Products Liability Law Reporter

A New Jersey appellate court held that an expert’s opinion and report were precluded in a suit by an injured convenience store patron against a paint manufacturer and pavement contractor.

Edward Brueck stepped on a yellow line painted between two parking spaces in the parking lot of a Wawa convenience store. He fell, suffering a fractured femur, and later underwent a total left hip replacement. He sued Wawa, Inc., alleging premises liability claims. He also named Sherwin Williams Co., which purportedly supplied the paint used for the parking lot line, and Asphalt Pavement Services (APS), which allegedly had an agreement with Wawa to stripe the entire parking lot after seal-coating it.

After the defense opposed the plaintiff’s motion to extend discovery, the plaintiff replied, submitting the engineering report of Wayne Nolte, who inspected the site on a clear day, sprayed water on the line, and concluded that it had an unsafe coefficient of friction value less than 0.50, creating a hazardous condition on the day of the incident. He also concluded that foreign substances such as oil and grease may have been present on the painted line. The trial court granted the plaintiff’s motion, upon reconsideration, to extend discovery, permitted service of Nolte’s report, and denied the defendants’ summary judgment motions. The defense retained engineering experts, who issued reports challenging Nolte’s methodology and conclusions and then moved for summary judgment. The trial court granted the motions.

Affirming, the appellate court found that the net opinion rule precludes admission of an expert’s conclusions when they are unsupported by factual evidence or other data. The court said that Nolte’s conclusions were inconsistent with the plaintiff’s theory of liability and also were unsupported by the facts. Specifically, the court said that the record is devoid of any evidence that oil and grease were on the lot at the time of the plaintiff’s fall, and Nolte failed to test any paint, oil, or grease that may have been present. Moreover, the expert did not test the coefficient of friction of the site with oil or grease present, the court found.

Concluding that Nolte’s opinions were speculative and unsupported, the court found the trial court had not erred in holding his testimony and report inadmissible.

Citation: Brueck v. Wawa, Inc., 2024 WL 2235537 (N.J. Super. Ct. App. Div. May 17, 2024).