Search Site
Menu
NJ Supreme Court: Experts Must Opine As to Objective Standards of Care

NJ High Court Bars Expert Testimony as Net Opinion Where Expert Does Not Reference an Objective Standard of Care

In cases involving allegations of negligence, the injured party has to prove that the person or entity being sued failed to act reasonably, causing harm to the victim. In those cases, the injured person must show that the responsible party failed to observe the standard of care. A “standard of care” refers to the manner in which persons in like circumstances should act. It is used to establish what the responsible party should have done or failed to do, resulting in injury. A standard of care may be identified by reference to a law, statute, regulatory requirement, industry practice, or standard-setting agency publication. Someone who has been injured cannot establish a standard of care simply by stating that the responsible party should have done something different. There must be some verifiable, objective basis.

The New Jersey Supreme Court recently spoke to this requirement in the case of Davis v. Brickman Landscaping, Ltd. That case arose following a fire at a hotel that unfortunately took the lives of two children. The parents of the children sued the fire inspectors and others for not telling the hotel that a sprinkler should have been located in a utility closet. An expert hired by the defendants opined that a standard developed by the National Fire Protection Agency did not require the inspectors to evaluate the need for a sprinkler in the utility closet or report it to the hotel owner. The parents argued that this one standard was not proof positive of the standard of care, and their expert opined that the inspectors had a duty to exercise reasonable care that exceeded the scope of the National Fire Protection Agency standard. However, the parents’ expert did not offer an objective source for their conclusion that the inspectors owed a higher standard of care.

Industry Standards Are Not Dispositive Proof of a Standard of Care, But Objective Support for Alternative Standards Is Necessary

When an expert’s opinion is not based on objective criteria, it is said to be a “mere net opinion.” Net opinions will not withstand scrutiny before the Courts and reliance on a net opinion could lead to dismissal of all or part of a case. New Jersey Court’s have said that “the net opinion rule “requir[es] that the expert ‘give the why and wherefore’ that supports the opinion, ‘rather than a mere conclusion.’” While the expert in this particular case did not present an objective standard apart from the Fire Code relied on by the defense, the Court took care to explain that “[t]he customs of an industry are not conclusive on the issue of the proper standard of care” because “to allow [an industry] to set its own standard of conduct is tantamount to allowing it to set the limits of its own legal liability, even though those limits are below a level of care readily attainable.” In this case, specifically because the Department of Community Affairs was directed to promulgate a uniform fire safety code (UFC) by the Legislature, the Court found that UFC  “provides the standard of care absent competent expert testimony that a standard of care other than the UFC or its successor is generally recognized in the fire prevention field.” The Court explained that the parents’ expert may have been correct that a reasonable inspector may have identified design deficiencies, but without providing objective support for that assertion, his opinion was not sufficiently supported. Without sufficient support for the asserted standard of care, the parents could not make their negligence claim and it was dismissed.

Environmental Litigation Is Rife with Scientific and Expert Issues; Consult Attorneys Experienced In These Areas

The Davis decision underscores the importance of expert opinion in negligence claims, especially as it regards the standard of care. Lieberman Blecher & Sinkevich’s complex environmental litigation practice keeps our attorneys at the forefront of where the legal meets the scientific: our attorneys know the science and routinely handle the examination of scientific and medical experts in disciplines relating to environmental law.

You can read the Supreme Court’s opinion by following this link: Davis v. Brickman Landscaping, Ltd.

Leave a Reply

Your email address will not be published. Required fields are marked *

Our Attorneys

Recent Twitter Posts

  • New Jersey Legislature Passes National Precedent Setting Environmental Justice Bill. https://t.co/P8ybU2UrtD
    4 weeks ago
  • New Jersey files 12 new environmental justice lawsuits. https://t.co/jYo1yCwTOa
    4 weeks ago
  • Plans Underway for Building Offshore Wind Farms Along the New Jersey Coast. https://t.co/S4CDX5DMS0
    2 months ago
  • Energy companies cancel construction of Atlantic Coast Pipeline. https://t.co/aDYHr4nhal
    3 months ago

Recent Blog Posts

Lead Exposure and Frivolous Litigation

Owners of older residential properties are likely familiar with the legal requirement to provide warnings concerning the existence of lead. Lead exposure, particularly amongst children, can result in severe, even
Read More
Lead Exposure and Frivolous Litigation

New Jersey Supreme Court rules the PLA does not preempt CFA claims by consumers

Now more than ever, consumer protection is important. As a result of the Covid-19 pandemic, we see new products on our shelves, promising safe disinfection for hands and surfaces as
Read More
New Jersey Supreme Court rules the PLA does not preempt CFA claims by consumers

Notices and Appellate Review of a CAFRA Permit

In JSTAR, LLC v. New Jersey Department of Environmental Protection, et al., Docket No. A-1745-18T1, the Appellate Division in an unpublished decision revisited the issues of notice and a review
Read More
Notices and Appellate Review of a CAFRA Permit

Preemption Isn’t Always the Answer: The Superior Court of New Jersey, Camden County Law Division highlights the necessary harmony between State legislation and municipal land use ordinances

On November 20, 2019, the Superior Court of New Jersey, Camden County Law Division, issued an opinion in the matter captioned Lakeview Memorial Park Association v. Burlington County Construction Board
Read More
Preemption Isn’t Always the Answer: The Superior Court of New Jersey, Camden County Law Division highlights the necessary harmony between State legislation and municipal land use ordinances

In the media

  • Gulf Coast Town Center facing foreclosure

    Naples Daily News, September 16, 2015

    Wells Fargo filed a lawsuit Sept. 8 against an affiliate of CBL & Associates, the owners of the decadeold, 1.2 million-square-foot mall in south Fort Myers for a $190.9 million unpaid loan. The center has 94 stores on 204 acres, with such anchors as Super Target, Belk, Best Buy, Dick’s Sporting Goods, Marshalls and Costco...

    Read More
  • Town liable for private company's leaking underground tanks, court rules

    NJ.com Jul 26, 2017

    CRANFORD -- A couple that owned a businesses in town and became sick from leaking underground tanks owned by an adjacent business can sue the township for damages because the tanks were partially ...

    Read More
  • Dark Waters: How a Class Action Catapulted NJ to Forefront of 'Forever Chemicals' Battle

    NJ Law Journal Jan 09, 2020

    As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
Contact Our Firm

Quick Contact Form