Relying on the rationale set forth in the recently decided case of Townsend v. Pierre (see post of March 13, 2015), the Appellate Division of the New Jersey Superior Court affirmed the summary judgment dismissal of a personal injury action in Deniese v. Site Service Group Inc. (unpublished), on the basis that plaintiff’s expert rendered an inadmissible net opinion regarding the defendant’s alleged negligence.
Mr. Deniese was injured when he slipped and fell into a row of shrubs while brushing snow from his car, which was parked in front of a bank. He sued the bank’s snow removal and landscaping contractor for negligently performing its snow-removal services and negligently pruning the shrubs into “sharp, spear-like branches.” The contractor had performed snow removal services the day before Plaintiff’s injury, but had not been contacted by the bank to return the next day. During his deposition, Plaintiff testified that he did not slip and slide in the parking lot and did not see any patches of ice. He could not recall what caused him to slip and fall into the shrubs.
To support his negligence claim, Plaintiff retained an expert who opined that the contractor’s negligent snow removal effort resulted in icy conditions within the parking area and that those underlying conditions caused Plaintiff to lose his balance and fall. The court found that the expert’s report was inconsistent with Plaintiff’s deposition testimony. As a result, the court held that the expert’s attempt to reconcile his opinion with the testimony by reconstituting the facts rendered his opinion an inadmissible net opinion.
With respect to the expert’s opinion regarding negligent pruning, the court also found it to be a properly excluded net opinion based merely on unfounded speculation and unquantified possibilities. The report not only failed to address standards of duty specific to both independent contractors and pruning shrubbery, but it also failed to establish that the contractor maintained the shrubs. This decision is yet another example demonstrating that New Jersey courts will not consider net opinions that are contradicted by the undisputed facts of the case.