LINDA HINTON v. UNION GARDEN APARTMENTS UNION GARDEN ASSOCIATES and PUBLIC SERVICE ELECTRIC AND GAS COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5309-07T25309-07T2

LINDA HINTON,

Plaintiff-Appellant,

v.

UNION GARDEN APARTMENTS,

UNION GARDEN ASSOCIATES,

and PUBLIC SERVICE ELECTRIC

AND GAS COMPANY,

Defendants-Respondents.

________________________________________________________________

 

Submitted January 11, 2010 - Decided

Before Judges Lisa, Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7475-06.

James C. DeZao, attorney for appellant.

Stein, McGuire, Pantages & Gigl, attorneys for respondents Union Garden Apartments and Union Garden Associates (Gerald J. Gunning, of counsel and on the brief).

Law Offices of William E. Frese, attorneys for respondent Public Service Electric and Gas Company (Peter L. Agostini, on the brief).

PER CURIAM

Plaintiff, Linda Hinton, slipped on a thin film of ice on a concrete walkway while walking from her apartment in Union Garden Apartments to her car. The accident happened on December 23, 2005, at approximately 6:30 a.m. She sustained personal injuries as a result of the fall and sued defendants, alleging that the Union Garden defendants had negligently failed to make the walkway, which they owned, reasonably safe for passage; and that PSE&G had failed to repair a nearby street light that was out for some time before and on the day of the accident, thereby contributing to the happening of the accident.

The jury found in favor of defendants and plaintiff appeals. Since none of the alleged points of error has merit, we affirm.

Although numerous witnesses testified, the essential facts may be summarized briefly. No snow had fallen for a substantial period of time before the day of the accident, and neither rain nor snow was forecast for the night before the accident. According to plaintiff's expert meteorologist, on the day plaintiff fell only "trace precipitation," meaning up to one one-hundredth of an inch of water, or the equivalent of ten to fifteen minutes of light rain, had occurred between the hours of 3:00 a.m. and 5:00 a.m. Consequently, there was only a thin film of ice on the walkway when plaintiff fell. Neither salt nor sand had been placed on the walkway. By 8:00 a.m., the ice had disappeared as a result of the passage of time and pedestrian passage. The apartment complex owner provided lighting in the area in question, and plaintiff admitted that she could see about ten to fifteen feet in front of her on the day she fell. Plaintiff had never encountered a similar icy condition at the location throughout the seventeen years during which she resided in her apartment. There was conflicting evidence about whether tenants had complained in the past about snow and ice removal on the walkway.

Point I of plaintiff's brief argues that the judge erred in denying her motion for a new trial because "the testimony . . . establishes that the negligence of both Defendants directly led to the accident in question[.]" She does not attempt to explain why a jury could not find otherwise.

Since she did not object to the charge, we take it that plaintiff recognizes that even assuming the property was in a defective condition and that defect caused the accident, she still had to prove, in accordance with the judge's charge to the jury, that "the existence of the defective condition was known or should have been known by the landlord before the plaintiff was injured," and that after the landlord "knew or should have known of the defect," the landlord "failed to act reasonably under the circumstances."

Since there was no evidence the landlord knew of the condition, the weather reports did not predict precipitation on the night before the accident, and the accident happened at 6:30 a.m., it is evident that a reasonable jury could find, as this one did, that the landlord had not failed to act reasonably. And there was no evidence to support the proposition that the PSE&G light had anything to do with the accident. Therefore, Point I is without merit.

Point II concerns the judge's alleged failure to ask enough open-ended questions during the voir dire. Plaintiff did not object to the voir dire and stated that the panel was satisfactory. Although there appears to be no merit in this point, see Gonzalez v. Silver, 407 N.J. Super. 576, 596-97 (App. Div. 2009), we need not address the issue since there was no objection. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); R. 2:10-2.

Point III concerns an issue bearing on damages, an issue never reached by the jury. In particular, plaintiff argues that the judge erred in refusing to permit plaintiff to call a witness to rebut the cross-examination of plaintiff's treating physician. Even assuming error, which does not appear to be the case, there was no possible effect on the issue of liability.

Point IV concerns the judge's ruling during plaintiff's summation prohibiting him from commenting on this statement made by the attorney for PSE&G during his summation: he said that plaintiff's counsel "promised you something about a Kendall Murray saying that Mrs. Hinton was a liar. Was there any evidence of that[?]" In his opening remarks, plaintiff's counsel had said that during her deposition, Mrs. Murray, a defense witness, had said she thought Hinton was lying about how and where the accident occurred. Assuming error, we do not see how plaintiff's inability to address the comment "had the capacity to prejudice the jury so as to cause a miscarriage of justice." Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419, 425 (App. Div. 1996). All the jury might infer is that for some reason plaintiff's counsel had not produced a witness listed by the other side who thought for some unknown reason that his client was less than truthful.

Point V concerns the judge's refusal to allow in evidence a photograph showing accumulations of water in the area where the accident occurred. But when asked, plaintiff admitted that the conditions shown in the photograph differed from the conditions on the date of her accident. Consequently, we cannot say the judge abused his discretion in keeping the photograph out of evidence. See Brenman v. Demello, 191 N.J. 18, 21 (2007).

Point VI concerns the judge's refusal to permit plaintiff's expert to testify about the failure of the Union Garden defendants to abide by building standards found within the Building Officials and Code Administrators International, Inc. model building code (BOCA Code). But the expert was only prepared to offer testimony about supposedly relevant portions of the Montclair Township Code and did not establish whether or to what extent that code incorporated the BOCA Code. Consequently, we perceive no error here.

Point VII asserts that the judge erred in refusing to admit the meteorological report prepared by plaintiff's expert. The report was not offered until after the defense had rested. Furthermore, when the expert was on the stand one of the defense counsel moved that the report be offered in evidence. Plaintiff's counsel objected, stating that the "evidence is the testimony, not the report." Consequently, we see no basis for saying that the judge erred.

Points VIII and IX concerned rulings on the admissibility of x-rays and medical reports, which pertain to plaintiff's injuries, an issue the jury never reached. Since the jury resolved the case on liability against plaintiff, any such error must be disregarded. R. 2:10-2 ("Any error . . . shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . .").

Affirmed.

 

(continued)

(continued)

7

A-5309-07T2

February 3, 2010