Expert Testimony Not Needed to Establish Unlit Walkway Drop Off Was A Dangerous Condition

Plaintiff Holly Hughes was a Certified Nursing Assistant who was hired by the defendant decedent’s daughter to provide nursing care to decedent (Leonard Owen) in his home.  On her first day of work, as she was leaving work, she tripped and fell at the end of the walkway, apparently due to a substantial drop off.  The issue in Hughes v. Estate of Owen, 2019 N.J. Super. Unpub. LEXIS 816 (App. Div. April 9, 2019) was whether the plaintiff needed an expert to establish that the walkway was in a dangerous condition due to the unmarked and unlit walkway drop off.

The accident happened on the plaintiff’s first day on the job.  She had started work in the daylight but left work when it was dark.  After she left the house, she proceeded down a walkway leading to the public sidewalk.  Near the end of the walkway, there was a 3½ inch drop off.  Her fall occurred just as she reached the drop off where the walkway meets the sidewalk.  She tripped and fell onto the sidewalk, causing a fractured right elbow and injured knee.

While there was some issue as to whether the plaintiff established that the drop off caused her injury, there were no objects or substances on the walkway or sidewalk and the fall was not weather related. 

Plaintiff claims that she did not see the drop off because it was dark and there was no warning or indication of the drop off.  Although the plaintiff produced an expert report, the trial court found that the plaintiff’s liability expert report was an inadmissible net opinion because it relied on the BOCA code adopted long after the decedent’s home was constructed.  Also the other standards relied upon by the expert were not retroactive in effect and did not apply to the decedent’s home as well.

After barring the plaintiff’s expert report, the trial court granted the defendant’s summary judgment, finding that the plaintiff had not presented any evidence to suggest that the drop off was obscured to her by the fall, other than it being dark.  Hence, the trial court dismissed the plaintiff’s complaint and this appeal ensued. 

The Appellate Division noted that the plaintiff was invited to provide services to defendant and, therefore, qualified as a business invitee.  As such, the defendant owed plaintiff “a duty of reasonable care to guard against dangerous conditions on his property that he either knew or should have discovered.”   Reasonable care would require a homeowner to warn a non-trespasser of any defects or dangerous conditions of which the homeowner is aware or should be aware. 

The Court noted that 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.  However, in this case, the Appellate Division found that evaluating the potential danger of an undisclosed and unlit walkway drop off at night did not involve complexities which would be beyond the ken of an average juror.  Therefore, the Appellate Division found that expert testimony would not be required for the plaintiff to proceed with her case.

Although the plaintiff could not precisely pinpoint the specific cause of her fall, the Appellate Division noted that there were sufficient facts from which a jury could reasonably infer that the drop off caused her injuries.  It would be reasonable to infer that the drop off, which was difficult to see at night, probably caused the accident.  Further, the Appellate Division noted that a reasonable jury could infer from plaintiff’s testimony that it was the 3½ inch drop off that triggered the fall.

Thus, the Appellate Division found that there were genuine issues of material fact as to whether the pavement drop off was both hazardous and therefore a breach of duty owed to the plaintiff and a proximate cause of the plaintiff’s trip and fall.  These issues were sufficient to warrant the matter to proceed to trial.             

Further, there were issues of material fact as to whether the defendant contributed to the 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 there were these genuine issues of material fact as to both breach of duty and causation, the Appellate Division found that the trial court erred in granting summary judgment.  Hence, the Court reversed and remanded the case back to the trial court for trial.

Tags: expert, sidewalks