HELEN BATCHA v. HOVCHILD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5373-04T55373-04T5

HELEN BATCHA,

Plaintiff-Respondent,

v.

HOVCHILD, A New Jersey Partnership,

Defendant-Appellant.

________________________________________________________________

 

Argued February 7, 2006 - Decided March 1, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1647-03.

Lori Brown Sternback argued the cause for appellant (Methfessel & Werbel, attorneys; Ms. Sternback, on the brief).

Joseph Garvey argued the cause for respondent (Garvey, Ballou & Van Dyke, attorneys; Peter J. Van Dyke, on the brief).

PER CURIAM

Plaintiff tripped and fell on defendant's premises. The jury found defendant liable for plaintiff's injuries and awarded her damages. Defendant's new trial motion was denied. Defendant appeals, arguing that the trial judge erred by not providing the deliberating jurors with a document they requested and that the verdict was against the weight of the evidence. We reject these arguments and affirm.

Defendant's property contains a shopping center in Toms River. Plaintiff, then seventy-seven years old, went to the shopping center on March 19, 2002, driven by her sister, who dropped plaintiff off in front of the Provident Bank. Plaintiff's sister drove off to park the car, and plaintiff proceeded towards the entrance of the bank. It was a clear and dry morning. Plaintiff was wearing flat shoes. She had been to this bank on numerous occasions over the last several years, on an average of about two times per month. She had never before encountered any difficulties traversing the sidewalk. When plaintiff was about two feet from the face of the building, she tripped, falling into the building and striking it with her left shoulder. A passerby assisted her to a nearby bench, where plaintiff's sister found her when she arrived. According to plaintiff, she tripped on a raised wooden expansion joint in the concrete. At the scene, she pointed out the area where she fell to her sister and identified the expansion joint as the object over which she tripped. She believes she also pointed it out to the passerby. In the incident report prepared by the property owner, plaintiff identified the expansion joint as the cause of her fall.

Both sides presented experts in engineering and construction. Plaintiff's expert, John Toto, inspected the premises on December 1, 2002. He observed a raised expansion joint in the location described by plaintiff. Its highest elevation was near the building, and the further away from the building the less it was raised. According to Toto's measurements, at a point about seventeen inches from the building it was raised about one-half inch, maybe a little more, as much as five-eighths of an inch. At a point about two feet from the wall, it was raised slightly more than one-quarter inch. At a point forty inches from the wall, it was no longer protruding. Toto described several different codes and standards applicable to sidewalk construction and maintenance in locations such as this. According to him, the applicable standards required that any abrupt change in elevation of one-quarter inch or more is a tripping hazard and requires remedial action. For an elevation between one-quarter and one-half inch, beveling constitutes an adequate repair.

Toto further explained that in this case, because the obstruction was a wooden expansion joint, the simplest and most effective repair would be to plane it down to render it flush with the concrete surface. This simple repair could be accomplished in ten to fifteen minutes. Toto also explained that upon reasonable inspection, the raised joint would be readily observable by a qualified property maintenance inspector. Toto opined "that this area was not maintained properly . . . . because of this expansion joint that was allowed to exist in this raised condition. It is in violation of the four Codes and standards that I discussed in detail and it should have been taken care of and would have been a very inexpensive cost . . . ."

Defendant's expert, John D'Onofrio, inspected the site in October 2004, about two-and-one-half years after plaintiff's fall. At a point about seventeen inches from the building, D'Onofrio reported that the elevation of one concrete slab was one-quarter inch higher than the adjoining slab, but denied that the wooden expansion joint separating the two slabs protruded any higher. By this time, the wooden joint appeared somewhat chopped up, and may have been damaged. The property owner denied that any remedial action had been taken since plaintiff's fall.

D'Onofrio discussed several codes and standards. He focused primarily on the NJDOT Pedestrian Planning and Design Guidelines, specifically, Table 8, pertaining to sidewalk maintenance. On direct examination, referring to that standard, D'Onofrio testified: "That guideline is that a popup of -- of course, they say 12 millimeters, but that's a half an inch. When that deviation is present, the rule of thumb is that you need to make a repair." Thus, in D'Onofrio's opinion, the difference in elevation here was less than one-half inch and therefore no repair was required. He therefore opined that "the bottom line of all my investigation was that the condition of the subject sidewalk and the expansion joint is safe for its intended use."

On cross-examination, plaintiff's counsel questioned D'Onofrio extensively regarding Table 8. Indeed, eleven transcript pages dealt with the topic, followed by four more pages on re-direct and re-cross-examination. During this questioning, counsel and the witness read various portions of Table 8 and the associated materials. Plaintiff's counsel requested that the jury be given a copy of these materials so they could follow along. Defense counsel objected, and the court did not permit it. We set forth a portion of the cross-examination as an illustration:

Q Let's talk about that. It says what?

A It says, "A change in vertical elevation of less than six millimeters, one quarter inch, does not require any edge treatment."

Q Okay. Now, what else does it day?

A "Greater changes in elevation must be corrected. Changes in elevation between six and thirteen millimeters, one quarter and one half inch, may be corrected using a bevel having a slope no greater than one to two. For changes greater than thirteen millimeters either a curb ramp shall be provided meeting the requirements established in the federal regulations or the sidewalk section should be repaired or reset. In areas of high pedestrian activities or in areas where the physically impaired pedestrian or pedestrian using carts or carriages are concentrated such as near nursing homes or rehabilitation homes in downtown or near transit terminals resetting of sidewalk sections or other repairs should be considered in lieu of beveling even if the vertical change is less than thirteen millimeters, one half inch."

Q That's a little more explanatory than the one half inch; isn't that correct?

A Yes.

Q Let's talk about it a little bit.

A Okay.

Q If it's less than a quarter of an inch, you don't have to worry about it, according to this; is that right?

A According to this, yes.

Q All right. We all know that the measurements are in excess of a quarter inch; is that correct?

A Yes.

Q It's between a quarter and a half; isn't that correct?

A Yes.

Q And it says here that there must be -- "Greater changes in elevation of one quarter inch must be corrected."

A Yes.

Q Doesn't it say that?

A Yes.

The passage read by the witness at counsel's direction was from the pages before Table 8, which the witness acknowledged was "part of the standard." It was plaintiff's contention that D'Onofrio was relying upon an isolated portion of Table 8, without taking into consideration all aspects applicable to the sidewalk maintenance standard.

During deliberations, the jury sent this note to the judge: "We would like a copy of Table 8 and the paperwork associated with Table 8." The judge and counsel discussed the question on the record, and all agreed that because the document had not been admitted in evidence, it could not be furnished to the jury without the consent of counsel and the approval of the court. Counsel were unable to agree on a procedure. Defendant's counsel suggested the judge read to the jury the limited section that "was read into evidence, and that's all the jury should have." She was referring to the section to which she referred D'Onofrio on direct examination that a popup of greater than one-quarter inch required remediation. Plaintiff's counsel insisted that all or none of the document must be given. The judge, noting that some portions of the materials were irrelevant, resolved the matter by concluding nothing would be given to the jury. He instructed the jury "that some of the documentation was irrelevant or did not make reference to what we were talking about." Thus, they should "recollect as to what the expert says as to that portion of the document that was relevant to this case, and that had to do with the height of the expansion joint."

Defendant's attorney acquiesced in the judge's ruling. She did not request that the portion of D'Onofrio's testimony dealing with Table 8 be played back for the jury, nor did she suggest that the judge inquire of the jurors whether they would like to rehear that portion of D'Onofrio's testimony. About forty-five minutes after resuming deliberations, the jury returned their verdict.

Defendant argues on appeal that the judge's handling of the jury question constituted reversible error, because the jury was deprived of information they required in order to properly analyze the evidence and reach an informed decision. Defendant does not retreat from the position that the judge was correct in not giving to the jury Table 8, because it was not in evidence. However, counsel continues to insist that the judge should have read the isolated portion she requested or, alternatively, should have sua sponte directed a playback of that portion of D'Onofrio's testimony.

Trial judges are granted broad discretion in responding to questions posed by deliberating jurors. See State v. Wolf, 44 N.J. 176, 185 (1965). Under the circumstances here, we find no abuse of discretion. Without dispute, the jury's specific request, to be given the documents, was properly declined. Defendant's request that only the narrow portion of Table 8 that favored its position be read to the jury was properly rejected by the judge. Obviously, that would not have been a fair representation of D'Onofrio's entire testimony regarding the standards applicable under Table 8. We do not disagree with defendant that it would have been appropriate for the judge to inquire of the jurors whether they would like to hear a playback of the applicable portion of D'Onofrio's testimony. However, counsel did not make such a request at trial. Therefore, only if the judge's failure to make that inquiry to the jury (or to simply direct the playback without inquiring) constituted plain error that was "clearly capable of producing an unjust result," Rule 2:10-2, would reversal be required. From our careful review of the record, we are satisfied that standard has not been satisfied. The judge's handling of the jury question constituted an appropriate exercise of discretion, and no reversible error occurred. The jury, in addition to this question, also asked the judge for a re-instruction on negligence. We presume the jurors knew they could ask for a playback of testimony and would have done so if it was critical to their deliberative process.

Defendant argues that the verdict was against the weight of the evidence. Defendant states that plaintiff could not specifically say what caused her to fall, no evidence was produced that any code or standard was violated, and a finding of no comparative negligence was clearly not warranted because plaintiff was familiar with the bank premises and, if there truly was a defect, her failure to observe it on this clear day rendered her at least partially at fault. We reject defendant's arguments.

A new trial motion shall be granted only if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Upon review of the denial of a new trial motion, we defer to the trial court with respect to "intangibles" not transmitted by the record, but otherwise make our own independent determination of whether a miscarriage of justice occurred. Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

From our careful review of the record, we have no hesitancy in concluding that there was no miscarriage of justice in this case. The jury heard plaintiff describe that she tripped over the raised expansion joint. The jury heard plaintiff's sister corroborate that information. Credibility determinations are plainly within the province of the jury. Further, the jury was free to accept Toto's opinion that, according to applicable codes and standards, the property was not maintained in a safe condition, and to reject D'Onofrio's contrary opinion. The evidence supported a finding of no comparative negligence on plaintiff's part in light of the relatively small and obscure defect over which she tripped. We are satisfied that the verdict is well-supported by the record evidence.

 
Affirmed.

(continued)

(continued)

11

A-5373-04T5

March 1, 2006