DORI ST. GEORGE, an individual v. COLONIA GIRLS SOFTBALL LEAGUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2364-08T22364-08T2

DORI ST. GEORGE, an individual,

Plaintiff-Respondent,

v.

COLONIA GIRLS SOFTBALL LEAGUE,

Defendant-Appellant,

and

WOODBRIDGE TOWNSHIP BOARD OF EDUCATION,

Defendant,

and

WOODBRIDGE TOWNSHIP BOARD OF EDUCATION,

Defendant/Third-Party

Plaintiff,

v.

MARKEL INSURANCE COMPANY,

Third-Party Defendant.

________________________________

 

Argued: December 9, 2009 - Decided:

Before Judges Cuff, Payne and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1942-06.

Gerard X. Smith argued the cause for appellant (Naulty, Scaricamazza & McDevitt, LLC, attorneys; Mr. Smith, of counsel and on the brief).

Paul R. Garelick argued the cause for respondent (Lombardi and Lombardi, P.A., attorneys; Mr. Garelick, on the brief).

PER CURIAM

Defendant Colonia Girls Softball League (the League) appeals from a September 22, 2008, order for judgment in favor of plaintiff Dori St. George finding the League fifty-one per cent at fault for plaintiff's trip-and-fall accident on property owned by defendant Woodbridge Township Board of Education (the Board) and awarding net damages of $127,500, plus attorneys' fees and expenses pursuant to Rule 4:21A-6(c)(3) and (4) in the amount of $1250 and prejudgment interest in the amount of $18,525.75. We now reverse.

I.

On Monday, May 23, 2005, at about 1:45 p.m., plaintiff was walking her dog on a sidewalk between two ball fields at the back of the Board property used by the Colonia Middle School during weekdays for school activities and on evenings and Satur days by the League for practices and games, which are open to the public. At the time of her fall, there was an existing con cession stand and a pavilion being constructed by the League close to the concession stand. There was a "handshake" agreement between the Board and the League that the League would clean up after itself after games and practices and after any work was done on the pavilion.

Plaintiff had walked down this sidewalk with her dog sev eral times a week for approximately eight years without any incidents or complaints. On the day of the accident, plaintiff walked down the sidewalk from behind the school and past the concession stand. As plaintiff did so, she noticed that the construction area was "a little bit messy" and saw ten to fif teen small rocks, up to one-half inch in diameter, and debris around, which she was able to avoid as she walked up to the pavilion. She observed teachers and children taking gym classes who were running around to the right and left of the sidewalk beyond the pavilion and concession stand.

The pavilion has a concrete pad, posts, and a roof, but no side walls. The concrete pad is elevated above the sidewalk. There are five posts each along the front and back of the pavil ion and one post at the center of each side. The slope between the sidewalk and the concrete pad from the right front corner post to the fourth front post is paved with macadam. The slope between the sidewalk and the concrete pad from the fourth post to the left front corner post is covered by a raised landscape-block planter filled with soil and mulch. The strip between the left side of the pavilion and the ramp to the concession stand is also macadam. Picnic tables are located on the concrete pad beneath the roof.

Plaintiff saw Teddy Markou, the League volunteer in charge of construction and preparing the fields for softball games, standing toward the rear of the pavilion and saw the gym classes further along the sidewalk. She stopped to speak with Markou for about four minutes. She remained on the sidewalk at all times, standing where the sidewalk was cracked. After this brief conversation, plaintiff picked up her right foot, turned to her left to return in the direction from which she had come, stepped on a rock with the back of her left foot, and fell on the left side of her body, landing on her left elbow. On cross-examina tion, she testified she turned to her left, picked up her right foot to take a step, and stepped on a rock with her right foot. As a result of her fall, plaintiff suffered a comminuted frac ture of the left radial head that required a metal radial-head joint implant. She has a significant scar along her forearm and elbow from the surgery.

Plaintiff testified that she fell on the sidewalk toward the right front of the pavilion, not on the sloped mac adam or in the pavilion and not in front of the planter. She stated that there had been orange fencing surrounding the pavilion construction and sidewalk; when it was present, she never walked down the sidewalk. None of the orange fencing was up on May 23, 2005, and she thought the construction had been completed.

When plaintiff returned to photograph the area of her fall ten days later, the sidewalk had been cleaned up. She brought some small pieces of broken concrete to recreate the condition of the sidewalk in the photographs. She admitted that she did not know how the little rocks got on the sidewalk or how long they were there. She also admitted that the parking lot between the back of the school building and the concession stand was gravel or broken stone, not paved, although she had parked in front of the school.

Plaintiff's expert, Ronald L. Saxon, P.E., testified that removing the orange fencing that had blocked the sidewalk prior to plaintiff's fall was a violation of the International Prop erty Maintenance Code, as adopted by the Township of Woodbridge. Those standards "require that areas be kept free of hazards . . . and they're performance oriented as opposed to descriptive oriented so they say must be kept free of hazards such as debris, obstructions, things like that, open holes, things like that." He went on to elaborate that rocks on the sidewalk were "prohibited by the code that was enacted." The removal of the fencing implied that the area was safe for pedestrians. He asserted that the League,

[b]eing responsible for the construction[,] knew of hazards at the site, knew of all of the various hazards that might exist at a con struction site and had taken precautions to barricade it at some time. So they had anticipated the problem. Therefore, in anticipation of the problem and know[ing] that people would normally be using the area if it weren't barricaded, they were in a [position] to foresee that debris in the area or any other condition would present a hazard to those individuals and they should have done something about it. There are several things they could have done. One thing is to have removed the debris, police[d] the area. Another is to have avoided get ting it there in the first place, but essen tially because of the nature of the site and the nature of the debris, rocks in an area, regardless of where the rocks came from and how they got there, whether they were rocks or broken pieces of concrete, had the barri cade that had originally been there for a good reason been left there then access to the area would have been precluded and [plaintiff who] had said she had already evaded the barricade wouldn't have been where she was if she fell.

Saxon opined that the "absolute cause" of the fall was the rock, but a "causation" was the lack of a barricade. During cross-examination, Saxon admitted that most of the pavilion had already been constructed when the photographs were taken, but that did not change his opinion. He pointed out that Markou testified in his deposition that he had seen children tossing small rocks around and that they got rocks from behind the pavilion, although he denied seeing any construction debris. He also noted that Markou admitted in his deposition that he and Ellen McDonald were responsible for putting up barricades block ing the sidewalk whenever they were engaged in construction, and Saxon asserted that the barricades should have remained in place when construction was ongoing.

Markou testified at trial that he spent fifteen to thirty hours per week volunteering for the League. The work on the pavilion started in the fall of 2004 with donated materials. On the day of the accident, the pavilion was eighty-five percent complete. They still needed to apply shingles, paint the posts, and install soffits and gutters. None of the work to be done involved the use of rocks. Most of the work was done on Satur days, and before any work was done, they would put garbage cans in the grass and put up caution tape. Nothing was ever left up overnight; the ground would be swept, the tools were put away, and the barricade removed. Orange fencing was never used.

Although rocks were used under the slab in October 2004, they were not being used in May 2005. However, at that time there was bluestone that the volunteers had previously installed across the back of the slab as a transition down to grade level. Stones could also be found in the parking lot behind the concession stand, but there were no rocks in the planters. Over the years, Markou had occasion to see rocks on the sidewalk. The younger siblings of softball players would pick up rocks from the grass and parking lot, and they could have thrown them on the sidewalk. The League always cleaned up and broom swept everything after a game.

Markou was in the pavilion at the time of plaintiff's fall, and he was preparing the equipment to apply lines to the fields. No construction work was occurring that day, although they may have done some the prior Saturday. As he walked from the park ing lot to the pavilion fifteen minutes before plaintiff fell, he did not observe any stones on the sidewalk. He did not recall speaking to plaintiff and did not see her until she was falling, or had fallen, near the outside corner of the planter. He ran over and grabbed the dog's leash because her dog was dragging her on the ground. One or two gym teachers came over and helped plaintiff stand up. Markou did not inspect the side walk to ascertain the cause of her fall. Plaintiff left and Markou proceeded to line the fields. To do so, he walked back and forth on the sidewalk and did not see any stones or rocks.

The two teachers were Patricia MacDonald and Annette McCul lough, both of whom testified at trial. McCullough stated none of the teachers or children who used the sidewalk from the school out to the ball fields ever had any accidents on it. She had never seen rocks scattered on the sidewalk or heard any com plaints about rocks or construction debris on the sidewalk. She took five classes per day out to the fields and back to the school building.

On the day of plaintiff's accident, McCullough took a gym class out to the field after lunch. She did not see any debris or rocks on the sidewalk that day, even though she pans the area looking for anything that presents a risk of harm to the chil dren. Had she seen something like that, she would have picked it up. The children are not allowed to play with rocks during gym class, and they are not allowed to use the pavilion because it is there for League activities.

While McCullough and MacDonald were standing next to each other watching a gym class at the ball fields, they saw plain tiff walking her dog. Plaintiff walked past them, and they con tinued to watch the children. McCullough then turned and saw plaintiff on the ground about twenty-five feet away in the area between the concession stand and the pavilion. McCullough went over to ask plaintiff if she was all right; MacDonald remained and continued to watch the children. Markou also walked over to plaintiff. As McCullough walked over, she did not see any rocks or debris on the sidewalk. She wondered what caused plaintiff to fall because she saw nothing in the area. Plaintiff did not identify what caused her to fall and did not respond to McCul lough's inquiries, so McCullough returned to the spot where Mac Donald was standing. When the gym class was over, they returned to the school building but saw nothing on the sidewalk. McCul lough did not see ten to fifteen rocks on the sidewalk where plaintiff fell. There were no League games and no construction taking place on the day of plaintiff's fall. During school days, she never saw the sidewalk blocked off with tape or any construction debris on it; it was always clear and passable. However, she did see construction tape around the back of the pavilion when the League was working there, but no construction was ever done during the school day.

MacDonald testified she brought her gym classes outside five times every day during the spring of 2005, weather permit ting. She had no recollection of any children or teachers ever having had an accident on the sidewalk. She never saw any rocks or debris on the sidewalk. On the day of plaintiff's accident, she was standing by the far right end of the pavilion next to McCullough. After plaintiff walked past them, she saw plaintiff on the sidewalk between the concession stand and the pavilion, although she did not see her fall. McCullough and Markou walked over to plaintiff. When McCullough returned to MacDonald's side, she said she did not know what happened because plaintiff would not respond to her. After the gym class was over, they walked back to the school building along the sidewalk and did not see anything on it. She also did not see anyone clean any thing up. Construction did not take place during the school day, the sidewalk was always free of construction debris, and the League was "very neat about putting the pavilion up." How ever, she admitted that rocks get kicked up on the sidewalk occasionally.

Anthony D'Orsi, the supervisor of buildings and grounds for the Board and the last witness to testify at trial, stated that the League was responsible for cleaning up after the games, including broom sweeping the sidewalk, about which D'Orsi was emphatic. He inspected the sidewalk every morning and every evening. The construction and clean up they did "was acceptable every single day," and if there was any sort of debris on the ground, he would personally pick it up prior to going to work. When construction was occurring, the League always blocked off the sidewalk for the entire length of the pavilion. Although the two gym teachers told him what happened, he had no idea what caused plaintiff to fall.

The jury was charged on September 12, 2008, and returned its verdict the same day. It found that (1) the League was neg ligent; (2) the League's negligence was a proximate cause of plaintiff's fall and injuries; (3) plaintiff was negligent; (4) plaintiff's negligence was a proximate cause of her fall and injuries; (5) the League's percentage of negligence was fifty-one percent; and (6) plaintiff's total damages were $250,000. Judgment on the verdict was entered on September 22, 2008. At some unspecified time thereafter, the League filed a motion for judgment notwithstanding the verdict (JNOV) or for a new trial.

On December 5, 2008, counsel argued the League's motions. He urged that there was no evidence regarding the source of the alleged rock, how it got on the sidewalk, how long it was on the sidewalk, or that it was ever generated by the construction. As to the construction tape, he asserted that there was no evidence when the last construction activity took place, when it was to next take place, how much construction was done, and what was left to do. This, coupled with the testimony from the defense witnesses, demonstrated that plaintiff had not made out a prima facie case of negligence.

Defense counsel then pointed out that he stated in his opening remarks that he would bring in "the two teachers and maybe Dr. DeLuca depending on how the testimony goes." He objected during plaintiff's summation, that her counsel stated:

They could have brought in someone. They didn't. They didn't bring in any expert. The esteemed Dr. DeLuca, they left him home too on damages. And by the way, if my recollec tion is not the same, your recollection con trols. My recollection is [defense counsel] squarely stood up and said here is what I'm presenting to you.

Defense counsel urged that this comment was so prejudicial that the League was entitled to a new trial.

In deciding the motion, the judge found:

There were no gold star witnesses. Really the only direct evidence was the plaintiff. There were credibility issues raised as to the plaintiff, the picture tak ing and so on. Clearly on the issue of credibility in this case, the jury decided in favor of the plaintiff. The defense wit nesses were primarily circumstantial. There was some testimony by . . . one of the teachers, I don't know whether it's conjec ture or suspicion or what that the dog may have pulled the owner to the ground, but admittedly nobody actually saw the fall except the plaintiff herself.

In addition, the plaintiff's expert was uncontradicted. He said taking down the barricade was a violation of standard and that's what the jury had to work with. Now we won't know whether it was actual notice, constructive notice, removal of the barri cade, we didn't present the jury with any special interrogatories in that regard, but having been charged with the law and the standard established by the law, they resolved the issues of credibility obviously in the fashion that resulted in a verdict favorable to the plaintiff in the case on whatever standard in the charge they found the plaintiff met.

And in fact, the plaintiff admitted nobody saw the stone or knew precisely where it came from or when. That may give rise to . . . an inference that they decided on the construction standard. But as I said, that's conjecture and we do not know that as a matter of fact.

Based on the determination of credibil ity therefore, reasonable minds could dif fer. The jury could have reasonabl[y] found that the standard was not violated or that the legal duty had been met and they could reasonably have found that the plaintiff's version of what happened was accurate and that under all the facts it was appropriate to charge the [League] with liability.

Again it's . . . my recollection that while the defense eloquently argued against the position of the plaintiff's expert that in fact it was not actually rebutted evidentially.

As far as the weight of the evidence issue raised in another point on the [League's] part, the standard is whether reason able minds could differ and that's the standard I've applied.

Plaintiff -- counsel's comments during summation, we know now that the transcript discloses that defense counsel's opening reference to Dr. DeLuca was equivocal, not definite or perhaps it would have been bet ter if it hadn't been raised in summation, but first of all it was an isolated fleeting comment. Secondly, the plaintiff's attorney avoided appealing for an adverse inference. Thirdly, the defense itself admitted that the plaintiff suffered a grievous injury but that it was not caused by the defense and therefore there were really no medical issues in controversy requiring the defense doctor to be called.

Accordingly I can't see how there could have been any prejudice to the defense in that remark. And I'm absolutely convinced it could not have produced an untoward result or affected the actual outcome.

This appeal followed. The League contends that plaintiff failed to prove that it had notice of any hazardous condition and that removing the construction tape was not negligent in and of itself. Thus, the League urges that the trial judge erred in denying its motion for JNOV or a new trial. The League also asserts that the judge erred in denying its new-trial motion based on the improper closing remarks by plaintiff's counsel.

II.

A trial judge's decision on a motion for a new trial will not be reversed "unless it clearly appears that there was a mis carriage of justice under the law." R. 2:10-1; see also Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). To determine whether there was a miscarriage of justice, we defer to the trial judge regarding "intangibles" not transmitted by the record, namely, credibility, demeanor, and "feel of the case," but otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 361 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, supra, 55 N.J. at 6.

When reviewing a jury trial, we should thoroughly "canvass the record to determine if 'reasonable minds might accept the evidence as adequate to support the jury verdict.'" Klawitter v. City of Trenton, 395 N.J. Super. 302, 324 (App. Div. 2007) (quoting Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 377 (App. Div. 2001)). "'[A] jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty the plain miscarriage of jus tice.'" Doe v. Arts, 360 N.J. Super. 492, 503 (App. Div. 2003) (quoting Carrino, supra, 78 N.J. at 360). Credibility is unquestionably a jury issue, and its verdict may be set aside only when it could only have been motivated by "'mistake, parti ality, passion or prejudice.'" Ibid. (quoting State v. Haines, 20 N.J. 438, 446-47 (1956)).

With these principles in mind, we review the League's contention that plaintiff failed to establish a prima facie case of negligence. In this regard, the burden of proof is on plaintiff to establish each element of her claim. Those ele ments are: (1) the League owed a duty to plaintiff, (2) the League breached that duty, and (3) the breach of that duty by the League was a proximate cause of plaintiff's injuries. Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997); Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994), certif. denied, 139 N.J. 441 (1995).

Plaintiff advanced two theories of liability that the rock she stepped on was a hazardous condition of property and that the removal of the construction tape, when work was not com pleted, constituted negligence. As to the latter, the judge observed that "[p]laintiff's expert was uncontradicted. [Saxon] said taking down the [tape] was a violation of standard and that's what the jury had to work with." However, it is unclear whether the jury based its verdict on the League's alleged negligence with respect to the presence of the rock on the sidewalk or its alleged negligence in removing the tape, because, as the judge observed, "we didn't present the jury with any special interrogatories in that regard." The absence of special interrogatories proves fatal to the verdict.

We begin with the duty imposed on the League:

A possessor of land is subject to liability for bodily harm caused to gratuitous licen sees by a natural or artificial condition thereon if, but only if, he (a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the con dition or realize the risk, and (b) invites or permits them to enter or remain upon the land, without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to warn them of the condition and the risk involved therein.

[Berger v. Shapiro, 30 N.J. 89, 99 (1959) (citation and internal quotation omitted) (emphasis added).]

The League is considered the "possessor" because it constructed the pavilion and assumed responsibility for the sidewalk in front of the pavilion where plaintiff's accident occurred.

An essential element to imposition of liability on a possessor for a hazardous condition of its property is that it had notice of the hazardous condition. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984); Restatement (Second) of Torts 343. Notice may be established either (1) by proof that the possessor of the land knew of the unsafe condition for a sufficient period of time prior to the accident to permit the possessor, in the exercise of reasonable care, to correct it; or (2) by proof that the condition existed for a sufficient length of time prior to the accident that, in the exercise of reasonable care, the possessor should have discovered its existence and corrected it. Ertle v. Starkey, 292 N.J. Super. 1, 8-10 (App. Div. 1996); Ruiz v. Toys R Us, Inc., 269 N.J. Super. 607, 614-15 (App. Div. 1994); Simpson v. Duffy, 19 N.J. Super. 339, 343 (App. Div.), certif. denied, 10 N.J. 315 (1952).

Here, plaintiff failed to prove that the League had actual knowledge of the presence of any rocks on the sidewalk. Neither plaintiff nor her expert knew from where the rocks came. Markou did not see any rocks that day, having walked past the pavilion fifteen minutes before plaintiff fell and on the sidewalk after he lined the fields. Neither of the teachers saw any rocks during morning gym classes as they walked out to the fields and back to the school. D'Orsi inspected the sidewalk in the morning before plaintiff's fall and found no rocks on it. In short, there was no evidence that the League had any notice of the condition, and there was no evidence that the condition had existed for a sufficiently long period of time that the League had constructive notice of its presence. As a result, the issue should not have been submitted to the jury.

Where a jury might have decided a case on a legal theory as to which it was improperly instructed, the judgment must be reversed and the matter remanded for a new trial even though the jury might have decided the case under another legal theory as to which it was properly instructed. Chattin v. Cape May Greene, Inc., 243 N.J. Super. 590, 601-02 (App. Div. 1990), aff'd, 124 N.J. 520 (1991); Mason v. Niewinski, 66 N.J. Super. 358, 365-69 (App. Div. 1961). Because we do not know whether the jury found liability based on the alleged failure to remove the rocks or on the League's alleged failure to maintain the construction tape until all construction was completed, the issue of liability must be retried with the proofs limited to the latter theory.

Although the League contends that removal of the construction tape was not negligence in and of itself, it did not present expert testimony that contradicted Saxon's opinions, and it did not impeach Saxon's opinions with the building code on which he relied or any learned treatises. As a result, we find no merit in this contention, much less a miscarriage of justice, and remand the issue of liability for a new trial.

The League also contends that the trial judge erred in failing to grant a new trial based on improper statements made by plaintiff's counsel during summation. This issue has been rendered moot by virtue of our resolution of the first issue raised by the League.

 
Reversed and remanded for a new trial on liability.

The particular code provisions allegedly violated were not identified during Saxon's testimony and copies were not moved into evidence by either party.

Markou testified in his deposition that construction was not completed until September 2005.

Contrary to Rule 2:6-1(a)(1)(C), defendant did not include the notice of motion and supporting certification in the appendix on appeal. This, of course, makes it impossible to ascertain whether this appeal is timely.

Dr. DeLuca was an examining physician.

Defense counsel also asserted that the judge erred in refusing to allow him to submit evidence that the people working for the League were all volunteers and the League was a nonprofit organization. This issue has not been raised on appeal.

We do not know whether the League obtained a report from an expert on liability but elected to proceed without such expert testimony. If it did, it is not bound by that election for the retrial. Of course, if it did not obtain an expert report on its behalf, it may not do so now without leave of court.

(continued)

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A-2364-08T2

July 16, 2010