FERNE BYER v. PRUDENTIAL FOX & ROACH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2401-06T52401-06T5

FERNE BYER,

Plaintiff-Respondent,

v.

PRUDENTIAL FOX & ROACH,

ANGELA DESCH,

Defendants/Third-Party

Plaintiffs-Appellants,

v.

JOHN MURPHY, REMAX REALTY

(VICTOR POLMINORI) and

KAREN LAKE,

Third-Party Defendants/

Respondents.

______________________________

 

Argued April 8, 2008 - Decided

Before Judges Skillman, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1182-04.

Kevin McNulty argued the cause for appellants (Gibbons P.C., attorneys; Mr. McNulty, on the brief).

Rudolph C. Westmoreland argued the cause for the respondent, Ferne Byer (Westmoreland Vesper & Quattrone, attorneys; Kathleen F. Beers, on the brief).

Salvatore A. Alessi argued the cause for the respondents, Remax Realty and Victor Polminori (Styliades, Jackson and Burghardt, attorneys; Gary S. McDonald, on the brief).

Mary O'Keefe Massey argued the cause for the respondent, Karen Lake (Hanlon Boglioli & Hanlon, attorneys; Ms. Massey, on the brief).

PER CURIAM

Plaintiff Ferne Byer was injured while being shown a prospective residential property by defendant Angela Desch, a real estate agent employed by Prudential Fox & Roach (Prudential). Plaintiff, who was wheelchair-bound at the time, filed a complaint against Prudential and Desch alleging that they were negligent due to their failure to warn her about an uneven floor between the dining area and the outside back deck, which caused her wheelchair to tilt forward and eject her onto the deck, causing her to fracture a bone in her leg. Prudential filed a third-party complaint against Karen Lake, the owner/seller of the property, Remax Realty, the listing agent, and John Murphy, plaintiff's companion who accompanied her when she was shown the property.

Remax and Lake filed motions for summary judgment; Prudential filed a cross-motion for summary judgment. The trial judge granted summary judgment to Remax and Lake. The judge denied Prudential's summary judgment motion, but ruled that "plaintiff ha[d] not sufficiently established that there was a dangerous condition that Prudential had a duty to guard against pursuant to plaintiff's status as Prudential's invitee." Nonetheless, the judge found a jury question as to whether Prudential "had fallen short of its general duty of care to plaintiff under the circumstances[,]" and denied summary judgment on that basis.

At the conclusion of plaintiff's trial evidence, Prudential and Desch moved for a directed verdict on the ground that plaintiff's two expert witnesses had offered net opinions. The trial judge denied the motion. The jury thereafter returned a verdict, awarding $675,000 in damages and apportioning liability eighty percent to defendants Desch and Prudential, and twenty percent to plaintiff, resulting in a net award of $540,000. Prudential's motion for a new trial was denied.

On appeal, Prudential and Desch argue that: (1) the trial judge erroneously charged the jury on the applicable standard of care; (2) the judge erred in admitting "net opinions" of plaintiff's two expert witnesses; (3) the judge erred in permitting "surprise" expert testimony in rebuttal; (4) summary judgment was erroneously granted to third-party defendants; and (5) defendants' motion for remittitur should have been granted. For the reasons that follow, we reject these arguments and affirm.

I.

In April 2002, plaintiff, who had become paralyzed as the result of an incident years earlier, was wheelchair-bound. She was forty-five years old at the time and was employed as a math teacher. She sought to purchase a handicap-accessible one-level ranch house close to the school where she taught.

Plaintiff contacted the wife of a colleague, Paula Hartman, who worked at Prudential and was aware that plaintiff was wheelchair-bound. Plaintiff explained her needs to Hartman. Shortly thereafter, plaintiff received a telephone call from defendant Desch, explaining that Hartman was out of town but that she had been briefed by Hartman as to plaintiff's situation and would fill in for her.

Accompanied by her boyfriend, Murphy, plaintiff met with Desch, looked at pictures of houses that Desch had brought with her, and set out to view some of the properties. Plaintiff rejected the first house as unsuitable. She, Murphy and Desch then proceeded to a second house, which was owned by Lake and listed for sale with third-party defendant Remax.

Plaintiff testified that upon arrival at the Lake residence, Desch went in to secure a place for plaintiff to sit. Murphy carried plaintiff into the house, placed her in a seat in the living room and then went back to the car for her wheelchair. Shortly after Murphy placed plaintiff in her wheelchair, Desch went into the dinette area and opened a sliding glass door that led to an outdoor deck. Desch then said to plaintiff: "Oh Ferne, you have to come here. See this deck. It's such a nice deck out here. Come on out and see it for yourself."

Plaintiff "started heading toward" Desch who had stepped outside. Going toward the door, plaintiff stated that she "popped a wheelie" over the threshold. As the wheelchair went across the tracking at the base of the door, the wheelchair's front castor wheels landed on the deck causing plaintiff to pitch forward onto the deck with the wheelchair following on top of her. Plaintiff stated that she heard a bone break and immediately experienced excruciating pain in her leg.

When asked why she did not stop and look where the deck was, plaintiff replied:

From my view . . . of the threshold, it was like my parents' house, . . . very little lip. . . . I'm so used to going over tracking that doesn't even bother me or the wheels or anything. These sports chairs, the wheels, the way they're constructed, it very easily rolls over surfaces like that.

. . . .

I expected the same level . . . from the kitchen level, I expected it to be the same level on the other side just like the lip, the metal tracking to go over which to me is a not big deal thing. You know, I'm in my wheelchair now 17 years. Okay, maybe back then it was 13 years. 13 years is a long time in a wheelchair, and that was like nothing for me to do or to think that I was able to do.

Plaintiff also testified that Desch visited her in the hospital and apologized for not taking more care in showing plaintiff the deck area.

Murphy corroborated plaintiff's testimony. He stated that, after he placed plaintiff in the wheelchair in the living room, Desch was in the kitchen near the glass sliding doors; she opened the door and called Ferne: "[C]ome here. You've got to see this deck." As plaintiff wheeled toward the glass sliding doors, Murphy looked around the living room. He heard plaintiff scream, turned around and saw her on her knees on the deck with the wheelchair on top of her.

Desch gave a different account of the accident. She testified that she has been a licensed realtor since December 2001 and had never shown a house to a wheelchair-bound person prior to this occasion. Plaintiff instructed Desch not to touch or navigate the wheelchair and that Murphy would assist. Desch stated that this was her first visit to the Lake property. She also acknowledged that she had never been trained on how to show a house.

Desch stated that plaintiff and Murphy looked at the bedrooms and the bathroom after the living room. As Desch headed toward the kitchen, she saw plaintiff at the sliding glass doors leading to the deck. Plaintiff asked if they could go outside, and Desch helped plaintiff to open the door. Plaintiff leaned over and looked at the deck. She "put both hands on her wheels and motioned to go out." The chair tilted and plaintiff slid out and fell on the deck. Desch testified that after plaintiff fell the chair bounced back; its rear wheels remained on the kitchen floor and the front wheels became stuck on the door track. She stated that Murphy had to pull the chair away to get through.

Desch denied that she opened the door first and beckoned plaintiff out to the deck. She stated that it was plaintiff's idea to go outside onto the deck. The doorway area was clear and Desch did not know whether she would have noticed the drop if she had opened the door and stepped out first. Desch testified that she did not warn plaintiff because she did not "see a hazard" or anything that "needed a warning." She explained that "it was just a kitchen and a deck" and she "did not think that it was that high."

Stephen Reses, a pharmacist who once owned a medical equipment company, was permitted, over defendants' objection, to testify for plaintiff as an expert in wheelchair design and function. When presented with plaintiff's scenario concerning her "wheelie" over the threshold, and evidence that there was a two-and-three-quarter-inch drop-off from the top of the door threshold to the deck, Reses opined: "[I]f the wheelchair pitches forward, because it suddenly drops onto the porch or the decking which is that much of a drop . . . your wheelchair's going to go down, and somebody's going to go flying." Reses added that, while a spill could occur from a stop, "the rolling scenario is . . . much more probable to cause her to spill over." Reses explained further:

[S]he's rolling along. She does her little wheelie. She's really expecting the floor to be at the same height on the other side, and suddenly she has . . . almost a three-inch drop that she encounters and the chair went forward. Her whole balance is thrown off.

Reses examined plaintiff's wheelchair. He noted that no safety belts or arm rests were attached to the chair and verified that plaintiff's prescription for the wheelchair did not include an order for either item. Reses noted that the wheelchair "is completely functional. I see nothing in disrepair. The castor wheels were not falling off, and the brakes were working."

Donald J. Gluck, a licensed real estate broker and an office manager at Blumberg Associates Real Estate in Margate, New Jersey, was qualified, over defendants' objection, as an expert for plaintiff on the standard of care of realtors showing properties to the public. Gluck had shown homes on a daily basis over a ten-year period. Although he never showed a property to a wheelchair-bound person, he had shown homes to visually or hearing impaired individuals and to elderly people using canes and walkers.

While Gluck did not specifically train new realtors as to how to show properties to people in wheelchairs, he would instruct staff that "given a certain set of circumstances, whatever that case may be, you need to have some sort of heightened awareness to be able to distinguish what could be a possible or present a possible problem." Regardless of whether a person is wheelchair-bound or not, Gluck detailed how he would show a home:

[Y]ou unlock the door, you open the door, you turn on the lights, you look around quickly to kind of canvass the situation. You want to make sure . . . there's not . . . an unleashed dog or a roller skate sitting right in front of the entranceway. You walk in. You lead them into the home. . . . . You open the blinds. . . . If you were to enter a garage for instance, you would walk out into the garage first. If you were to enter a basement, you would open up the door and turn the lights on and walk down the basement stairs first. If you were to climb up in the attic, you would make sure the lights were on[,] the attic stairs pulled down gently. You'd make sure that they didn't clunk anybody in the head. You would walk up the stairs and make sure that they could secure a person and that the rafters were covered with plywood, and if you're walking out on a deck, you would open up the door and walk out on the deck first, and if the person was in a walker or elderly or . . . didn't have very good vision and there was a practically three-inch drop, you would point it out to somebody.

Gluck testified that the reason he would go out onto the deck first was for safety, and he would check for rotten wood, loose railings, a drop down, a protruding nail, friction or wetness, and the possibility of a homeowner's pet.

Based on his inspection of the Lake property, Gluck concluded that

it may be a little drop to a typical person, but given the circumstances that the person was in the wheelchair . . . and couldn't see it or whatever the case may be, . . . I thought it needed to be addressed, and as a realtor leading a client through the home, you open up the door, you walk out, you notice a slight drop which, obviously, isn't a slight drop to somebody in a wheelchair, and you bring it to their attention.

Gluck opined that, even according to Desch's version of the accident, the realtor should have walked out onto the deck and led plaintiff out. Gluck opined:

Desch was negligent and made a couple of mistakes. She should have walked out on the deck first and had the client follow. She should have canvassed the area . . . seen if there was anything, given a certain set of circumstances, that would have been hazardous to a certain person in a certain set of circumstances, and she was negligent for not realizing what could have been dangerous or hazardous.

When asked on cross-examination whether his opinion was "common-sense stuff[,]" Gluck replied that he was "an experienced, trained, practicing real estate agent that shows a whole heck of a lot of houses and ha[s] a knowledge of how a prudent real estate agent would act given a certain set of circumstances."

Regarding the issue of damages, plaintiff testified that she spent eight days in the hospital as a result of the accident and underwent surgery that required the insertion of many large screws. Following surgery, she was restricted to bed rest for about eight weeks before physical therapy could begin. The broken bone healed by the end of June 2002, and plaintiff went back to teaching in September of that year. However, she testified that she needs to take breaks to elevate her leg and has to ask colleagues for help. She experiences a hammer-like pain in her leg on a daily basis. She also suffers from a "punching pain" and a "sharp needle pricking" pain when her leg bumps into something.

Plaintiff is the mother of three-year old twins and she cannot bear to have them on her legs. She stated that her social life is curtailed and she finds it hard to drive long distances. She fears the possible consequences of further surgeries to remove the hardware in her leg.

Dr. Victor R. Frankel testified as plaintiff's treating orthopedic surgeon. He testified that her femur fracture was not simple; it involved the biggest bone in the body and was unstable because of "its proximity to the [knee] joint" and because a "multiple fragment pattern" appeared in the bone. The fracture was repaired with a metal plate and eight screws. Plaintiff suffers from "hardware pain" which Dr. Frankel described as symptoms related to the tendons, muscles and tissues that rub against the hardware.

Dr. Frankel opined that if plaintiff takes care of herself, she will have a normal lifespan and avoid spasticity, which he defined as "an increased muscle tone . . . [that] can . . . [result in] uncontrollable beats or . . . clonus which causes uncontrollable movements of a leg." Dr. Frankel opined that "any noxious type of stimuli to . . . [plaintiff's] body can increase the frequency or severity of spasticity." Hardware pain, according to Dr. Frankel, may cause the spasticity or clonus to increase. Dr. Frankel further opined that, in light of plaintiff's pain, the hardware will likely need to be removed and that the removal operation "is just about as extensive as it was to put it in." Since holes remain after removal of the screws, the bone can refracture and there is a long healing period.

Margaret Guber-Nulty, Prudential's Margate Branch Manager, testified on behalf of defendants. Guber-Nulty trains agents but does not show homes. She testified that when showing a home, the agent should, among other things, open the door, enter the property first and make sure the lights are on. The showing agent should check for any written warning about the property in the multiple listing. Guber-Nulty opined that Desch did nothing wrong. However, she acknowledged that an agent showing a property to a wheelchair-bound person "should lead the way." On cross-examination, Guber-Nulty acknowledged that a reasonable real estate agent would go out first when leading a wheelchair-bound person through a doorway.

Dr. Ronald L. Gerson, defendants' orthopedic expert, opined that plaintiff's claims of increased spasticity/clonus had nothing to do with the broken femur; nor did he believe plaintiff's constant pain had any effect upon these conditions. Dr. Gerson further testified that "hardware removal" is an elective procedure that is possible but not probable. According to Dr. Gerson, such a procedure can be done "on an outpatient or same-day basis and the probability of refracture would be low."

Jeffrey J. Schwalje, an engineer, was qualified as defendants' expert witness. In disputing plaintiff's account of the accident, Schwalje testified:

First of all, the drop that's only an inch and a quarter, when the wheelchair is going over there and the front wheels are hitting the deck, you are going to be still seated in a rearward direction on the chair due to the angle of the seat and also the angle of the drop. So in other words, you have about an eight percent pitch towards the back even with the front wheels down on the deck. I don't believe that's going to be enough to actually propel someone out of the chair. That's my first problem with that scenario. The second problem is that if, indeed, that did occur where the front wheels hit the deck and the back wheels are on the [kitchen] floor and you are somehow [propelled] out of the front of it, just by the laws of physics the chair is not going to follow you on top of you. It's going to either stay where it is, or it's going to slide backwards because when you're putting your weight forward, there's going to be a force that's going to be acting in the opposite direction; in fact, a far greater force than the wheelchair. The wheelchair weighs only about 30 pounds. The person in it weighs 120 pounds. You have four times factor here. So once you're going forward, that's going to be a tremendous force pushing backward on the chair. The chair's not going to go over on top of that person. I'm just using it as a situation of a pure physics standpoint. It's just not going to happen. The chair's either going to stay where it is, or it's going to be propelled backwards if you're going to fall in that particular scenario. Now . . . if the front of the chair hits that rise, now you have an abrupt impact. Then you could . . . more likely fall out. Still the chair is not going to go over with the individual. It's going to either stay where it is, or it's going to go backwards. That's just forces. So that's why I don't believe . . . from an engineering standpoint [plaintiff's version] makes sense to me.

On cross-examination, Schwalje opined that the front wheels of the wheelchair likely hit the raised spacer on the threshold and, as a result, the chair came to an abrupt stop and ejected Plaintiff.

Plaintiff called Terrence Fischer in rebuttal to Schwalje's testimony. Over objection, the judge ruled that Fischer would be permitted to testify "as to why the chair could have tilted on [plaintiff]." The judge further ruled that Schwalje would be permitted to testify in surrebuttal.

Fischer holds undergraduate and graduate degrees in engineering. Although not a licensed engineer, he was certified in "human factors" which he defined as the "study of machines and how they operate" and the study of human interaction with machines for the purpose of designing safe and efficient machines.

Fischer, who had heard Schwalje's testimony, opined that Schwalje had ignored "two things." First, Schwalje had under- estimated the "friction factor" which Fischer described as "common values that we use in the field of accident . . . reconstruction." By underestimating this factor, Schwalje "greatly underestimate[d] the value or the velocity that would be necessary for her to slide forward out of the chair."

Schwalje's second error, according to Fisher, was his opinion that plaintiff's wheelchair would have rolled up to the "hub and she would have slid off the edge." Fischer stated that this conclusion ignored the law of physics that, "(a)n object in motion will tend to stay in motion. . . . So what ends up happening is you get a rotation about your center of mass causing you to spin or fall forward instead of just stop."

Schwalje then testified in surrebbutal, and disputed Fischer's testimony. Specifically, Schwalje disagreed with Fischer's assumptions and calculations.

At the conclusion of the testimony, the judge held a charge conference. Defense counsel objected to a proposed realtor's duty charge which would instruct that "a realtor has a duty to inspect and warn of defects reasonably discoverable through ordinary inspection of the home prior to showing it." Counsel argued that this standard applied to the listing agent and not to the showing agent. Counsel also objected to the use of the word "defect" because of the judge's previous order precluding plaintiff from arguing that a dangerous condition existed with respect to the Lake property.

The trial judge agreed to eliminate the word "defect," stating:

A realtor has a duty to inspect and warn of conditions, I think I'd have to qualify and say that may cause injury. A realtor has a duty to inspect and warn of conditions that may cause injury reasonably discoverable through an ordinary inspection of the home prior to showing it. I think that's what . . . Hopkins [v. Fox and Lazo Realtors, 132 N.J. 426 (1993)] . . . stands for. I'm confident that's what the law says.

. . . .

So I'm not calling it a defect, I'm not calling it a hazard, I'm calling it a dangerous condition. I'm calling it a condition that may cause injury because as I read that Supreme Court case a licensed real estate professional has a duty of care beyond the ordinary citizen that creates a burden to make sure that when someone's seeing a property that they do what they reasonably can, and that's what the jury will decide, whether or not the defendant did do what she reasonably could to insure that the . . . prospective purchaser doesn't get exposed to an unnecessary risk.

The judge charged the jury as follows:

A realtor has the duty to exercise reasonable care for the safety of her patrons when showing a property to a prospective purchaser. And we've had the term showing defined by various testimony that's been given. And that's when the person is taken to a property or invited to a property and the property is presented to them for possible purchase. The New Jersey Supreme Court recognizes that a realtor is not really a salesperson but a salesperson skilled in real estate transactions. Implicit in a realtor's invitation to a customer to visit a property is a corresponding degree of responsibility for the safety of the customer while visiting the property. A realtor has the duty to inspect and warn of conditions that may cause injury which are reasonably discoverable through an ordinary inspection of the home prior to showing it. While at the property being shown a realtor must make reasonable observations in order to avoid visible dangers. Because of the nature of the relationship between a realtor and a prospective home buyer the buyer may reasonably expect to be able to rely on the realtor's professional services when showing the property. Now what I want to do and I'll do this, I think I need a little bit more light because I don't want to misquote our Supreme Court, . . . in the decision of Hopkins v. Fox and Lazo has articulated the standards in terms of the standard of care expected of a realtor when showing property. And I think what would be most appropriate would be for me to read portions of the Court's decision so there's no misunderstanding as to what the Supreme Court has said. And again the defendant is a licensed professional and licensed professionals are obligated to abide by the law as it exists. . . . [I]n this instance we're talking about court made law where the Supreme Court made a ruling on a claim brought against a realtor. And the case that I'm referring to is Hopkins v. Fox and Lazo Realtors[, 132 N.J. 426 (1993)].

[Emphasis added.]

The trial judge then quoted from the Supreme Court's opinion as follows:

"Whether a person owes a duty of reasonable care towards another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of the considerations of public policy. That inquiry involves identifying, weighing and balancing several factors[:] the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact sensitive and principled. It must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.[. . .] "A realtor does not hold itself out to the public as a salesperson but rather as a salesperson skilled in real estate transactions." The difference is significant. Correlatively by responding to the broker's invitation the customer gains permission to come onto the property and participate in the open house tour conducted by the broker. The customer may reasonably expect to be able to rely on the use of the services proffered by the broker in connection with an examination of the premises. [. . .T]he broker receives very tangible economic benefits from the relationship with the potential buyers to visit the home. The open house enables the broker to sell the house and to earn a commission. [. . .] In sum, the nature of the relationship between a real estate broker and its customer in the conduct of an open house inspection of property is substantial. The relationship confers certain specific benefits on the broker and creates expectations on the part of the customer with respect to the broker's professional services. Based on the nature and circumstances surrounding an open house we conclude that implicit in the broker's invitation to customers there is some commensurate degree of responsibility for the[ir] safety while visiting the premises."

[Hopkins, supra, 132 N.J. at 439-41.]

II.

Defendants contend that the trial judge erred as a matter of law in charging the jury as to the applicable standard of care. They argue that the trial court "erroneously applied a heightened standard of care to . . . ordinary negligence claims" and erroneously applied Hopkins "beyond its proper scope." Defendants also argue that the judge "improperly delegated to the jury the legal issue of the definition of the applicable standard of care." We are convinced these arguments are without merit.

The question of whether a duty exists is a matter of law to be decided by the court. Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 572 (1996); Kelly v. Gwinnell, 96 N.J. 538, 552 (1984). Determination as to the existence of a duty is ultimately a question of fairness and public policy. Snyder v. Am. Ass'n of Blood Banks, 144 N.J. 269, 292 (1996); Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991).

As noted in Hopkins, this inquiry "involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." 132 N.J. at 439. While Hopkins dealt with the specific situation of an open house, nonetheless the Court "recognize[d] that many variations of circumstances exist under which a broker can assist a customer in viewing a private residence[.]" Ibid.

Under the circumstances, plaintiff clearly had "a firm business or fiduciary relationship with the broker." Id. at 440. Desch reached out to plaintiff to offer her services in Hartman's absence. Desch selected the properties to show to plaintiff according to plaintiff's specifications regarding one-story houses only. Desch brought plaintiff to the Lake property. Although Desch may not have had previous "familiarity with the actual features of the premises, as well as other factors affecting its market value[,]" ibid., once on the premises it became her obligation to assume responsibility for plaintiff's "safety while visiting the premises." Id. at 441.

Desch was aware that plaintiff wanted to see only one-level houses, because of her confinement to a wheelchair. Had Desch led the way out to the deck on the Lake property, she would have noticed the height differential between the kitchen area and the deck and, therefore, would have been in a position to advise plaintiff accordingly.

The jury charge conformed to the expert testimony provided by Gluck, as well as the concessions offered by Guber-Nulty. Based on the testimony, the judge properly charged the jury that:

A realtor has the duty to inspect and warn of conditions that may cause injury which are reasonably discoverable through an ordinary inspection of the home prior to showing it. While at the property being shown a realtor must make reasonable observations in order to avoid visible dangers.

The trial judge quoted language from Hopkins, supra, that discussed "a duty of reasonable care" in terms of "a duty [that] satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Id. at 439. We recognize that Hopkins involved a listing broker holding an open house, open to the general public; however, the general principles enunciated in Hopkins were properly applied in this case.

Defendants acknowledge that a realtor may have the experience, and the obligation, to notice and warn of a defective door threshold in the course of an inspection for the purpose of selling a house. However, defendants contend that a realtor has "no particular expertise beyond that of the average person" with respect to the judgment of "whether a wheelchair can safely be driven over an ordinary, non=defective door threshold[.]" Defendants also argue that the judge "improperly delegated to the jury the legal issue of the definition of the applicable standard of care."

Having reviewed the charge in its entirety, we conclude that, although the trial judge cited and read from the language in Hopkins, the jury was not misled as to the duty of care that they must find in order to hold defendants liable. As noted, both in denying defendants' motion for summary judgment and later in the charge conference, the trial judge deleted the word "defect" from the charge, thereby properly eliminating from the defendants' duty the obligation to notice and warn against a defect. The jury was properly instructed that Desch and Prudential had a duty to exercise reasonable care in the circumstances presented here.

As we have explained, plaintiff's case was premised upon a negligent showing of the house by Desch. In the context of this showing, conditions in the house were necessarily at issue, not regarding a "defect" but, rather, in the context of a condition of which Desch should have taken special notice in light of plaintiff's situation. But for Desch's negligence, plaintiff argued to the jury, the track of the sliding door from the kitchen to the deck would not have constituted a hazard to plaintiff.

In this context, defendants' reliance upon Rogers v. Bree, 329 N.J. Super. 197 (App. Div. 2000), is misplaced. There, plaintiff was injured by a defective washing machine in a townhouse he had leased through Coldwell Banker. We affirmed summary judgment for the realtor, rejecting the plaintiffs' contention that Coldwell Banker had "assumed the role of property manager." Id. at 203. We held that the realtor "did not assume, by contract, the responsibility of inspecting the property periodically on behalf of the owners to discover latent defects." Ibid. We found "nothing unfair or unjust in declining to impose a duty under these circumstances." Ibid.

By contrast, here the judge expressly eliminated the concept of "defects" from his jury instruction on the issue of duty. The judge had already addressed the factors identified in Hopkins, supra, in his pre-trial decision on defendants' summary judgment motion. Having thus defined the scope of defendants' duty to plaintiff, the trial judge subsequently rendered a jury instruction entirely consistent with this definition.

III.

We next address defendants' argument that the trial judge erred by permitting plaintiff's experts, Gluck and Reses, to render what defendants contend were "net opinions."

Concerning Gluck's testimony, the judge stated:

I don't view his opinion as a net opinion. I view his opinion as setting forth what he views, based upon his experience as a real estate broker, as the standard of care expected of a realtor when showing a home that has possible obstacles to anyone and, in particular, to someone in a wheelchair. I think his testimony is going to be narrow and limited. . . . I'm looking at Mr. Gluck's report. I recognize that it's sparse, and I read his deposition and I recognized that he uses the term common sense stuff. . . . I'm reading that in context and he's viewing it as common sense stuff for a broker, not for lay people, but for brokers. And I'm satisfied that he'll be able to testify as an expert, and I'm going to permit his testimony.

In permitting Reses's testimony, the judge stated:

I believe Mr. Reses is qualified, and by that I mean, the fact that he has a degree in pharmacy and not engineering doesn't really impress me a great deal. What I heard was testimony that he had dealt with many manufacturers, he had dealt with hundreds, likely thousands of individuals who have purchased and probably leased and operated and been in wheelchairs. He knows how wheelchairs function. He probably has a pretty good idea of how they're designed and intended to function. . . . He certainly sounds qualified to talk about those kinds of issues. . . . I'm satisfied that he's capable to talk about wheelchairs, how they function, how they're designed, how they're intended to be used. So I'm going to permit the testimony to continue because I think it will be valuable and educational to the jurors and to myself.

"In determining the competency of an expert witness, the trial judge is vested with wide discretion. An appellate court will not disturb the trial judge's determination on competency unless a clear abuse of discretion appears." Ibid. The exercise of this discretion "will be reviewed only for manifest error and injustice." State v. Ravenell, 43 N.J. 171, 182 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965).

We affirm the admission of these experts' opinions substantially for the reasons stated by the trial judge in his decisions. Suffice it to say, Gluck's testimony was not a net opinion because it was based upon the particular facts and circumstances of this case, specifically the manner in which Desch showed the Lake residence to plaintiff. The same conclusion applies to Reses's testimony which was also grounded in the particular facts and circumstances of plaintiff's accident.

IV.

We turn to defendants' remaining arguments. These arguments are without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E).

Defendants argue that the judge erred by permitting Fischer to provide rebuttal testimony. We disagree. The trial judge expressly noted that defendants' expert, Schwalje, had described "calculations and studies and deliberations" that were not included in his report. A "trial judge has a wide range of discretion regarding the admissibility of proffered rebuttal evidence." Casino Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 497 (App. Div.), certif. denied, 165 N.J. 607 (2000). Here, the trial judge ameliorated any prejudice or surprise defendants could have claimed from Fischer's testimony by allowing Schwalje to testify in surrebuttal.

Prudential and Desch argue that the judge erred by granting summary judgment in favor of Lake and Remax on the third-party claim. This contention is entirely without merit. R. 2:11-3(e)(1)(E). Suffice it to say, third-party defendants Lake and Remax were clearly entitled to summary judgment, as plaintiff was precluded in limine from proceeding under a liability theory predicated upon a defect on the premises.

Finally, we reject defendants' contention that the jury's verdict was so excessive as to require a new trial on damages subject to a remittitur pursuant to Rule 4:49-1. "Because a jury is given wide latitude in determining pain and suffering damages, the standard for granting a new trial or remittitur is necessarily high. . . . A trial court should not . . . remit a jury's damages award unless it is so clearly disproportionate to the injury and its sequela . . . that it may be said to shock the judicial conscience." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). The jury's verdict does not meet this standard.

Affirmed.

 

The third-party complaint against Murphy was subsequently withdrawn.

(continued)

(continued)

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A-2401-06T5

August 28, 2008