Plaintiff Martin Rosenbaum exited a relative’s condominium and fell on a driveway outside the unit, which driveway was maintained by the defendant Highlands Condo Association. His daughter, Nanette Rosenbaum, tried to come to his aid and fell as well. In Rosenbaum v. Highlands Condo Association, 2017 N.J. Super. Unpub. LEXIS 680 (App. Div. March 21, 2017), the plaintiffs sued the defendant condo association for their personal injuries suffered in their falls. The issue was whether an expert was needed to establish that the slope between the two driveways, that created a substantial height differential, was a dangerous condition.
The defendant argued to the trial court that the plaintiffs could not establish that defendant breached its duty to plaintiffs without expert testimony as to how the slope was dangerous or defective. The trial court agreed and granted summary judgment in favor of the defendant, concluding that the plaintiffs’ complaint alleged a design defect for which the plaintiffs were required to establish through expert testimony.
Upon appeal, the plaintiffs argued that the complaint alleged a dangerous condition but not a design defect. After reviewing the complaint, the Appellate Division found that it did not allege a design defect but, rather, alleged that the plaintiffs fell due to a dangerous and defective condition of the premises.
In determining whether expert testimony is necessary, the court considers “whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the [defendant] was reasonable.” In cases in which a layperson’s “common knowledge” is sufficient to permit a jury to find that the duty of care has been breached, an expert is not required. Some hazards are so commonplace, they do not require the explanation of experts for an average person to understand their danger.
Here, the Appellate Division reviewed the evidence and found that a jury could conclude that the slope constituted a dangerous condition without the aid of expert testimony. A photograph showed a substantial step down of about 12 inches between the two levels of blacktop. There was no striping showing the end of the higher level and the beginning of the step down, creating a camouflaged step that could constitute a dangerous condition.
Further, the Court found that “[t]here is nothing esoteric about understanding the danger of a height differential between two driveways that was unmarked in any way and about which defendant had been provided actual notice.” Thus, the Court concluded that an expert was not required to explain the alleged dangerous condition. Accordingly, the Court reversed the trial court decision and remanded the matter back to the trial court for further proceedings.
