NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

This sidewalk trip-and-fall case returns after our prior decision reversing summary judgment in favor of defendant homeowners. Johnson v. Morse, No. A-0558-11 (App. Div. May 31, 2012). On remand, discovery was completed, and the trial court granted summary judgment to defendants a second time. We now affirm.

The relevant facts are that plaintiff tripped and fell to the ground on a sidewalk slab in front of defendants' home in Tinton Falls. She suffered orthopedic injuries to her knee, arm, and shoulder. Plaintiff filed suit against defendant homeowners, Eric and Leigh Ann Morse, alleging they were negligent because they failed to "take appropriate and required action to ensure that the property was safe and free of defects or dangerous conditions."

Plaintiff obtained an expert report by a professional engineer, William Poznak. The report described the dangerous condition as a one-and-a-half inch sinking of a slab of the concrete sidewalk and a resulting protruding edge of the adjacent slab. Poznak stated the sunken slab was caused by failure to compact the base material of the sidewalk properly when it was built. Poznak also referred to the failure of the homeowners to repair and maintain the sidewalk in accordance with good sidewalk safety practices.

Before the discovery period ended, defendants moved for summary judgment. They certified that they purchased the home in 2003, they did not build the sidewalk, they did not do any repair work, and they were not aware of any other repairs done on the area of the sidewalk where plaintiff fell. The trial court granted summary judgment to defendants on the ground that residential property owners are not liable to persons who are injured on an abutting sidewalk that is damaged through natural elements or wear and tear. See Luchejko v. City of Hoboken, 207 N.J. 191, 204-05 (2011); Yanhko v. Fane, 70 N.J. 528, 534-35 (1976). Also, a municipal ordinance that places a duty upon homeowners to repair and maintain an abutting sidewalk does not in itself create a duty of homeowners under tort law to persons who may be injured on the sidewalk. See Luchejko, supra, 207 N.J. at 200-01.

Although our prior decision in this case found no fault in the trial court's discussion of the applicable law or assessment of the factual record established up to that point, we reversed the summary judgment because the discovery period had not yet ended and plaintiff also alleged that defendants' predecessor in title had negligently built a defective sidewalk. We held that summary judgment should not have been granted before plaintiff had an opportunity to complete discovery and to gather evidence that might demonstrate defendants' potential liability based on affirmative acts of an identified predecessor in title. Johnson v. Morse, supra, slip op. at 8-9 (citing Wilson v. Amerada Hess Corp., 168 N.J. 236, 253-54 (2001); Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988)).

In reaching our prior decision, we noted the case law that permits an injured party to seek compensation if he or she can prove that a residential property owner, or a specifically designated prior owner of the property, actively caused the defective condition, such as by negligent construction or repair of the sidewalk. See Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 153 (1981); Yanhko, supra, 70 N.J. at 532; Deberjeois v. Schneider, 254 N.J.Super. 694, 703 (Law Div. 1991), aff'd o.b., 260 N.J.Super. 518 (App. Div. 1992).

We also set forth precisely what evidence plaintiff needed to gather to establish a prima facie case of defendants' liability for a defectively-constructed sidewalk:

Plaintiff failed to fulfill this clear directive in all respects. She obtained evidence that the sidewalk was constructed in about 1990-91 by the builder of the homes in the residential development where the property was located. A certificate of occupancy was issued to Hovbilt, Inc., in August 1991, and the home was sold to its first owners the next month. But plaintiff failed to obtain an updated expert report from Poznak that addressed the issues we outlined regarding the construction standards that were in effect when the sidewalk was built.

Poznak's original report dated July 21, 2010, focused on the conditions of concrete sidewalks that affect walking safety. While it included a statement that the unsafe sinking of the sidewalk slab in front of defendants' home "had been due to base material not being properly compacted at time of construction," Poznak did not explain how he reached that conclusion. The report did not contain any reference to Poznak having tested the base material or conducted any other evaluation by which he attributed the sinking to defective construction. Consequently, the bare statement in Poznak's original report that the sidewalk had sunk because of a failure to compact the base material was an inadmissible net opinion. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011); Grzanka v. Pfeifer, 301 N.J.Super. 563, 580-83 (App. Div.), certif. denied, 154 N.J. 607 (1997).

Although Poznak attached to his report excerpts of construction industry documents pertaining to sidewalk safety features, including a document entitled "Concrete Slabs on Grade" that referred to "subgrade settlement," his report did not indicate the source or date of the latter document or how he used it in his evaluation of this particular sidewalk to conclude that it had been negligently constructed.

After our remand, plaintiff provided a short supplementary report from Poznak dated January 8, 2013. Poznak stated that the sidewalk on which plaintiff fell was "definitely the original, as constructed by the Developer, Hovbilt, Inc." He again stated that the slab had sunk and then identified the document referenced above pertaining to "subgrade settlement" as issued by the American Concrete Institute. He failed, however, to give the date of the document.1 Furthermore, he again failed to indicate how he reached his conclusion that the sidewalk in this case sank because of improper compacting of the subgrade by the builder.

When defendants pointed out the deficiencies in plaintiff's opposition to their renewed motion for summary judgment, plaintiff obtained another correspondence from Poznak, this one a handwritten fax cover sheet with notations for the documents that he had relied upon in reaching his conclusion. He gave dates for two of the documents that do not refer to subgrade construction, but still failed to provide a date for the American Concrete Institute document. Significantly, his latest submission again did not explain how he reached his conclusion that improper construction was the cause of the sunken slab in this case.

Poznak never tied his conclusion that the sidewalk was defectively constructed to the construction industry documents he relied upon. Poznak did not provide the "why and wherefore" to explain how he reached the conclusion in his report that the sidewalk on which plaintiff fell was negligently constructed; that statement was a "mere conclusion" without factual support or sufficient identification of the applicable industry standard. See Rosenberg v. Tavorath, 352 N.J.Super. 385, 401 (App. Div. 2002).

Plaintiff argues that defendants never deposed Poznak to determine the basis for his opinion, and that the court should have conducted an evidentiary hearing on the summary judgment motion if it found plaintiff's expert reports were deficient. But it was plaintiff's burden to present sufficient evidence to establish a prima facie case that defendants or an identified predecessor in title affirmatively created the defective condition of the sidewalk. We said as much in our prior decision.

Plaintiff failed to present facts and an adequate expert report establishing defendants' potential liability for the sunken sidewalk slab in front of their home. The trial court correctly granted summary judgment dismissing her complaint.

Affirmed.