Amelia Antoinetti v. New Jersey Turnpike Authority Garden State Parkway Division

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2890-08T32890-08T3

Amelia Antoinetti and

Clifford Johnson,

Plaintiffs-Appellants,

v.

New Jersey Turnpike Authority,

Garden State Parkway Division,

HMS Host Corp., and

Auto Grill Group, Inc.,

Defendants-Respondents.

_____________________________________

 

Argued October 27, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Docket No. L-3819-06.

Joseph DiRienzo argued the cause for appellants

(DiRienzo & DiRienzo, attorneys; Mr. DiRienzo,

on the brief).

Alex J. Keoskey argued the cause for respondent

New Jersey Turnpike Authority (DeCotiis,

FitzPatrick, Cole & Wisler, attorneys;

Mr. Keoskey, of counsel; Jason D. Attwood,

on the brief).

Neil S. Weiner argued the cause for respondents

HMS Host Corp. and Auto Grill Group, Inc.

(Sonageri & Fallon, attorneys; Mr. Weiner,

on the brief).

PER CURIAM

Plaintiff Amelia Antoinetti appeals from a jury verdict in favor of defendants New Jersey Turnpike Authority, Garden State Parkway Division (NJTA), HMS Host Corp., and Auto Grill Group, Inc. The jury found defendants not liable for injuries plaintiff allegedly sustained when she fell on October 15, 2004, at the Forked River rest-stop on the Garden State Parkway. Plaintiff argues that the trial court erred when it limited the scope of her expert witness's testimony and when it gave the instructions to the jury pertaining to the duty defendants owed to plaintiff as a business invitee. We affirm.

We gather the following facts from the evidence presented at trial.

I

On October 15, 2004, plaintiff and her husband were driving from their home in Connecticut to Atlantic City to attend an antiques show. They stopped at the Forked River rest area on the Garden State Parkway at approximately 7:00 p.m. Visibility at the rest-stop was poor because the sun had set and it was raining. As she walked in the direction of the rest-stop building, plaintiff tripped on a broken area of the curb and fell onto her left arm. According to plaintiff, "when I got to the curb my foot went in the curb and it went in the depression, and I . . . looked down, I saw the broken curb . . . [a]nd I went splat onto the concrete slab." Plaintiff claims to have suffered permanent injury to her arm, which required surgery and months of physical therapy.

In her complaint, plaintiff alleged negligence against NJTA as the party responsible for maintaining the curbs at the rest area. She also argued that HMS Host had a duty to monitor the facilities, notify NJTA if a dangerous condition existed, and warn patrons of the defective condition during the period of time it remained unabated.

Because the jury found the issue of liability dispositive, we will not recite any facts concerning damages. In addition to her own testimony, plaintiff called as witnesses a number of NJTA and HMS Host employees and Alex Sacher, Ph.D., a polymer chemist whom plaintiff offered as an expert in the field of biomechanics. Plaintiff sought to have Sacher opine on why and how plaintiff fell on the night of the accident.

Responding to defendants' objection to Sacher's testimony, the trial court conducted a N.J.R.E. 104 hearing outside the presence of the jury to determine whether he was qualified to offer expert testimony in the field of biomechanics or the science of human locomotion. After hearing from Sacher, and considering the arguments of counsel, the court concluded that Sacher's experience and education did not qualify him as an expert in biomechanics. The court thus limited his testimony as "an expert in surfaces, walking surfaces." In so doing, the court specifically rejected the proffer that Sacher could opine on plaintiff's manner of walking.

Before counsel from both sides had presented their respective closing arguments, the trial judge invited the lawyers to send him proposed jury charges via email. Because the case was scheduled to resume after the weekend, the judge advised counsel that this electronic communication should be sent to him over this two-day period. The judge directed counsel to indicate any objections to the proposed jury charges via email. Counsel then presented their summations to the jury before breaking for the weekend.

Adhering to the court's directions, plaintiff's counsel indicated, via email, that he wanted the court to charge the jury that HMS Host had an affirmative duty to notify NJTA of any dangerous conditions on the property it knew existed, or through the exercise of a reasonable inspection should have known, and of its affirmative duty to warn its customers of the conditions until repaired. He objected, via email, to any charge that omitted HMS Host's affirmative obligation to warn patrons.

When the trial resumed after the weekend, the trial judge instructed the jury that HMS Host had a general duty to warn pedestrians of any known, or reasonably discoverable, dangerous conditions, without imposing on HMS Host the affirmative duty to warn as plaintiff's counsel had requested. After deliberating for less than one hour, the jury returned a verdict, by a six-to-zero vote, finding that neither NJTA nor HMS Host were negligent.

II

We will first address plaintiff's argument concerning the trial court's ruling limiting the scope of Sacher's testimony. Our analysis of this issue will be governed by the standards set out in N.J.R.E. 702, which provides that expert testimony is admissible "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Thus, before determining whether a proposed expert is qualified to offer an opinion, the court must first be satisfied that the intended testimony concerns "a subject matter that is beyond the ken of the average juror." Kemp v. State, 174 N.J. 412, 424 (2002).

Here, we are satisfied that the subject matter upon which plaintiff sought to offer expert testimony is not "beyond the ken of the average juror." According to plaintiff, she tripped on a broken area of the curb as she walked from her car to the building where defendants' facility was located. She described both the lighting and weather conditions existing at the time. Such an event is well within the experience of any reasonable juror. Indeed, it is difficult to conceive of a more typical, routine and common experience than walking on a paved surface that has broken or uneven sections. No expert in "ambulation" or "biomechanics" is needed to explain to a juror that you should pay reasonable attention when you walk, especially when it is dark and wet, because sometimes the ground is not perfectly even or dry. Equally self-evident is the notion that when you step into a broken or depressed section of ground, you can trip and fall and, sometimes, even hurt yourself.

Because these things are well within the common experience of any reasonable juror, the trial court should have denied plaintiff's application to qualify Sacher as an expert in "biomechanics." Here, the court's decision to permit Sacher to testify as "an expert in surfaces, walking surfaces," was erroneous. The error, ironically, benefited plaintiff. Given the jury's verdict in favor of defendants, however, the error proved to be harmless.

We next address plaintiff's argument concerning the court's instructions to the jury. Before we do so directly, we are compelled to comment on the procedure utilized by the trial court to consider and review counsels' proposed jury charges.

Rule 1:8-7(a) provides as follows:

Either within the time provided by R. 4:25-7 or thereafter but before the close of the evidence, as to issues not anticipated prior to trial any party may submit written requests that the court instruct the jury on the law as set forth in the requests. The requests shall make specific reference to the Model Civil Jury Charges, if applicable, or to applicable law. Copies of the requests shall be furnished all parties at the time they are submitted to the court. The court shall, on the record, rule on the requests prior to closing arguments to the jury. A verbatim record shall be made of any charge conference the court holds. Objections to the instructions to the jury shall be in accordance with R. 1:7-2.

(Emphasis added.)

Instead of following these straightforward requirements, the trial judge waited until after both attorneys had completed their respective closing arguments to hear their objections to the proposed jury charges. This approach directly contravenes the explicit mandate of Rule 1:8-7(a) and undermines trial counsel's implicit right to know what legal principles will govern the jury's deliberations before directly addressing the jury for the last time via closing argument. Stated differently, when the court conducts the charge conference after closing arguments, trial counsel assumes the unreasonable risk of flying blind, not knowing whether his or her final argument correctly tracked the legal principles the court will thereafter give to the jury.

Finally, we note that the court directed counsel to use email to electronically transmit the proposed jury charges. There is nothing, per se, improper in this method of communication. Indeed, email and other forms of electronic communication are ubiquitous features of the modern practice of law. We caution the court, however, that regardless of the means it employs to communicate with counsel, objections to proposed jury charges must be raised in conformance with Rule 1:7-2. The charge conference to consider and rule upon any objection raised by counsel to the proposed charges must be conducted on the record. R. 1:8-7(a).

Here, because plaintiff's counsel did not object to the approach utilized by the trial court at the time, we review this deviation from the procedural requirements of Rule 1:8-7(a) under the standard articulated in Rule 2:10-2. Under this standard, we must disregard any error or omission that is not "clearly capable of producing an unjust result." We are satisfied that the trial court's approach discussed here does not amount to plain error. We expect, however, that the trial court will conduct all future charge conferences in compliance with Rule 1:8-7(a).

We will now address plaintiff's argument concerning the court's instructions to the jury on the duty defendants owed to plaintiff. It is well-settled that "proper and appropriate jury charges are essential for a fair trial." Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002) (quoting State v. Green, 86 N.J. 281, 287 (1981)). We review the court's charge as a whole, however, to determine whether any error or omission in the charge had the capacity of misleading or misdirecting the jury on a material question of law. Vallejo by Morales v. Rahway Police Dept., 292 N.J. Super. 333, 342 (App. Div.), certif. denied, 147 N.J. 262 (1996).

Here, the trial court's instructions to the jury on the question of defendants' duty tracked Model Civil Jury Charge 5.20F(5). The following excerpt from the court's charge illustrates the point.

[Business owners] must take such steps as are reasonably necessary and reasonably prudent to give warning of hazardous conditions or defects actually known to them or their employees and of hazardous conditions or defects which he or his employees would (sic) exercise of reasonable care could discover.

The law imposes upon the owner of a commercial business a duty to use reasonable care to see to it that the sidewalks and abutting curb at the property are reasonably safe for the members of the public who are using them. In other words, the law says that a business owner must exercise reasonable care to see that the condition of the abutting sidewalk and curb is reasonably safe and does not subject pedestrians to an unreasonable risk. The concept of reasonable care requires . . . a business owner to take action with regard to conditions within a reasonable period of time after the business owner becomes aware of the dangerous condition[,] or in the exercise of reasonable care should have become aware of it.

If, therefore, you find that there was a condition of the curb that was dangerous in that it created an unreasonable risk of harm for pedestrians and if you find that the business owner knew of the condition or should have known of it but failed to take such reasonable actions to protect pedestrians of (sic) the situation within a reasonable period of time thereafter as [a] reasonably prudent business owner would have done under the circumstances, then the business owner is negligent.

The parties agree in this situation that HMS Host had no obligation to repair any defect in the curb. The parties agree that HMS Host did have an obligation to notify the New Jersey Turnpike Authority. But in this case, the business owner contends that it had no notice or knowledge of the alleged dangerous condition and, therefore, cannot be held responsible for it. In that connection, I must make you aware of the following rule. The owner of a commercial business is chargeable with the duty of making reasonable observations of its property, including the abutting curbs and sidewalks, in order to discover if (sic) any dangerous conditions that might develop or occur. The owner must make observations of the property, including the sidewalk and curb, with frequency that a reasonably prudent commercial business operator would do under the circumstances. If you find that such reasonable observation would have revealed the alleged dangerous condition in this case, then the business owner is chargeable with notice of the condition although it did not actually know about it. That is, the business is as much responsible for the condition as if it had actual knowledge.

(Emphasis added.)

As the emphasized language demonstrates, the trial court correctly instructed the jury on the standard of care and legal duty defendant HMS Host owed to plaintiff. That is, HMS Host had to make "reasonable observations" to discover any dangerous conditions which existed on the premises, or could have been reasonably discovered by such observations, and was legally charged with knowledge of such conditions.

Among the proofs presented at trial, the jury was given a series of photographs that depicted the broken curb that plaintiff identified as the dangerous condition that caused her to trip and fall. The jury's verdict, finding defendants not negligent, can reasonably rest on the proposition that the defect depicted in those photographs did not constitute a "dangerous condition." Equally plausible is the notion that plaintiff's fall was caused solely by her failure to exercise reasonable care to avoid what can arguably be characterized as an insignificant, yet clearly visible, depression in one section of the curb.

What actually influenced the jury's determination cannot be ascertained. What is clear, however, is that plaintiff received a fair trial.

 
Affirmed.

Although Clifford Johnson also asserted a derivative per quod claim against defendants for loss of consortium, we will refer to "plaintiff" in the singular.

(continued)

(continued)

12

A-2890-08T3

March 15, 2010