SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1672-20

JOHN P. SHARKEY, JR.,

Plaintiff-Respondent,

v.

PAUL J. SCHULTZ, 

Defendant-Appellant.

__________________________

Argued January 4, 2022 – Decided July 25, 2022

Before Judges DeAlmeida and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. SC-000720-20.

Matthew E. Kennedy argued the cause for the appellant 

(Leary Bride Mergner & Bongiovanni, PA, attorneys; 

Matthew E. Kennedy, of counsel and on the briefs).

John P. Sharkey, Jr., respondent, argued the cause pro

se.

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NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.
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In this automobile-negligence case, defendant Paul J. Schultz appeals 

from a January 13, 2021 order awarding plaintiff John P. Sharkey, Jr. $1,396.26 

plus court fees for car repairs. On appeal, defendant contends that a third-party's

negligence supersedes his negligent act and relieves him of liability. 

Additionally, defendant asserts that plaintiff failed to mitigate damages by only 

filing a claim with defendant's insurance carrier and not his own. He also argues 

the trial court erred in awarding expert witness fees as part of "reasonable 

litigation expenses" when the expert's diminution of value report was not 

admitted into evidence. After carefully reviewing the record in view of the 

parties' arguments and governing principles, we affirm in part, reverse in part, 

and remand for entry of an amended judgment. 

I. 

This case arises from a rear-end motor vehicle accident that occurred on 

December 18, 2019. Because of the collision, plaintiff's rear bumper sustained 

"moderate damage." Plaintiff immediately filed a claim with defendant's 

insurance company. 

Plaintiff took his car to Coury's Body Shop to replace the damaged 

bumper. This repair was funded by defendant's insurance. On his drive home 

from the body shop, plaintiff noticed that his rear blind side detector was 
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malfunctioning. Soon thereafter, plaintiff returned to the body shop where the 

staff advised him that he needed a diagnostic test from a dealership to determine 

the issue. Plaintiff then retained the professional services of a dealership for the 

diagnostic test, which cost him an additional $213.25. The diagnostic test 

revealed that, besides the visible bumper damage, the rear bumper support was 

damaged, and the harness pinched. The dealership also advised that the body 

shop had improperly installed a non-original equipment manufacturer (nonOEM) bumper which also needed to be replaced. The dealership fixed all 

underlying issues besides replacing the faulty bumper. This repair was covered 

by defendant's insurance.

Plaintiff then returned to the body shop to install the OEM bumper. The 

body shop quoted to plaintiff that the installation would cost him $1,100 out-ofpocket because defendant's $5,000 insurance coverage had been exhausted by 

the previous repairs. Plaintiff instead chose to have the bumper replaced by the 

dealership for $932.97. 

Plaintiff filed a complaint in the Special Civil Part on August 27, 2020, 

seeking contribution for: (1) $932.97 for the second bumper installation; (2) 

$213.25 for the diagnostic test; and (3) $250 for the cost of obtaining a vehicle 

diminution of value report. Plaintiff also sought $2,533 for the diminution of 
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his vehicle's value. Due to the jurisdictional limit of legal remedies of small 

claims courts, plaintiff's damages were capped at $3,000. Defendant countered, 

alleging that the body shop's negligence severed his liability and, thus, plaintiff's 

action was improperly filed against him. Defendant also argued that plaintiff 

could have avoided his out-of-pocket expenses if he initially filed a claim with

his own insurance carrier. 

The trial court rendered an oral opinion on January 12, 2021, finding that

defendant was negligent in the operation of his vehicle and liable for all 

subsequent consequences of his negligence. The trial court also rejected 

plaintiff's claim for diminution of value, finding that the report was hearsay 

because the expert who generated the report did not testify at trial, which 

precluded defendant from cross-examining the expert and establishing the 

report's reliability. The trial court also found the expert's methodology 

speculative and the report uncertified. The trial court entered judgment in favor 

of plaintiff in the amount of $1,439.22 including court fees. 

Defendant argues the following on appeal: (1) the trial court erred in 

awarding plaintiff damages because the body shop's negligence in its installation 

was a superseding cause which breaks the causal chain; (2) plaintiff failed to 

mitigate damages by not filing a claim with his own car insurance carrier; (3) 
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plaintiff did not establish ownership of the vehicle; and (4) the award must be

reduced by $250 because the expert report was not a reasonable litigation 

expense.

II.

"Final determinations made by the trial court sitting in a non-jury case are 

subject to a limited and well-established scope of review . . . ." Seidman v. 

Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "Findings by the trial judge 

are considered binding on appeal when supported by adequate, substantial and 

credible evidence." Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 

474, 484 (1974). However, the trial court's "interpretation of the law and the 

legal consequences that flow from established facts are not entitled to any 

special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995).

III.

A.

Defendant argues that the body shop's negligence supersedes his negligent 

act and relieves him of liability. We are not persuaded. 

"The fundamental elements of a negligence claim are a duty of care owed 

by the defendant to the plaintiff, a breach of that duty by the defendant, injury 
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to the plaintiff proximately caused by the breach, and damages." Robinson v. 

Vivirito, 217 N.J. 199, 208 (2014). Pertinent to the present matter is whether 

the body shop's negligence was a superseding cause of plaintiff's injury. 

"The concepts of proximate cause and foreseeability are intertwined." 

Showalter v. Barilari, Inc., 312 N.J. Super. 494, 503 (App. Div. 1998). 

"Proximate cause connotes not nearness of time or distance, but closeness of 

causal connection." Cruz-Mendez v. ISU/Ins. Servs. of S.F., 156 N.J. 556, 577 

(1999) (quoting Powers v. Standard Oil Co., 98 N.J.L. 730, 732 (Sup. Ct. 1923)). 

"[T]o be a proximate cause . . . conduct need only be a cause which sets off a 

foreseeable sequence of consequences, unbroken by any superseding cause, and 

which is a substantial factor in producing the particular injury." Showalter, 213 

N.J. Super. at 503 (alterations in original) (citations omitted). 

"A superseding or intervening act is one that breaks the 'chain of 

causation' linking a defendant's wrongful act and an injury or harm suffered by 

a plaintiff." Komlodi v. Picciano, 217 N.J. 387, 418 (2014) (quoting Cowan v. 

Doering, 111 N.J. 451, 465 (1988)). Superseding or intervening acts that "are 

foreseeable or the normal incidents of the risk created will not break the chain 

of causation and relieve a defendant of liability." Ibid. (internal quotation marks 
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and citations omitted). A cause is superseding or intervening only when it 

constitutes the sole cause of the injury. Ibid.

On this record, we find no basis for concluding that the body shop's 

negligent repair constituted a superseding cause that extinguished defendant's 

liability as a matter of law. The record shows that it was foreseeable that the 

body shop would not discover latent issues despite the moderate damage the 

vehicle sustained. The body shop's negligence was not an independent 

superseding event that broke the chain of causation initiated by defendant. 

Komlodi, 217 N.J. at 418. 

B.

Defendant also argues that plaintiff failed to mitigate damages by not 

filing a claim with his insurance carrier. We disagree. 

"It is well settled that injured parties have a duty to take reasonable steps 

to mitigate [their] damages." McDonald v. Mianecki, 79 N.J. 275, 299 (1979). 

"Damages will not be recovered to the extent that the injured party could have 

avoided his losses through reasonable efforts without undue risk, burden or 

humiliation." Ingraham v. Trowbridge Builders, 297 N.J. Super. 72, 82 (App. 

Div. 1997) (internal quotation marks and citation omitted). The burden of 

proving facts in mitigation of damages rest upon the defendant. Id. at 83.
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Defendant's rank speculation that plaintiff would have been compensated 

for the negligent repair of the bumper had he submitted a claim with his 

insurance company does not satisfy his burden to affirmatively show plaintiff 

acted unreasonably under the circumstances. Moreover, defendant offers no 

legal support for the proposition that plaintiff had a duty to submit a claim to his 

own insurance company. Consequently, we find that the trial court properly 

exercised its discretion in rejecting defendant's argument.

C.

Defendant also argues that plaintiff failed to present evidence establishing 

his ownership of the vehicle. Although we may consider allegations of errors or 

omissions not brought to the court's attention if it meets the plain error standard 

under Rule 2:10-2, we frequently decline to consider issues that were not raised 

below or not properly presented on appeal. Nieder v. Royal Indem. Ins. Co., 62 

N.J. 229, 234 (1973). Defendant's argument was not raised before the trial court, 

and we decline to address it now. 

D.

Defendant also contends the trial court erred in awarding expert fees in 

the amount of $250 for an expert report that was not admitted into evidence. We 

agree for the reasons that follow. 
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We have previously held that as a general matter, expert fees are not 

awardable as reasonable litigation expenses. As we explained in Maintainco 

Inc. v. Mitsubishi, "[g]enerally, 'litigants bear their own expenses for fees and 

costs, except where specifically authorized by statute, rule, or agreement.'" 408 

N.J. Super. 461, 481-82 (App. Div. 2009) (quoting Josantos Constr. v. Bohrer, 

326 N.J. Super. 42, 47-48 (App. Div. 1999)). See also R. 4:42-8. In Buccina v. 

Micheletti, we reiterated: "expenses for either an expert preparing for trial or 

obtaining an expert's report are merely costs incident to trial preparation. In the 

absence of statute or rule, they are part of the expenses that must be borne by

every litigant in their own case." 311 N.J. Super. 557, 566 (App. Div. 1998) 

(citing Hirsch v. Tushill, Ltd., Inc., 110 N.J. 644, 648-49 (1988)).

The court properly exercised its sound discretion in excluding the report

as plaintiff failed to produce the expert at trial. For reasons we fail to 

understand, the court then awarded plaintiff expert fees for an inadmissible 

valuation report, which supported an unavailing claim. In light of the constraints 

our jurisprudence places upon awards for expert fees, we find the trial court 

mistakenly exercised its discretion in awarding plaintiff $250. 

We affirm as to defendant's first three arguments, but we reverse the trial 

court's order regarding defendant's payment of the plaintiff's expert fees, and we 
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remand for the entry of an amended order of judgment for plaintiff in the amount 

of $1,189.22. 

Affirmed in part, reversed in part, and remanded for entry of an amended 

judgment.