NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff 25 Enterprise Avenue appeals from the September 16, 2013 order granting summary judgment to defendant 2001, Inc.1 For the reasons that follow, we affirm.
The record establishes that plaintiff purchased a rubber roofing membrane in 2004 from defendant for a large commercial property in Secaucus. Plaintiff's contractor affixed the roof, which was the thinnest membrane sold by defendant, directly on top of the preexisting asphalt roof. Plaintiff alleged that it purchased the roof because it was persuaded by the claims of defendant's president and owner, Thomas Kelly, that the roof would satisfy plaintiff's needs. After the roof was installed, plaintiff permitted Omnipoint to build cell towers on the roof and significantly reconfigured part of the roof when renovating for a new tenant.
Five years after the installation, the roof started leaking. Plaintiff replaced the roof with a different system after multiple leaks and sued defendant and Omnipoint for damages. Plaintiff sued defendant for breach of warranty and negligent misrepresentation,2 contending that punctures or tears from the underlying asphalt roof caused the leaking because the roofing was inadequate and defectively designed. Plaintiff further alleged that defendant represented that the roofing was sufficient for its intended use but failed to warn of the frailty of the rubber roofing membrane or recommend that a separation liner be placed between the two roofs. Defendant acknowledged that the roof had tears and punctures, but claimed that plaintiff and Omnipoint made unauthorized modifications that caused the leaks.
During discovery, plaintiff declined to name an expert concerning its claims and insisted that the testimony of Howard Semon, the company representative who sold plaintiff the replacement roofing system, was sufficient. After discovery closed, defendant filed a motion for summary judgment, asserting, among other claims, that plaintiff's failure to provide an expert precluded it from proving its claims. The trial judge granted summary judgment, reasoning that expert testimony was required to support plaintiff's misrepresentation claim.3 In particular, the judge determined that the issues were complex and beyond the common knowledge of jurors, and that expert testimony was needed "to establish the causal connection between the alleged conduct and the damages claimed." The judge concluded that plaintiff could not rely on the testimony of Semon. The judge acknowledged that Semon had over twenty years of experience in the roofing industry, but noted that he had no experience with the particular type of roof at issue. The trial judge did not reach the other arguments raised by defendant.
On appeal, plaintiff argues that expert testimony was not required to support its negligent misrepresentation claim or to establish damages. Rather, plaintiff contends that Semon's experience in the roofing industry and his personal inspection of the roof were sufficient, because Semon could have testified to his opinions as a lay witness pursuant to N.J.R.E. 701.
Defendant reiterates its contentions before the trial court that expert testimony was required. Defendant asserts that the general subject matter — rubber membrane roofing of a large commercial building — and the particular issues — the adequacy of the recommended membrane thickness, the cause of the punctures and tears, and the need for a protective barrier — were beyond the common judgment and experience of jurors. Additionally, defendant argues that summary judgment was proper for reasons the trial court did not consider. Because we conclude that expert testimony was required, we decline to address these arguments raised by defendant.
We review summary judgment decisions de novo, Heyert v. Taddese, 431 N.J.Super. 388, 411 (App. Div. 2013), "employing the same standard used by the trial court." Tarabokia v. Structure Tone, 429 N.J.Super. 103, 106 (App. Div. 2012), certif. denied, 213 N.J. 534 (2013). That is, we must determine "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). The evidence must be viewed "in the light most favorable to the non-moving party." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010) (citing Brill, supra, 142 N.J. at 540). Because our review of issues of law is de novo, we accord no special deference to the motion judge's legal conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise." While N.J.R.E. 702 is "primarily permissive[,]" expert testimony is required in specific types of cases. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2014). "In general, expert testimony is required when `a subject is so esoteric that jurors of common judgment and experience cannot form a valid conclusion.'" Ford Motor Credit Co. v. Mendola, 427 N.J.Super. 226, 236 (App. Div. 2012) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993)). Additionally, expert testimony is required "if the general subject matter at issue, or its specific application, is one with which an average juror might not be sufficiently familiar[.]" State v. Berry, 140 N.J. 280, 292 (1995).
Generally, "[w]hen the proofs involve a defect in a complex instrumentality, an expert is frequently required to assist the jury in understanding the mechanical intricacies and weighing competing theories of causation." Ford, supra, 427 N.J. Super. at 236; see, e.g., id. at 237 (noting that where there are several causative factors involved, "allowing a jury to determine liability . . . would require impermissible speculation as to causation[.]"); Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J.Super. 320, 330-31 (App. Div. 2004) (finding that expert testimony was required to explain why a gurney collapsed); Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J.Super. 320, 330, 341 (App. Div. 2000) (requiring expert testimony to prove that the train door, which injured the plaintiff, was defective).
Here, we are firmly convinced that plaintiff needed expert testimony to proceed with its claim that the rubber roof was defective. The average juror may be able to understand the concept that rubber membrane roofing affixed directly over an asphalt roof may lead to leaks. However, determining whether the membrane thickness was adequate or whether a protective barrier should have been used required jurors to have specialized knowledge of rubber membrane roofing systems. Additionally, other factors could have caused or contributed to the punctures in the roof, such as the modifications made by plaintiff and Omnipoint. Expert testimony would be needed to eliminate these other potential causes to establish defendant's liability.
We also reject plaintiff's contention that Semon should have been permitted to testify as a lay witness. N.J.R.E. 701 provides that a witness who "is not testifying as an expert" may testify "in the form of opinions or inferences . . . if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Although Semon could testify to what he saw, he cannot give his opinion on industry standards for the proper thickness of rubber membrane roofing, the need for a protective barrier, or the effect third-party changes had on the roofing. Semon's proposed testimony would impermissibly rely on and include opinions based on his experience in the roofing industry, which are beyond the "common knowledge and observation" of a lay witness. State v. Bealor, 187 N.J. 574, 586 (2006) (citations omitted); see also Alpine Country Club v. Borough of Demarest, 354 N.J.Super. 387, 394 (App. Div. 2002) ("Lay testimony may not usurp the function of expert opinion.").
In sum, the trial court correctly granted summary judgment as plaintiff was required to prove its complex claim about a subject that is not within the common knowledge of the general public by means of an expert.
Affirmed.
