Annotate this Case






DOCKET NO. A-0378-05T30378-05T3


a Minor, by and through

Henry A. Wysinski, Jr., g/a/l;














Submitted April 24, 2006 - Decided August 8, 2006

Before Judges Yannotti and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5720-03.

Lombardi & Lombardi, attorneys for appellants Ryan Michael Wysinski and Henry A. Wysinski, Jr.; Law Offices of Anthony Sarno, Jr., attorney for appellant Evajean Wysinski (Michael F. Lombardi and Anthony Sarno, Jr., on the joint brief).

Barrett, Lazar & Lincoln, attorneys for respondent (Virginia M. Barrett, of counsel and on the brief).


Plaintiffs Ryan Michael Wysinski ("Ryan"), a minor by and through Henry A. Wysinski, Jr., guardian ad litem; Henry A. Wysinski, Jr., individually ("Henry"); and Evajean Wysinski ("Evajean") (collectively "the Wysinskis"), appeal from a no-cause-for-action judgment in favor of defendant Richard Zelinak, doing business as A&R Landscaping Co. ("Zelinak"). The Wysinskis contend that the trial court erred in excluding certain evidence and in charging the jury on Zelinak's alleged negligence. For the reasons expressed in this opinion, we reverse.

On or about April 19, 2003, Ryan and Evajean, his mother, went to St. Michael's Parish Cemetery to visit the gravesite of a friend. The cemetery is owned by defendant St. Michael's Byzantine Catholic Church ("St. Michael's") and maintained by Zelinak. Evajean's search for her friend's tombstone was interrupted when she heard her seven-year-old son cry for help. She turned around and saw her son lying on the ground with his leg pinned under an obelisk that had just tipped over from its base. She did not actually see the accident happen, but hypothesized that her son had accidentally hit the base of the monument with his foot and the obelisk top of the monument toppled onto him.

She ran to her son, called for help, and "prayed to God." Evajean and her daughter were able to lift the obelisk and pull Ryan out from under it. Evajean then yelled to someone to call 911 and attempted to stop her son's bleeding by pulling his pant leg tightly around his wound. She was able to see bone, muscle and tissue from his injury. Ryan was upset and crying and passed in and out of consciousness.

The paramedics arrived, administered oxygen and first aid, and transported Ryan to the Robert Wood Johnson Trauma Unit. There, a doctor x-rayed Ryan's leg and performed surgery on the injury. Four days after surgery, the doctors discovered that Ryan's ankle was also fractured. Ryan's leg was fully casted.

The case was tried before a jury on July 26-28, 2005. Testimony was given as to the effect of the injury upon Ryan. Ryan's activities were limited at school. He required help carrying his belongings and getting onto and off the bus. He could not participate in playtime with the other students. Evajean testified that her son has a significant scar on his leg, although plastic surgery helped to minimize the size of the scar. Ryan complains about the scar being itchy, red and generally uncomfortable. Additionally, the scar cannot be exposed to direct sunlight.

Evajean testified that she was deeply affected by the accident. After the incident, Ryan required special attention and care. She said she blamed herself for the accident and that it was difficult to cope with Ryan telling her that he did not "like his leg anymore." Evajean went to a psychiatrist, Dr. Schlakman, because she was suffering from anxiety and depression after the accident. He offered to prescribe medication for her, but she refused to take it because she does not believe people behave responsibly when medicated. Evajean saw Dr. Schlakman only six times because treatment became too expensive. She concluded her direct testimony by stating that she did not "feel too good about [her]self."

David Emery Convery also testified for the Wysinskis. He stated that he was near the cemetery on the date of the accident. He observed Evajean and her children looking around the cemetery. He did not notice if Ryan was playing around the tombstone prior to the accident. Later, he heard two women screaming for help. He hopped the fence into the cemetery and found Ryan on the ground injured. He gave Evajean his shirt to help stop Ryan's bleeding. He said that Evajean appeared distressed and panicked during the accident.

Ronald L. Saxon, a licensed professional engineer with a master's degree in mechanical engineering, also testified at the trial. He inspected the cemetery, the monument, and the plot on which the monument stood. He measured the size of the monument and the angle of its tilt. He observed that there was "no mechanical bond between the base of the monument and the last foundation of the rock." Saxon concluded to a reasonable degree of engineering certainty that the monument was noticeably tipping for some time before the date of the accident. He opined that its precarious placement would have been readily noticeable to anyone who visited the graveyard, and that the tilting was the result "of long term, progressive soil settlement." Saxon also stated that merely walking near the monument could have caused it to topple.

At the trial, the Wysinskis' counsel called Father Basil A. Rakaczky, the pastor of St. Michael's, and elicited the following direct testimony:

Q: Did you have a conversation with Richard Zelinak about management of the cemetery, St. Michael's Cemetery?

A: I asked him to pick up the garbage because the township stopped picking up the garbage.

Q: Did you ask him to be in charge of all the maintenance at the cemetery?

A: Well, he picks up sprays and the garbage, opening and closing the grave and cutting the grass.

Q: Father, did you have a conversation with Mr. Zelinak, and I'm going to refer you to some deposition, remember your deposition was taken in my office? I'd ask you to please read a particular passage I'm going to show you first. Please read it to yourself and not out loud.

A: Yes.

At this point, the Wysinskis' counsel asked Rakaczky to read a portion of his deposition testimony. An objection was made and an unrecorded sidebar took place. Thereafter, counsel continued to question Rakaczky about Zelinak's responsibilities. He asked specifically how Zelinak was to maintain the cemetery and Rakaczky responded, "Cutting the grass, picking up sprays, picking up the garbage, and also, I ask him to open the water in spring time and close the water faucet before winter seas-- before winter." The Wysinskis' counsel then sought leave to confront Rakaczky with his deposition testimony.

At his deposition on August 2, 2004, Rakaczky testified to the church's relationship with Zelinak's landscaping business. Rakaczky could not remember the exact date on which Zelinak had been employed by the church. He stated that he remembered Zelinak working for the church in the 1990's but that the church had used Zelinak when the business was owned by Zelinak's father. Zelinak cut the grass in the cemetery and opened and closed the graves. Rakaczky also testified as to Zelinak's contact with the monuments in the cemetery as the following questions and answers illustrate:

Q. Okay, at any time before April 19, 2003 has St. Michael's ever paid Mr. Zelinak to perform some type of service regarding a monument, either moving it, straightening it, adjusting its position in any way?

A. I don't remember such case.

Q. Okay. Do you know if any parishioner, or you know, family member of a parishioner has ever contacted you before April 19, 2003 requesting that a monument be either straightened, corrected in position, adjusted in any way?

A. Yes.

Q. Okay. And do you know the names of any particular parishioners or family members?

A. No.

Q. Okay. And after you were contacted by such a parishioner, what information or advice did you given them regarding such an inquiry?

A. When I receive such calls from parishioners or some non-parishioners that the stone was moved because next to their gravestone was another funeral and their stone was either moved or knocked down or even the foundation was moved, I - in such cases I called up Mr. Zelinak and called his attention to the complaints that were registered to me.

Rakaczky's testimony continued.

The attorney asked Rakaczky about the specific duties of Zelinak and the following testimony was given:

Q. And when you say you asked him to take care of the cemetery, are those the invoices you produced, that we're producing here?

A. Yes. Yes.

Q. And that would be for cutting the lawn.

A. Cutting the lawns, remove the garbage.

Q. And pick up and remove sprays from the cemetery?

A. Right.

Q. I've gone through what has been produced by your counsel, and those are the only things that are listed; cleaned up sprays in cemetery, lawn maintenance. Is there anything else -and removed garbage. Those are the only three things I see. Is there anything else to your knowledge that A&R was hired to do?

A. He also engaged himself to fill in the graves that were recently hewn until it settles completely and then they seed the graves.

Q. And the filling in of the graves, is that something again that A&R is paid for by the cemetery organization or the church or is that by the individual families?

A. By the church.

Q. It's by the church. Okay. Anything else that A&R has been hired to by the church to do?

A. Well, in my mind when I talk to Mr. Zelinak, I had in mind everything that pertains to the upkeep of the cemetery.

Q. Mmm-hmm.

A. But his job was never expressed in writing.

Q. To your knowledge, has his job changed in the ten years or so that he has been doing this job?

A. Well, since the township stopped picking up the garbage, so I ask him whether he could pick up the garbage, and he said he can do that so we pay him extra for picking up the garbage.

The specific testimony the Wysinskis' counsel wished to use was the answer given by Rakaczky that: "Well, in my mind when I talk to Mr. Zelinak, I had in mind everything that pertains to the upkeep of the cemetery."

Counsel for Zelinak objected and after the jury was excused, the court invited the Wysinskis' counsel to examine Rakaczky on the issue to which the deposition testimony related. Rakaczky explained: "By the upkeep of the cemetery, basically, these are the things that I had in my mind. I can't think of any other responsibilities." The judge sustained the objection and stated:

The answer on its face is not contradictory. The father said in his deposition that it was in his mind in both portions of that answer. It's not that he related it to him. I've given you an opportunity to explore that with him. Indeed, his testimony appears to be consistent and that was just something that he had in mind.

Thus, the Wysinskis' counsel were precluded from exploring this issue further before the jury.

Richard Zelinak testified that A&R was the only company which performed landscaping work in the cemetery. He said that he had observed the monument in question before the accident and that it had always been leaning. He had also observed various other monuments in the cemetery tilting. The leaning monument did not concern him even though another monument had fallen on his son and injured him. He stated that he realized someone could be injured by a falling monument, but that he did not have the equipment with which to fix the monuments. He added that Rakaczky had never asked him to fix the tipped or fallen monuments.

After all of the testimony had been submitted, the Wysinskis' counsel renewed his request to read Rakaczky's deposition testimony to the jury before they began to deliberate. The judge denied the renewed request on the ground that the testimony was not inconsistent with the trial testimony. The case was then submitted to the jury. The jury found that Zelinak was not negligent. An order entering a judgment of "no cause for action" and dismissing plaintiff's complaint was entered on August 19, 2005. This appeal followed.


Appellant contends that the trial judge erred by not allowing him to confront Rakaczky with his deposition testimony, claiming that the deposition testimony is inconsistent with the testimony produced at trial. Respondent argues that the testimony was consistent and that the judge's decision should be affirmed.

"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991); see also Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). Although we are required to disregard an error, if "it is of such a nature as to have been clearly capable of producing an unjust result," we may consider it. R. 2:10-2.

Here, the trial court excluded the evidence on the ground that the deposition testimony was consistent with the trial testimony. On the subject of what constitutes self-contradictory testimonial evidence, Wigmore notes, "it is not a mere difference of statement that suffices; nor yet is an absolute oppositeness essential; it is an inconsistency that is required." 3A Wigmore, Evidence 1040. He further explains:

Such is the possible variety of statement that it is often difficult to determine whether this inconsistency exists. But it must appear "prima facie" before the impeaching declaration can be introduced. As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done. On a comparison of the two utterances, are they in effect inconsistent? Do the two expressions appear to have been produced by inconsistent beliefs?

[Ibid. (emphasis in original).]

We must look at the deposition testimony as a whole and then determine whether it is inconsistent from Rakaczky's answer at trial. There is no case law dispositive of the issue here, which may be explained by Wigmore's observation that "the circumstances of the cases are individual, and they have no value as precedents." Ibid.

At deposition, Rakaczky stated that if there was a complaint about a monument being tipped, he would contact Zelinak. He further stated that Zelinak was to cut the lawn, pick the sprays from the cemetery, dig and fill the graves, re-seed the graves and "anything pertain[ing] to the upkeep of the cemetery." When asked at trial what he meant by the upkeep of the cemetery, he responded, "[c]utting the grass, picking up sprays, picking up the garbage, and also, I ask him to open the water in spring time and close the water faucet before winter seas-- before winter." He further explained, "[b]y the upkeep of the cemetery, basically, these are the things that I had in my mind. I can't think of any other responsibilities." The trial judge disagreed with the Wysinskis' assertion that this was inconsistent with Rakaczky's deposition testimony stating, "[H]is testimony appears to be consistent and that was just something that he had in mind."

This is too narrow a view of the deposition testimony. When the deposition statements that Zelinak would be expected to do "anything pertain[ing] to the upkeep of the cemetery" and "[b]y the upkeep of the cemetery, basically, these are the things that I had in my mind[;] I can't think of any other responsibilities" are juxtaposed with the trial testimony that Zelinak was responsible for "[c]utting the grass, picking up sprays, picking up the garbage, and also, I ask him to open the water in spring time and close the water faucet before winter seas-- before winter," there is clearly an inconsistency in the breadth of responsibilities.

Even were this not so, there is a further reason why the use of the deposition testimony should have been permitted. The order of disposition dated July 25, 2005, settled all claims between the Wysinskis and St. Michael's and, in addition, St. Michael's agreed to dismiss all of its cross-claims against Zelinak. The order was signed by counsel for the Wysinskis and by counsel for St. Michael's. The attorney for Zelinak did not sign his consent to this order, nor did Zelinak purport in any fashion to dismiss his claims against St. Michael's for contribution and indemnification. Therefore, at the time of trial, St. Michael's was still a party to the action and Rakaczky was the agent of St. Michael's. As such, Rakaczky's deposition could be used for any purpose.

Rule 4:16-1(b) provides that "[t]he deposition . . . of any one who at the time of taking the deposition was an . . . authorized agent . . . of a . . . private corporation . . . or association . . . which is a party, may be used by an adverse party for any purpose against the . . . corporation . . . [or] association." As such, the admission of the deposition testimony was governed by N.J.R.E. 803(b)(4), which provides that a statement by a party's "agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" is not excluded under the hearsay rule, N.J.R.E. 802. Rakaczky's testimony at trial apparently was intended to exonerate Zelinak from any responsibility for leaning monuments, a position which Rakaczky could freely take after the Wysinskis released all of their claims against St. Michael's.

The Wysinskis were keenly interested in Zelinak's attempt to shift all responsibility to St. Michael's and in St. Michael's willingness to relieve Zelinak of responsibility for the tilting monuments. If the jury found that both defendants were negligent, then the Wysinskis might have a windfall from their settlement with St. Michael's if its share of the damages was less than the settlement. This possibility would make them interested in the allocation of fault between the two defendants, seeking to maximize the imposition of fault on Zelinak. Consequently, it was clearly erroneous to preclude the Wysinskis from using the deposition of Rakaczky during his trial testimony and from reading the deposition to the jury. It was evidence that bore directly on the issue of Zelinak's negligence, and thus could readily have been outcome-determinative. Because the exclusion of this evidence could have affected the jury's determination of whether Zelinak was negligent, a new trial is required.


Plaintiff next contends that the trial judge improperly charged the jury. He argues that the judge unduly emphasized the duties of the settling defendant, St. Michael's Church, and the negligent supervision of plaintiff, Evajean; failed to specifically describe the law of negligence with regard to Zelinak; and failed to give Model Civil Jury Charge 5.24B(11), "Notice Not Required When Mode of Operation Creates Danger."

With respect to the latter request to charge, the Wysinskis correctly point out that Zelinak conducted his business activities as an occupier at the cemetery and that he was the only landscaper and maintenance company at the cemetery. No other company could open or close graves there, and Zelinak derived the bulk of his income from St. Michael's. However, these facts do not support the requested charge regarding the duty of owners and possessors of real estate.

Model Civil Jury Charge 5.24B(l1) states:

A proprietor of business premises has the duty to provide a reasonably safe place for his/her customers. If you find that the premises were in a hazardous condition, whether caused by defendant's employees or by others, such as customers, and if you find that said hazardous condition was likely to result from the particular manner in which defendant's business was conducted, and if you find that defendant failed to take reasonable measures to prevent the hazardous condition from arising or failed to take reasonable measures to discover and correct such hazardous condition, then defendant is liable to plaintiff.

We find no error in the denial of this requested charge. The charge describes a duty owed by a business to its customers, i.e., to an invitee. Here, the Wysinskis were not invitees of Zelinak, although they may have been invitees of St. Michael's. However, Zelinak owed the Wysinskis a higher duty of care than that owed by an owner or possessor of real estate to a licensee.

This is readily apparent from Alloway v. Bradlees, Inc., 157 N.J. 221 (1999); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993); and our decision in Raimo v. Fischer, 372 N.J. Super. 448, 453-54 (App. Div. 2004), which imposed a general duty to exercise due care upon a contractor with respect to work he was performing on another's property.

Conceptually, it was correct to impose a general duty of care upon Zelinak, rather than the more limited duty of a landowner, given the facts of this case, but the charge did not adequately convey that duty or the issues to be resolved by the jury.

Because no exception to the charge as a whole was made, the jury charge must be evaluated under the plain error rule, R. 2:10-2. In considering a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of [a party] and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Mason v. Sportsman's Pub, 305 N.J. Super. 482, 495-96 (App. Div. 1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).

The Supreme Court has stated with respect to civil damage trials that "[c]lear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain error." Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (citing State v. Robinson, 165 N.J. 32, 40 (2000)). The Court also noted that, "[w]e have instructed that '[j]ury charges must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them[.]'" Wade, supra, 172 N.J. at 342 (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000). The Court noted further that "[a]s a general rule, an appellate court will not disturb a jury's verdict based on a trial court's instructional error "where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect." Wade, supra, 172 N.J. at 341.

The judge's instruction here, read as a whole, was inadequate and was likely to have misled the jury. The judge gave the general introductory charge on negligence and then charged the jury at length on the specific duty of care owed by St. Michael's to the Wysinskis as licensees and the duty of care owed by Evajean to Ryan. After concluding that part of the charge, the judge returned to Zelinak and stated the following:

The general concept of negligence is the concepts that are being applied to the claims against Mr. Zelinak in this matter, as I've already explained it to you.

This charge did not adequately inform the jury of the issues to be decided, i.e., whether Zelinak's contract with St. Michael's required him to maintain the cemetery in a good condition and, if the jury so found, then the jury should have been specifically charged that Zelinak had a duty to maintain the premises on which he performed his work in a reasonably safe condition for the protection of persons whom he could reasonably expect to come onto the site, such as the Wysinskis. The jury should also have been charged that the discharge of this duty required the performance of reasonable inspections to ensure that the cemetery was in a safe condition and to take remedial action in the event that it was not, such as correcting the danger or notifying St. Michael's of the need to remedy a dangerous condition. This was not done and the jury thus had no guidance to determine the issue of Zelinak's negligence.

Furthermore, the issue of Zelinak's negligence should have been fully charged with respect to the claims of all three Wysinskis before the court addressed the issue of Zelinak's claims that St. Michael's and Evajean were also negligent. This is so because the jury would only reach the latter issues if it concluded that Zelinak was negligent in the first instance. Additionally, the jury should have been reminded in this part of the charge that it was the burden of the Wysinskis to prove Zelinak's negligence. Then, when charging the jury regarding the liability of St. Michael's and Evajean, the court should have again reminded the jury that Zelinak had the burden to prove such negligence.

We also note that the charge was not tailored to the facts.

"[O]ur courts regularly have noted the importance of tailoring the jury charge to the facts of the case." State v. Savage, 172 N.J. 374, 389 (2002). A charge "'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . .'" Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (citation omitted); see also Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002); Flynn v. Stearns, 52 N.J. Super. 115, 122 (App. Div. 1958) ("[C]are must be taken to tailor the charge to the jury in . . . cases to fit the facts of the particular case."). This was not done here and must be done on remand.

Reversed and remanded for further proceedings consistent with this opinion.

The Wysinskis' claims against St. Michael's Byzantine Catholic Church were resolved prior to trial.

The transcript of the trial indicates that the video-taped deposition of Dr. Schlakman was played at the trial, but the contents of that deposition were not provided to us.

We do not address this issue; it has not been raised on appeal.






August 8, 2006