JOHN J. WALSH v. J&R ASSOCIATES LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2786-10T4

JOHN J. WALSH and HELEN WALSH,

his wife,

Plaintiffs-Appellants,

v.

J&R ASSOCIATES, LLC,

Defendant-Respondent,

and

PRINCETON 130 SUPPLY CORPORATION

(for discovery purposes only),

Defendant,

and

J&R ASSOCIATES, LLC,

Third-Party Plaintiff,

v.

PRINCETON 130 SUPPLY, INC. and/or

PRINCETON ONE THIRTY SUPPLY

COMPANY and/or PRINCETON SUPPLY

COMPANY, INC.,

Third-Party Defendant.

__________________________________

November 3, 2011

Argued October 18, 2011 - Decided

Before Judges Payne and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-180-09.

Robert D. Rosenwasser argued the cause for appellants (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys; Mr. Rosenwasser, of counsel and on the briefs).

Richard J. Williams, Jr. argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Michael J. Marone, of counsel; Mr. Williams and Cristina A. DeFazio, on the brief).

PER CURIAM

In this slip-and-fall case, plaintiffs, John Walsh and his wife Helen Walsh, appeal from a January 21, 2011 order dismissing their complaint on a summary judgment motion. We reverse and remand for further proceedings.

I

The following facts are drawn from the summary judgment evidence. On January 13, 2008, John Walsh (plaintiff), a driver and delivery person, fell on a staircase inside a warehouse that his employer leased from defendant J&R Associates. The staircase had openings between the steps, except for a solid riser between the seventh step and the landing. Before climbing the stairs, plaintiff turned on a light in an adjacent first-floor room, which provided [him] adequate lighting to go up the steps. Plaintiff then started to climb the staircase, which was the first of two sets of steps separated by a landing, leading to the mezzanine floor of the building. On the seventh step, he tripped, fell forward on the landing, and hit his head.

On March 8, 2010, plaintiff and his expert engineer, Wayne Nolte, P.E., visited the accident site so that plaintiff could show Dr. Nolte where and how the accident occurred. According to Nolte s later deposition testimony, during the March 8 visit, plaintiff told him that as he was climbing up the steps, his foot hit the riser above the seventh step, causing him to fall forward. On April 6, 2010, Nolte authored an expert report opining that the accident was caused by an increase in the height of the riser (8R) between the seventh step and the landing when compared to the distance between the previous steps. Due to the variation in height, plaintiff brought his foot to a level that he thought would bring it flat onto the landing, but instead his foot hit the riser. Nolte s April 6 report stated that the mechanics of the accident described by Mr. Walsh was consistent with the configuration of this stairway. 1

At plaintiff s deposition on August 12, 2010, he was questioned about the area where he fell. He responded that he tripped on the seventh step. When asked what part of the step caused you to trip, he answered [s]omewhere I m guessing right here. When asked to draw a circle around the area where you believe you tripped, plaintiff drew a circle at the leading edge of the seventh step.

Based on that deposition testimony, and the report of a defense expert, defendant moved for summary judgment, asserting that there was no factual basis for plaintiff s expert s opinion on causation, because plaintiff tripped on the leading edge of the seventh step. In its summary judgment papers, defendant included only selected portions of Nolte s deposition transcript. Significantly, defendant included a page of the deposition that ended when Nolte was asked the following: Did Mr. Walsh tell you when you had discussions with him [about] the accident location that his left foot hit the riser at [8R]? However, defendant left out the next page, on which Nolte answered Yes. On the remainder of that omitted page, Nolte specifically repeated that plaintiff told him that his foot contacted the riser located above the seventh step.

In his opposition to the motion, plaintiff included the page that defendant omitted, in which Nolte specifically described plaintiff as having told him that his foot hit the riser. Plaintiff also submitted his own affidavit, explaining that the accident occurred this way: When I reached the top, I put my right foot on the step and my left foot struck the top of the riser, causing me to be propelled across the landing where I struck my head on the second step on the set of stairs leading to the top. Plaintiff further confirmed that he had read Nolte s April 6 report and that Nolte s report accurately reflects exactly what I told him.

In his affidavit, plaintiff explained in some detail that he was confused by the questions asked at his deposition. He stated: When I was deposed I was asked a series of questions about the location of the accident which I believed were all asking the same thing, upon which step did I fall. . . . I continually told the attorney that I tripped on the seventh step. . . . To the extent that the testimony and my marking of the picture suggests that I tripped on the front of the step and not the riser, my testimony gave the wrong impression. Plaintiff also took issue with defense counsel s attempt to characterize his testimony as describing the portion of the step that caused me to trip, stating, I did not realize until after I read the transcript what his statement following my testimony implies. Plaintiff then reiterated that my foot came into contact with the riser of the seventh step and this caused me to fall.

Based on this record, the motion judge concluded that plaintiff s affidavit was a sham affidavit which was insufficient to create a material factual dispute about where he fell. Plaintiff s expert admitted at his deposition that there would be no basis for liability if plaintiff s foot struck the edge of the step instead of the riser, and the judge construed plaintiff s deposition testimony as stating that he tripped on the edge of the step. Therefore, the judge granted summary judgment for defendant.

II

Our review of a trial court s grant of summary judgment is de novo, employing the Brill standard. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005); Brill v. Guardian Life Insurance Co., 142 N.J. 520 (1995). Based on our own review of the record, and the applicable law, we conclude that summary judgment should not have been granted.

The motion judge disregarded plaintiff s affidavit under the sham affidavit doctrine. As described by the Supreme Court:

That term refers to the trial court practice of disregarding an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony. The doctrine calls for rejection of the affidavit where the contradiction is unexplained and unqualified by the affiant. In such circumstances, the alleged factual issue in dispute can be perceived as a sham, and as such it is not an impediment to a grant of summary judgment.

[Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002) (citation omitted).]

To avoid undermining the summary judgment process, courts should reject a litigant s attempt to create material factual disputes by submitting an affidavit asserting facts directly contrary to the witness earlier deposition testimony. However, the doctrine is not to be applied mechanistically, without carefully comparing the deposition testimony with the later affidavit to see if the apparent contradiction can be explained:

Accordingly, the sham affidavit doctrine calls for the trial court to perform an evaluative function that is consistent with our holding in Brill. When not applied mechanistically to reject any and all affidavits that contain a contradiction to earlier deposition testimony, the doctrine requires a court to evaluate whether a true issue of material fact remains in the case notwithstanding an affiant's earlier deposition testimony. . . . Critical to its appropriate use are its limitations. Courts should not reject alleged sham affidavits where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement.

[Id. at 201-02 (citation omitted).]

On this appeal, plaintiff contends that his affidavit was not a sham, but rather was a reasonable effort to explain and clarify his deposition testimony. He also argues that the motion judge erred in failing to consider plaintiff s prior statement to Nolte about his foot hitting the riser, which was consistent with plaintiff s affidavit. We agree.

Pursuant to N.J.R.E. 803(a)(2), the hearsay rule does not exclude a statement that is consistent with the witness testimony and is offered to rebut an express or implied charge against the witness of recent fabrication. A prior consistent statement may be admitted substantively for its truth. Such statements were excluded from the hearsay rule and made admissible as substantive evidence under the Evidence Rules adopted by Order of the Supreme Court of New Jersey on September 15, 1992. State v. Torres, 313 N.J. Super. 129, 158 (App. Div.), certif. denied, 156 N.J 425 (1998).

Nolte s deposition testimony, concerning plaintiff s statement to him about how the accident occurred, described a prior consistent statement admissible under N.J.R.E. 803(a)(2). Although an expert may base an opinion on inadmissible hearsay, which is then not considered for its truth, N.J.R.E. 703, this portion of Nolte s testimony does not fall into that category. For purposes of testifying about plaintiff s prior statement, Nolte was a fact witness. He personally heard plaintiff describe the accident, at a time months before plaintiff s deposition. That portion of Nolte's testimony would be admissible substantively.

The essence of the sham affidavit doctrine is that a sham affidavit is a recent fabrication, created for the sole purpose of defeating summary judgment. Shelcusky, supra 172 N.J. at 194; Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). Where the affiant has made a prior statement consistent with the alleged sham affidavit, proof of that prior statement is admissible under N.J.R.E. 803(a)(2) and should be considered in determining whether there remains a material dispute over the facts that are the subject of the affidavit. See Baer v. Chase, 392 F.3d 609, 624-26 (3d Cir. 2004) (recognizing that corroborating evidence may render plaintiff's affidavit not a "sham"); Shelcusky, supra, 172 N.J. at 201-02. Moreover, plaintiff s affidavit did not merely assert facts arguably inconsistent with his deposition testimony. Plaintiff also explained the reasons for the inconsistency. Cf. Hinton v. Meyers, 416 N.J. Super. 141, 150 (App. Div. 2010) (plaintiff offered "no reasonable explanation . . . for the contradiction" between his deposition testimony and his affidavit).

Our review of the deposition reveals that the questions asked of defendant were not a model of clarity. And, as plaintiff points out in his affidavit, after plaintiff finished answering the questions, the defense attorney offered his own self-serving characterization of what plaintiff had said. He then quickly switched to questions about plaintiff s injuries. See Shelcusky, supra, 172 N.J. at 201-02.

In summary, on this record, plaintiff s submission should not have been rejected as a sham affidavit. Plaintiff presented enough evidence to create a material factual dispute about how the accident happened. It is for a jury to decide whether to believe plaintiff s evidence.

Reversed and remanded.

1 At his deposition, John Hedberg, the managing member of J&R testified that in 1986 or 1987, an architect reviewed the property and told Hedberg that the staircase did not comply with the BOCA code and that if J&R should at any time do renovations to the mezzanine they would also have to replace the staircase. Hedberg understood that the staircase was grandfathered and did not need to be brought up to code unless the building was renovated. However, this does not necessarily mean he lacked notice of a possible safety problem with the staircase.