SHARON M. RAIMER v. ROSENBERG, HAMMER & SMITH, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4607-08T34607-08T3

SHARON M. RAIMER and

STEVEN L. RAIMER,

Plaintiffs-Appellants,

v.

ROSENBERG, HAMMER & SMITH, INC.,

AND HADDON HILLS APARTMENTS,

Defendants-Respondents.

________________________________________________________________

 

Argued March 16, 2010 - Decided

Before Judges Carchman, Lihotz and

Ashrafi.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County,

Docket No. L-120-07.

Craig R. Fishman argued the cause for

appellants (Fishman, Littlefield &

Fishman, L.L.C., attorneys; Mr. Fishman,

on the brief).

Marc B. Zingarini argued the cause for

respondents (Weber, Gallagher, Simpson,

Stapleton, Fires & Newby, L.L.P.,

attorneys; Mr. Zingarini and Frederick

W. Brown, on the brief).

PER CURIAM

Plaintiff Sharon M. Raimer appeals from a jury verdict finding that defendant Haddon Hills Apartments was not negligent in the maintenance of a sidewalk on which plaintiff slipped and fell. Plaintiff's claims of error focus on three discretionary judicial rulings as well as a claim that the trial judge improperly presented the issue of comparative negligence to the jury. For the first time on appeal, plaintiff also asserts that the judge failed to provide to the potential jurors a preliminary explanation of the case. We reject plaintiff's contentions and affirm the jury verdict.

These are the relevant facts adduced at trial. At approximately 7:00 p.m. on February 7, 2005, plaintiff, a resident at the defendant apartments, was walking from her apartment to her car, which was parked in apartment parking lot. It had snowed on January 19, January 22 and January 23, 2005, resulting in an accumulation of twelve to fifteen inches of snow. Another light snowfall followed on February 4.

Plaintiff was walking from her back door to her car to retrieve a pack of cigarettes and claimed that there was "still ice and frozen snow on my steps." Because of the ice and snow, plaintiff believed "it would be safer if I went across the grass . . . in a direct line to the parking lot." Plaintiff stated

there is one, two, three sidewalks that you have to cross over with grass in between the sidewalks. I call these the V walks . . . .

And I went to go cross over the V walks very gingerly over the first sidewalk, through the grass, over the second sidewalk, through the grass and then I took a couple of steps on the third one, almost making it to the car space, and that's when I went down.

After the fall, plaintiff claimed to observe ice and frozen footprints along the area where she fell.

Plaintiff filed a complaint in the Law Division, alleging that defendants "negligently and carelessly failed to warn, failed to prevent injury, maintained, failed to make safe, failed to identify a hazard, failed to eliminate a hazard, and/or were otherwise negligent, as a result of which . . . plaintiff . . . was caused to slip and fall[]" and suffered "severe and multiple injuries[.]"

The original discovery end date of December 24, 2007 was extended five times - by consent of the parties and respective motions by plaintiff and defendants - to September 19, 2008. Non-binding arbitration was scheduled for October 14, 2008, and on October 13, 2008, defendants hand-delivered to plaintiff amendments to interrogatories, which included an August 10, 2007 expert report by Keith Arnesen (the Arnesen report) addressing the weather in January 2005 and the level of snow on the ground on February 7, 2005. The Arnesen report stated:

For the month of January 2005 in west central New Jersey temperatures averaged much above normal the first half of the month and much below normal the second half along with a major snowstorm on the second half along with a major snowstorm on the 22nd to 23rd. Snowfall totals in the vicinity of Haddonfield, NJ were around 10 inches. At 7 am on the February 1st there was about 6 inches of snow remaining on unplowed and untreated surfaces in the vicinity of Haddonfield, NJ. Snow on the untreated and unplowed surfaces had been reduced to one inch by the morning of February 7th and a trace by the 8th at Somerdale, NJ which is about 5 miles to the south of Haddonfield. No precipitation occurred during February 5th, 6th or 7th. It is likely that the approximate conditions at Haddonfield, NJ at 7 p.m. on February 7 2005 were as follows,

Temperature- 40 degrees F

. . . .

Only a trace of snow on unplowed and untreated surfaces remaining from the January event.

In response to the late submission of the expert report, plaintiff filed a motion to bar defendants from presenting Arnesen's testimony at trial. The court issued a November 6, 2008 oral decision and order denying plaintiff's motion, noting "that [plaintiff]'s request is not supported by the New Jersey Court Rules[.] [T]he defendants electively retained two additional experts[, and that] is permissible."

On February 6, 2009, plaintiff amended her discovery responses by producing 258 photographs and a videotape of the apartment complex taken January 29, January 31, and February 1, 2009. Defendant responded with a motion in limine to preclude use of the videotape and photographs on the basis of relevancy. The judge permitted use of photographs taken in close temporal proximity to the date of the accident - those taken on February 8 and 9, 2005 - but barred photographs taken in 2009.

Trial commenced on April 20, 2009. Plaintiff testified as to weather conditions prior to her accident, as well to the happening of the accident. Cross-examination focused, in part, on the actual location of the slip and fall.

Defendants proffered the testimony of Marie Oetter, the resident manager of the Haddon Hills Apartments from 1978 to 2006. Part of Oetter's managerial responsibilities included "mak[ing] sure" snow and ice were removed from the apartments. Specifically addressing the January 2005 snow storms, Oetter recalled that she had crews working overtime on January 22 and January 23 to remove the twelve-inch snowfall. During her testimony, she indicated that she maintained a staff of nine people engaged in snow removal. She remembered this particular storm and had personally prepared a list of overtime hours reflecting the "overtime from the snow Saturday, January 22, 2005 to Sunday, January 23, 2005." The document (the Oetter document) confirmed that nine people were paid for eight hours of work, including two men who also worked four hours on Saturday. The following colloquy also occurred during Oetter's direct examination:

Q. Okay. That's all I have on that document. And is that -- by the way, during the years, and you've been -- you were there a lot of the years as the manager, is that typically what you would do if there was a big snowstorm like this?

A. Yes.

No testimony was proffered regarding when or for what purpose the document was drafted.

Defendants also presented Arnesen as an expert in meteorology. Arnesen indicated that following the January 23 snowfall of between ten and fifteen inches and a February 4 snowfall of approximately one-half inch, the temperature reached a high of sixty-one degrees and dropped to forty degrees on February 7, 2005. Based on his review of the weather data, Arnesen stated there would be "trace" amounts of snow remaining on the ground, "trace" meaning "less than one half of an inch on that surrounding grassy surfaces." Arnesen also noted, however, that while the one-half inch of snow may have melted, there was still snow on the ground "left over snow from the 22nd/23rd event."

At the conclusion of defendants' case, defendants moved several documents into evidence, including Oetter's list of overtime employees from the January 23 snowstorm. Plaintiff objected to its inclusion, arguing that the document constituted hearsay. The trial judge concluded that the document may be moved into evidence, stating, "I'm satisfied that she testified that, that was her document. She apparently was subject to cross examination . . . . She testified here today."

Plaintiff also objected to defendants' request that the court charge the jury as to plaintiff's comparative comparative negligence. Plaintiff argued that "[t]here has been no evidence put into evidence during the course of this trial that would lead the jury to an inference of comparative negligence." The judge ruled:

I'm satisfied that the charge should -- ought to contain a comparative negligence charge, because it's clear -- and I think the jury, after hearing the testimony, and knowing the condition of the sidewalk in the area, it having snowed -- I'm satisfied that, that opportunity ought be given the jury. Because I think this is something that's so common knowledge that the judge should be able to assess whether . . . comparative negligence did, indeed, occur.

In anticipation of jury deliberations, the jury was presented with a verdict sheet. The first question asked whether defendant was negligent while the third question inquired into plaintiff's negligence. The jury never reached the third question, as they answered the first question in the negative resulting in a verdict in favor of defendant. This appeal followed.

We have previously noted that among plaintiff's claims of error, she challenges the judge's evidential and discovery rulings in regard to the admissibility of the excluded photographs of the condition of the sidewalk, the Oetter document and Arnesen's expert testimony.

In considering both evidential and discovery rulings, our standard of review is simply stated. "An appellate court will generally defer to a trial court's decisions regarding discovery, with review under the discretion standard." Pressler, Current N.J. Court Rules, comment 4.5 on R. 2:10-2 (2010) (citing Bender v. Adelson, 187 N.J. 411, 428 (2006) (applying abuse of discretion standard); Terrell v. Schweitzer-Mauduit Intern., Inc., 352 N.J. Super. 109, 115 (App. Div. 2002) (deferring to the trial court's disposition of discovery matters except where discretion has been misapplied); (other citations omitted)). "Deference to a trial court's decision is not appropriate, however, if that decision was based upon a mistaken understanding of the applicable law." Terrell, supra, 352 N.J. Super. at 115.

We adopt a similar approach to evidential rulings. Provided that the trial court's evidential rulings are not "inconsistent with applicable law[,]" Pressler, supra, comment 4.6 on R. 2:10-2, we "[are] limited to examining the decision for abuse of discretion." State v. Kemp, 195 N.J. 136, 149 (2008) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)); see also Pressler, supra, comment 4.6 on R. 2:10-2.

We first address the Arnesen report. Plaintiff relies on the strictures of Rule 4:17-7, precluding the amendment of interrogatory answers after 20 days prior to the end of the discovery period. The Arnesen report was submitted on October 13, 2008. To the extent that the judge erred in permitting a late amendment and report, we conclude that such error was harmless.

Our conclusion that the error was harmless recognizes that the report was submitted six months before the trial and allowed plaintiff the opportunity to secure a contrary expert report in the intervening period. But there is a more significant factor involved. The Arnesen report was a hybrid between an expert and factual account of the weather conditions on particular dates that were readily available to both parties. Arnesen testified to snow fall and temperatures on selected dates, all information that was available through the weather service. His opinion that the snow would be at a level of one-half inch on the date of the accident, given the weather conditions, may be more a function of common sense and human experience than expert testimony. Nevertheless, given all of the relevant factors attendant to this particular report including the timing of the submission and the nature of the expertise, we conclude that there was no abuse of discretion.

We reach the same result as to the evidential rulings. As we previously noted, the 258 photographs and videotape included those taken January 29, January 31 and February 1, 2009 at the apartment complex. On February 11, 2009, defendants filed a motion in limine to preclude the videotape and photographs. Although the judge relied on procedural grounds for excluding the 2009 photographs, we determine that on the merits of the application, such exclusion was appropriate.

We commence our analysis with the understanding that "all relevant evidence is admissible" in a civil trial, N.J.R.E. 402, "relevant evidence" being "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "In relevance determinations, the analysis focuses on 'the logical connection between the proffered evidence and a fact in issue.'" State v. Williams, 190 N.J. 114, 123 (2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)).

The photographs and videotape at issue were taken four years after plaintiff's slip and fall and obviously do not depict the condition of the sidewalks at 7:00 p.m. on February 7, 2005. The only relevance of these photographs is to demonstrate that defendants did not clean the sidewalk after subsequent snowfalls. However, pursuant to N.J.R.E. 403, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." Here, introducing these photographs into evidence, for the purpose of demonstrating that defendants failed to clean subsequent snowfalls, would have unduly prejudiced defendants and confused the jury as to the issue at hand - defendants' negligence, if any, on February 7, 2005.

Plaintiff's further claim that these photographs are admissible as evidence of habit is without merit. Under N.J.R.E. 406:

(a) Evidence, whether corroborated or not, of habit or routine practice is admissible to prove that on a specific occasion a person or organization acted in conformity with the habit or routine practice.

(b) Evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice.

Habit evidence must, with "specificity or proof of regularity," demonstrate a "routine practice probative of . . . conduct" at the event in question. Riley v. Keenan, 406 N.J. Super. 281, 299-300 (App. Div.), certif. denied, 200 N.J. 207 (2009). "Generally, a person's habit or routine practice refers to his repeated behavioral responses to a specific factual stimulus[.]" Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 406 (2008). The conduct in question must be "more than a mere 'tendency' to act in a given manner, but rather, conduct that is 'semi-automatic' in nature." Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 190 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007) (quoting Sharpe v. Bestop, 158 N.J. 329, 332 (1999)). If the evidence fails to rise to that level, evidence of specific instances of conduct offered to show habit should be excluded, "just as though the evidence offered were only that relating to the individual's character trait for care or skill." Biunno, supra, comment 2 on N.J.R.E. 406.

The evidence, here, was insufficient to establish habit. First, the apartments were under different building management in 2009 than they were in 2005. Moreover, there is no evidence that the 2009 photographs demonstrate that defendants' actions were "automatic." Plaintiff's proofs consisted of photographic evidence from snowstorms on January 22 and January 23, 2005, February 2007 and from January and February 2009. At most, this represents a selective number of snowstorms spread out over many years. This is insufficient to demonstrate a habitual failure to clear the sidewalks of ice and snow.

We conclude that the judge did not abuse his discretion in refusing to permit the introduction of the photographs not temporally related to the incident in dispute.

Plaintiff next argues that the admission of the Oetter document into evidence was error because it was a hearsay document not falling within any hearsay exception, and it was without foundation. Defendants counter that the Oetter document fell under the business records exception. Neither position is sustainable, but the judge did not err by admitting the document into evidence.

To reiterate, the Oetter document was a handwritten report of the "overtime from the snow Saturday, January 22, 2005 to Sunday, January 23, 2005." The document recorded that nine people were paid for eight hours of work, including two men who also worked four hours on Saturday. When plaintiff objected to its inclusion in evidence, arguing that the document constituted hearsay, the judge concluded that the document may be moved into evidence, stating, "I'm satisfied that she testified that, that was her document. She apparently was subject to cross examination . . . . She testified here today."

Hearsay, which is "not admissible except as provided" by the rules of evidence, N.J.R.E. 802, is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.S.A. 801(c). There is no doubt that the Oetter document constitutes hearsay, as it was written by Oetter out of court for the purpose of proving that the snow removal crews worked overtime following the January 22 and 23, 2005 snowstorm. The issue is whether this document is admissible under any hearsay exception.

Defendants' claim, that this document constitutes a business record, is without support in the record. Pursuant to N.J.R.E. 803(c)(6),

[a] statement contained in a writing . . . made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, . . . [is not excluded by the hearsay rule].

To be admissible as a business record, (1) the writing must be made in the regular course of business; (2) the writing be prepared within a short time of the act, condition or event being described; (3) it must be the regular practice of the business to make such a record; and (4) the source of the information and the method and circumstances of preparation of the writing must justify allowing it into evidence. See Biunno, supra, comment 1 on N.J.R.E. 803(c)(6) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).

Defendants failed to present any evidence to prove any element of the business records exception. The only evidence supporting this hearsay exception was from the following colloquy, which occurred while Oetter was testifying regarding the content of the document:

Q. Okay. And were all those hours devoted to cleaning up snow?

A. Correct.

Q. Did they cover the whole complex?

A. Yes.

Q. Okay. That's all I have on that document. And is that -- by the way, during the years, and you've been -- you were there a lot of the years as the manager, is that typically what you would do if there was a big snowstorm like this?

A. Yes.

It is not clear, from this testimony alone, whether Oetter and counsel were referring to the snow cleanup procedure or the drafting of the document. Even assuming, however, that Oetter and counsel were referring to drafting the document, defendants failed to demonstrate that this document was drafted in the regular course of business or prepared within a short time of the snow removal.

Although the Oetter document constituted inadmissible hearsay, its inclusion was not sufficient to warrant our intervention. "Prejudicial error as to the admission of evidence in a civil trial is also reversible." Pressler, supra, comment 4.6 on R. 2:10-2. "For an improvidently admitted hearsay statement to warrant reversal, . . . the possibility of an unjust verdict must be real and sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Beasley v. Passaic County, 377 N.J. Super. 585, 604 (App. Div. 2005) (citing Nemo v. Clinton, 167 N.J. 573, 586 (2001)). We leave for another day the issue of whether the relevant standard is "reasonable doubt" as we conclude that any error was harmless and "had no capacity to lead to an unjust result." There is no basis for reversing the jury's verdict. See R. 2:10-2; Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982); see also Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991).

Here, Oetter testified as to the contents of the document, and plaintiff did not object when she, in effect, read from the document while testifying. The content of the document was already before the jury for its consideration, and Oetter was subject to cross examination by plaintiff regarding that information. At best, the document was cumulative. We find no reversible error here.

Plaintiff also argues that the judge erred by failing to read the jury any explanation of the case on April 20, 2009, following Model Civil Jury Charge 1.10A (Charge 1.10A). Plaintiff claims that this failure "had the potential of permitting jurors with a [bias] against plaintiff[] . . . to remain on the jury panel when they otherwise would have disclosed that bias to the judge and been excused."

Since plaintiff raises this argument for the first time on appeal, we may only consider this as "plain error not brought to the attention of the trial . . . court." R. 2:10-2. In this regard we consider: first, whether there was, in fact, error by the trial judge; and second, if there was error, whether this error was "clearly capable of producing an unjust result[.]" Pressler, supra, comment 2.1 on R. 2:10-2; State v. Miraballes, 392 N.J. Super. 342, 361 (App. Div.), certif. denied, 192 N.J. 75 (2007). The error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008) (quotation marks and citation omitted).

We answer both questions in the negative. There was no error in the court's actions, let alone plain error. First, we observe that there is no transcript of the voir dire; so we are unable to determine if the judge did, in fact, advise the jury of the nature of the case. Second, plaintiff's failure to make any contemporaneous objection creates a fair inference that, "in the context of the trial[,] the [alleged] error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quotations and citations omitted). During the course of voir dire, plaintiff had the opportunity to ferret out and challenge any prospective jurors who may have been biased or prejudiced regarding the specific case.

While we do not suggest that Charge 1.10A should be omitted from the general charge, a timely objection would have given the trial judge the opportunity to correct the omission in a prompt fashion. On this record, we cannot perceive any indicia of prejudice that would inure to plaintiff's detriment.

Finally, plaintiff argues that the judge erred in charging the jury regarding comparative negligence, "as there was no evidence of comparative negligence elicited during trial." According to plaintiff, "[n]o witness gave any testimony which was evidence of the conduct of the plaintiff at the time of the accident."

In considering plaintiff's claim of error, we adhere to the principle that a correct and proper jury charge "is essential to the fair trial of a civil action." Pressler, supra, comment 3.3.2 on R. 2:10-2. "[T]he jury charge should set forth in clear understandable language the law that applies to the issues in the case." Toto v. Ensuar, 196 N.J. 134, 144 (2008). We must "consider the charge as a whole to determine whether the charge was correct." Ibid. "The issue then for the reviewing court is to determine whether the charge, taken as a whole, conveyed the law to be applied by the jury in clear and understandable language without misleading or confusing it[.]" Pressler, supra, comment 3.3.2 on R. 2:10-2. If an error is found, the issue then becomes "whether, despite any errors in the charge, it was clearly capable of producing an unjust result or prejudicing substantial rights." Ibid. (citing Mogull v. Cb Commercial Real Estate Group, 162 N.J. 449, 466 (2000); (other citations omitted)).

The judge charged the jury, in pertinent part, with Model Jury Charge (Civil), 7.15:

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

He then restated Model Jury Charge (Civil), 7.31, governing the ultimate outcome and damages if comparative negligence is found.

The facts in this case support charging the jury with Model Jury Charge (Civil), 7.15 and 7.31. Plaintiff acknowledged walking on grass to get to the sidewalk near her car, and defendants questioned plaintiff:

Q. Okay. And you're saying it was on the sidewalk itself?

A. On the sidewalk.

Q. Not the grass?

A. Not on the grass.

Q. And you're sure you didn't fall while you were walking on the grass?

A. I just came off the grass . . . .

Although plaintiff never changed her answer, the jury was free to accept or reject plaintiff's testimony. The jury also heard testimony from Bruce Green, the maintenance superintendent, and Oetter that work crews cleared the snow from around the apartments, and so the jury could infer that plaintiff must have slipped on the grass, where there was still snow. Because there are sufficient facts in the record to support a finding that plaintiff's actions constituted comparative negligence, the jury charges were not erroneous.

More compellingly, however, even if the charge of comparative negligence was error, contrary to our conclusion here, the charge was harmless. A review of the jury's decision and the verdict sheet reveals that the jury never addressed the issue of plaintiff's negligence. The jury was instructed that if it answered the first question as to defendant's negligence in the negative, deliberations were to end. That is what happened here. The comparative negligence charge was of no moment.

Affirmed.

 

According to defendant, plaintiff had this information prior to receiving the Arnesen report.

Plaintiff's claim, that defendants' failed to file a timely motion challenging the certification and therefore waived their opportunity to exclude on the basis of expiration of the discovery time period, is without merit. Defendants' motion in limine was raised February 11 2009, ten days after the last photographs were taken, and within the twenty day period to challenge pursuant to Rule 4:17-7. Regardless, for reasons to be discussed, the photographs were properly excluded, because they lacked relevancy and probative value.

A written document may constitute hearsay. N.J.R.E. 801(a).

(continued)

(continued)

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A-4607-08T3

April 16, 2010