duty of care

Plaintiff Paomar Konteh was picking up a shipment at defendant McCollister’s Technical Services Inc.’s warehouse in New Jersey when he suffered an injury attempting to roll the defendant’s computer cabinets from the loading dock onto the back of his truck.  He sued the defendant McCollister for his injuries based upon several theories of liability.  The issue in Konteh v. McCollister’s Tech. Servs., 2022 N.J. Super. Unpub. LEXIS 888 (App. Div. May 24, 2022) was whether the plaintiff’s claim was subject to a dismissal for failure to obtain an expert report as to liability. 

The plaintiff’s accident occurred when defendant’s warehouse employee asked plaintiff to help him load the defendant’s cabinets onto the back of the truck.  The plaintiff was transporting in his truck certain four-wheeled computer cabinets, known as “Netshelters.”  The Netshelters can weigh up to 3000 pounds.   As the two men were attempting to roll the first cabinet from the loading dock onto the back of the truck, it fell on plaintiff, causing him injuries. 

Plaintiff had a number of theories as to defendant’s liability, including whether the ramp was defective, whether the other defendant’s employee did not properly align the ramp, whether the defendant’s employee should not have continued pushing once the wheel became stuck, whether the defendant’s employee pushed the cabinet with too much force, whether the defendant did not have sufficient personnel for the loading, whether or not the defendant heeded warnings and had proper safety measures, and whether the defendant should have had a lift for heavy merchandise.

In answers to discovery, plaintiff stated that he was caused to fall when the wheel of the cabinet became stuck in a crack or separation in the floor.   The defendant produced an OSHA report confirming that the dock plates were in proper working condition in the month prior to the accident.  In his deposition, plaintiff acknowledged that he had previously loaded Netshelters with the assistance of only one other person. 

The truck was connected to the warehouse loading dock via a dock plate that automatically lifted and lowered to form a ramp between the two.  However, even when properly set, it left a gap.  Plaintiff stated that the defendant’s out of state workers (when he made out of state deliveries) always covered the gap with a piece of metal, unlike in New Jersey, where they simply pushed “with power” to get the Netshelter onto the dock plate.  When the Netshelter’s first wheel rolled into the gap, it became stuck and fell on him.

The plaintiff never produced an expert report, despite having discovery extended twice for him to do so.  Following the close of discovery, the trial judge entered an order, barring the plaintiff from serving any liability expert report.  That motion was unopposed.

The defendant filed a summary judgment motion, arguing that the case should be dismissed due to the plaintiff’s failure to produce a liability expert report.  The trial judge pointed out that it is the “plaintiff’s burden to prove that the dock plate used by the defendant was defective or dangerous or substandard.”  The plaintiff’s theory that the elevation difference between the loading dock and the hydraulic dock plate was dangerous or defective did require expert testimony.  It would be “beyond the ken of an average juror to understand what was defective or dangerous.”  Further, plaintiff was aware of the height difference and there was no indication that plaintiff was concerned about a defective condition on the property.  Thus, the trial court judge ruled that the plaintiff’s claim would be dismissed for the failure to produce a liability expert report.

This decision was appealed to the Appellate Division.  The standard utilized by the Appellate Division to review the trial court ruling to dismiss the case due to the failure to produce an expert report was the “abuse of discretion” standard.  Under the case law, an “abuse of discretion occurs when a decision is made without a rational explanation, inexplicably departed from established policies, are rested on an impermissible basis.” 

The Appellate Division pointed out that in most negligence cases, a plaintiff is not required to retain an expert to establish the applicable standard of care.  However, in some cases, a jury would not be competent to supply the standard by which to evaluate the defendant’s conduct and therefore, the plaintiff must present the testimony of a liability expert.  To determine whether a plaintiff must produce a liability expert, a court must consider “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.” 

Here, the Appellate Division agreed with the trial court judge that the plaintiff was required to retain an expert to be able to pursue his claim.  The Court pointed out that “although the average person knows from common experience that a wheel can become stuck in a gap, causing a wheeled object to topple, the average person is not equipped to consider the physics of loading unusually heavy objects, and the point at which a gap between flooring, or changes in elevation, become dangerous.”  Further, because the plaintiff advanced different theories of liability, it could not be “reasonably expected” for a jury to be able to decide liability based upon those different theories.

The Court also noted that, in a different context, an accident from pushing a heavy object over irregular flooring might not require expert testimony.  But here, OSHA had found nothing deficient in the dock ramp and the plaintiff had used this ramp many times before to maneuver a Netshelter onto the back of his truck with just one person to help him.  Because the plaintiff was uncertain as to what caused the accident, and his description conflicted with the defendant employee’s description and involved trucking industry standards, the Court found that the need for an expert report and expert testimony was clear.  Thus, the Appellate Division ruled that the judge’s decision was not an abuse of discretion and affirmed the decision, dismissing the case.