JAMES KILHULLEN v. ABM INDUSTRIES, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4763-07T14763-07T1

JAMES KILHULLEN and

JENNIE KILHULLEN,

Plaintiffs-Appellants,

v.

ABM INDUSTRIES, INC.,

Defendant-Respondent,

and

CINTAS CORPORATION and

DUTCHTOWN NURSERY,

Defendants.

________________________________

 

Argued February 10, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8357-05.

Anthony J. Murgatroyd argued the cause for appellants.

Yolanda L. Ayala argued the cause for respondent (Gallo Vitucci Klar LLP, attorneys; Ms. Ayala, on the brief).

PER CURIAM

This is a personal injury negligence slip and fall action. Plaintiffs James Kilhullen and Jennie Kilhullen, his wife, appeal from various evidentiary rulings of the trial court following a jury verdict of no cause of action against them. We affirm.

I.

On November 28, 2005, plaintiffs filed a complaint sounding in negligence against defendants ABM Industries, Inc. (ABM), Cintas Corporation (Cintas), and Dutchtown Nursery (Dutchtown). Prior to trial, the court granted summary judgment to all defendants, except ABM. Plaintiffs do not appeal from the grant of summary judgment to the other defendants. Accordingly, the term "defendant" shall hereinafter refer to ABM only. On May 21, 2008, the jury returned a unanimous verdict, determining that defendant was not negligent. The trial court entered a confirming order of judgment the same day.

II.

In December 2003, Ethicon, a subsidiary of Johnson & Johnson, employed plaintiff as a wire mill drawer at its Somerville facility, a 720,000 square-foot campus with approximately 1,200 employees. Defendant provides housekeeping services at the Somerville facility, and as such, it is responsible for cleaning the buildings' interiors, including maintaining the interior stairways and landings, and accepting floor mat deliveries from Cintas. Dutchtown is a third-party, unaffiliated company that provides external snow removal services at the facility.

Plaintiff worked the midnight shift at Ethicon, from 11:00 p.m. until 7:00 a.m., Mondays through Fridays. When he left work at 7:00 a.m. on Friday, December 5, 2003, he observed that ice melt had been placed on the sidewalks in anticipation of an expected snowstorm. The storm hit the Somerville area later that day and continued into Sunday morning.

On Sunday, December 7, 2003, plaintiff reported to work at 11:00 p.m. By that time, Dutchtown had already plowed the parking lot, cleared the sidewalks, and placed additional ice melt on the walkways. However, Ethicon had not requested that defendant perform its housekeeping services over the weekend or prior to 7:00 a.m. Monday morning.

On Monday, December 8, 2003, at approximately 6:00 a.m., plaintiff exited his building through its main entrance to purchase coffee in a cafeteria located in a separate building on the campus. At approximately 6:50 a.m., plaintiff walked back to his building, utilizing sidewalks covered in ice melt, intending to enter his building through its rear entrance. This was the first time that day plaintiff had used that entrance during his shift.

On arrival at his building, plaintiff observed that no mat had been placed outside the rear entrance of the building on which to wipe his feet. Accordingly, plaintiff "kicked [his] shoes against the door sill" and stomped his feet as he entered the building. Plaintiff then proceeded to descend a stairway, making observation of the stairway and landing. He did not observe any water or ice melt on either. Although he remembered observing a floor mat at the bottom of the stairway the prior week, "[t]here was no mat at the bottom of the stairway" at that time.

As plaintiff reached the bottom of the stairway, he took a step onto the floor, and his foot slid out from underneath him, causing him to fall. After lying on the floor for approximately one minute, plaintiff stood and noticed that the entire right side of his shirt and pants were wet and "had the gooey stuff from the ice melt" on them.

Approximately five or six minutes after his fall, plaintiff began to feel pain. He reported the incident to John Kratzer, his supervisor who was responsible for the safety and maintenance of the building. Kratzer sent plaintiff to the campus nurse for medical treatment.

Shortly after 7:00 a.m., Kratzer received complaints from other employees about the slippery conditions of the stairway. To remedy the problem, Kratzer notified site engineering and asked that its staff mop up the water and place a mat at the stairway landing. Site engineering complied.

As supervisor, Kratzer was under a duty to report incidents of injuries to employees when employees are injured. After plaintiff advised him of his injury, Kratzer went to the stairway and observed that the tile floor and the stairway were wet. However, before filling out an incident report, Kratzer met with plaintiff. At that meeting, plaintiff told Kratzer "that he had entered through the back door . . . and walked down the stairway which is immediately adjacent to that entrance and he slipped walking or stepping from the very last step onto . . . the wet tile floor."

In Part D of the incident report, Kratzer provided that plaintiff had "slipped when he placed his left foot on the wet floor at the base of the stairway." Further, he stated in subsection 18 of the report that "[t]he floor at the bottom of the stairway was wet and slippery due to water and the chemical used to melt the snow. The chemical used to melt the ice on the stoop outside this doorway was 'caked' on the bottom of the [plaintiff's] shoes, which gave him no traction." Under the subsection entitled "Basic Causes," Kratzer listed "[i]nadequate housekeeping standards given the weather conditions." Additionally, he noted that he had asked site engineering to place a mat at the bottom of the stairway to remedy the problem.

On November 28, 2005, plaintiffs filed their complaint alleging negligence and sought damages for pain and suffering, and loss of consortium. Prior to trial, defendant filed a motion in limine, seeking "to preclude the plaintiff[s] from introducing certain portions of the incident report prepared by [Kratzer] as well as any evidence of post-remedial actions undertaken by [defendant] following the accident."

On May 13, 2008, the court granted the motion, questioning the trustworthiness of the incident report. The court explained that:

th[e] record would not go in under a business record exception but rather any testimony with regard to what's contained in the report c[ould] be elicited by the author of the report and to the extent that the report contains information that would somehow refresh that witness'[s] recollection of what he may have written five years ago, it is certainly permissible for you to use that report in that regard.

The court also noted that there were two troublesome statements in the report: 1) that inadequate housekeeping was the cause of the accident; and 2) certain remedial measures were taken after the accident. As to placing a mat at the bottom of the stairway, defendant argued that the remedial measure was only admissible if control over the area was disputed, and it was not. Plaintiffs contended that issues relating to the placing of mats both before and after the accident were contested. The court agreed and declined to preclude the parties from addressing the issue of mat placement.

Plaintiff also filed a motion in limine seeking to bar the testimony of Mark Sullivan, defendant's resident day supervisor at Ethicon, because he "was never named as a witness in discovery" by defendant, and accordingly, plaintiffs had not deposed him. Defendant countered that in January 2007 it had advised plaintiffs by letter of Sullivan's name and last known address and his name was "all over everybody's deposition[s]." Based on defendant's letter providing notice of Sullivan's position at Ethicon and last known whereabouts, the court declined to preclude his testimony. Instead, it suggested that plaintiff depose Sullivan before he testified.

The trial began on May 14, 2008. Plaintiffs' first witness was Scott Hinkle, Ethicon's facilities engineer who oversaw contract services, including those of housekeeping and snow removal. Hinkle testified that defendant's responsibilities included cleaning the stairways and landings, and obtaining necessary floor mats. He explained that defendant had hired Cintas as its subcontractor to provide the mats; Cintas would place the mats in the buildings and remove them for cleaning as needed.

Hinkle was unaware of the times when defendant performed its cleaning services at the facility, but like Dutchtown, he believed that defendant was required to perform its services as needed to keep the building free of safety hazards. Lastly, Hinkle testified that the cleaning contract placed responsibility for safety hazards on defendant, and thus, if Cintas failed to place a mat in a needed area, it was defendant's responsibility to do so.

Plaintiffs next called Arthur Freudenberg, defendant's area manager who oversees defendant's management personnel at Ethicon. He testified that policing the stairways was part of defendant's responsibilities. Freudenberg further confirmed that defendant dealt with Cintas regarding mat deliveries. However, contrary to Hinkle's testimony, he asserted that Johnson & Johnson dictated where mats were to be placed, that Cintas owned the mats, and that Johnson & Johnson contracted with Cintas, not defendant. In essence, he believed defendant acted as a liaison who, when necessary, "would advise Ethicon that . . . maybe [it] should have a wider mat."

After plaintiffs testified, they called Paul Mulcrone as a witness. Mulcrone was also a wire drawer at Ethicon who worked from 7:00 a.m. until 3:00 p.m., Mondays through Fridays, and frequently used the rear entrance of plaintiff's building. On the day of the accident, he descended the stairway at approximately 6:45 a.m. and observed that the stairs and landing were wet. According to Mulcrone, a mat was ordinarily placed at the landing of the stairway, but on the morning of December 8, 2003, the mat was not there.

Kratzer testified next. On December 8, 2003, he worked from shortly before 7:00 a.m. until 3:30 p.m. After plaintiff reported the accident to him, he left to inspect the stairway. He also noticed that the stairway and tile floor at its bottom were wet. However, when questioned by plaintiff as to the cause of his accident, defendant objected, arguing that Kratzer's ability to testify to the matter had been resolved on the motion in limine. The court agreed and prohibited Kratzer from answering the question. Yet, when prompted by defendant on cross-examination, Kramer explained that plaintiff told him "that the chemical used to melt the ice . . . was caked on the bottom of his shoes which gave him no traction." Plaintiffs did not object. After plaintiff's accident, Kratzer received additional complaints from other employees about the wet stairway. He notified site engineering that the floor was slippery and asked that its staff mop it up and place a mat at the bottom of the stairway.

Plaintiffs next called Ronald Saxon, an engineer, as their liability expert. After Saxon qualified as an expert, the court conducted a Rule 104(a) hearing as to the scope of his testimony.

On October 10, 2007, Saxon issued his report. In preparing the report, he conducted various tests on the stairway in question using distilled water. However, both in his report and at the evidentiary hearing, he stated that various provisions of New Jersey's fire code were also relevant to issues of safety in a stairway.

There's a portion of the fire code that refers to means of egress and means of egress must be kept safe at all times, it's just an obligation to do that.

. . . .

[T]he critical clause or phrase which is incorporated in the body of the fire code . . . defines the means of egress and it says that a means of egress is a continuous and unobstructed path of travel from any point in the structure to a public way. . . . [T]he code says the means of the egress from each part of the structure including exit stairways . . . shall at all times be maintained in a safe condition and available for immediate utilization and free of all obstructions.

Defendant objected to Saxon's proposed testimony concerning the fire code, arguing that "[o]bstructions from a means of egress do not come into play in this case." Further, defendant contended the fire code "deals with duties and obligations of the building owner." The court sustained defendant's objection, agreeing that testimony regarding the fire code would confuse the jury. In so doing, the court reasoned:

[A]s I read Rule 401, the definition of relevancy, relevant evidence means . . . evidence having a tendency and reason to prove or disprove any fact or consequence to the determination of the action.

In this particular case, we have a slip and fall. The fact of the matter is whether there was or there was not perhaps a violation of the fire code is of no moment. The fact of the matter is if the floor was slippery regardless of whether or not it was a violation of the fire code, the question is whether or not there was a duty that the defendant[] in this case breached which [it] owed to the plaintiff to keep this particular area safe regardless of whether or not there was a violation of the fire code.

. . . .

Furthermore, if we look at the purpose for which expert testimony is offered, typically testimony . . . of an expert is offered where . . . a jury needs some assistance in understanding the testimony and the expert has some special training, skill, or experience that would assist them in understanding that testimony.

And the fact of the matter is, I don't see anything that is so outside the . . . understanding of the ordinary juror about the fact that there may be a fire code and if there is a slippery surface which prevents people from leaving the building in the event of a fire, that is not beyond the kin of the average juror such that they would need an expert to testify that any unsafe condition is a violation of the fire code. So any testimony in this case beyond . . . any experiments conducted with regard to the surface of the floor and what water and ice and other experiment this witness may have done, I think quite frankly would confuse this case and present issues where there need not be . . . .

Accordingly, the court limited Saxon's testimony to "whatever experiments he may have done with regard to water being on the floor or the slippery nature of this particular surface or . . . other testimony [plaintiff] intend[s] to offer this witness [for] outside of this fire code violation."

Saxon testified to his findings about the stairway. He described the stairway as a metal stairway covered with a rubber surface that descended to the tile floor. After conducting various experiments at the site, he concluded that the cause of plaintiff's accident was "[a]n accumulation of slippery substance most likely a mixture of calcium chloride and water at the foot of the stairway[,]" also known as ice melt.

However, the court sustained defendant's objection to Saxon testifying as to factors which he believed caused the accident, or how the accident could have been prevented. Plaintiffs objected, arguing that Saxon should have been permitted to testify to "what corrective actions could have been taken" and defendant's role in the accident.

On cross-examination, defendant asked Saxon if another cause of the fall could have been, as Kratzer testified, that plaintiff "had ice melt caked on the bottom of his boots." Plaintiffs objected, noting that the court had prohibited Kratzer from reading that section of the incident report which concluded that "inadequate maintenance" was the cause of his fall. Plaintiffs asserted that defendant had "opened the door" for them to question Saxon on what plaintiffs believed was the actual cause of the accident. The objection was overruled.

Defendant called Ian Greig, the owner of the company that wrote the contract specifications for the Ethicon facility. Greig believed, unless otherwise requested, that defendant was not obligated to perform housekeeping services after 10:30 p.m. on Friday evening or before 7:00 a.m. Monday morning. He contended that any services performed between those hours at Ethicon's request would constitute an "extra service[]" outside of the contract specifications for which defendant would bill Ethicon.

Defendant then called Sullivan to testify. At the time of plaintiff's accident, Sullivan was employed by defendant as a resident project manager at Ethicon. His job was to enforce Ethicon's cleaning specifications. Sullivan testified that defendant only worked two shifts Monday through Friday, "[t]he day shift start[ing] at 7[:00] a.m. and . . . the second shift start[ing at] either 5:00 or 6[:00] p.m." The second shift ended at approximately 10:00 p.m.

Sullivan was questioned regarding Hinkle's testimony that defendant was required to report to Ethicon before 7:00 a.m. on a Monday morning if inclement weather over the weekend created potentially hazardous conditions within the building. He disagreed with Hinkle's contention, stating that defendant was never directed to do so by Ethicon and that defendant had never been required to perform housekeeping duties over the weekend during his tenure at Ethicon. Regarding the issue of mats, Sullivan explained that Ethicon asked defendant to manage its contract with Cintas to provide mats. Approximately every two weeks, Cintas would come and pick up the old mats, take them away to be cleaned, and put down the new mats. Ethicon would then pay Cintas directly for the mats, which were placed at the direction of Ethicon's employees, not at defendant's request. He further noted that mats were generally not placed at the bottom of stairways, but instead at the top landings.

On appeal, plaintiffs argue that the trial court erroneously barred them from introducing Kratzer's incident report, contending that it was admissible under the business record exception to the hearsay rule; and erroneously prohibited their liability expert from testifying to fire code violations within the building. Plaintiffs also contend that the trial court erred in permitting Sullivan to testify, as his name was not contained in defendant's answers to interrogatories as a possible witness.

III.

Plaintiffs first argue that the trial court erred in denying admission of Kratzer's incident report. We agree that, to the extent the incident report was based on Kratzer's personal observations, it should have been admitted. However, we conclude that the error was harmless. R. 2:10-2.

Absent an abuse of discretion, an appellate court must defer to the trial court's rulings. Brenman v. Demello, 191 N.J. 18, 31 (2007). "As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991); see also Purdy v. Nationwide Mutual Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982).

Our role is not to substitute this court's judgment for that of the trial court, but to decide whether the trial court pursued a manifestly unjust course. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Thus, a trial judge will be found to have mistakenly exercised his or her discretion only when the judge excludes evidence "'without a rational explanation'" or "'inexplicably depart[s] from established polices, or . . . on an impermissible basis.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). The existence of other evidence in the record, properly admitted, may render error, otherwise committed in either the exclusion or admission of specific evidence, harmless. State v. Doyle, 77 N.J. Super 328, 344 (App. Div. 1962).

Plaintiffs sought to admit the incident report pursuant to N.J.R.E. 803(c)(6), the business record exception to the hearsay rule. The rule "authorizes the trial judge to reject a record which is proffered under this exception if the purpose for its preparation or other indicia indicate to him [or her] that it is untrustworthy." Ibid. Simply stated, the "rule is based on principles of reliability and necessity." Ibid; see also Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 219 (App. Div. 1996) (providing that records which meet the exception "possess a circumstantial probability of [trustworthiness], and therefore ought to be received in evidence") (internal quotations and citation omitted).

When a party seeks to admit a record pursuant to N.J.R.E. 803(c)(6), "the trial judge must conduct a N.J.R.E. 104(a) hearing to determine whether all criteria for admission, including trustworthiness, are met." Biunno, supra, comment 1 on N.J.R.E. 803(c)(6). At the hearing, the burden is on the proponent to show the document's reliability; it then shifts to the opponent to offer evidence of untrustworthiness. Hahnemann Univ. Hosp., supra, 292 N.J. Super. at 19. When determining admissibility, the judge should "state specifically the factual basis for his [or her] decision to admit or reject" the evidence. Mahoney v. Minsky, 39 N.J. 208, 221 (1963).

Here, admissibility of the incident report was first determined at the hearing on defendant's in limine motion. In its motion, defendant challenged the report's trustworthiness; in particular, it contended that Kratzer's conclusion of "inadequate housekeeping" as the cause of the accident should be redacted because Kratzer lacked actual knowledge of the accident.

Albeit not a Rule 104(a) proceeding, the hearing was held outside the presence of the jury to determine the admissibility of the incident report. The court properly questioned plaintiffs as to how the record was "trustworthy when [Kratzer] basically [was] getting from the plaintiff what happened and recording what happened in th[e] report." In doing so, the court not only applied the right standard, in that a record is presumptively valid unless it is untrustworthy, but also correctly placed the burden on plaintiffs to demonstrate the record's trustworthiness. See Hahnemann, supra, 292 N.J. Super. at 19 (placing the burden on the proponent of admissibility in the first instance to show the evidence's reliability).

At the conclusion of the hearing, the court determined that the incident report was not admissible, because it contained: 1) Kratzer's conclusion that the accident was caused by "inadequate housekeeping" based on hearsay statements provided to Kratzer by plaintiff; and 2) Kratzer's direction to site engineering to perform remedial actions after the accident. Nonetheless, many of the statements contained in the incident report were elicited through trial testimony. For example, Kratzer not only testified that he observed water on the stairway and floor after plaintiff's accident, but also that to remediate the problem, he contacted site engineering to mop and place a mat at the bottom of the stairway. The only matter he was prohibited from discussing was his opinion as to the cause of the accident. Because he lacked personal knowledge as to the happening of the accident, his proposed testimony concluding that "inadequate maintenance" caused plaintiff's accident was properly excluded.

We conclude that the trial court improperly excluded the entire incident report. The court should not have excluded the entire report because of the two objectional parts therein. Rather, the court should have redacted the two parts it found objectionable and admitted the balance of the report. Indeed, defendant only sought such remedy. However, we determine that the trial court's exclusion of the incident report was harmless because plaintiffs elicited the admissible parts of the report through the witnesses' testimony. R. 2:10-2.

Plaintiffs argue that the selective "picking and choosing" of what testimony the jury heard as to the causes of the incident, as recorded in the incident report, was unbalanced, one-sided, and unfair. In making this argument, plaintiffs refer to Krazter testifying that plaintiff told him that, at the time of his fall, he had ice melt caked on the bottom of his shoes. However, this hearsay was admissible as the admission of a party-opponent pursuant to N.J.R.E. 803(b)(1).

Throughout the trial, plaintiffs argued that the accident was caused by plaintiff slipping on a floor that was previously wet; Kratzer's testimony that plaintiff told him that he had ice melt caked on his shoes provided an alternate theory that could have rendered plaintiffs' contentions invalid. As such, the statement was properly admitted pursuant to N.J.R.E. 803(b)(1). See Biunno, supra, comment 4 on N.J.R.E. 803(c)(6) (noting that a hearsay statement embedded in a report may be admissible under another hearsay exception).

IV.

Plaintiffs argue next that the court's decision to limit Saxon's testimony to the cause of the accident while prohibiting reference to the fire code as an industry standard was erroneous. Plaintiffs also contend that it was error to limit Saxon to opining that the cause of the incident was a slippery substance at the bottom of the stairway, without permitting testimony consistent with his written report, correlating the presence of the slippery substance to defendant's negligence. We disagree.

Relevant evidence is "evidence having a tendency in reason to prove or disprove" a material fact, N.J.R.E. 401, and it is usually admissible unless some exception applies, N.J.R.E. 402. "In determining whether evidence is relevant, the inquiry focuses upon 'the logical connection between the proffered evidence and a fact in issue.'" Verdicchio v. Ricca, 179 N.J. 1, 33 (2004) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). Generally, "if evidence does support the existence of a specific fact, even obliquely, it is relevant and admissible." Id. at 34. The trial court's determination of whether evidence is relevant is discretionary. Wymbs v. Twp. of Wayne, 163 N.J. 523, 534 (2000).

However, relevant evidence may be excluded if "its probative value is substantially outweighed" by risks that include undue prejudice, confusion of the issues, and waste of time. N.J.R.E. 403; Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). The decision to exclude relevant evidence is similarly within the trial court's "broad discretion," and it is reversible only if the court "'palpably abused its discretion'" by making a finding "'so wide off the mark that a manifest denial of justice resulted.'" Green, supra, 160 N.J. at 492 (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

Pursuant to N.J.R.E. 702, "[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 by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." There are three requirements for admission of expert testimony:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that such an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[State v. Kelly, 97 N.J. 178, 208 (1984).]

Simply put, "if a trial court finds that a proposed expert will offer testimony only as to matters within the common knowledge of the average juror, or testimony unhelpful for some other reason, the testimony may be rejected." Biunno, supra, comment 1 on N.J.R.E. 702.

Furthermore, "the trier of fact can be assisted only in areas that are relevant to its deliberations. Therefore, if the trial court determines that the proffered expert testimony addresses issues irrelevant to the jury's proper function in the particular case, the testimony may be excluded." Ibid.

Plaintiffs contend that testimony concerning safety codes offered in connection with expert testimony, identifying them "as illustrative evidence of safety practices or rules generally prevailing in the industry, is proper." In support of their argument, they cite Costantino v. Ventriglia, 324 N.J. Super. 437 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), and Smith v. Kris-Bal Realty, Inc., 242 N.J. Super. 346 (App. Div. 1990). In both cases, we held that experts can testify to general industry standards as evidence of a standard of care. Costantino, supra, 324 N.J. Super. at 444; Smith, supra, 242 N.J. Super. at 348.

Here, plaintiffs' expert sought to use the New Jersey Fire Code to show "an overriding obligation to keep areas safe." Specifically, he wanted to use that portion of the code that concerned means of egress to show an obligation on the part of defendant to keep the stairway free of all safety hazards, including water. However, "for relevancy reasons," the trial court limited Saxon's testimony to "any experiments conducted with regard to the surface of the floor." In doing so, the court noted that, because this was a slip and fall case, "whether there was or there was not [] a violation of the fire code is of no moment." Furthermore, the court believed that the jury charge sufficiently addressed the standard of care in the instant dispute, the fire code concerned duties owed by a building owner, and to introduce the fire code would have confused the jury.

We are satisfied that the trial court properly excluded evidence of the fire code. It was uncontested that water in a stairway would constitute a safety hazard under any industry standard; the contested issue was responsibility for the stairway at the time of the accident. For example, the accident occurred between 6:40 and 6:50 a.m., and various witnesses testified that defendant was not obligated to perform cleaning services before 7:00 a.m. Monday morning.

Furthermore, the jury heard contradictory evidence concerning whose responsibility it was to ensure mats were properly placed in the stairway and whether they were generally placed at the bottom of the stairway, as plaintiff urged. Finally, there was a dispute whether water was on the stairway and floor before the accident, or whether plaintiff's fall was due to ice melt caked on the bottom of his shoes. Simply put, any violation of the fire code would not have been relevant to the disputed issues, as the trial court correctly provided; instead of the expert testimony assisting the jurors, it would more likely have confused them by providing an inapplicable standard on a matter within their common understanding, namely, that water on a floor is a safety hazard. Thus, the trial court properly limited Saxon's testimony to the effects of water on stairways as risk of "confusion of issues[] or misleading the jury" outweighed the probative value of the fire code testimony. N.J.R.E. 403.

Plaintiffs' contention that the limitation on Saxon's testimony would explain the jury's verdict of no negligence is also without merit. They allege that Saxon should have been permitted to testify to the accident's cause and "correlate the presence of the slippery substance at the bottom of the stairway to a breach of duty on the part of [defendant]." Not so, as Saxon had no actual knowledge of plaintiff's accident or of defendant's contractual duties at Ethicon.

Additionally, Saxon was not qualified as an expert in housekeeping services and could not attest to whether it was defendant's responsibility to place a mat at the bottom of the stairway. Essentially, even disregarding the limitation on his testimony, all Saxon could testify to was that water unreasonably left on a stairway floor by a party who had a duty to maintain it would cause a safety hazard; he could not make any determination that water was actually on the stairway at the time of plaintiff's accident, or that defendant was the responsible party on that particular date and time pursuant to defendant's contract with Johnson & Johnson. Therefore, the court did not abuse its discretion in limiting Saxon's testimony. Green, supra, 160 N.J. at 492; see N.J.R.E. 702, 403.

V.

Lastly, plaintiffs argue that the trial court erroneously permitted Sullivan to testify. Plaintiffs contend that Sullivan's testimony was prejudicial because defendant failed to identify him as a possible witness, and his testimony "bore on a critical and material issue." We disagree.

"It is well settled that parties to litigation may through discovery proceedings elicit from their adversaries the names of witnesses proposed to be used at the trial, . . . and that failure to provide the same may result in sanctions imposed by the court excluding their testimony." Brown v. Mortimer, 100 N.J. Super. 395, 401 (App. Div. 1968). Generally, sanctions imposed should be "just and reasonable," ibid., and "unnamed witnesses should be permitted to testify where the failure to supply their names in discovery was not the result of a design to mislead and where there was no surprise or prejudice to the opposing party if the testimony were to be allowed." D.G. ex rel. J.G. v. North Plainfield Bd. of Educ., 400 N.J. Super. 1, 21 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, ___ U.S. ___, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008).

Prior to trial, plaintiffs filed a motion in limine objecting to defendant calling Sullivan as a witness, as he was never named as a witness in discovery. However, in a January 2007 response to plaintiffs' request for identification of defendant's day supervisor at time of plaintiff's accident, defendant identified Sullivan and provided his last known address. Determining that some notice had been provided to plaintiffs as to Sullivan's identity and position, the court refused to preclude his testimony; and instead, granted plaintiffs leave to depose Sullivan. However, plaintiffs did not do so.

In support of their contention, plaintiffs distinguish this court's holding in Brown, where a plaintiff sustained personal injuries following an automobile accident. Supra, 100 N.J. Super. at 399. In Brown, the officer who investigated the accident was unavailable at the time of trial, as he was serving in Vietnam. Ibid. Instead, the chief of police testified that the officer had prepared a police report about the accident. Ibid. Although the defendants had objected to his testifying "because his name had not been given in answers to interrogatories as a person who had relevant knowledge of the accident," he was permitted to testify at trial. Id. at 399-400.

In permitting the testimony, the trial court explained that: (1) the "defendants concede[d] that there was no intention on the part of plaintiff to mislead them"; (2) defendants "were neither surprised nor prejudiced" by the testimony when "[t]hey knew of the existence of the report and had previously been advised" that the unavailable officer had prepared it; and (3) the police chief's "testimony concerning established police procedures for the preparation and filing of an accident report was clearly not barred by [the] plaintiff's failure to list him as a witness who had relevant knowledge of the accident." Id. at 402 (emphasis omitted).

Plaintiffs argue that this case is "remarkably different" as defendant "was evasive and grudging in providing information in discovery[,]" specifically, in failing to name Sullivan as a person with relevant knowledge in answers to interrogatories. Further, because plaintiffs allege they were surprised by Sullivan's testimony, they assert that the court's reasoning that their counsel had "some notice" of Sullivan's identity was erroneous, in that they were only provided the identity of the day supervisor on duty on the date of the accident. That, plaintiffs contend, is different than putting them on notice that Sullivan was a witness with relevant knowledge who was expected to testify at trial.

It was in the trial court's discretion to permit Sullivan's testimony if the record indicated no intention on defendant's part to mislead, surprise, or prejudice plaintiffs. Ibid. The record on appeal supports the conclusion that the court did not abuse its discretion in permitting Sullivan's testimony. Initially, more than one year before trial, defendant had provided Sullivan's name and address in response to plaintiffs' request for the supervisor's identity. As such, and similarly to Brown, plaintiffs were put on notice as to Sullivan' position and identity; and plaintiffs knew the importance of defendant's day supervisor as a witness in the case. However, even if that notice was insufficient, the judge granted plaintiffs leave to take Sullivan's deposition before he testified at trial.

Given the considerable testimony contrary to plaintiffs' position at trial, it is unlikely that Sullivan's testimony caused the unanimous verdict in defendant's favor. In fact, while plaintiffs claim surprise and prejudice as a result of Sullivan contradicting Hinkle's testimony, we note that Greig also testified that defendant was not obligated to work before 7:00 a.m. on a Monday morning. Accordingly, even if it was error to permit Sullivan to testify, it was harmless. R. 2:10-2.

 
Affirmed.

Plaintiff James Kilhullen sued for personal injuries, and plaintiff Jennie Kilhullen sued per quod. For purpose of this opinion, unless otherwise expressed, the term "plaintiff" shall refer to James Kilhullen only.

In support of their argument, plaintiffs place emphasis on this court's comments in Hahnemann Univ. Hosp. v. Dudnick, which characterized N.J.R.E. 803(c)(6) as a "more relaxed" standard than the former rule. 292 N.J. Super. 11, 17 (1996). However, that portion of the opinion "should be properly read as referring to the fact that the standards for admitting computer-generated records have become more relaxed." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2009).

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A-4763-07T1

August 21, 2009