                                NOT FOR PUBLICATION WITHOUT THE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-5734-17T3

HOLLY HUGHES,

           Plaintiff-Appellant,

v.

ESTATE OF LEONARD J.
OWEN BY CAROL A. OWEN,
EXECUTRIX,

     Defendant-Respondent.
___________________________

                    Submitted March 19, 2019 – Decided April 9, 2019

                    Before Judges Fisher and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-0741-16.

                    Larrimore & Farnish, LLP, attorneys for appellant
                    (Thomas S. Farnish, on the briefs).

                    Law Offices of William E. Staehle, attorneys for
                    respondent (Suzanne D. Montgomery, on the brief).

PER CURIAM
      Plaintiff Holly Hughes appeals from a Law Division order barring

plaintiff's liability expert from testifying at trial and granting summary judgment

to defendant Estate of Leonard J. Owen by Carol A. Owen, Executrix in this

premises liability action. We reverse and remand for trial.

                                         I.

      Because this is an appeal from a summary judgment granted to defendant,

our recitation of the facts is derived 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 plaintiff, and giving plaintiff the benefit of all favorable

inferences. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013).

Plaintiff is a Certified Nursing Assistant.        Defendant Leonard J. Owen

(decedent) resided in a house he owned in Hamilton Township. On February 7,

2015, plaintiff was hired by decedent's daughter to provide nursing care to

decedent in his home. She commenced work that same day. Plaintiff arrived in

day light; when she left work it was dark. After exiting the house she proceeded

down a walkway leading to a public sidewalk. As she did so, she tripped and

fell onto the sidewalk, causing a fractured right elbow and injured knee.

Plaintiff subsequently underwent a right elbow radial head replacement.




                                                                            A-5734-17T3
                                         2
      The walkway was unlit and dark at the time of the accident. As plaintiff

neared the end of the walkway, she did not see a three and one-half-inch drop

off. She testified at deposition that her fall occurred just as she reached the drop

off where the walkway meets the sidewalk. There were no objects or substances

on the walkway or sidewalk. The fall was not weather related.

      Decedent relies on the following colloquy during plaintiff's deposition to

show plaintiff does not know what caused her to fall:

            Question: Do you have any recollection of stepping
            from the walkway onto the sidewalk?

            Answer: No.

            Question: . . . What is your last sensation or recollection
            before you fell?

            Answer: Before the fall?

            Question: Yes.

            Answer: I had no sensation. I was walking.

            Question: And you are walking and what happens next?

            Answer: I fell.

            Question: At any time before you fell, did you slip or
            slide at all?

            Answer: No.

            Question: Did you trip over something?

                                                                            A-5734-17T3
                                         3
Answer: No.

Question: At any time before you fell, do you have a
recollection of stepping down from the walkway onto
the sidewalk?

Answer: No.

Question: So as you sit here today, you don't know
whether you had stepped from the walkway onto the
sidewalk prior to your fall?

Answer: No.

Question: Do you have any recollection of your foot or
leg giving out at any time before you fell?

Answer: No.

Question: At any time before you fell, was there any
foreign objects or substance that you stepped on that
you believe may have caused or contributed to your
fall?

Answer: No.

      ....

Question: At any time before you fell do you have any
recollection of losing your balance and making any
effort to try and regain your balance?

Answer: No.

Question: So in essence what you remember is you are
walking and the next thing you know you are on the
ground?

                                                         A-5734-17T3
                          4
Answer: Exactly.

      ....

Question: You have told me already that in approaching
the house you stepped up onto the walkway. Correct?

Answer: I'm sure I did.

Question: Prior to your fall, did you make any effort to
step down onto the sidewalk?

Answer: I don't think so.

Question: Do you know one way or the other?

Answer: No.

Question: Would it be an accurate statement that you
really don't know why you fell?

Answer: Yeah. Well, maybe not that I don't know why.
I don't know what you mean by that. I mean the step
just didn't seem like a step. I didn't see it. It was very
dark.

Question: But you don't even recall stepping off of that
step. Correct?

Answer: No. I think it was to[o] short to see it and you
just kind of like, your foot goes out in the air or
something. I don't know.

Question: In response to my other questions, you
indicated that you don't recall step[ping] off the step.
Correct?


                                                             A-5734-17T3
                            5
Answer: No, I don't.

Question: You don't have any recollection of stepping
down onto the sidewalk?

Answer: No because there was no markers. There was
no indicators.

Question: I am not asking you that though. I am asking
whether you have any recollection of stepping off the
walkway down onto the sidewalk?

Answer: No. I just remember falling.

Question: Once your fall is over and you are basically
lying on the ground. Correct? The sidewalk. Correct?

Answer: Yes.

      ....

Question: When you say there wasn't a step to go down,
are you referring now to the end of the walkway?

Answer: Yeah.

Question: And when you got to the end of the walkway
were you able to see the step down?

Answer: No.

Question: Was there any artificial lights in the area of
the step down at the end of the walkway?

Answer: No.




                                                           A-5734-17T3
                           6
      In her answer to an interrogatory asking her to describe her version of the

accident, plaintiff stated:

             It was February 7, 2015, the first day working for a new
             family taking care of the dad. It was a cold winter day.
             I arrived in day light. When I left it was dark. The walk
             way was not properly lit. As I left, I locked the door
             and came down a flight of steps. Then I walked down
             a walk, before approaching my car, I fell to the ground.
             I was in terrible pain. I knew I must have fractured
             something somewhere. I looked around for someone to
             help but I was all alone. I tried to get up and the pain
             shooting through my arm wouldn't permit me to apply
             pressure to get up. My knee was also in pain.

      Plaintiff alleges she did not see the drop off because it was dark and there

was no warning or indication there was a three and one-half-inch step down at

the end of the walkway. She was walking at a normal gait when she reached the

drop off. She claims her leg went up into the air and she landed on the sidewalk.

      Decedent's daughter, Carol Owen, testified decedent had owned the

residence since 1962. The walkway was in the same condition during his

ownership. She knew of no other accidents occurring on the property. Decedent

passed away approximately two weeks after the accident.

      Plaintiff's liability expert, Len McCuen, testified there is a street light

located approximately eighty-five feet from the property. McCuen did not

determine the amount of illumination provided by the street light.


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                                        7
       Following the completion of discovery, defendant moved to bar plaintiff's

liability expert from testifying a trial, contending he rendered a net opinion.

Defendant also moved for summary judgment. The trial court issued an oral

decision and order granting both aspects of defendant's motion.

       The trial court found plaintiff's liability expert's reports were inadmissible

net opinions. The court found the expert's reliance on the BOCA1 Code adopted

in 1996 is misplaced because it was adopted long after decedent's home was

constructed and was not made retroactive. Similarly, the other standards relied

upon by the expert were not retroactive in effect and did not apply to decedent's

home. As a result, the trial court found the expert's reports unreliable, and the

opinions he issued inadmissible net opinions. 2

       The trial court further concluded summary judgment was appropriate,

finding "plaintiff has not put forth any evidence to suggest that the drop-off was

obscured to her by the fall, aside from it being dark outside.          However, a

decrease in viewing ability as a result of natural conditions cannot, without



1
    BOCA stands for Building Officials and Code Administrators.
2
   Plaintiff has not briefed the trial court's finding that her liability expert
rendered an inadmissible net opinion. We deem the issue waived. See
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue
not briefed on appeal is deemed waived.").
                                                                             A-5734-17T3
                                          8
more, substantiate a finding of a hazardous condition." The trial court granted

summary judgment dismissing plaintiff's complaint. This appeal followed.

      Plaintiff argues the trial court erred in granting summary judgment

because: (1) there are factual and credibility issues to be decided by a jury; and

(2) because defendant breached the duty of care owed to plaintiff, an invitee, to

make the premises reasonably safe, including the duty to conduct reasonable

inspections to discover dangerous conditions, and to remedy discoverable

defects or warn invitees about the danger.

                                        II.

      "Our court rules require summary judgment to be granted when the record

demonstrates that 'there is no genuine issue as to any material fact challenged

and that the moving party is entitled to a judgment or order as a matter of law.'"

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014) (quoting R.

4:46-2(c)). The court "considers 'whether the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party.'" Id. at 406 (quoting Brill v. Guardian Life Ins.

Co., 142 N.J. 520, 540 (1995)). The trial court's "function is not 'to weigh the

evidence and determine the truth of the matter but to determine whether there is


                                                                           A-5734-17T3
                                        9
a genuine issue for trial.'" Petro-Lubricant Testing Labs., Inc. v. Adelman, 233

N.J. 236 (2018) (quoting Brill, 142 N.J. at 540). Thus, summary judgment is

properly granted "[o]nly 'when the evidence is so one-sided that one party must

prevail as a matter of law.'" Ibid. (quoting Brill, 142 N.J. at 540).

      "[T]he evaluation of every motion for summary judgment requires the

court, trial or appellate, to review the motion record against not only the

elements of the cause of action but also the evidential standard governing that

cause of action." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). Hence, we may not

"ignore the elements of the cause of action or the evidential standard governing

the cause of action." Globe Motor Co. v. Igdalev, 225 N.J. 469, 480-81 (2016)

(quoting Bhagat, 217 N.J. at 38). A trial court's determination that a party is

entitled to summary judgment as a matter of law is not entitled to any special

deference and is subject to de novo review. Cypress Point Condo. Ass'n v. Adria

Towers, LLC, 226 N.J. 403, 415 (2016).

      "In a premises liability case, the plaintiff has the burden of proving that

the property owner's negligence caused her injuries." McDaid v. Aztec W.

Condo. Ass'n, 234 N.J. 130, 142 (2018) (citing Jerista v. Murray, 185 N.J. 175,

191 (2005)). "To prevail on a claim of negligence, a plaintiff must establish

four elements: (1) that the defendant owed a duty of care; (2) that the defendant


                                                                         A-5734-17T3
                                       10
breached that duty; (3) actual and proximate causation; and (4) damages."

Fernandes v. DAR Dev. Corp., Inc., 222 N.J. 390, 403-04 (2015) (citing

Townsend v. Pierre, 221 N.J. 36, 51 (2015)). The duty of care owed by a

property owner is a question of law to be decided by the court. Robinson v.

Vivirito, 217 N.J. 199, 208 (2014). On the other hand, the elements of breach,

proximate causation, and damages are ordinarily decided by the trier of fact.

Scully v. Fitzgerald, 179 N.J. 114, 130 (2004).

                                      III.

      Historically, the duty owed to third parties by property owners was

"governed by the status of the third person – guest, invitee, or trespasser –

particularly where the relationship is clearly defined." Robinson, 217 N.J. at

209 (citing Monaco v. Hartz Mountain Corp., 178 N.J. 401, 414-15 (2004);

Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997)). Plaintiff,

who came by invitation to provide services to defendant, was a business invitee.

Defendant owed plaintiff a duty of reasonable care to guard against dangerous

conditions on his property that he either knew about or should have discovered

by conducting a reasonable inspection. Hopkins v. Fox & Lazo Realtors, 132

N.J. 426, 434 (1993).




                                                                        A-5734-17T3
                                      11
      "A homeowner is intimately acquainted with his or her residence and

consequently aware of many of the problems that remain hidden to the untrained

or unfamiliar eye." Id. at 445. At a minimum, reasonable care requires a

homeowner to warn a non-trespasser of any defects or dangerous conditions of

which the homeowner is aware or should be aware. Ibid.

      In some cases, expert testimony may be required to allow a jury to causally

connect a particular injury of a plaintiff to a breach by a defendant when the

question involves complexities beyond the ken of an average juror. Quail v.

Shop-Rite Supermarkets, Inc., 455 N.J. Super. 118, 135 (App. Div. 2018).

Plaintiff alleges the junction of the walkway and sidewalk was dangerous due to

the unmarked three and one-half-inch elevation change, which was not visible

at night due to the absence of adequate lighting. Evaluating the potential danger

of an undisclosed and unlit walkway drop off at night does not involve

complexities beyond the ken of an average juror.

      As to causal connection, "it is the function of the jury to determine the

condition of the property and the reasonableness of defendants' care, and to

determine the comparative fault of each party." Filipowicz v. Diletto, 350 N.J.

Super. 552, 561 (App. Div. 2002) (citations omitted). That being said, the mere

possibility that the drop off caused the accident is insufficient to impose


                                                                         A-5734-17T3
                                      12
liability. Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 141 (1951). "While

proof of certainty is not required, the evidence must be such as to justify an

inference of probability as distinguished from the mere possibility of negligence

on the part of the defendant." Ibid. (quoting Callahan v. Nat'l Lead Co., 4 N.J.

150, 154 (1950)).

      While plaintiff could not precisely pinpoint the specific cause of her fall,

there are sufficient facts from which a jury could reasonably infer the drop off

proximately caused plaintiff's injuries. Considering the evidence in the light

most favorable to plaintiff, including the significant drop off at the end of the

walkway, coupled with the inadequate lighting and the absence of any warning,

it is reasonable to infer that the drop off, which was difficult to see at night,

probably caused the accident. While plaintiff was not able to provide a precise

reason for her fall, a reasonable jury could infer from plaintiff's testimony that

it was the three and one-half-inch drop off that triggered the fall. Plaintiff fell

while walking in a normal gait just as she reached the drop off. The record

discloses no other reason for the accident. 3


3
  Notably, defendant does not claim plaintiff was talking or texting on a cell
phone or otherwise distracted. Nor does he claim her ability to see the drop off
was blocked by an object she was carrying. Additionally, there is no evidence
plaintiff fell because her leg suddenly gave out due to an underlying medical
condition.
                                                                           A-5734-17T3
                                       13
      We conclude that genuine issues of material fact exist as to whether the

pavement drop off was both hazardous and therefore a breach of the duty owed

to plaintiff, and a proximate cause of plaintiff's trip and fall, sufficient to warrant

the matter to proceed to trial. We also find genuine issues of material fact as to

whether defendant contributed to a hazardous condition that caused plaintiff's

accident, by failing to turn on the available outdoor lighting, and by failing to

warn plaintiff of the drop off. Because genuine issues of material fact exist as

to both breach of duty and causation, the trial court erred in granting summary

judgment.

      Reversed and remanded for trial.




                                                                               A-5734-17T3
                                         14
