                        NOT FOR PUBLICATION WITHOUT THE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-3693-16T1

WILLIAM CABEZAS and
PATRICIA CABEZAS, his wife,

        Plaintiffs-Appellants,

v.

GIOVANNA SPOLETI and
VINCENT SPOLETI,

        Defendants-Respondents,

and

MICHAEL ANGELO SPOLETI
and BOROUGH OF CLIFFSIDE
PARK,

     Defendants.
_______________________________

              Argued June 7, 2018 – Decided August 20, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              2357-15.

              Monika M. Emara argued the cause for
              appellants (Law Offices of Rosemarie Arnold,
              attorneys; Melissa A. Peace, on the briefs).
           Mario C. Collitti argued the cause for
           respondent Giovanna Spoleti (Law Offices of
           Viscomi & Lyons, attorneys; Emily S. Barnett,
           on the brief).

           John R. Knodel argued the cause for respondent
           Vincent Spoleti (Methfessel & Werbel, PC,
           attorneys; John R. Knodel and Steven A.
           Unterburger, on the brief).

PER CURIAM

      In this slip and fall sidewalk liability action, plaintiffs

William Cabezas and his wife, Patricia Cabezas, appeal from the

Law Division's March 31, 2017 order awarding summary judgment in

favor of defendants Giovanna Spoleti and her son, Vincent Spoleti,

and   dismissing   plaintiffs'   complaint.     The   complaint    sought

damages arising from the injuries William sustained when he fell

on a sidewalk adjacent to Giovanna's home.1       On summary judgment,

it was undisputed that Vincent replaced the sidewalk years earlier

and according to plaintiffs' expert, Vincent's work was defective

and caused William to fall.      The motion judge, however, granted

defendants' motion after finding that the opinion was a "net

opinion" without any foundation.       On appeal, plaintiffs argue that

we should reverse because the motion judge was wrong.             For the

reasons that follow, we disagree and affirm.



1
   We refer to the parties by their first names to avoid any
confusion caused by their common last names.


                                   2                              A-3693-16T1
      We derive the following facts from the evidence submitted by

the parties in support of, and in opposition to, the summary

judgment motion, viewed in the light most favorable to plaintiffs,

the parties who opposed entry of summary judgment. Edan Ben Elazar

v. Macrietta Cleaners, Inc., 230 N.J. 123, 135 (2017).              Giovanna,

who was eighty-four years old at the time of the accident, is the

owner of a home located in Cliffside Park.          Vincent lives in the

house next door to his mother and helps her by maintaining her

property, including performing snow and ice removal during the

winter.     According to Vincent, on days that it snowed, he always

put down salt or sand, even during a precipitation event, such as

freezing rain. He typically "clean[s] the snow with a snow blower"

and inspects the sidewalk and driveway, salting it with "calcium

chloride."       Vincent does not receive any compensation for his

services.

      In October 2006, Vincent replaced his mother's sidewalk after

first obtaining a municipal permit for that work.          After the work

was   completed,    neither    defendants   nor   the   municipality      ever

received any complaints about the sidewalk, nor did the town have

any record of any citations or warnings being issued to defendants

about the sidewalk.

      On February 6, 2014, at approximately 6:30 a.m., William

walked    past    Giovanna's   home   and   suddenly    fell   on    an   "icy

                                      3                               A-3693-16T1
condition," and broke his right ankle.        According to William, the

sidewalk had "an accumulation of snow on the side, but . . . it

was clear in the path."     He did not see what caused him to fall,

but after he fell, he realized there was clear "ice" on the ground.

     After he fell, William called the police from his cell phone

and an officer arrived immediately on the scene.           William was

taken to the emergency room at a nearby hospital, and remained

hospitalized for two days.    During that time, he underwent surgery

on his right ankle.

     On March 9, 2015, plaintiffs filed their complaint, which

they amended on July 1, 2015, adding the Borough of Cliffside Park

as an additional defendant. In their amended complaint, plaintiffs

alleged that defendants negligently inspected or maintained the

sidewalk located in front of Giovanna's home, which caused William

"to become injured due to the presence of a hazardous and dangerous

condition . . . ."     According to the complaint, William slipped

and fell "to the ground" on an icy sidewalk, suffering "severe and

permanent injuries."

     Contrary   to   the   allegations   in   the   complaint,   Vincent

testified at his deposition that "to [his] knowledge, there was

never any water ponding or any ice that he ever saw" on his




                                   4                             A-3693-16T1
mother's sidewalk.2 He stated that he was not aware of any problems

with the sidewalk, and no one ever made any complaints to him, his

mother, or the town about the condition of the sidewalk.

     Plaintiffs     retained       an       engineering     expert,        George

Gianforcaro, who prepared a report about the "dangerous hazardous

conditions that existed with the improper [c]onstruction . . . in

the [p]ublic [s]idewalk at" Giovanna's property, and the "[c]ode

[v]iolations and [s]tandards in the [i]ndustry [v]iolations that

contributed to [William's] accident."            He issued his report after

inspecting the property and reviewing the parties' answers to

interrogatories.

     In his report, Gianforcaro determined that the "[p]roperty

[o]wner   and/or   its    [a]gent[]     failed    to   properly    [c]onstruct

and . . . [m]aintain the [p]ublic [s]idewalk prior to" William's

accident.    He also found that the joint material between the

sidewalk slabs was "decaying and disintegrating[,] . . . which

cause[d] water . . . from melting snow to course over the surface

of the [sidewalk] and      create a Dam-Like effect . . . causing the

water     to . . . form     ice     during       freezing     temperatures."

Gianforcaro opined that had an "[e]lastomeric sealant" been used

or   "a   '[c]old-[a]pplied       [j]oint     [s]ealant[,]'       which     is    a


2
  Giovanna was unable to attend her own deposition due to a medical
condition.

                                        5                                 A-3693-16T1
[s]tandard in the [i]ndustry," been applied to the joint material,

the material would have been able to prevent ice from forming on

the sidewalk; thus, preventing slip and fall accidents.

     While the report cited to general construction and property

maintenance regulations and ordinances, it did not identify any

building code or industry standard that required construction of

a sidewalk in the manner Gianforcaro described.        Nevertheless, his

report stated that "[i]t is [s]tandard and [c]ustomary within the

[c]oncrete [c]onstruction [i]ndustry to install a Cold-Applied,

Urethane Elastometric Sealant to the [c]onstruction [j]oints in

[w]alkways . . . in   order   to   protect   and    create    a    [w]alking

[s]urface that is on an even and uniform plane with the adjacent

[w]alking [s]urface."    As to defendants' failure to remove snow

and ice from the sidewalk, the report stated that:

          It is [s]tandard and [c]ustomary within the
          [s]now [r]emoval [i]ndustry that in case of
          snow or ice which may be so frozen to the
          surface of the [w]alkway and/or surrounding
          areas as to make it impractical to remove the
          snow and ice from such areas, the snowy and
          icy areas shall be thoroughly covered with
          [s]alt and s]and.

     Relying   on   unidentified   standards       within    the   building

industry and municipal codes, the report also stated that a

property owner was obligated to keep their property "in a proper

state of repair, and maintained free of dangerous conditions[,]"


                                   6                                 A-3693-16T1
which required the application of the "Cold-Applied Joint Sealant"

described in the report.

      During   his    deposition,   Gianforcaro    clarified       that    New

Jersey's   codes     and   ordinances   do   not   require   the     use    of

"elastomeric material" during sidewalk construction, as they only

require that one has "to construct a safe sidewalk and it's up to

you to construct that safe sidewalk . . . ."        He further explained

that other engineers or architects will tell you that "'[a]fter

you construct [a] concrete sidewalk, you must come back and install

elastomeric material over the top of the construction joint,' but

the code won't say that."       Moreover, he testified that "[t]oday,

most companies are putting the elastomeric caulk right after the

concrete is poured. . . . because it has a longer life expectancy

than [another] type of material."

      According to Gianforcaro's "[p]ersonal engineering opinion,"

a   properly   constructed   sidewalk   construction    joint   should      be

covered with the sealant.       (Emphasis added).      He stated that his

"personal engineering opinion" was based upon his "experience, the

research, [and his] education."         Gianforcaro further explained

that he could "supply additional information" that a properly

constructed sidewalk included covering a joint with the material

he suggested, but that the information would not say that it was

a required process that "must" be followed.             However, he did

                                    7                                A-3693-16T1
express that a manufacturer will state that it uses elastomeric

caulk on places such as "concrete sidewalks, concrete retaining

walls[,]" and "[c]oncrete decks on parking garages."

     After the completion of discovery, Giovanna, her son, and the

Borough    moved      for    summary    judgment      seeking     dismissal      of

plaintiffs' complaint.         Vincent and his mother argued they were

not liable for William's injuries because "snow melting [and/or]

refreezing" is "not a dangerous condition[,]" and Vincent did not

"defectively     or    improperly      shovel[]    the     snow . . .    on    the

sidewalk."    Moreover, they asserted that William did not "remember

if [he] saw anything, but [he did] know that the sidewalk was

clear up until the point that [he] fell."                They also argued that

plaintiffs' expert's report was "a net opinion and [that] it should

be barred" because Gianforcaro gave his personal opinion as to

whether it was industry standard to apply elastomeric sealant to

concrete     construction,      and    did   not   "cite     to   any    specific

standard, . . . code, . . . [or] any construction ANSI standards

promulgated    by     the   various    construction      groups   that   are   out

there . . . ."

     Relying on their expert's report, plaintiffs responded by

arguing that "[b]ecause of the construction and joints failure to

be maintained, . . . water was able to pool around the area [on

the sidewalk], creating a hazard and ice to form around that area."

                                         8                                A-3693-16T1
"Absent    the    owner's      liability     to     maintain        the

[sidewalk], . . . plaintiff   wouldn't     have   become   injured."

Plaintiffs contended that a genuine issue of material fact exists

as to the negligent maintenance of the sidewalk, which "should

[go] before a jury to decide."

     Plaintiffs   disagreed   with   defendants'    assessment        of

Gianforcaro issuing a net opinion, arguing that the expert could

not say in his report or at the deposition "that a New Jersey

code" instructs the use of the sealant "because the codes do not

speak to that at all."   According to plaintiffs, Gianforcaro "had

to give his opinion based on the standard of the industry," which

he "maintains [is] that the . . . sealant should be used on a

sidewalk to maintain its safety."

     After considering the parties' written and oral arguments,

Judge Estella M. De La Cruz granted summary judgment to all

defendants, placing her reasons on the record.      With respect to

Giovanna and Vincent, the judge found that the record did not

establish that "the property owner Giovanna . . ., [or] her agent,

Vincent . . .," negligently installed the sidewalk, and thus,

plaintiffs could not establish that they owed William a duty.

Quoting from our opinion in Taylor v. DeLosso, 319 N.J. Super. 174

(App. Div. 1999), the judge observed it was plaintiffs' burden to

"produce expert testimony upon which the jury could find that the

                                 9                             A-3693-16T1
consensus of the particular profession involved recognizes the

existence of the standard defined by the expert."           She found that

there was no "evidential support offered by the expert establishing

the existence of" an industry standard "defined in any code or any

guide."    The judge acknowledged that Gianforcaro gave "an expert

opinion[,]" but she concluded that "the manufacturers who require

the sealant" to be used "is not an industry standard[,]" but

rather, "a requirement or a suggestion by a manufacturer . . . ."

This was supported by Gianforcaro's deposition where he stated

that a manufacturer will suggest that one use the sealant in a

number of places, including a concrete sidewalk.                 Judge De La

Cruz concluded that the expert's opinion was insufficient, "and,

therefore, [did] not carry the day to create a breach of duty."

     On March 31, 2017, Judge De La Cruz entered orders granting

summary judgment and dismissing the complaint.            Plaintiffs filed

a motion for reconsideration and while that motion was pending,

filed this appeal.         Judge De La Cruz denied the reconsideration

motion on June 30, 2017.

     On    appeal   from    the   orders   granting   summary    judgment      to

Giovanna   and   Vincent,     plaintiffs    acknowledge   that    New    Jersey

immunizes homeowners like Giovanna from liability for injuries

arising out of "a fall due to naturally occurring icy conditions

on her residential property."              However, they contend that an

                                      10                                A-3693-16T1
exception to the general rule applies in this case because the

property owner replaced her sidewalk and did so negligently,

"thereby creating a dangerous condition."                      Plaintiffs argue that

their expert established defendants' negligent construction to the

sidewalk where William fell, and that the judge erred by granting

summary judgment based solely on her finding that their expert's

report "constituted a so-called 'net opinion[.]'"

      Relying on Townsend v. Pierre, 221 N.J. 36, 55 (2015) and

Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App.

Div. 2002), plaintiffs argue that Gianforcaro's expert report does

not   constitute         a     net     opinion      because      it     was    "factually

supported, . . .             was   not     'speculative,'       and    did    not     merely

express a 'personal view.'" To support this contention, plaintiffs

assert that Gianforcaro based his report on an "inspection of the

accident site" in August 2015 and "answers to interrogatories by

[William]    and    defendants."             Plaintiffs        note    that   during      his

inspection,       Gianforcaro         found       that   the     "construction         joint

material"    in    the       sidewalk      was    "decaying      and    disintegrating,

creating an opening in the sidewalk, which caused water to build-

up . . . ."       Moreover, they point out that Gianforcaro "cited to

several     standards         in     the   construction        industry       that     stand

generally for the proposition that public sidewalks be maintained



                                             11                                      A-3693-16T1
free of dangerous, hazardous conditions, so that persons may travel

the area in a safe manner." Finally, plaintiffs argue that despite

the judge's finding that Gianforcaro expressed "a personal opinion

of   his,"     he   in   fact     gave     a   "professional       opinion,

which . . . reflected     an    industry   standard   of   which    he   was

cognizant by virtue of his many years of experience."          Thus, they

contend that the motion judge erred in considering "the absence

of written industry standards to be dispositive," and the court's

decision should be reversed on appeal.         We disagree.

     We review the disposition of a summary judgment motion de

novo, applying the same standard used by the motion judge.           Conley

v. Guerrero, 228 N.J. 339, 346 (2017); see also Townsend, 221 N.J.

at 59.   We must analyze:

             the competent evidential materials submitted
             by the parties to identify whether there are
             genuine issues of material fact and, if not,
             whether the moving party is entitled to
             summary judgment as a matter of law. "Summary
             judgment should be denied unless" the moving
             party's right to judgment is so clear that
             there is "no room for controversy."

             [Ellis v. Hilton United Methodist Church, ___
             N.J. Super. ___ (2018) (slip op. at 4)
             (citations omitted).]

If no genuine issue of material fact exists, the inquiry then

turns to "whether the trial court correctly interpreted the law."




                                   12                               A-3693-16T1
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430

N.J. Super. 325, 333 (App. Div. 2013).

     It   is   beyond   cavil     that      "[g]enerally,   absent   negligent

construction or repair, a [home]-owner does not owe a duty of care

to a pedestrian injured as a result of the condition of the

sidewalk abutting the [home]owner's property."                  Ellis, __ N.J.

Super. at __ (slip op. at 5) (quoting Dupree v. City of Clifton,

351 N.J. Super. 237, 241 (App. Div. 2002) (citing Stewart v. 104

Wallace Street, Inc., 87 N.J. 146, 153 (1981)), aff'd o.b., 175

N.J. 449 (2003)).          Neither "breach of an ordinance directing

private persons to care for public property," nor a "property

owner['s failure] to clear the snow and ice from public sidewalks

abutting their land" can be considered a breach of a duty owed to

an injured plaintiff, "unless through [the owner's] negligence a

new element of danger or hazard, other than one caused by natural

forces,   [was]    added    to   the   safe    use   of   the   sidewalk   by   a

pedestrian."      Luchejko v. City of Hoboken, 207 N.J. 191, 200-01

(2011) (citations omitted).

     When attempting to prove that a homeowner created a "new

danger" through deficient construction or repair, a net opinion

is insufficient to satisfy a plaintiff's burden on a motion for

summary judgment.       Polzo v. Cty. of Essex, 196 N.J. 569, 583-84

(2008); Smith v. Estate of Kelly, 343 N.J. Super. 480, 497-98

                                       13                              A-3693-16T1
(App. Div. 2001).          A net opinion is one rendered with only "an

expert's bare opinion that has no support in factual evidence or

similar data . . .[,] which is not admissible and may not be

considered."        Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.

344, 372 (2011) (citation omitted).            In essence, the net opinion

"rule requires that an expert 'give the why and wherefore' that

supports the opinion, 'rather than a mere conclusion.'"                 Townsend,

221   N.J.   at     54 (citations      omitted).     The   net     opinion    rule

"frequently focuses . . . on the failure of the expert to explain

a causal connection between the act or incident complained of and

the injury or damage allegedly resulting therefrom."                Buckelew v.

Grossbard, 87 N.J. 512, 524, (1981) (citations omitted).

      Under the rule, "a trial court must ensure that an expert is

not     permitted     to    express    speculative     opinions    or    personal

views . . . ."       Townsend, 221 N.J. at 55.       Thus, "an expert offers

an inadmissible net opinion if he or she 'cannot offer objective

support for his or her opinions, but testifies only to a view

about    a   standard      that   is   "personal."'"       Davis   v.   Brickman

Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting Pomerantz,

207 N.J. at 373).           Experts "must be able to point to generally

accepted, objective standards of practice and not merely standards

personal to them."           Riley v. Keenan, 406 N.J. Super. 281, 296

(App. Div. 2009).          As the Supreme Court explained in Pomerantz,

                                        14                                A-3693-16T1
          [I]f an expert cannot offer objective support
          for his or her opinions, but testifies only
          to a view about a standard that is "personal,"
          it fails because it is a mere net opinion.

                . . . .

                It is insufficient for . . . [an]
                expert simply to follow slavishly an
                "accepted practice" formula; there
                must be some evidential support
                offered by the expert establishing
                the existence of the standard.     A
                standard which is personal to the
                expert is equivalent to a net
                opinion.

          [207 N.J. at 373 (citation omitted).]

     "Evidential support for an expert opinion may include what

the expert has learned from personal experience and training;

however such experience, in turn, must be informed and given

content and context by generally accepted standards, practices,

or customs of the . . . industry."       Satec, Inc. v. Hanover Ins.

Grp., Inc., 450 N.J. Super. 319, 333-34 (App. Div. 2017).        There

must be some "authority supporting [the] opinion," which can take

the form of "any document, any written or unwritten custom, or

established practice that the [industry] recognized as a duty it

owes . . . ."    Ibid.     "[T]he source of the standard of care

enunciated, . . . by      which   to   measure   plaintiff's   claimed

deficiencies or to determine whether there was a breach of duty

owed defendant[,]" must be identified.      Id. at 334.


                                  15                           A-3693-16T1
     Applying these guiding principles here, we conclude that

Judge De La Cruz correctly determined that plaintiffs' expert's

opinion was a net opinion expressing Gianforcaro's view of what

he believed, as an engineer, to be good construction practices.

His opinion "lacked any foundation of the sort required for

admissibility."     Pomerantz, 207 N.J. at 374.       "There [was] no

suggestion that there are [authoritative materials that] would

support   the    opinions   about   accepted"   sidewalk   construction

practices, or any "basis on which to draw the conclusions offered

that" Vincent's construction of the sidewalk in 2006 was not

completed in accordance with industry standards and created a

hazardous condition that caused William's injuries.         Ibid.    "In

the end, the expert offered a series of personal views that were

net opinions and therefore not worthy of consideration."            Ibid.

"Notwithstanding     [Gianforcaro's]     extensive   experience . . .,

boiled down to its essence, [his] opinion is infirm as comprised

of conclusory determinations that defendants departed from the

standard of care [owed by a homeowner to third parties] based on

his personal view of that standard."      Satec, Inc., 450 N.J. Super.

at 334 (citing Pomerantz, 207 N.J. at 373).

     Affirmed.




                                    16                          A-3693-16T1
