Plaintiff Carylee Johnson slipped and fell on the public sidewalk in front of the home owned by defendants Eric and Leigh Ann Morse. She suffered injuries to her knee, arm, and shoulder and sued the defendant homeowners on the basis that the predecessor owner negligently built a defective sidewalk. In Johnson v. Morse, 2014 N.J. Super. Unpub. LEXIS 1788 (App. Div. July 21, 2014), the Appellate Divisions was asked to decide whether the plaintiff’s expert report was sufficient to establish that the defendants were responsible for the sunken sidewalk slab in front of their home.
The alleged dangerous condition was a 1 ½ inch sinking of a sidewalk slab and a resulting protruding edge of the adjacent slab. The plaintiffs’ expert claimed that the sunken slab was caused by a failure to compact the base material of the sidewalk properly when it was built back in 1991.
Under New Jersey law, a residential property owner can be liable for an injury caused by the condition of an adjoining public sidewalk, if the plaintiff can prove that the residential property owner, or a specifically designated prior owner of the property, actively caused the dangerous condition, such as by negligent construction or repair of the sidewalk.
Here, for the plaintiffs to be able to pursue their claim they would need to show that the defendants’ predecessor in title negligently constructed the sidewalk panel in question, when the construction took place, and what the standards were at the time the work was done.
The plaintiffs’ expert opined in his report that the unsafe sinking of the sidewalk slab was due to the base material not being properly compacted at the time of construction. However, the expert failed to test the base material or conduct any other investigation by which he attributed the sinking to defective construction.
While the expert in his report attached excerpts of construction industry documents pertaining to sidewalk safety, his report did not indicate the source or date of the document or how he used it in his evaluation that this particular sidewalk had been negligently constructed. He was permitted to supplement his report but, again, failed to identify the date of the industry standard document upon which he relied.
The Appellate Division found this report inadequate to establish a basis against the homeowners because the expert never tied his conclusion that the sidewalk was defectively constructed to the construction industry documents upon which he relied. Thus, his mere conclusion without factual support or sufficient identification of the applicable industry standard was found to be an inadmissible net opinion.
Accordingly, the appeals court found his report failed to establish a case against the defendants that they or their predecessor in title affirmatively created the defective condition of the sidewalk. Due to the plaintiff’s inability to present an adequate expert report establishing the defendants’ potential liability for the sunken sidewalk in front of the home, the Appellate Division upheld the trial court’s dismissal of the lawsuit.
