SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0133- 23 DONNA MCGRATH, Plaintiff-Appellant,

v. PETER VEZZOSI, and CONCEPCION VEZZOSI, Defendants-Respondents.

_________________________ _

Argued June 4, 2024

– Decided June 15, 2024 Before Judges Enright and Paganelli. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L

- 8755

- 20. Timothy J. Foley argued the cause for appellant (Andrew S. Maze, PC, attorneys; Andrew S. Maze, of counsel and on the briefs; Timothy J. Foley, on the briefs). Glenn T. Dyer argued the cause for respondents (Dye r & Peterson, P.C., attorneys; Nathan C. Orr, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0133

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In this premises liability matter, plaintiff Donna McGrath appeals from the July 7, 2023 order granting summary judgment to defendants Peter and Concepcion Vezzosi. Plaintiff also challenges the August 11, 2023 order denying her motion to reconsider the July 7 order. We affirm both order s. I. On December 28, 2018, plaintiff went to defendants ' two -family home in Carteret (Property) to visit her friend, Antoinette Vitelle. Vitelle rented defendants' second-floor apartment on the Property, and plaintiff had visited her there on prior occasions.
As plaintiff exited Vitelle's apartment later that ev ening, a motion sensor light turned on, and plaintiff noticed it was snowing. While holding onto the railing of the apartment's exterior rear stairway, plaintiff descended the stairs

. She fell on the last step before the landing, injur ing her ankle. In December 2020, plaintiff sued defendants for ne gligence. She alleged they carelessly allowed hazardous conditions to exi st on the Property's exterior stairway, and the conditions caused her to fall and injure herself. After defendants timely answer ed the complaint, the parties engaged in discovery. During plaintiff's deposition, she testified that t wo months prior to her December 2018 fall at the Property , she fell on the same set of stairs, injuring3 A- 0133

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her wrist. She recalled that when she descended th e rear exterior stairs from Vitelle's apartment in October 2018, "[a]ll of the steps were normally spaced between them, and then the last one was significant ly shorter than the other ones," causing her to fall on a "[l]anding at the b ottom of the stairs." Regarding the December 2018 incident, plaintiff te stified she held onto the railing and descend ed the exterior stairway from Vitelle's apartment but because of

her previous fall, she "was actually extra mindful of stepping" and "was very slow and careful to walk down the stairs. " Moreover, she stated "[t]he problem was that there . . . was about a quarter of an inch of sleet and ice on the platform on the landing" because it was snowing. P laintiff testified the motion detector on the stairway activated the light on the stairs so she "could see the snow and everything." Additionally, she stated she "mindfully stepped down and carefully stepped down onto the platform. Howe ver, [her] right leg slipped out from under [her] and inverted inward and [she] broke [her] ankle." Vitelle also was deposed during discovery. She te stified she lived at the same apartment on the Property for approximately tw enty years. She had not fallen on the exterior stairs from her apartment bu t "almost" tripped on them "early on" in her tenancy. Vitelle stated she was aware certain maintenance wa s performed on the deck and stairs some seven years p rior to her deposition.4 A- 0133

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Vitelle further testifie d that approximately four years before she was depose d, she notif ied Peter 1 there was a "spongy" step on the staircase. She d id not check to see if he repaired it thereafter because Peter w as "good with repairing." When asked if plaintiff ever told Vitelle "how the accid ent occurred," Vitelle answered, "[j]ust very basic, about tripping on the stairs, and it was slippery [] because I think it had started to snow." In February 2023, Charles J. Witczak III, P.E. iss ued an expert report on plaintiff's behalf. Witczak opined that on Decembe r 28, 2018, "defendant[s ] should have anticipated the possibility of the occurrence of snowfall and taken the appropriate measures to insure the safe surface conditions of [the Property's exterior stairway]." Witczak also stated, "defenda nt[s] failed to protect the safety of pedestrians utilizing the walkway in ques tion by allowing the hazardous condition created by icy surfaces present along . . . plaintiff's path of travel, which was the cause of h[er] accident." Additionally, Witczak opined the stair railings, tread depths and tread slopes on the Property's exterior stairs violated t he 2015 International Residential Code (IRC), a code that sets standards for exterior stairs. Witczak

1 Because defendants share the same surname, we use t heir first names. We intend no disrespect in doing so.5 A- 0133

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specifically found "[ t]he riser height difference between the lower step and the wooden deck where the accident took place . . . sig nificantly exceed[ed] the allowable standard and was a violation [ of ] th e [IRC]." Further, according to Witczak, "[h]andrails were found on both sides of t he stairway until it reached the second tread above the landing in question. At th at point[,] the right[ ]side railing . . . was interrupted by a . . . support co lumn while the railing on the left side terminated completely ." Witczak concluded the "numerous hazardous defects contained within the stairway[,] which w[er e] made even more dangerous by the slippery surface conditions of the walkway area at the location
of . . . plaintiff's fall[,] were the cause of [plain tiff's] accident ." Witczak issued a supplemental report in May 2023. He reiterated the 2015 IRC "applie[d] to the accident[] suffered by . . . plai ntiff," noting this code "was in effect at the time of . . . plaintiff's accident ," but in any event, "[s]tairway requirements relative to stair treads and risers co ntained in CABO [2] 1991 [we]re the same as in the 2015 IRC." He did not state the CABO 1991 w as the same as the 2015 IRC re lative to requirements for handrails.

2 "CABO" is the acronym for Council of American Build ing Officials.6 A- 0133

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After opining "it [wa]s appropriate to evaluate an accident site relative to the codes that [we]re in place at the time of the p articular accident to determine if the location [wa]s safe or not," Witczak conclud ed defendants' "decision to disregard applicable building standards resulted in the hazardous condition that caused the accident suffered by . . . plaintiff." He further stated:

plaintiff traveled down a set of stairs that did no t meet code relative to slopes or riser heights[,] which .

. . would result in a pedestrian losing their balance a s they traveled down same. This condition was then compounded by the fact that the handrail did not al low for adequate grasping capabilities[,] which would b e the mechanism that a pedestrian would use to regain their balance once experiencing the initial loss of balance associated with the nonconforming stairway features. These hazardous conditions then culminat ed with . . . plaintiff stepping onto a non-maintained slippery surface that ultimately resulted in her fa ll.

. . . . Based on these findings, it remains my opinion within a reasonable degree of engineering certainty that the numerous hazardous defects contained within the stairway[,] which was made even more dangerous by the slippery surface conditions of the walkway area at the location of . . . plaintiff's fall[,] were the cause of the accident suffered by [plaintiff] on December 28 , 2018

. In June 2023, defendants moved for summary judgment. They contended Witczak's reports were inconsistent with plaintiff' s deposition testimony as to7 A- 0133

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the cause of her fall. Defendants also argued Witc zak utilized the wrong code to assess the exterior stairway from Vitelle's apar tment because the Property was renovated well before 2015. In fact, they contende d that in or around 1991, with the assistance of a county Rental Rehabilitation Program , a new rear deck and exterior staircase was constructed on the Property. Following his review of Witczak's reports and after hearing argument on July 7, 2023 , the judge orally granted defendant s' motion. Initially, the judge found that based on the "ongoing storm rule" announ ced by our Supreme Court in Pareja v. Princeton International Properties, 24 6 N.J. 546 (2021) , pl aintiff failed to establish defendants owed her a duty of c are to ensure the ir exterior rear stairs were free of snow and ice when she fell on December 28, 2018. The refore, the judge concluded, "the part of . . . Wit czak's report that trie[d] to create some duty of defendants based on snow and ic e, that's out." Turning to Witczak's conclusion that alleged defect s in the Property's exterior stairway led to plaintiff's fall, the judg e found Witczak applied "the wrong code" in his analysis. The judge reasoned the Property's exterior stairway "was built in 1990/1991," whereas Witczak "appl[ied ] the code adopted in 2015." The judge also found that even if there was a major renovation to th e Property's exterior rear stairway in 2014, as refle cted in Vitelle's deposition8 A- 0133

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testimony, "the old code" applied, rather than the code subsequently adopted in 2015. He explained, "[t]here is zero statutory or case la w authority that imposes a duty on property owners to constantly renovate th eir properties every time there[ is] a new building code," and new building c odes have "always been applie[d] prospectively." Next, the judge rejected Witczak's conclusions from the May 2023 report , noting the expert determined:

the typical person going down the stairs is[ not] concentrating step after step. They develop a rhyt hm based on a consistent size for each step. And some body going down a flight of stairs and the last step is a little short, they c ould trip because of that, and they c ould fall because of that, . . . because their foot woul d hit the ground quicker than they expected, but that's not w hat happened here. (Emphasis added). The judge further observed: plaintiff testified . . . she was aware that th [e] bottom step was a short step. In her testimony, she said, [ " ] I was very careful. When I got to the bottom landing , the bottom step, I was actually extra mindful of stepping . . . and so I was walking slowly and I stepped down slowly. [ " ] Additionally, the judge noted plaintiff testified at her depositi on: the problem was that . . . it was snowing a nd there was a quarter of an inch of sleet and ice on the platform and the landing, and [] as I was coming down, . . . the motion detector light turned on. I c ould see the snow and9 A- 0133

- 23 everything, and I mindfully stepped down and carefu lly stepped on the platform[. H]owever, my right leg slipped out from under me and inverted inward and broke my ankle. Thus, the judge concluded plaintiff "did[ not] slip beca use of the design of the staircase. She slipped because of the snow, and pursuant to Pareja[,] . . . the landlord[s] had no duty at that time to remove the snow under the continuing

sto rm rule." Th e judge entered a conforming order that day , granting defendants summary judgment. Plaintiff moved for reconsideration of the July 7 o rder. The judge denied
the m otion on August 11, 2023. In a written opinion accompanying the August
11 order , th e judge stated:

[P]laintiff's expert alleged negligence of . . . defendant[s] for two reasons[: (]1) the design of the staircase was faulty and should have been corrected by . . . defendant landlord[s;] and [(]2) there was a duty on the part of . . . defendant[s] to keep the stair s clear of snow. Since . . . plaintiff testified it was snowing at the time of the fall, . . . [defendants] had no dut y to clear the stairs of snow[,] pursuant to the continuing st orm rule as set forth . . . in Pareja[,] . . . and the vague language of the Carteret Property Maintenance Code was insufficient to impose such a duty on [defendants]. As to the design of the staircase, . . . plaintiff 's expert claimed . . . the last step would likely cau se a fall because persons descending a flight of stairs devel op a rhythm that is interrupted by a change in the height of a stair and would cause a loss in balance. However, this10 A- 0133

- 23 theory of causation is flatly contradicted by . . . plaintiff's deposition testimony that she "was aware" of the short step, so she "was very slow and careful t o walk down the stairs." . . . [P]laintiff also testified that "[t]he problem was that . . . it was snowing, and there wa s about a quarter of an inch of sleet and ice on the platform on the landing." Thus, based [on] this testimony of . . . plaintiff, which her expert igno res in his reports, . . . her fall had nothing to do with the design of the stairs, which renders that portion of the opinion to be a net opinion. Because . . . plaintiff clearly testifie[d] the fall was caused by snow and ice on the landing (which was "the problem[,]" in her words), liability is barred by the continuing storm rule. Since there is no liability under any theory of causation set for[t]h by

. . . [plaintiff]'s expert, there is no basis for an analysis as to comparative negligen ce. II. On appeal, plaintiff argues: (1) the July 7 and A ugust 11, 2023 orders "must be reversed because [plaintiff] produced suff icient evidence to present the issue of proximate causation to a jury"; (2) "Parej a . . . does not bar plaintiff's claim " because "Pareja is unconstitutional and should be v acated"; (3) alternatively, "Pareja should be limited" in its ap plication, but if Pareja stands and applies here , her "case falls within [Pareja's] exception for pre -existing conditions"; (4) "the denial of reconsideration sho uld be reversed because taking proximate cause from the jury was palpably incorrec t"; and (5 ) "defendants'11 A- 0133

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argument that plaintiff's expert relied on the wron g building code is immaterial." These arguments fail. We review orders granting summary judgment de novo and apply the same standard as the trial court. Lee v. Brown, 232 N.J . 114, 126 -27 (2018). However, we review with deference a trial court's d enial of a motion for
reconsideration under Rule 4:49 -2, and do not disturb the denial absent an abuse of discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). A dissatisfied litigant's desire to reargue an unsucc essful motion does not warrant reconsideration. Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). "[S]ummary judgment will be granted if there is no genuine issue of material fact and 'the moving party is entitled to a judgmen t or order as a matter of law.'" Conley v. Guerrero, 228 N.J. 339, 346 (2017) (quotin g Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pitts burgh, 224 N.J. 189, 199 (2016)). To determine whether there are genuine issues of ma terial fact, we "consider whether the competent evidential material s presented, when viewed in the light most favorable to the non-moving party , are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the nonmoving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).12 A- 0133

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"An issue of material fact is 'genuine only if, con sidering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring t he non-moving party, would require submission of the issue to the trier of fac t.'" Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). A plaintiff in a negligence action, including a negligence action against a homeowner, "must establish four elements: '(1) a dut y of care[;] (2) a breach of that duty[;] (3) proximate cause[;] and (4) actual damages. '" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cn ty. of Essex, 196 N.J. 569, 584 (2008)). "A 'plaintiff bears the burden of establishing thos e elements by some competent proof.'" Ibid. (quoting Davis v. Brickman Landscaping, Ltd. , 219 N.J. 395, 406 (2014)). With respect to commercial landowners , their duty to maintain safe premises extends to any area in which invitees are expected to go and requires them to protect an invitee from "known or reasonabl y discoverable dangers." Moore v. Schering Plough, Inc., 328 N.J. Super. 300 , 305 (App. Div. 2000) ( quoting Rigatti v. Reddy, 318 N.J. Super. 537, 541 (App. Di v. 1999)). However, pertinent to this appeal, our Supreme Cour t recently adopted the13 A- 0133

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ongoing storm rule , holding "commercial landowners do not have a duty to remove the accumulation of snow and ice until the c onclusion of the storm." Pareja , 246 N.J. at 558. 3 The Court identified two categorical exceptions to the ongoing storm rule: ( 1) if the commercial landowner exacerbates the risk of harm; or (2) when there was a pre-existing risk of harm on th e premises prior to the storm. Id. at 559. In any negligence action, "[t]he admission or exclu sion of expert testimony is committed to the sound discretion of t he trial court." Townsend , 221 N.J. at 52. Th us , "we apply . . . [a] deferential approach to a tri al court's decision to admit expert testimony, reviewing it ag ainst an abuse of discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp ., 207 N.J. 344, 371 (2011). "When a trial court determines the admissibility of expert testimony, N.J.R.E. 702 and N.J.R.E. 703 frame its analysis." Townsend , 221 N.J. at 5 3. The former rule establishes when expert testimony i s permissible and requires

3 In Pareja, the plaintiff slipped, fell, and injur ed himself on a driveway apron, which was private property owned by the defendant, Princeton International. Id. at 548. In the early morning hours prior to the inc ident, freezing rain, light rain, and sleet had fallen. Id. at 549. At the time of plaintiff's injury, precipitation was ongoing. Ibid.14 A- 0133

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the expert be qualified in their respective field. The latter rule requires "expert opinion be grounded in 'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial , or (3) data relied upon by the expert which is not necessarily admissible in evide nce[,] but which is the type of data normally relied upon by experts.'" Ibid. ( quoting Polzo, 196 N.J. at 583 ). "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions th at are not supported by factual evidence or other data.'" Id. at 53-54 (al teration and omission in original) (quoting Polzo, 196 N.J. at 583). Therefore, an ex pert is required to "give the why and wherefore that supports the opinion, rather than a mere conclusion." Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). Pursuant to the net opinion rule , an expert must "be able to identify the factual bases for their conclusions, e xplain their methodology, and demonstrate that both the factual bases and the met hodology are reliable." Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). "The net opinion rule is succinctly defined as 'a p rohibition against speculative testimony.'" Harte v. Hand, 433 N.J. S uper. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). This results because a speculating expert "ceases t o be an aid to the trier of fact15 A- 0133

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and becomes nothing more than an additional juror," Jimenez v. GNOC, Corp. , 286 N.J. Super. 533, 540 (App. Div. 1996), affordin g no benefit to the fact finder, see N.J.R.E. 702. Governed by these standards, we have no reason to disturb either challenged order, and affirm, substantially for the rea sons stated by the judge in his oral and written opinions. Moreover, we are pe rsuaded plaintiff's argument that Pareja is unconstitutional lacks merit. R. 2:11 -3(e)(1)(E). The same is true of her argument that Pareja is inapplicable to her case. In fact, there is no indication anywhere in the Pareja opinion the Court intended to apply the ongoing storm rule only to public property, nor does logic or caselaw support such a conclusion. Additionally, we are satisfied plaintiff failed to establish either of the Pareja exceptions applied to her case. Specificall y, plaintiff presented no evidence showing defendants exacerbated the risk of harm by removin g snow or ice just prior to her December 2018 fall. We also concur with the judge's determination that plaintiff failed to show a pre-existing risk of harm on the Property proximately caused her injuries, consideri ng her expert's opinion as to the cause of the December 2018 fall w as not tethered to the facts elicited during discovery, including plaintiff's deposition testimo ny. Thus, the judge correctly16 A- 0133

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found Pareja's ongoing storm rule relieved defendan ts of any duty of care they may have owed plaintiff, and defendants were entitl ed to summary judgment as a matter of law. To the extent we have not addressed any of plaintif f's remaining arguments , they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11 -3(e)(1)(E). Affirmed.