ELEANOR HOFFNER et al. v. OCEAN COUNTY MALL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1539-04T51539-04T5

ELEANOR HOFFNER and

ISIDORE HOFFNER, her husband,

Plaintiffs-Appellants,

v.

OCEAN COUNTY MALL,

Defendant-Respondent.

________________________________________________________

 

Argued November 1, 2005 - Decided November 17, 2005

Before Judges Coburn, Collester and S.L. Reisner

On appeal from the Superior Court of New Jersey,

Law Division, Ocean County, OCN-L-2069-02.

Adam L. Rothenberg argued the cause for appellants

(Levinson Axelrod, attorneys; Mr. Rothenberg, of

counsel and on the brief).

Lawrence M. Berkeley argued the cause for

respondent (Stein, McGuire, Pantages & Gigl,

attorneys; Mr. Berkeley, of counsel; Adam T.

Adams, on the brief).

PER CURIAM

In this personal injury, fall-down case, the jury found plaintiff Eleanor Hoffner ninety percent at fault and defendant Ocean County Mall ten percent at fault. Plaintiffs filed a motion for a new trial on the ground that the verdict was against the weight of the evidence. After the judgment was entered and the motion was denied, plaintiffs appealed. They contend that the trial judge erred in his charge to the jury, in allowing certain comments by defense counsel during summation, and in denying their motion for a new trial. Since we find all of plaintiffs' arguments unpersuasive, we affirm.

I

On October 2, 2001, around noon, Eleanor Hoffner and her husband, Isidore Hoffner, drove to the Ocean County Mall to shop. He parked their car, and she got out first and began walking across the parking lot and an inner road that separates the parking lot from the mall itself. When she reached the center line of the road, her foot caught in what felt like a hole, and she lost her balance, fell to the ground, and broke her hip. Isidore reported that Eleanor said she "fell into a depression of some sort." He described it as a "crevice" since it looked about two inches wide to him. Eleanor has been blind in her left eye since cataract surgery in 2001. She is far-sighted in her right eye and is required to wear glasses to drive. She was not wearing her glasses because Isidore had driven the car, but her loss of eyesight has not affected her depth perception or peripheral vision. Plaintiffs' engineering expert testified that the hole was in the yellow centerline of the road and that it had a diameter of three inches. He said it was caused by the movement of asphalt, which was related, in turn, to a nearby manhole that had settled due to poor construction. He believed that the hole had existed for a few months and was a dangerous impediment to pedestrians.

Defense witnesses agreed that the hole was a tripping hazard and needed to be repaired, but they also described the various measures they took on a daily basis to discover such hazards. They were unaware of the hole before the accident.

II

Plaintiffs' first argue that the trial judge erred when he refused to charge the jury as follows:

When Eleanor Hoffner was walking across the parking lot . . ., she had absolutely no obligation to look around to determine if there was a hole in the roadway. Only upon being aware of such a circumstance would it have been her obligation to attempt to avoid the hole.

Plaintiffs claim that this charge was required by Krackomberger v. Vornado, Inc., 119 N.J. Super. 380 (App. Div. 1972), and Model Jury Charge, 5.40: "Duty of a Supermarket to a Business Invitee Walking In One of the Aisles" (1990), which is based on Krackomberger. Neither supports the proposition set forth in plaintiffs' requested charge. The case and the model charge are applicable in the shopping aisle setting because the displays intentionally invite the attention of customers away from the floor. Id. at 383. It has no place in the instant circumstance, where the customer is simply walking through a parking lot toward a store. Moreover, neither the case nor the charge states that the invitee has no duty to make observations for his or her own safety. Therefore, the judge did not err in refusing to charge it.

Next, plaintiffs argue that the judge's failure to charge as requested violated Model Jury Charge 8.15, which reads as follows:

A. In General. A pedestrian using the sidewalk, must act with the same amount of care for her/his own protection as a reasonably careful person would have exercised under similar circumstances. In order to determine whether or not the pedestrian acted reasonabl[y], you must decide whether a reasonable careful person would have discovered the danger which existed in this case and would have avoided it.

B. Artificially Created Conditions for Private Use. A pedestrian using the sidewalk is required to exercise reasonable care for her/his own safety, however, a pedestrian is entitled to assume that there is no dangerous impediment or pitfall on any part of the sidewalk. The law does not require that a pedestrian anticipate dangerous conditions, however, when or if a pedestrian is not negligent merely because she/he does not look for dangerous conditions, however, when or if a pedestrian sees or is aware of a dangerous condition, then she/he must exercise reasonable care to avoid the condition.

Subparagraph B of the charge is based on the statement in Krug v. Wanner, 28 N.J. 174, 183 (1958), that "a member of the traveling public has the right to assume 'that there is no dangerous impediment or pitfall' in any part of the sidewalk and is not obliged to anticipate dangerous conditions although he must exercise reasonable care to avoid them 'if he sees or is aware of them.'" (citations omitted). But in Citro v. Stevens Institute of Technology, 55 N.J. Super. 295, 302 (App. Div. 1959), we explained that Krug "does not hold that a member of the traveling public using a sidewalk can be oblivious to defects in the sidewalk even though a reasonable person could not help but to notice them." And we further observed that Krug was concerned with an artificial danger, not mere wear and tear. Id. at 306. Moreover, this is not a sidewalk case. Here the fall occurred in an area over which large numbers of vehicles ran every day. Obviously a reasonable person should be aware that such use can harm the road, making it dangerous.

Plaintiffs also contend that defendant maintained "condition reports" that described hazards identified during routine inspections by Control Building Services, the outside contractor, but failed to produce them at trial. They claim the judge should have instructed the jury that, in accordance with N.J.R.E. 803(c)(7), the failure by defendant to produce these condition reports proved that defendant never inspected the mall parking lot.

N.J.R.E. 803(c)(7) is an exception to the rule against hearsay. It provides:

Evidence that a matter is not included in a writing or other record kept in accordance with the provisions of Rule 803(c)(6), when offered to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a writing or other record was regularly made and preserved, unless the sources of information or other circumstances indicate that the inference of nonoccurrence or nonexistence is not trustworthy.

[N.J.R.E. 803(c)(7).]

Plaintiffs wanted the court to charge on the rule because, pursuant to the rule and with the proper evidentiary foundation, defendant's failure to produce condition reports could establish that defendant never actually performed, or caused to be performed, inspections of the parking lot. And if defendant failed to properly inspect and maintain the parking lot, the jury could determine that defendant was negligent and had not exercised the proper duty of care to business invitees.

But plaintiffs failed to provide the necessary foundation for the instruction. N.J.R.E. 803(c)(7) "requires only proof that it was the regular practice to keep such records before the absence of an entry may be used to show nonoccurrence of an act or event or nonexistence of a condition." Biunno, New Jersey Rules of Evidence, comment on N.J.R.E. 803(c)(7) (2005). To make a showing of regular practice, plaintiffs must demonstrate that the records were kept in such a way that the condition would have been noted had it been identified. Accordingly, in order to warrant an instruction pursuant to N.J.R.E. 803(c)(7), plaintiffs were required to provide the foundation for the instruction by establishing that it was the regular practice of the defendant to keep records of the parking lot inspections. N.J.R.E. 803(c)(6). Plaintiffs failed to do so.

Denise Ipsen, the mall manager at the time of plaintiff's accident, testified that Control Building Services inspected the parking lot and provided security services. The following portion her deposition testimony was read to the jury:

QUESTION: You said earlier that they were supposed to, as you understood it, inspect for broken curbs, potholes or similar problems; correct?

 
ANSWER: They don't inspect for it. As part of their routine, if they see these types of issues, they are documented and reported to our operations director.

QUESTION: When you say they're not supposed to be -- not supposed to inspect, it's just, if they casually see it, then they should report it? They do it as part of their daily routine. Do they have an inspection report that they fill out?

ANSWER: Yes.

QUESTION: Do you have daily reports from these people?

ANSWER: I get reports, not on a daily basis, but there is a report system that they use as part of this. I did research this to see if there was a report, but we could not find one.

During both direct examination and cross-examination, Ipsen confirmed that condition reports, i.e., inspection reports, would only be filled out in the event that security personnel noticed a condition that needed to be addressed. Ipsen testified that Control Building Services did not complete inspection reports on a daily basis, but instead filled out a condition report only when there was something "hazardous to be reported." She testified:

MR. ROTHENBERG: Okay. The condition reports that Security makes, are there any inspection reports that would show that anybody on behalf of Control Building Services, the company you hired to help you do maintenance, is there anything that shows that they do regular inspections?

DENISE IPSEN: Nothing that I have.

Plaintiffs' own witness, Francisco Rivera, a former employee of Control Building Services and head of operations at the time of plaintiff's accident, testified that Control Building Services would walk the parking lots and inspect the exterior of the building. He confirmed that security personnel would note any problems. If there was a problem, security would complete a condition report. Once the condition report was completed, the problem would be resolved by Control Building Services or an outside contractor hired by it. When Rivera was employed by defendant, condition reports were kept in notebook logs. Plaintiffs requested those logs in connection with discovery, but defendant, which did not own the logs, could not locate them.

Plaintiffs elicited no testimony to confirm that inspection reports were completed on a regular, daily basis. Instead they established only that, if Control Building Services noticed a problem, a condition report was completed by the security department and forwarded to individuals who would resolve the problem. Testimony from both Rivera and Ipsen strongly suggested that, had the crevice been identified and a condition report prepared, the crevice would have been corrected as quickly as possible. Ample testimony regarding the manner in which the inspections took place and the daily oversight of maintenance was elicited during the trial. The absence of a condition report would not establish that inspections were never performed by Control Building Services. Therefore, the court properly refused to charge on N.J.R.E. 803(c)(7).

Plaintiffs contend, as a matter of plain error, that because defendant hired outside contractors to perform maintenance and security at the mall, the judge should have instructed the jury on defendant's non-delegable duty to maintain the mall's property. But defendant stated multiple times on the record that it was ultimately responsible for the mall's property, and the judge instructed the jury that defendant was responsible for the negligence of anyone it hired.

There could not be any doubt or confusion on the part of the jury that the mall was ultimately responsible for any injuries to plaintiff. In fact, the judge specifically instructed the jury that it was "not an issue in the case." There was no error, let alone plain error, in failing to charge the jury on the non-delegable duty of defendant.

Next, plaintiffs argue that the judge erred in his charge on the jury's function in comparing fault if both sides were found to be responsible for the accident because he used the word "negligence" instead of "fault." They did not object to the charge at trial, but they now argue that the "charge did not offer any guidance to the jury on how they were to go about and apportion liability." Plaintiffs further complain that the "instruction did not even advise [the jury] that they were supposed to compare the respective faults of plaintiff and defendant in causing plaintiff's injury." We perceive no error, and certainly no plain error, in the charge, which complied with Model Jury Charge 8.22. When the nature of the fault on both sides is negligence, and not strict liability or intentional tort as to one defendant, there is no harm in using the word "negligence" instead of "fault" in describing what must be compared.

Next plaintiffs contend that they were prejudiced by remarks made by defense counsel during summation. The comments about which plaintiffs complain concern the repair of the road defect the next day. Plaintiffs say that the remarks amounted to an argument that the jury could infer that defendant was not negligent because it so quickly repaired the hole. But the judge twice firmly charged the jury that the repairs were neither evidence of negligence nor evidence that the defendant had acted reasonably before the accident. Consequently, we are satisfied that plaintiffs suffered no prejudice.

 
Plaintiffs' last argument is that the verdict was against the weight of the evidence. The trial judge disagreed, and we affirm substantially for the reasons he expressed in his oral opinion denying the motion. We do not doubt that in a proper case a judge may grant a new trial when the comparison of fault is unsupported by the evidence. Warshany v. Supermarkets General Corp., 161 N.J. Super. 515, 519-22 (Law Div. 1978). In that case, the judge set aside a 50-50 comparison of fault because the defendant supermarket knew of the breakage in the aisle at least fifteen minutes before the accident and knew that another customer had fallen in the same spot just five minutes before the plaintiff's accident. Id. at 519. Here, by contrast, the fault was minimal on both sides: neither the defendant, whose employees had to look for hazards throughout a large parking lot, nor Eleanor, who was walking in daylight to the mall, noticed this three inch wide crack before the accident. We cannot say that there was a miscarriage of justice when the negligence of both sides was minimal, and the jury determined that the person closest to the defect just before the accident was mostly responsible for what occurred.

Affirmed.

(continued)

(continued)

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A-1539-04T5

November 17, 2005