No Liability Expert Needed for Plaintiff Injured by Stepping Into Hole Negligently Left by Utility Employee

Jacobs v. Jersey Central Power & Light Co., 452 N.J. Super. 494 (App. Div. 2017).  This opinion by Judge Sabatino today is an abbreviated version of a longer opinion that was not approved for publication.  As a result, the decision sets forth the standards of review for a number of issues, but essentially addresses only one question: whether plaintiff, who was injured when she tripped over or stepped into a hole left on her property by a worker employed by the defendant utility company to remove a street light there, needed to offer testimony from an expert on liability.  Judge Sabatino determined that she did not.

Among the standards of review enunciated by the panel were these: in general, a civil jury verdict will not be undone absent a “proven manifest injustice”; decisions to admit or exclude evidence, including expert opinions, will stand absent “abuse of discretion”; attacks on jury charges will fail unless, viewing the charge as a whole, “the flaw was so serious that it was likely to have produced an unfair outcome”; a denial of a motion for a new trial will not be reversed except where “it clearly appears that there was a miscarriage of justice under the law”; and appeals on legal issue will be reviewed de novo.

On the one issue addressed in the published opinion, Judge Sabatino began by noting that expert testimony “is not always required to assess whether a particular defendant acted negligently.  Indeed, expert testimony is not necessary when the jury can understand the concepts in a case utilizing common judgment and experience.”

Here, defendant contended that expert testimony was required because defendant is in a highly regulated industry, so that a jury “could not determine on its own whether the utility’s actions and inactions in this case regarding the hole left on plaintiff’s property were negligent.”  In the Law Division, Judge Den Uyl rejected defendant’s motion for a new trial on that basis, and the Appellate Division affirmed substantially for the reasons that he gave.

Judge Sabatino noted that “although it is highly regulated, JCP&L has not identified any provision set forth in a statute, regulation, or industry guideline that identifies a standard of care addressing the specific questions of negligence posed here.”  Defendant did not show that the issues were “so esoteric or technical to be beyond jurors’ common notions of reasonableness,” a situation accentuated by JCP&L’s failure to offer its own liability expert.  Plaintiff was not harmed by an electrical surge, or some other complex instrumentality as to which expert testimony might have been required.  Rather, she “simply fell or stumbled upon a hole in the ground, a hole which the jurors reasonably found to have been left unattended too long without durable warnings or barriers.”  Defendant’s challenge to the jury verdict on this basis (and, in the unpublished portion of the opinion, on all of JCP&L’s many other arguments) thus failed.