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October 22, 2014


Argued September 10, 2014 Decided

Before Judges Fuentes and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1135-11.

Robert F. Ball argued the cause for appellant (Weiner Lesniak, attorneys; Mr. Ball, on the briefs).

Craig M. Rothenberg argued the cause for respondent (Rothenberg, Rubenstein, Berliner & Shinrod, attorneys; Dean S. Pashaian, on the brief).


Defendants 16 West Hanover, LLC, and Indoor Sports Pavilion (hereafter sometimes referred to in the aggregate as "defendants") appeal from a judgment entered against them in a personal injury action by plaintiff. Defendants argue that the trial judge erred in granting plaintiff's motion at the close of evidence removing the issue of plaintiff's comparative negligence from consideration by the jury, and by the judge's determinations on the issue of proximate cause of injury. We have considered the record and the arguments of counsel, and we reverse the judgment and remand the matter for a new trial on all issues.


The following facts are gleaned from the record at trial.

During the evening of January 17, 2010, plaintiff, 48 years of age, drove to defendants' indoor sports arena to attend his son's lacrosse game. He parked his vehicle in the outdoor parking lot owned and maintained by defendants adjacent to the arena. After the game had ended, while walking back to his car, plaintiff stepped into a hole in the parking lot where the pavement was deteriorated and suffered injuries.

Plaintiff recalled that "it was a little wet outside" at the time and that the parking lot was congested with many people either entering or leaving the lot. He was walking down the center of the parking lane near his truck when his foot became "lodged" in the hole, causing him to fall on his side.

Plaintiff claimed that the hole was filled with water and that he had not seen the hole prior to his fall. He acknowledged that the hole was in the center of the driving lane between rows of parked vehicles, and added that he walked there to avoid being hit by vehicles backing out of or entering parking spaces.

After his injury, plaintiff went back to defendants' facility to report his fall in the parking lot. He spoke to a student who was working at the desk, and together they went out to the lot to the spot where plaintiff had been injured. The student stated that the hole appeared to be about twelve inches long, and six inches wide, and he estimated it was "half an inch, an inch" in depth. He said the lot was "well lit" and he could "clearly see the hole." He could not recall, however, how far he was from the hole when he first saw it.

Jeffrey Walder, an owner of both corporate defendants, stated that he had noticed the broken and deteriorated blacktop in the area where plaintiff fell approximately ten days earlier. He said the deterioration occurred in a "seam" in the pavement and that he had made a "conscious decision" not to repair the "holes" in the pavement, to "cordon off" the area or to warn pedestrians about the hazard, at any time up to the date of plaintiff's injury. Walder claimed that a similar condition had developed in that area in January 2009, and that an effort to make a repair at that time had failed because of the cold temperatures.

He explained that the area had been successfully repaired the following spring, and that he first noticed the holes and deterioration in the pavement had re-occurred ten days prior to plaintiff's injury in January 2010. Walder decided at that time that, based on his experience, an effective repair could only be undertaken after the weather had warmed, and therefore did not attempt to make any temporary repairs. He also stated it was not "feasible" to barricade the area because it was in the "middle of the parking lot[.]"

Evidence was adduced at trial indicating that the deteriorated area where plaintiff fell was repaired by defendants on January 20, 2011, at a time when the temperature had not gone above the freezing point, notwithstanding testimony by Walder and his contractor that they thought the repair was made in March 2010.

On January 18, 2010, plaintiff went to see his treating physician, Michael Deehan, M.D., with complaints of left ankle swelling and pain. Following x-rays, Dr. Deehan found that plaintiff sustained two avulsion fractures, which he treated with an aircast, and he ordered plaintiff to limit his activities and undergo physical therapy.

On February 12, 2010, plaintiff again saw Dr. Deehan and complained of radiating neck pain. Dr. Deehan ordered an MRI of plaintiff's cervical spine, which Dr. Deehan opined showed cervical herniations at C2-3 and C3-4. Dr. Deehan opined that the ankle fractures, the cervical herniations and strain were permanent injuries caused by plaintiff's fall on January 17, 2010.

Defendants' examining physician, Howard Blank, M.D., opined after examining plaintiff and reviewing plaintiff's medical records and diagnostic films, that plaintiff sprained his left ankle in the fall on defendants' lot, but found no evidence that plaintiff sustained any injury to his neck. He stated that plaintiff's MRI revealed pre-existing dessication of the discs in his cervical spine, but "no evidence of cervical or disc abnormality." The doctor found plaintiff had a normal range of motion in the neck.

Dr. Blank stated that if plaintiff had an altered gait because of his ankle injury, "it is possible" that plaintiff could have developed "temporary" "neck complaints" as a consequence of the accident.

Following the close of all testimony, plaintiff's counsel moved for a directed verdict on the issue of defendants' "negligence"; striking the issue of plaintiff's "comparative negligence"; and for "damages." With respect to the first motion, plaintiff's counsel argued that it was undisputed that defendants were aware of the dangerous condition ten days prior to the accident, but did nothing, adding: "It cannot be termed reasonable to do nothing." The trial judge denied the motion and stated, in pertinent part

There is testimony from the defendants that, although they knew of the condition, they, from prior experience, have been unable to remedy the condition prior to the end of the cold season. It is undisputed it's during winter. Certainly, there is a dispute as to whether given the location of the potholes, so-to-speak, whether there could be some warning that was given. So, I can't at this point conclude that plaintiffs are entitled to judgment as a matter of law and fact here.

With respect to the issue of comparative negligence, plaintiff's counsel argued that nothing in the evidence showed plaintiff did anything "other than walking through the parking lot . . . making observations of the traffic so that he wouldn't be hit by a car[.]" Counsel added that "where specifically [plaintiff] was looking immediately before the accident" was not "[el]icited through cross-examination." Defendants' counsel responded that the student on desk duty the evening of the incident testified "he could see [the hole] quite clearly", and that, in any event, it was an "open and obvious condition" in the center of the driving lane.

The trial judge granted plaintiff's motion to strike comparative negligence and stated, in part

I just don't see any facts that a rationale juror could base a conclusion that would support or carry the burden of proof that the defendant bears here, which is that it's more likely than not that a pedestrian confronted with the situation that Mr. Picciuto confronted that evening would have discovered the pothole and avoided it.

Again, there is no evidence in the record, whether it be Mr. Picciuto or other patrons who frequented the facility that evening regarding the visibility of the potholes that undoubtedly existed.

So, I am granting the directed verdict on the issue of comparative negligence.

With respect to damages, plaintiff's counsel argued that Dr. Blank, defendants' expert, conceded that the ankle injury arose as a consequence of the accident and "I think he related [plaintiff's claimed neck injury] to this [accident][.]" The trial judge determined that Dr. Blank "acknowledged that the trip and/or fall either aggravated a preexisting condition or caused the condition to become symptomatic . . ." and consequently granted "directed verdict on the issue of proximate cause of the injuries but leaving for the jury's consideration the issue of the extent of any aggravation . . . ."

Thereafter, defendants' counsel made his summation before the jury. During the summation, while discussing why plaintiff chose to walk down the center of the travel lane in the lot, plaintiff's counsel objected, and the trial judge advised the jury that "I'm just going to instruct you that how the plaintiff proceeded to and from the parking lot is not an issue."

Further, following defendants' summation, the trial judge, sua sponte, announced to counsel that she was going to charge the jury on the issue of proximate cause, notwithstanding her earlier ruling.

The verdict sheet submitted to the jury contained only two questions

1) Was the defendant 16 West Hanover, LLC, and/or Sports Pavilion negligent? and;

2) What amount would fairly and fully compensate plaintiff . . . for all of his damages arising out of this accident, . . . .?

The jury answered the first question in the affirmative and awarded plaintiff $145,000 in response to the second question.

This appeal followed.


We initially set forth the principles of law that will guide our analysis. Motions for judgment, whether made under Rule 4:37-2(b) at the close of the plaintiff's case, under Rule 4:40-1 at the close of evidence, or under Rule 4:40-2(b) after the verdict, are "governed by the same evidential standard: 'If, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . .'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)) (citations omitted). A judge is not to consider "the worth, nature or extent (beyond a scintilla) of the evidence," but only review "its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969).

An appellate court must essentially adhere to the same standard when reviewing the judge's action. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). We review the findings de novo, using the same standard applied in the trial court. See Turner v. Wong, 363 N.J. Super 186, 198-99 (App. Div. 2003) (appellate review of summary judgment de novo under standard that applied at trial).

Guided by this standard, we turn first to defendants' argument that the trial judge erred in granting plaintiff's motion for a directed verdict removing from the jury the issue of plaintiff's "comparative negligence." Defendants contend that the evidence at least raised a fact issue on the applicability of comparative negligence; plaintiff argues that no fact issue existed and that defendants simply failed to meet their burden to establish a prima facie case of comparative negligence.

Plaintiff cites Model Jury Charge 7.15B, which states in pertinent part as follows

A pedestrian using the sidewalk is required to exercise reasonable care for her/his own safety, however, a pedestrian is entitled to assume that there is no dangerous impediment or pitfall on any part of the sidewalk. The law does not require that a pedestrian anticipate dangerous conditions, however, when or if a pedestrian is not negligent merely because she/he does not look for dangerous conditions, however, when or if a pedestrian sees or is aware of a dangerous condition, then she/he must exercise reasonable care to avoid the condition.

Plaintiff, however, fails to acknowledge the applicability of Model Jury Charge 7.15A, which states

A pedestrian using the sidewalk must act with the same amount of care for her/his own protection as a reasonably careful person would have exercised under similar circumstances. In order to determine whether or not the pedestrian acted reasonably, you must decide whether a reasonably careful person would have discovered the danger which existed in this case and would have avoided it.

Subparagraph B of the charge is based on the statement in Krug v. Wanner, 28 N.J. 174, 183 (1958), that "a member of the traveling public has the right to assume 'that there is no dangerous impediment or pitfall' in any part of the sidewalk and is not obliged to anticipate dangerous conditions although he must exercise reasonable care to avoid them 'if he sees or is aware of them.'" (citations omitted). But in Citro v. Stevens Institute of Technology, 55 N.J. Super 295, 302 (App. Div. 1959), we explained that Krug "does not hold that a member of the traveling public using a sidewalk can be oblivious to defects in the sidewalk even though a reasonable person could not help but to notice them." And we further observed that Krug was concerned with an artificial danger, not as here, wear and tear. Id. at 306.

Although both parties have cited to Krackomberger v. Vornado, Inc., 119 N.J. Super. 380 (App. Div. 1972), in our view the case is largely inapposite to the circumstances before us, which pertain to a fall down in a parking lot. That case addresses standards applicable in a shopping aisle setting where the displays intentionally invite the attention of customers away from the floor. Id. at 383. It has no place in the instant circumstance, where the customer is simply walking through a parking lot after patronizing defendants' arena. Moreover, Krackomberger does not hold that the invitee has no duty to make observations for his or her own safety.

Here, giving defendants the benefit of all favorable testimony and reasonable inferences, defendants' employee said the area was "well lit" and that he could "clearly see the hole." Also, plaintiff's fall occurred in an area of a parking lot over which large numbers of vehicles ran every day. Obviously a reasonable person should be aware that such use can harm the road, making it dangerous.

Accordingly, the evidence at trial established a fact issue, warranting the submission of plaintiff's "comparative negligence" to the jury.

For like reasons, we also determine that the trial judge erred in her initial determination on proximate cause of plaintiff's alleged neck injury. Again, granting defendants the benefit of all favorable testimony and inferences, Dr. Blank did not concede that plaintiff had sustained a neck injury, or exacerbated a pre-existing condition, proximately caused by the accident. At best, he conceded it was possible to aggravate a pre-existing quiescent condition in a fall like the one plaintiff alleged here. Further, Dr. Blank's acknowledgement that plaintiff had no neck complaints prior to the accident, and first complained about his neck after the accident, does not constitute an admission on the issue of proximate cause.

The fact that the trial judge apparently decided to charge proximate cause after defendant's counsel completed his summation did not cure her earlier error. Defense counsel was not given an opportunity to address the issue in his summation and, further, the jury verdict sheet was defective in that it failed to include a question on the issue of proximate cause. At the very least, the jury verdict sheet should have asked whether defendants' negligence proximately caused plaintiff to have sustained a neck injury or aggravation of a pre-existing condition.1

We reverse and remand for a new trial. We do not retain jurisdiction.

1Neither party raised, nor briefed the applicability of Model Jury Charge 8.11F and the issues attendant thereon. Consequently, we do not address the question.