JOHN P. SHARKEY, JR. v. PAUL J. SCHULTZ (SC-000720-20, OCEAN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-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
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
A-1672-20
2
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 (non-
OEM) 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-of-
pocket 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
A-1672-20
3
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)
A-1672-20
4
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
A-1672-20
5
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
A-1672-20
6
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.
A-1672-20
7
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.
A-1672-20
8
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 b y
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
A-1672-20
9
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.
A-1672-20
10