Joseph Costigan v. Gurprit Bains

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3268-23

JOSEPH COSTIGAN,

Plaintiff-Appellant,

v.

GURPRIT BAINS and

SNEH BAINS,

Defendants-Respondents.

__________________________

Submitted September 25, 2025 – Decided October 29, 2025

Before Judges Mawla and Marczyk.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-1968-22.

Brandon J. Broderick, LLC, attorneys for appellant

(Christopher A. Bradley, on the brief).

Colquhoun & Colquhoun, PA, attorneys for

respondents (Kevin F. Colquhoun and Moira E.

Colquhoun, on the brief).

PER CURIAM

Plaintiff Joseph Costigan appeals from the trial court's April 25, 2024

order granting defendants Gurprit Bains1 and Sneh Bains' motion for summary

judgment, dismissing his complaint with prejudice. Plaintiff also appeals from

the June 12, 2024 trial court order denying his motion for reconsideration. We

affirm.

I.

This matter arises from a February 18, 2021, slip and fall incident.

Plaintiff claims he was walking on a sidewalk toward a diner in Bayonne when

he slipped and fell on a patch of ice in front of defendants' residence and struck

his head. He testified at his deposition he remembered the weather that day was

cold, with wind blowing the snow, but did not recall if snow was falling at the

time. He recounted he did not have any difficulty seeing where he was going.

Plaintiff stated he did not look down at the sidewalk to determine if any potential

hazards were present and only saw the ice after he slipped.

Plaintiff testified he "ha[d] no idea" where the ice came from or how long

the condition existed. He stated in his interrogatory responses, he "believe[d]

the drainage system on [d]efendants' property that runs down the driveway from

1

Because the parties share the same last name, we refer to them by their first

name. We intend no disrespect.

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. . . along the side of [defendants'] house . . . across the sidewalk . . . [was]

faulty." He testified that sometime after the accident, he took a picture of water

coming out of the downspout of the drainage system. However, these

photographs were not produced in discovery.

Sneh testified she was home with her husband Gurprit on the day of the

accident because they had to cancel their plans due to the weather. She indicated

they had work performed on their property in or around 2018, which included a

new sump pump to prevent flooding in their basement and a new downspout

drainage system, with additional PVC pipes placed inside and around the home.

On the afternoon of plaintiff's fall, she stated her neighbor was at her property

clearing snow and ice, and a family friend salted her property later that day.

Plaintiff retained Mark Marpet, Ph.D., P.E., as an engineering expert. Dr.

Marpet authored a two-page report, relying on a website for information about

the weather on the day of the fall. He described the drainage system on the right

side of defendants' home as having a "[four]-inch PVC drain pipe that was fed

by rain gutters and a basement sump." Dr. Marpet opined, "[t]he drain pipe

created a hazard by leading [the] drain water from the gutters and basement

sump onto the driveway and sidewalk, where it c[ould] freeze and create a slip

hazard." He opined the elements did not cause the hazard because it had been

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two days since any precipitation fell. Instead, Dr. Marpet determined "the

location and configuration of this . . . drainage system . . . created [the] hazard,"

which could be ameliorated by relocating the pipe to drain elsewhere.

Defendants retained Stephen Pellettiere, a certified meteorologist from

I*ON Weather, to provide an expert opinion regarding the weather conditions

on February 18, 2021. Relying on certified weather reports from the National

Oceanic and Atmospheric Administration (NOAA), Pellettiere opined there had

been a "winter storm and snow/ice event" on the day of the incident, with

approximately a half inch of snow on the ground when plaintiff slipped and fell.

He disagreed with Dr. Marpet's report that it was not snowing at that time, noting

Dr. Marpet "use[d] erroneous 'weather underground data'" that contradicted the

certified NOAA observations. Pellettiere opined "it [wa]s highly unlikely that

preexisting ice and snow was at the place and time of incident" because "rainfall

of less than an inch ended [forty] hours before . . . plaintiff's alleged incident

and temperatures were well above freezing and winds were strong for [twelve]

hours after rain ended on February 16, 2021."

Defendants further retained an engineering expert, David Caruso, P.E.,

who provided a report based on relevant codes and standards, and his review of

the NOAA weather data. He concluded the sidewalk was properly maintained,

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safe, and did not violate any applicable codes, standards, or ordinances. He also

opined the topography of the driveway and sidewalk would not cause puddles to

form along their surfaces because the property sloped downwards toward the

street. Caruso, therefore, concluded "any water flowing from the residence

toward [the s]treet, whether discharged from the PVC downspouts or as a result

of precipitation, would not form a puddle along the sidewalk surface."

Caruso further disagreed with Dr. Marpet's report, finding his opinions

"speculative and without basis" because Dr. Marpet "provided no engineering

analysis to substantiate his opinion that water that discharged from the PVC

downspouts created an ice condition along the subject sidewalk." He also stated

Dr. Marpet did not cite any applicable code, standard, or ordinance requiring the

PVC downspouts to discharge water into a drywell or the street, as the City of

Bayonne had no such code.

Defendants moved to strike Dr. Marpet's report as a net opinion and for

summary judgment. They contended Dr. Marpet's opinion that the drainage

system created a hazard lacked any measurements or "demonstration of any

slopes or angles or anything about water capacity" and failed to provide any

discussion about the sidewalk, which Dr. Marpet claimed had ice on it. They

also asserted Dr. Marpet used erroneous data indicating there was no

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precipitation on the day of the fall "when, in fact, there[ was] an ongoing storm."

They claimed Dr. Marpet's reliance on uncertified information was "insufficient

to vault the governmental records" referenced in Pellettiere's report, which

indicated an active snow and ice storm shortly before plaintiff's fall. Defendants

further argued Dr. Marpet's opinion failed to satisfy any of the requirements for

an expert report because it contained "nothing . . . but his pure conclusion [s]."

On April 25, 2024, the trial court rendered an oral decision and entered an

accompanying order granting defendants' motion to strike Dr. Marpet's report as

a net opinion and for summary judgment. The court found Dr. Marpet's report

constituted an inadmissible net opinion because it failed to explain "the pertinent

scientific principles" and how he applied them to formulate the basis for his

opinion. It noted Dr. Marpet did not analyze the rates of evaporation for

rainwater under the conditions of freezing temperatures, provide any

measurements of the slope of defendants' property, calculate the volume of water

that could have exited the drain, or offer scientific support from a qualified

meteorologist. The court found the report also "fail[ed] to reference any

generally accepted objective standards of practice." Thus, the court determined

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Dr. Marpet did not provide the "why and wherefore of his opinion" but rather

offered only "a mere conclusion." 2

With respect to the summary judgment motion, the court found plaintiff

failed to offer any competent evidence to raise a genuine issue of material fact.

Because it found Dr. Marpet's report was an inadmissible net opinion, plaintiff

needed to present competent evidence to show defendants created a hazardous

condition different from that created by the storm. It rejected plaintiff's

contention the drainage system worsened the conditions of the sidewalk beyond

the natural hazards created by the storm. The court was unconvinced by

plaintiff's argument the drainage system on defendants' property made the

sidewalk condition worse because it allowed water to pool in certain areas which

led to frozen patches. It determined, absent admissible expert testimony, "all

[of] plaintiff's allegations [we]re speculative" and lacked evidentiary support.

Accordingly, the court found there was no genuine issue of material fact that

could defeat defendants' summary judgment motion.

2

Plaintiff's case information statement lists as an issue to be raised on appeal

whether the court erred in striking plaintiff's expert report. However, plaintiff

did not brief this issue and therefore it is waived. See Gormley v. Wood-El, 218

N.J. 72, 95 n.8 (2014); Drinker Biddle & Reath LLP v. N.J. Dep't of L. & Pub.

Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011).

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Thereafter, plaintiff moved for reconsideration, arguing the court made an

improper factual determination that an active storm was underway at the time of

plaintiff's fall, and he did not need an expert to survive summary judgment. The

court clarified it did not weigh the credibility of the competing experts in

deciding the prior motion, but rather found Dr. Marpet's report was an

inadmissible net opinion, and plaintiff's testimony failed to create a genuine

issue of material fact. The court noted, "[w]hether there was an active storm at

the time of [p]laintiff's fall was not a material or dispositive factor" in its

decision. It assumed the sidewalk was icy when plaintiff fell. Regardless, the

court noted plaintiff could not provide specific evidence of causation with

respect to defendants' drainage system causing his fall.

The court also rejected plaintiff's argument he could proceed without an

expert. It noted plaintiff's argument defendants created the hazard was

"completely unsupported by any competent evidentiary material." Plaintiff

"merely speculated" the drainage system somehow caused the sidewalk

conditions. The court stated, "[p]laintiff repeatedly argues it is possible there

was a pooling of water on the sidewalk," but "a mere possibility of something is

insufficient to overcome" a summary judgment motion, and the case cannot

proceed to trial without expert testimony because the jury would be left to

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speculate. Thus, the court determined plaintiff could not overcome the

residential homeowner sidewalk immunity without presenting any evidence to

support a logical inference of negligence.

II.

Plaintiff argues the court erred by deciding the issue of whether there was

an active storm at the time of his fall by "siding with . . . defendants and their

expert" and ignoring plaintiff's testimony. He asserts he fell on a frozen puddle,

at a location where defendants' drainage system routed and pooled water, when

it was not actively storming. Plaintiff contends his testimony "seems clear that

no active precipitation was occurring, and certainly not any rain[,]" because he

testified that "he remember[ed] no active precipitation . . . [or] wetness on the

ground where he fell." He asserts there is sufficient evidence in the record for

a jury to conclude he fell due to defendants' drainage system, which allowed

water to migrate onto the sidewalk.

Relatedly, plaintiff avers the trial court erred in ruling his case could not

proceed without an expert. He asserts a jury does not need an expert to tell it a

drainage system causing water to collect on the sidewalk could be a hazard when

the weather is cold.

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"Our review of a summary judgment ruling is de novo. We apply the same

standard as the trial court." Conley v. Guerrero, 228 N.J. 339, 346 (2017)

(citation omitted). "That is, summary judgment will be granted if there is no

genuine issue of material fact and 'the moving party is entitled to a judgment or

order as a matter of law.'" Ibid. (quoting Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)).

A trial court's decision to grant or deny a motion for reconsideration is

reviewed for abuse of discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567,

582 (2021). A trial court should grant reconsideration when "1) the [c]ourt has

expressed its decision based upon a palpably incorrect or irrational basis, or 2)

it is obvious that the [c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence." Castano v. Augustine, 475 N.J.

Super. 71, 78 (App. Div. 2023) (alterations in original) (quoting Triffin v. SHS

Grp., LLC, 466 N.J. Super. 460, 466 (App. Div. 2021)).

"To sustain a cause of action for negligence, a plaintiff must establish four

elements: '(1) a duty 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. Cnty. of Essex, 196 N.J. 569, 584 (2008)). A "plaintiff bears the burden of

establishing those elements 'by some competent proof.'" Ibid. (quoting Davis v.

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Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)). Courts will "not

presume[] that every injurious mishap that one encounters is necessarily

attributable to the negligence of another." Overby v. Union Laundry Co., 28

N.J. Super. 100, 104 (App. Div. 1953).

"[A]t common law, property owners had no duty to clear the snow and ice

from public sidewalks abutting their land." Luchejko v. City of Hoboken, 207

N.J. 191, 201 (2011) (citing Davis v. Pecorino, 69 N.J. 1, 4 (1975)). "That rule

. . . survives today for residential property owners . . . ." Ibid. Thus, unlike

commercial property owners, "[r]esidential property owners are immune from

sidewalk liability." Wasserman v. W.R. Grace & Co., 281 N.J. Super. 34, 38

(App. Div. 1995).

Indeed, our State adheres to this no-duty rule because "residential property

owners stand on different footing than commercial owners who have the ability

to spread the cost of the risk through the current activities of the owner."

Luchejko, 207 N.J. at 206. Our Supreme Court has articulated, "we may have

grappled with what was or was not commercial property, but we have not

deviated in our holdings or in our discussions of the law from the basic principle

that residential property owners are not liable for sidewalk injuries." Id. at 204.

The Court recognized the "fundamental choice not to impose sidewalk liability

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on homeowners," and declined to "break with a line of decisions that has

promoted settled expectations on the part of residential property owners." Id. at

208.

Nevertheless, residential property owners may be liable if their actions

create an artificial, dangerous condition on an abutting sidewalk, thereby

negligently introducing a new element of danger other than one created by

natural forces. See id. at 201; Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 152

(1981). In other words, homeowners have no duty to maintain the sidewalks

abutting their property so long as they have not affirmatively created a

hazardous condition. See Deberjeois v. Schneider, 254 N.J. Super. 694, 696,

700-01 (Law Div. 1991) (denying a motion for summary judgment where the

plaintiff fell on a raised slab that was defective due to a tree planted by the

owners of the abutting residential property); see also Lodato v. Evesham Twp.,

388 N.J. Super. 501, 507 (App. Div. 2006) (holding residential landowners

remain protected by common-law public sidewalk immunity). Accordingly,

"[r]esidential homeowners can safely rely on the fact that they will not be liable

unless they create or exacerbate a dangerous sidewalk condition." Luchejko,

207 N.J. at 210.

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"In most negligence cases, the plaintiff is not required to establish the

applicable standard of care." Brickman Landscaping, 219 N.J. at 406 (citing

Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)). "[I]t is sufficient for [the]

plaintiff to show what the defendant did and what the circumstances were. The

applicable standard of conduct is then supplied by the jury[,] which is competent

to determine what precautions a reasonably prudent [person] in the position of

the defendant would have taken." Id. at 406-07 (second and third alterations in

original). "Such cases involve facts about which 'a layperson's common

knowledge is sufficient to permit a jury to find that the duty of care has been

breached without the aid of an expert's opinion.'" Id. at 407 (quoting Giantonnio

v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)).

"In some cases, however, the 'jury is not competent to supply the standard

by which to measure the defendant's conduct,' and the plaintiff must instead

'establish the requisite standard of care and [the defendant's] deviation from that

standard' by 'present[ing] reliable expert testimony on the subject.'" Ibid.

(alterations in original) (citations omitted) (first quoting Sanzari, 34 N.J. at 134-

35; and then quoting Giantonnio, 291 N.J. Super. at 42); see also N.J.R.E. 702

(permitting expert testimony "[i]f scientific, technical, or other specialized

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knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue").

"The necessity of expert testimony is determined by the sound exercise of

discretion by the trial judge." Maison v. N.J. Transit Corp., 460 N.J. Super. 222,

232 (App. Div. 2019). "[W]hen deciding whether expert testimony is necessary,

a court properly considers 'whether the matter to be dealt with is so esoteric that

jurors of common judgment and experience cannot form a valid judgment as to

whether the conduct of the [defendant] was reasonable.'" Brickman

Landscaping, 219 N.J. at 407 (second alteration in original) (quoting Butler v.

Acme Mkts., Inc., 89 N.J. 270, 283 (1982)); see also Hubbard ex rel. Hubbard

v. Reed, 168 N.J. 387, 394 (2001) (holding expert testimony was not needed

when the jury's "common knowledge as lay persons is sufficient to enable them,

using ordinary understanding and experience, to determine a defendant's

negligence" (quoting Est. of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454,

469 (1999))).

In cases where "the factfinder would not be expected to have sufficient

knowledge or experience[,]" expert testimony is needed because the jury "would

have to speculate without the aid of expert testimony." Torres v. Schripps, Inc.,

342 N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly v. Berlin, 300 N.J.

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Super. 256, 268 (App. Div. 1997)). This is especially true when the alleged

negligent act or omission involves technical or specialized matters. See

Brickman Landscaping, 219 N.J. at 407.

Here, the parties do not dispute defendants are owners of a residential

property. As such, to overcome defendants' immunity from sidewalk liability,

plaintiff must present competent evidence showing defendants created or

exacerbated a hazardous condition on the sidewalk. 3 Plaintiff asserts defendants'

drainage system routed precipitation from a prior storm causing it to pool on the

sidewalk, which then froze to form a sheet of ice. However, without expert

testimony to establish measurements of the slope of the property and whether

the water from defendants' drainage system caused water to pool on the sidewalk

in the location where plaintiff alleges he slipped on ice, we conclude the trial

court did not err in determining plaintiff failed to present any competent

evidence in support of his claim that the drainage system caused this accident.

In other words, with respect to the court's granting defendants' summary

3

The court noted in ruling on the reconsideration motion, "[w]hether there was

an active storm at the time of [p]laintiff's fall was not a material or dispositive

factor" in its decision. We assume, for the purpose of deciding this appeal, there

was not an active storm at the time of plaintiff's fall.

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judgment motion, plaintiff provided insufficient evidence the drainage system

caused water to drain and pool on the sidewalk.

Plaintiff did not do any testing or measurements of the property and there

is no indication he has any engineering expertise to support his "belief"

expressed in his interrogatory responses that the drainage system was "faulty."

It is difficult to understand how plaintiff, without the aid of any expert, could

independently assert essentially the same opinion as Dr. Marpet, which was

rejected by the court as a net opinion. There is no competent evidence the ice

on which plaintiff slipped was caused by defendants' actions so as to implicate

the exceptions to sidewalk immunity. Plaintiff failed to show defendants'

negligence introduced a new element of a danger or hazard. Thus, the trial court

did not err in granting summary judgment or denying plaintiff's motion for

reconsideration.

We likewise conclude the court did not misapply its discretion in

concluding the common knowledge exception was not applicable and that

plaintiff was required to provide expert testimony to survive summary judgment.

The topography of defendants' property, the relative slope and manner in which

water drained off the property, and whether the drainage system led to water

pooling on the sidewalk, under the facts presented here, required an expert's

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specialized and technical knowledge to establish defendants' negligence was a

proximate cause of plaintiff's slip and fall injury. A jury would not be competent

to supply the requisite standard by which to measure defendants' conduct and

would be left to speculate. Accordingly, the court did not err in finding

defendants' negligence could not be established without the aid of an expert.

Therefore, we are satisfied the court did not err in granting summary

judgment and did not misapply its discretion in denying plaintiff's motion for

reconsideration. We further determine the court did not misuse its discretion in

finding plaintiff "cannot proceed to trial without an expert."

To the extent we have not specifically addressed any remaining arguments

raised by plaintiff, we conclude they lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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