ANTHONY GUERRIERO v. VISUAL E-FEX, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5141-11T4

ANTHONY GUERRIERO,

Plaintiff-Appellant,

v.

VISUAL E-FEX, LLC,

Defendant-Respondent,

and

JEFFREY D. WERNES,

Defendant/Third-Party

Plaintiff-Respondent,

and

B&B ASSOCIATES, MAXTRADE, LLC,

DEEAL, INC., GOOGLE CHECKOUT,

ZHEJIANG QIYE SCOOTER CO., LTD.,

Defendants,

v.

TRAVELERS INSURANCE COMPANY,

AND NEW JERSEY MANUFACTURERS,

Third-Party Defendants.

___________________________________

Telephonically Argued December 9, 2013 Decided December 27, 2013

 

Before Judges Fuentes, Simonelli and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1593-09.

 

Christopher F. Struben argued the cause for appellant (Michael A. Percario, LLC, attorneys; Mr. Struben and Roger J. Ermola, II, on the briefs).

 

Felicia G. Smith argued the cause for respondent Visual E-Fex, LLC (Law Offices of William E. Staehle, attorneys; Ms. Smith, on the brief).

 

Joseph M. Gaul, Jr., argued the cause for respondent Jeffrey D. Wernes (Gaul, Baratta & Rosello, LLC, attorneys; Mr. Gaul, of counsel and on the brief; Richard J. Isolde, on the brief).

PER CURIAM

After plaintiff Anthony Guerriero was struck and injured by a go-kart owned by defendant Jeffery Wernes in the parking lot of Wernes's employer, defendant Visual E-Fex, plaintiff filed a negligence action against Wernes and Visual E-Fex.1 The matter proceeded to trial, where the trial judge granted Visual E-Fex's motion for an involuntary dismissal of plaintiff's claims against it at the close of plaintiff's evidence. Thereafter, during the presentation of Wernes's case, the judge permitted him to read portions of a discovery deposition of plaintiff's expert to the jury. The jury returned a verdict in favor of Wernes.

Plaintiff has appealed and argues that the judge erred by granting Visual E-Fex's motion to dismiss and allowing his expert's deposition to be presented to the jury. After reviewing the record in light of the contentions advanced on appeal, we affirm the judge's decision to grant Visual E-Fex's motion to dismiss, but reverse and remand the judgment entered in favor of Wernes.

I.

Visual E-Fex owns and operates a commercial signage business in West Linden, where it makes customized signs and also applies vinyl decals to cars and other equipment. The shop is located off Saint Georges Avenue and adjoins a strip mall.

For the three years prior to the incident on August 5, 2008, Visual E-Fex had employed Wernes as "a shop hand." Wernes was responsible for "keep[ing] the order of the shop[,]" and he also installed signs and lettering, answered the telephone, and dealt with customers. Wernes was not employed to sell go-karts or any other type of vehicle.

In April 2008, Wernes purchased a go-kart from an online dealer. "It came in a paper box" and Wernes had to "put it together" by installing "the wheels and the top part of the cage." As he did so, he "[p]retty much just skimm[ed] through" the manual "to find what I needed." Wernes operated the go-kart sporadically between April and August 2008. He started it about ten times and drove it on only three or four occasions. Wernes testified2 that the go-kart operated without any problems during the entire period he owned it. It never lunged forward when he started it prior to August 5, 2008.

By July 2008, Wernes had decided to sell the go-kart because he was having financial problems. He placed an ad on Craig's List, but did not receive any viable responses. At the shop, he talked about the go-kart with Albert Angrisani and Paul Deem, the owners of Visual E-Fex. Deem told Wernes that he could park the go-kart in front of the shop in an effort to sell it. Angrisani agreed to this arrangement. Both Angrisani and Deem testified that Visual E-Fex was not in the business of selling vehicles and would not receive any financial or other benefit from permitting Wernes to park the go-kart in the parking lot with a "for sale" sign on it. Because Wernes had never had any mechanical problems with the go-kart, he never informed Angrisani or Deem of any concerns about the vehicle's safety. Neither owner ever touched or operated the go-kart.

Wernes brought the go-kart to the shop three or four days before August 5, 2008. During that time, no one expressed any interest in purchasing it.

In "mid to late July" 2008, plaintiff had dropped off a Fender Stratocaster guitar at the shop to have some "lettering" placed on it. He returned to the shop between 4:30 and 5:00 p.m. on August 5, 2008 to pick up the guitar. Plaintiff did not notice the go-kart when he entered the shop. He brought a case of beer for the owners. Angrisani and plaintiff drank a beer and talked about the guitar with Deem. Angrisani testified that plaintiff was "happy" with the work.

Plaintiff went outside the shop to take a telephone call. He testified he had finished conducting his business in the shop at that point. Plaintiff saw the go-kart while he was outside and, after completing his call, he returned to the shop to "inquire[] about" it. Angrisani directed him to Wernes.

Plaintiff and Wernes went into the parking lot to look at the go-kart. Plaintiff stood near his truck. Wernes stood outside the go-kart, with his foot on the brake pedal, and started it. Wernes testified that the go-kart "immediately shot forward and pinned [plaintiff] against his vehicle." Plaintiff suffered a compound fracture of his right leg. Angrisani called 9-1-1 and an ambulance arrived to transport plaintiff to the hospital. He was on crutches and had to use a cane for the next six months.3

At the conclusion of plaintiff's case, the trial judge granted Visual's E-Fex's motion for an involuntary dismissal of the claims against it pursuant to Rule 4:37-2(b). The judge found that Visual E-Fex was not in the business of selling go-karts and derived no benefit from permitting Wernes to park the go-kart in the parking lot. Therefore, the judge concluded that no rational jury could conclude that Wernes was acting within the scope of his employment when the go-kart struck plaintiff. The judge also found that plaintiff failed to present any evidence to demonstrate that the go-kart was in a dangerous condition when the Visual E-Fex owners permitted Wernes to park it in front of the shop or that the owners should have known the vehicle might be harmful to its customers. Plaintiff also failed to produce an expert to testify that the go-kart was inherently dangerous. Therefore, the judge dismissed plaintiff's negligence claim against Visual E-Fex.

Plaintiff's case continued against Wernes. Prior to trial, plaintiff retained an expert, Peter Chen, to inspect the go-kart and instruction manual and prepare a report concerning whether there were any mechanical defects in the vehicle. Chen was employed by CED Technology, a Connecticut company.

Chen prepared a report that identified design flaws in the go-kart and numerous issues with the instruction manual. The attorney for Maxtrade, LLC took a discovery deposition of Chen during the discovery period. The deposition was attended by the attorneys for plaintiff, Visual E-Fex, and Wernes.4 The deposition of this expert was not video-taped.

After plaintiff settled his claims against Maxtrade, LLC, he abandoned his plan to call Chen as a witness at trial. The record also indicates that Chen advised the parties that it was likely that his employer would not let him have time off to appear at the trial. Prior to jury selection, Wernes stated that he wanted to call Chen as a witness, if he was available. Therefore, the judge included Chen's name on the list of potential witnesses provided to the jury during voir dire. However, the judge ruled that Wernes would not be permitted to say anything to the jury about Chen's potential testimony during his opening statement "unless [Chen] calls back and says he's coming." Chen subsequently advised Wernes that he would not be available to testify at the trial.

After plaintiff rested his case, Wernes made a motion for permission to read portions of Chen's discovery deposition to the jury.5 Plaintiff opposed the motion, arguing that the discovery deposition of an expert witness may not be read to the jury under Rule 4:16-1(c) unless taken pursuant to Rule 4:14-9(e). The judge rejected this argument, finding that plaintiff's attorney was present at the deposition and, because Chen was unavailable, the deposition could be presented to the jury.

Thereafter, Wernes's attorney read the portions of Chen's deposition where he was critical of the go-kart's design and instruction manual. The judge then permitted plaintiff to read the portions of the transcript he believed were advantageous to his claims. After the deposition was read to the jury, Wernes rested without calling any witness.

In rebuttal, plaintiff sought to read portions of a discovery deposition provided prior to trial by Maxtrade, LLC's "liability expert," George Meinschein, who had opined that someone had modified the go-kart and that this was the reason for the vehicle striking plaintiff. The judge denied plaintiff's motion, stating, "I'm not [going to] allow it in because I - - not only is [Meinschein's deposition testimony] highly prejudicial, I don't think it's reliable."

The jury returned a five-to-one verdict for Wernes and judgment was entered in his favor. This appeal followed.

II.

Plaintiff first contends that the trial judge erred in granting Visual E-Fex's motion for an involuntary dismissal at the end of plaintiff's case. We disagree.

In reviewing a decision to grant a motion for involuntary dismissal, our task is to determine whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b). The Rule "requires the court to enter judgment in favor of defendant if, after the presentation of plaintiff's evidence, 'upon the facts and upon the law the plaintiff has shown no right to relief.'" Fox v. Millman, 210 N.J. 401, 428 (2012) (quoting Rule 4:37-2(b)). "In making that determination, the trial court is required to give all favorable inferences to the plaintiff[]." Ibid. (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)).

Applying this standard, we discern no basis for disturbing the trial judge's decision to dismiss plaintiff's claims against Visual E-Fex. Plaintiff argues that the judge should have permitted the jury to consider whether Visual E-Fex could be found liable for Wernes's conduct under the respondeat superior doctrine. This argument lacks merit.

"Although as a general rule of tort law, liability must be based on personal fault, the doctrine of respondeat superior recognizes a vicarious liability principle pursuant to which a master will be held liable in certain cases for the wrongful acts of his [or her] servants or employees." Carter v. Reynolds, 175 N.J. 402, 408 (2003) (citations omitted). Under this doctrine, "an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment." Id. at 408-09. In determining whether an employee has acted within the scope of his or her employment, our courts consider the following factors set forth in Restatement (Second) of Agency 228 (1958):

(1) Conduct of a servant is within the scope of employment if, but only if:

 

(a) it is of the kind he is employed to perform;

 

(b) it occurs substantially within the authorized time and space limits; [and]

 

(c) it is actuated, at least in part, by a purpose to serve the master[;]

 

. . .

 

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

 

[See Cosgrove v. Lawrence, 214 N.J. Super. 670, 674 (Law Div. 1986), aff'd, 215 N.J. Super. 561 (App. Div. 1987).]

 

Here, it is clear that Wernes was not acting within the scope of his employment with Visual E-Fex when he started the go-kart in the parking lot. As the trial judge found, Wernes was hired to work in the shop, not to sell go-karts. Visual E-Fex was not in the business of selling go-karts and it received no financial benefit from permitting Wernes to park his vehicle in the parking lot with a "for sale" sign. No customers came to the shop because the go-kart was for sale and plaintiff did not even notice the vehicle until after he had completed his transaction in the shop on August 5, 2008. Therefore, the judge properly dismissed plaintiff's respondeat superior claim against Visual E-Fex.

Plaintiff's reliance upon Gilborges v. Wallace, 78 N.J. 342 (1978) is misplaced as that case is clearly distinguishable from the present matter. In Gilborges, a trucking company permitted a driver to use the employer's pick-up truck to drive home so that the employee could get ready for a business trip he needed to make for the employer the following day. Id. at 350. The employer was involved in an accident as he was returning the vehicle to the trucking terminal the next morning. Ibid. The Court found that the employer could be liable for the damages caused by the employee because permitting the employee to take the vehicle home served a "dual purpose." Id. at 352. The arrangement benefited the employer, because it was in the employer's interest to enable the employee to be ready to go on the company business trip first thing in the morning, and it benefited the employee who was able to return home before making the trip. Ibid. Here, the trial judge correctly found there was no similar "dual purpose" because Visual E-Fex derived no benefit, financial or otherwise, from Wernes's attempt to sell the go-kart by parking it outside the shop.

Plaintiff next argues that the judge erred in granting Visual E-Fex's motion for involuntary dismissal on the issue of negligence. Plaintiff alleges that he was a business invitee of Visual E-Fex and that the owners of the shop should have been aware of the "dangerous condition" of the go-kart.

As our Supreme Court has held:

Business owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation. The duty of due care requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe. Ordinarily an injured plaintiff asserting a breach of that duty must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.

 

[Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (citations omitted).]

 

Applying this standard to the circumstances of this case, and giving plaintiff the benefit of all of the favorable inferences, we again perceive no reason for disturbing the trial judge's decision to dismiss plaintiff's claim against Visual E-Fex.

Plaintiff's proofs clearly showed that, in the four months Wernes owned the go-kart, it had never lunged forward as it did on the date of the accident. Wernes was unaware of any mechanical problems with the go-kart and, therefore, he had no basis for advising Angrisani or Deem that the vehicle was "dangerous" or would create a condition that would render the parking lot unsafe. The shop's owners never drove, or even touched, the go-kart. Plaintiff provided no expert testimony that the go-kart was "inherently dangerous" or that Angrisani and Deem should have taken any precautions concerning it. No evidence was presented that the condition of the parking lot contributed in any way to the accident.

Because no rational factfinder could find that Visual E-Fex breached a duty owed to plaintiff under the circumstances of this case, we affirm the trial judge's decision to grant the shop's motion for an involuntary dismissal on the issue of negligence.

III.

We now turn to plaintiff's argument that the judge mistakenly permitted Wernes to read portions of Chen's discovery disposition to the jury. "Evidentiary decisions are reviewed under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). Because Chen's deposition was not made as a de bene esse deposition for use at trial, we agree with plaintiff that the judge mistakenly exercised her discretion in permitting Wernes to read it to the jury.

The law concerning use of an expert witness's deposition at trial is well-settled. Discovery depositions of experts are taken pursuant to Rule 4:10-2(d)(2). However, Rule 4:14-9 controls depositions of experts for use at trial in lieu of live testimony. Such depositions must be video-taped before they can be used at trial, with certain exceptions not applicable here. R. 4:14-9(e). Moreover, Rule 4:14-9(e) controls the admission of an expert's testimony "whether or not [he or she is] within the jurisdiction." Thompson v. Merrell Dow Pharm., Inc., 229 N.J. Super. 230, 254 (App. Div. 1988).

The general admissibility of depositions in an action is covered by Rule 4:16-1(c), which provides in pertinent part:

Except as otherwise provided by R. 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition . . . if the court finds that the appearance of the witness cannot be obtained because . . . [he or she] is out of this state[.]

 

[(Emphasis added).]

 

Thus, Rule 4:16-1(c), relied on by Wernes for the admission of Chen's deposition testimony, clearly excludes from its coverage "the use of discovery depositions of experts as substantive evidence in lieu of live testimony." Avis Rent-A-Car, Inc. v. Cooper, 273 N.J. Super. 198, 203 (App. Div. 1994). Because Chen's deposition was not video-taped for use at trial and was a mere discovery deposition, it should not have been read to the jury.

Wernes argues that it would have been inequitable to bar him from using Chen's discovery deposition because Chen was in Connecticut and could not be subpoenaed to testify. Without Chen's testimony, Wernes asserts the jury would not have been informed that the go-kart had design flaws and a faulty instruction manual. This argument is unpersuasive.

Wernes bases his argument on N.J.R.E. 804. N.J.R.E. 804(b)(1) provides that the deposition testimony of a witness may be introduced at trial if the witness is unavailable. N.J.R.E. 804(a) provides that a witness is unavailable if the proponent is unable by service of process or other reasonable means to obtain the witness's attendance at trial. However, this does not pertain to the availability of expert witnesses. "[E]xpert witnesses are not unavailable simply because they are not subject to service of process." Thompson, supra, 229 N.J. Super. at 252. The reason for treating expert testimony differently than testimony by lay witnesses is clear-cut. As we explained in Thompson:

[W]hen a fact witness is unavailable a unique knowledge of the facts will be lost unless the prior testimony is allowed. But, . . . an expert witness generally has no knowledge of the facts and even if one expert is unavailable, there is no need to use the previous testimony to present the evidence because there usually would be other experts available to give similar testimony orally.

 

[Ibid.]

 

Here, Wernes did not retain an expert to address possible defects in the go-kart's design or instruction manual. He did not decide to attempt to call Chen as a witness until the trial was about to commence and did not seek permission to read his discovery deposition to the jury until the trial was already underway. All of this could have been avoided had Wernes conducted a de bene esse deposition of Chen or if he had retained his own expert. Under these circumstances, it would certainly not have been inequitable to bar Wernes from using Chen's discovery deposition at trial. Because we conclude that the judge mistakenly exercised her discretion in permitting the deposition to be used, we are constrained to reverse and remand the judgment entered in favor of Wernes.6

Affirmed in part (dismissal as to Visual E-Fex), and reversed and remanded in part for further proceedings against Wernes consistent with our opinion. We do not retain j

urisdiction.

1 Plaintiff also sued the go-kart's manufacturer, Zhejiang Quiye Scooter, Inc.; the vehicle's distributors, Deeal, Inc., Maxtrade, LLC, and Google Checkout; and Visual E-Fex's landlord, B&B Associates. Although the parties have not provided us with copies of the pertinent orders, they have advised us that Zhejiang Quiye Scooter was administratively dismissed from the case because plaintiff was unable to effectuate service; Deeal, Inc. successfully moved for summary judgment in its favor; and Maxtrade, LLC settled with plaintiff prior to trial for $450,000. The remaining defendants were dismissed from the case prior to trial.

2 Plaintiff presented all of the witnesses who testified at trial.

3 Plaintiff presented testimony from his treating physicians concerning his specific injuries, course of treatment, and prognosis. However, because this testimony is not relevant to the issues presented on appeal, there is no need to summarize it here.

4 The parties have not provided us with a copy of the deposition transcript.

5 Wernes also sought to provide the jury with a copy of Chen's written expert report. The judge denied this motion.

6 Because of our decision concerning the admission of Chen's deposition, we need not consider plaintiff's argument that he should have been permitted to read portions of Meinschein's discovery deposition to the jury in order to rebut what Wernes presented concerning Chen's deposition.