DORI ST. GEORGE v. WOODBRIDGE TOWNSHIP BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5172-11T2

DORI ST. GEORGE, an individual,

Plaintiff-Appellant,

v.

WOODBRIDGE TOWNSHIP BOARD OF

EDUCATION,

Defendant,

and

COLONIA GIRLS SOFTBALL LEAGUE,

Defendant-Respondent.

_____________________________________________________

May 7, 2013

Submitted April 23, 2013 Decided

Before Judges Fisher and St. John.

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

Lombardi & Lombardi, attorneys for appellant (Paul R. Garelick, on the brief).

Naulty, Scaricamazza & McDevitt, attorneys for respondent (Gerard X. Smith, on the brief).

PER CURIAM

Plaintiff Dori St. George commenced this action against defendants Woodbridge Township Board of Education (the Board) and Colonia Girls Softball League (the League), alleging their negligent conduct caused her to fall on a sidewalk on Colonia Middle School property in Woodbridge.

The claim against the League1 went to trial over the course of four days in September 2008. Plaintiff presented evidence that on May 23, 2005, she was walking her dog on a sidewalk between two ballfields at the back of the Board's property. The League, which used this property for games and practice on evenings and Saturdays, was constructing a pavilion near a concession stand. Defendants had a "handshake" agreement that the League would clean up after games and practices and after any work was done on the pavilion.

On the day in question, plaintiff was walking her dog on the sidewalk near the pavilion as she had several times a week over the course of approximately eight years. As we explained in our earlier opinion, as she walked her dog, plaintiff:

noticed that the [pavilion] construction area was "a little bit messy" and saw ten to fifteen 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. . . .

. . . The slope between the sidewalk and the concrete pad [of the pavilion] 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 [pavilion's] 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 . . . . 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-examination, 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.

. . . .

Plaintiff testified that she fell on the sidewalk toward the right front of the pavilion, not on the sloped macadam 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.

[St. George v. Colonia Girls Softball League, No. A-2364-08 (App. Div. July 16, 2010) (slip op. at 3-5)]

After hearing other witnesses and expert testimony from both sides, the jury determined2 the League was fifty-one percent and plaintiff forty-nine percent negligent. The damage award of $250,000 was molded as a result of the jury's comparative negligence finding and memorialized in a judgment entered on September 22, 2008. The League's motion for judgment notwithstanding the verdict was denied.

The League appealed and argued 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[,]" and that the trial judge erred in denying its motion for judgment notwithstanding the verdict or for a new trial. Id. at 15.

In reversing and remanding for a new trial, id. at 21, we recognized that plaintiff advanced two theories of liability. The first was that the rock plaintiff stepped on represented a hazardous condition; her second theory was that the League's removal of the construction tape, when work was not completed, constituted negligence. Id. at 17. Unfortunately, the trial judge did not present special interrogatories to ascertain the jury's precise finding. Id. at 18. That is, without anything but the jury's general finding of liability, the court could not determine whether the jury found the League liable on both theories or, if only one, which one.

We also held that the lack of clarity about which theory was endorsed by the jury, or whether the jury found the League negligent on both theories, was problematic because the first theory that the League had actual or constructive knowledge of the rock should not have been submitted to the jury due to insufficient evidence. Id. at 19-20. In short, we held that

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.

[Id. at 20]

The Supreme Court denied plaintiff's petition for certification. 205 N.J. 79 (2011).

The liability issue identified in our mandate was retried before a different judge and jury. At the close of plaintiff's case-in-chief, which consisted of the testimony of plaintiff and her liability expert, the League's motion for an involuntary dismissal was granted. Plaintiff later unsuccessfully moved for a new trial.

Plaintiff appeals, arguing the judge erred in granting an involuntary dismissal and in denying her motion for a new trial. We find insufficient merit in those arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following few comments regarding the involuntary dismissal.

Rule 4:37-2(b) permits a defendant, once plaintiff has rested, to move for dismissal. The motion must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid. See also Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). Here, accepting plaintiff's testimony and her expert's opinion as true, the judge nevertheless concluded that the League's failure to restrict the area on the date in question through the use of construction tape could not constitute a proximate cause of plaintiff's fall. We agree. Our prior rejection of the League's liability because there was insufficient proof of the League's actual or constructive knowledge of the presence of stones on the sidewalk necessarily precluded the League's liability for failing to cordon off the same area. In other words, if the League cannot be held liable for the alleged hazardous condition near the pavilion, as we held in deciding the prior appeal, it cannot be held liable for failing to take measures to keep pedestrians from strolling through that same area.

Affirmed.

1The Board managed to extricate itself from the suit by way of summary judgment.

2The League unsuccessfully sought an involuntary dismissal at the close of plaintiff's case-in-chief and similarly failed to obtain judgment after presentation of all the evidence.