimbursed

to Medicare.

     Plaintiff does not need an expert to allow a fact finder to

find causation between defendants' alleged negligence and the

$4,815.06 in medical expenses.        It is not beyond the ken of an

                                 11                          A-5211-16T2
average fact finder to understand that if plaintiff was knocked

over by defendants' pit bull and felt pain in his knee and shoulder

that it was reasonable for him to go to the hospital. The hospital

records support plaintiff's contention that he had at least a knee

sprain that required treatment that cost $2177.

     A fact finder also could understand that plaintiff would

reasonably follow up with another physician, Dr. Glassner, as

directed by the hospital.   Thus, a fact finder could conclude that

the $350 charged by Dr. Glassner was an expense directly related

to plaintiff being knocked over by defendants' pit bull.

     Finally, a fact finder could understand that Dr. Glassner

recommended physical therapy and find that being knocked over by

defendants' pit bull was a proximate cause of plaintiff's physical

therapy. Indeed, here plaintiff was prepared to call Dr. Glassner,

who could have testified concerning his diagnoses and recommended

treatment.    N.J.R.E.    701;   Delvecchio,   224   N.J.   at   577-78.

Accordingly, a fact finder could, if he or she finds causation,

award $2,288.06 for physical therapy.

     In summary, we affirm the order to the extent that it granted

summary judgment on plaintiff's claims of permanent injuries or

the need of further treatment or surgery.        Those damage claims

required proof of medical causation and plaintiff had no expert

to establish causation.     We reverse the order to the extent it

                                  12                             A-5211-16T2
precluded plaintiff from seeking to prove causation as to the

$4,815.06 he incurred in medical costs.       Plaintiff presented

sufficient evidence to allow a fact finder to determine if those

costs were proximately caused by being knocked over by defendants'

pit bull.   On remand the trial court also can address plaintiff's

motion to transfer the case to the Law Division, since that motion

was deemed moot when summary judgment was granted to defendants.

We express no view on the merits of that motion.

     Affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.      We do not retain

jurisdiction.




                                13                         A-5211-16T2
