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Personal Injury – Another Example Of The Importance Of Retaining A Liability Expert

March 20, 2017

On January 17, 2017, MICHAEL J. RANKIN reported on a New Jersey case where the Court granted the Defendant Township’s motion for summary judgment because the Plaintiff, who alleged a shoulder injury during the process of being handcuffed, failed to produce an expert report in discovery to prove liability against the Township’s police officer who arrested him.  In that case, the Court found that Plaintiff needed an expert to inform the jury about police practices and procedures and how the officers deviated from those standards.


MICHAEL J. RANKIN now reports on a recent New Jersey case providing yet another example of the importance of retaining an expert to prove liability. Specifically, Plaintiff filed a personal injury action alleging injuries from a fall in a hole adjacent to a street storm drain. The Defendants in the action included the general contractor who was hired by the Borough to perform road and sewer work and a subcontractor who was hired to install a guide rail close to where Plaintiff fell. Plaintiff alleged that the machine used by the subcontractor to install the guide rail exerted pressure on a sewer plate, thereby causing the plate to crack and the dirt beneath to erode, creating the hole in which Plaintiff fell. The trial court dismissed Plaintiff’s action against the Defendants due to a lack of expert evidence which was needed to show Defendants were negligent. 


On appeal, Plaintiff argued that: (1) expert testimony is not required to establish Defendants’ liability; (2) sufficient direct and circumstantial evidence exists from which a reasonable jury can infer liability on the part of the subcontractor and/or general contractor; and (3) the general contractor’s conduct and actions constitute an adoptive admission of its liability.  The Appellate Division rejected these arguments.  


The Appellate Division explained that the capacities of a “pile-driver-like” machine, and the force needed to destroy a back plate and cause a hole of the size and character involved here, are matters that require expert testimony for an average juror to meaningfully comprehend. 


The Appellate Division concluded that expert evidence was needed to show Defendants were negligent and that such negligence was the proximate cause of Plaintiff’s injury.  In the absence of expert testimony, there was no competent evidence establishing the standard of care that Defendants were required to conform to in performing their work, or that they breached that standard of care and violated a duty owed to Plaintiff.  Thus, the Appellate Division held that the trial judge properly entered summary judgment for Defendants.        


This case is yet another reminder on how important it is to consider in each case whether a liability expert is needed, especially when attempting to prove negligence by a Defendant’s deviation of the standards and practices found in a particular profession or trade.     



Please contact MICHAEL J. RANKIN if you have any questions or need any assistance in connection with this subject.