Opinion
DOCKET NO. A-3455-13T1
08-28-2015
KATHERINE R. COUTTS, Plaintiff-Appellant/Cross-Respondent, v. CONSTANCE KNUELE MADDEN, Defendant/Third-Party Plaintiff-Respondent/Cross-Appellant, v. LAKELAND CARDIOLOGY CENTER, P.A., LLC, Third-Party Defendant.
David T. Shivas argued the cause for appellant/cross-respondent (Bell, Shivas & Fasolo, attorneys; Mr. Shivas, of counsel and on the brief). Edward L. Thornton and Jacqueline C. Cuozzo-Falcone argued the cause for respondent/cross-appellant (Methfessel & Werbel, attorneys; Mr. Thornton, of counsel and on the brief; Ms. Cuozzo-Falcone, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Tassini. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1173-10. David T. Shivas argued the cause for appellant/cross-respondent (Bell, Shivas & Fasolo, attorneys; Mr. Shivas, of counsel and on the brief). Edward L. Thornton and Jacqueline C. Cuozzo-Falcone argued the cause for respondent/cross-appellant (Methfessel & Werbel, attorneys; Mr. Thornton, of counsel and on the brief; Ms. Cuozzo-Falcone, on the brief). PER CURIAM
Plaintiff Katherine R. Coutts appeals from the judgment of no cause of action entered in favor of defendant Constance Knuele Madden following a jury trial. Plaintiff urges us to reverse and remand for a new trial because the judge precluded the admission of evidence of subsequent remedial measures taken by defendant and denied plaintiff's in limine motion seeking an adverse inference charge based upon the alleged spoliation of evidence resulting from those measures; struck a portion of the testimony of Michael Sgaramella, plaintiff's engineering expert, and directed the jury to disregard same; and failed to instruct the jury as plaintiff requested on the issue of constructive notice.
Defendant filed a cross-appeal. She argues that the judge erred by permitting Sgaramella to testify about matters "outside the scope" of his report, resulting in a charge on constructive notice that was unwarranted.
We have considered these arguments in light of the record and applicable legal standards. We affirm. As a result, we dismiss defendant's cross-appeal.
I.
At around 5:15 p.m. on September 4, 2008, plaintiff was leaving her place of employment, Lakeland Cardiology Center (Lakeland), walking on an internal walkway toward the parking lot. The premises were owned by defendant, who also maintained her real estate business from that location, and Lakeland had been a tenant there for several years. Plaintiff's co-worker, Cheryl Franchi, was walking with her. Plaintiff suddenly tripped and fell. She later claimed that a walkway slab was elevated about an inch above the rest of the walk.
Plaintiff was able to drive herself home, but she experienced increasing discomfort and could not exit her vehicle without assistance. It suffices to say for purposes of this opinion that plaintiff and her medical expert, Dr. David Feldman, a board-certified orthopedic surgeon, testified to the injuries suffered to her knee and back as a direct and proximate result of her fall and the surgeries and other treatment required. At the time of trial, plaintiff was no longer able to work and claimed adverse effects upon her activities of daily living continued. A vocational rehabilitation counselor testified as an expert witness at trial to further document the consequences to plaintiff's life.
The actual condition of the sidewalk was a contested issue at trial. Although she was walking with plaintiff, Franchi did not actually see her trip and fall. She saw plaintiff on the ground and assumed she had tripped over a walkway slab that, by Franchi's estimate, was uneven by "more or less" an inch.
One of Lakeland's cardiologists, Dr. Robert Wall, was driving in the direction of the women and witnessed plaintiff's fall. Concerned that plaintiff may have sustained a head injury, Wall was relieved upon seeing just a scrape on her knee. After assisting plaintiff up, Wall looked around to identify "what potential problem would have caused [plaintiff] to fall so quickly and so hard." He noticed that the walk was "raised enough that it was not even with the other edge," although he could not give an estimated height differential when questioned. Wall noted that "to some extent the sidewalk was always uneven." He testified that procedures were in place by which tenants could complain to defendant about conditions on the premises, but he could not specifically recall whether the condition of the walk had ever been reported.
Plaintiff, who had worked at Lakeland for years prior to the fall, had never noticed a problem with the walkway and had never notified defendant or her representatives of any problem. Within two or three weeks of the accident, plaintiff telephoned defendant and told her of the incident, although plaintiff acknowledged that her primary purpose in doing so was to request defendant's assistance in paying deductibles and co-payments for plaintiff's visits to her doctor. In early October, 2008, plaintiff and her fiancé went to the site before plaintiff temporarily returned to work at Lakeland, but they took no measurements of the alleged sidewalk defect at that time. Photographs of the site taken at a short time after plaintiff's fall were admitted at trial.
Defendant testified during plaintiff's case-in-chief. She claimed that she routinely checked the premises for any problems, and after receiving plaintiff's call, she checked the walkway. Defendant "didn't notice any kind of . . . big differential in any of the sidewalk slabs," and further stated that had there been a one-inch differential, she would "definitely have [had] somebody look at" it. Defendant, who purchased the property in 1992, did not recall whether she had ever made any repairs to the area of the walk where plaintiff fell prior to plaintiff's fall, but she was sure that she had received no other complaints from tenants or visitors regarding the walk, and, to her knowledge, no one else had fallen.
With these facts to provide context, we turn to plaintiff's legal arguments.
II.
A.
We consider together plaintiff's claims of error as they relate to defendant's replacement of the walkway slabs subsequent to the accident. The issue first arose when plaintiff moved in limine before trial for "impos[ition] of an adverse inference" against defendant. In support, plaintiff attached defendant's answers to interrogatories, in which she admitted repairs were made after plaintiff's injury, i.e., "the sidewalk was changed to pavers but not for any reason connected with . . . plaintiff's [c]omplaint." Although it is not entirely clear exactly when this was done, plaintiff testified in her deposition that the repairs were made within four to six weeks after her fall, and defendant stated in her deposition only that the new pavers were installed in either 2010 or 2011.
As plaintiff's proposed order made clear, and as reinforced during counsel's argument, plaintiff actually sought two forms of relief: that the judge "direct the jury to impose an adverse inference as to the condition of the sidewalk . . . prior to the replacement," and that defendant be "barred from introducing evidence relating to the lack of inspection or measurement of the sidewalk by [p]laintiff and/or her engineering expert."
Defendant opposed the request, arguing, among other things, that plaintiff never intended to retain an expert for trial and only produced an expert's report in April 2013, after discovery had been reopened. Defendant further argued that when the sidewalk was repaired, she possessed no "actual knowledge of a pending or potential lawsuit."
Defendant's appendix includes a certification filed by plaintiff's counsel in support of her motion to reopen discovery. In that, counsel acknowledged that he originally did not believe expert testimony was necessary, but, based upon comments made at arbitration, and "out of an abundance of caution," plaintiff retained Sgaramella.
The judge denied the motion, noting that plaintiff took several years after the repairs were made to retain an expert, made no effort to "measure the site" before the repairs were made and perhaps could have calculated measurements based upon photographs of the site taken before the repairs were made. The judge also stated that plaintiff had failed to meet "the standards set forth" in Gilleski v. Community Medical Center, 336 N.J. Super. 646 (App. Div. 2001), regarding spoliation of evidence, and the "repairs, which [were] in the nature of remedial measures, [were] not evidential."
The issue surfaced again when Sgaramella testified. During cross-examination, counsel referred the witness to a photo apparently marked during plaintiff's deposition that depicted the spot where she fell. Counsel asked Sgaramella if he had measured how far in relation to the center of the sidewalk slab that point was. Plaintiff did not object, and the witness, without answering directly, estimated the distance by looking at the photograph.
On re-direct, plaintiff's counsel immediately asked why Sgaramella had not made measurements. An objection was sustained, and, outside the presence of the jury, counsel argued defendant had "opened the door," and it was unfair to permit questioning about the lack of measurements because defendant had effectuated repairs since plaintiff's fall. The judge stated that plaintiff was "teetering on the borderline of a mistrial" by asking the question. He reminded counsel "how the engineering expert might have gone about the process of conducting some measurement," but did not. Plaintiff's counsel persisted, arguing that he only wanted Sgaramella to "respond to the allegation that he didn't do the measurement . . . because he couldn't." The judge refused to permit any further questions in this regard. Additionally, in response to a juror's question and over plaintiff's objection, Sgaramella testified that he had never visited the site of plaintiff's fall.
The issue arose again briefly during plaintiff's examination of defendant, after she testified that she observed no defects with the sidewalk either before or after plaintiff's fall. Plaintiff argued evidence of subsequent repairs was permitted to impeach defendant's credibility. The judge refused to permit this line of questioning.
Lastly, during cross-examination, plaintiff was asked if she or her fiancé took measurements of the sidewalk when they returned to the site "within a few weeks" of her fall. Plaintiff's counsel objected, noting outside the presence of the jury that defendant made changes to the sidewalk, and defense counsel's questions "highlight[ed] the fact" that plaintiff "[did not] have measurements." The judge overruled the objection, and plaintiff responded that no measurements had been taken.
Before us, plaintiff contends that the judge should have permitted her to introduce evidence of post-accident remedial measures to impeach defendant's claim that there was nothing wrong with the sidewalk, to show the actual condition of the sidewalk at the time of her fall, and to explain why Sgaramella never visited the site. In a separate point, plaintiff argues the judge should have given an adverse inference charge based upon defendant's spoliation of evidence.
Dealing with the second point first, there was no basis for the judge to give an adverse inference charge. "Spoliation typically refers to the destruction or concealment of evidence by one party to impede the ability of another party to litigate a case." Jerista v. Murray, 185 N.J. 175, 201 (2005) (citing Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001)). Our courts
have expanded the remedies available to courts dealing with spoliating defendants by permitting the use of discovery sanctions and adverse inferences, and have allowed the courts to employ a bifurcated trial technique to address spoliation. We have also authorized courts to use more than one such remedy if circumstances warrant it.Whether a duty exists to preserve the evidence in the first instance is a question of law to be resolved by the court. Davis v. Barkaszi, 424 N.J. Super. 129, 148 (App. Div. 2012) (citing Cockerline v. Menendez, 411 N.J. Super. 596, 620 (App. Div.), certif. denied, 201 N.J. 499 (2010)). The duty "arises when there is pending or likely litigation between two parties, knowledge of this fact by the alleged spoliating party, evidence relevant to the litigation, and the foreseeability that the opposing party would be prejudiced by the destruction or disposal of this evidence." Cockerline, supra, 411 N.J. Super. at 620.
[Robertet Flavors, Inc. v. Tri-Form Constr., Inc., 203 N.J. 252, 272 (2010) (citations omitted).]
Gilleski, supra, 336 N.J. Super. at 654-55, is inapposite to the issues presented here. That case dealt with the duty to preserve evidence, not by a tortfeasor, but by a third-party.
We recognize that "[o]ur strong public policy encouraging prompt remedial measures . . . is meant as a shield, and not as a sword," and therefore "it cannot and does not serve as a safe harbor for those who seek to destroy or otherwise make unavailable relevant evidence." Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 402 (2005). Here, however, there is no evidence that defendant was notified of "pending or likely litigation" until plaintiff filed her complaint in April 2010; it is also unclear when defendant was actually served. We reject plaintiff's argument that her phone call to defendant requesting payment of copayments and deductibles, without anything more, was notice that litigation was likely.
Additionally, plaintiff failed to prove when defendant actually made the repairs. Plaintiff claims it was within weeks of the fall, which only serves to defeat the assertion that defendant knew litigation was likely. Defendant testified she made the repairs years later, which, if they were made before actual service of the complaint, also defeats plaintiff's argument because it evidences an unreasonable failure on plaintiff's part to place defendant on notice of a potential lawsuit.
We turn, then, to whether it was error to bar the introduction of all evidence of defendant's subsequent repairs. "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). "Under this standard, 'an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Hanisko v. Billy Casper Golf Mgmt., Inc., 437 N.J. Super. 349, 362 (App. Div. 2014) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "However, [w]hen the trial court fails to apply the proper test in analyzing the admissibility of proffered evidence, our review is de novo." Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012) (alteration in original) (internal quotation marks and citation omitted).
N.J.R.E. 407 provides: "Evidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct. However, evidence of such subsequent remedial conduct may be admitted as to other issues." The rule expresses the strong public policy that favors subsequent remedial measures. Szalontai, supra, 183 N.J. at 402. Examples of "other issues" for which evidence of remedial measures may be introduced include "control over the injuring instrumentality, . . . impeach[ing] the credibility of a witness, [and] . . . prov[ing] the condition existing at the time of an accident." Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 148 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996) (citations omitted). "Even where subsequent remedial conduct evidence has relevance to some fact in issue other than negligence, it may be excluded if the prejudicial effect outweighs the probative value." Ibid. (citing N.J.R.E. 403).
In this case, it was undisputed that defendant controlled the walkway, but plaintiff argues the evidence of subsequent remedial measures was relevant to impeach defendant's testimony that there was nothing wrong with the walkway and to prove that the condition existed at the time of plaintiff's fall, but not when her expert was retained.
We find no mistaken exercise of the judge's discretion in barring the evidence for the purpose of affecting defendant's credibility. We have recognized this specific purpose as being outside Rule 407's prohibition. See, e.g., Lavin v. Fauci, 170 N.J. Super. 403, 407-08 (App. Div. 1979) (permitting evidence of subsequent remedial measures to impeach defense expert's claim that alternative product design was not feasible). Here, however, there was direct eyewitness testimony from plaintiff, Dr. Wall and Franchi that contradicted defendant's, and only defendant's, claim that there was nothing amiss with the walkway slabs. Applying the balancing test in Rule 403, the prejudicial effect of evidence that defendant replaced the slabs with pavers outweighed its probative value.
We also reject plaintiff's argument that the evidence of subsequent repair should have been admitted to explain why Sgaramella took no measurements and never visited the site. In reality, the absence of measurements and site visits had less to do with remedial repairs than it did with plaintiff's initial strategic litigation decision that an expert was unnecessary. Moreover, we think that had plaintiff simply asked to pose a question whether the walkway was in the same condition when Sgaramella was retained in April 2013, as it was when plaintiff fell, the judge most likely would have permitted the inquiry. Instead, plaintiff's counsel posed an open-ended question asking why Sgaramella never made a site visit.
That leaves the argument that plaintiff should have been permitted to prove the dangerous condition of the sidewalk by evidence of its subsequent replacement with pavers. See, e.g., Millman v. U.S. Mortg. & Title Guar. Co. of N.J., 121 N.J.L. 28, 34-35 (1938) (permitting immediate repairs to stairwell as evidence of a defective condition at the time of the plaintiff's fall). Of course here, as already noted, it was never firmly established when defendant replaced the slabs with pavers. Plaintiff's own testimony demonstrated that they had not been replaced by the time she returned to the site in October, weeks after her accident. Moreover, as already noted, the testimony from the eyewitnesses was that there was an elevation from one walkway slab to another. Again, the balance of prejudice versus probative value weighs in favor of exclusion. Under the circumstances presented, we cannot conclude that the judge mistakenly exercised his broad discretion by keeping the evidence of subsequent remedial repairs from the jury.
B.
We turn to plaintiff's contentions regarding Sgaramella's testimony. Defendant moved pre-trial in limine to limit Sgaramella's testimony to what was contained in his two-page report, and argued that the report failed to prove defendant had any notice of a hazardous condition on her property.
In actuality, as the notice of motion made clear, defendant sought summary judgment, which was clearly improper under our Court Rules. See R. 4:46-1 (requiring motions for summary judgment to be made returnable no later than thirty days before the scheduled trial date).
Sgaramella, whose review was limited to photographs and deposition testimony, stated in his report that the photographs showed an "uplifted section" of sidewalk, and "differential settlement between two concrete sidewalk slabs at an expansion joint." An expansion joint "serves to allow for seasonal thermal movements and reduce cracking." He noted, however, that "no information [was] presented as to the actual height difference between the two . . . slabs," and he could not make an actual determination of the difference.
Citing without specification standards promulgated under the Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12101 to 12213, Sgaramella opined that any vertical change of one-quarter inch or more at an expansion joint was a "trip hazard." He also cited applicable township code provisions requiring owners to keep walkways "free from hazardous conditions." Based upon the deposition testimony and pictures, Sgaramella concluded that defendant's negligent maintenance of the walkway resulted in plaintiff's fall.
During oral argument that immediately preceded trial, defendant contended the entire report was based upon net opinions and urged the judge to bar Sgaramella from testifying. Alternatively, defendant argued Sgaramella's testimony should be limited to the contents of the report. The judge essentially denied defendant's motion, rejecting the argument that Sgaramella's report evidenced a net opinion. However, he did agree to limit the expert's testimony to the "four corners of the report."
Sgaramella testified on the second day of trial. During a voir dire on his qualifications, he explained that the ADA was used "as a standard of care to identify deficiencies." During direct examination, Sgaramella defined seasonal thermal movement and described the walkway as depicted in a photograph as "a typical example of a sidewalk which is separated and uplifted due to seasonal thermal movements." Sgaramella stated that, according to the ADA standards, vertical displacement of more than one-quarter inch was a tripping hazard. There was no objection from defense counsel. Sgaramella also cited to the township ordinance set forth in his report.
During the charge conference, in discussing his intention to provide Model Jury Charge (Civil), § 5.20D "Duty of Owner of Multi-Family House to Tenants and Others," (approved May, 1997), the judge indicated that the charge referred to evidence adduced regarding violations of specific statutory or regulatory provisions. He noted that Sgaramella citied no specific ADA regulations, and none were contained in his report. The judge noted defendant's prior objection based upon the report being a "net opinion," and concluded, without any request from defense counsel, that he would "strike that testimony relating to the ADA." The judge explained:
I have to conclude that his opinion, like all expert opinions, must give a basis for it, and there is no basis in the trial record for his reliance upon the so-called ADA. He doesn't give any opinion as to which portions of the code were violated, what the code required, and accordingly . . . it is something that should not have been permitted. . . . [I]t was erroneous of me to have let him testify about the ADA in the absence of any more thorough report.To the contrary, the judge decided to include in the charge Sgaramella's reference to the township code provision specifically cited in the expert's report. The judge instructed plaintiff's counsel not to refer to the ADA in his summation.
Plaintiff moved for reconsideration before summations the next day. She requested that the judge take judicial notice of 28 C.F.R. 36, Appendix A, Section 4.5.2 of the ADA Standards for Accessible Design, which provides that with regard to "Ground and Floor Surfaces," "[c]hanges in level up to [one-quarter] in[ch] . . . may be vertical and without edge treatment." Defendant objected, arguing that she was entitled to pre-trial notification of any evidence that plaintiff sought to have admitted by way of judicial notice. Responding to plaintiff's request, the judge said:
[I]t's not my function to sort through all conceivable provisions of federal law to determine whether something applies that I should take judicial notice of, there has to be some predicate. So you're giving me this particular section at the end of the case after I've already ruled, it doesn't seem to me that that's something that I should take judicial notice of.
Before the attorneys gave their summations, the judge told the jurors:
Under certain circumstances the violation of such a . . . regulation [as the ADA] may be considered by you as evidence of negligence. . . . But in order for that to be considered by you, there are certain legal thresholds that must be met, and I have determined, for legal reasons only, that the ADA and all references to the ADA . . . should be out of this case.He also instructed the jurors not to consider any testimony that referred to the ADA nor use that testimony in their deliberations.
Plaintiff argues that the opinions Sgaramella expressed in his testimony regarding the ADA standards were not "net opinions" simply because they failed to cite to specific statutory or regulatory provisions, and the judge's decision was particularly ill-timed, since, after admitting the evidence, the instruction to the jury at the end of the case was especially prejudicial. Plaintiff also argues that the judge erred by refusing to take judicial notice of the applicable regulations.
Given our deferential standard of review regarding evidentiary issues, we cannot conclude the judge mistakenly exercised his discretion in denying plaintiff's belated request that the court take judicial notice of certain ADA regulations. N.J.R.E. 201(a) permits the court to take judicial notice of statutes and regulations, but only upon notice and an opportunity for the other side to be heard. N.J.R.E. 201(d), (e). Additionally, the proponent must supply the court with "necessary information." N.J.R.E. 201(d).
Here, plaintiff did not ask the judge to take judicial notice until she sought reconsideration of the judge's ruling regarding Sgaramella's ADA testimony. That might be excused, since until that ruling, plaintiff reasonably believed the testimony as adduced would stand. However, the appendix includes the allegedly relevant provisions of the ADA regulations. We cannot say for sure that they apply or that these regulations are what Sgaramella was specifically referencing. He was never asked to identify the regulations during his testimony, and plaintiff never provided sufficient proof thereafter to identify them as the actual regulations.
We also apply a "deferential approach" and review the decision to bar expert testimony "against an abuse of discretion standard." Pomerantz Paper Corp. v. New Comty. Corp., 207 N.J. 344, 371-72 (2011) (citing Kuehn v. Pub Zone, 364 N.J. Super. 301, 319-21 (App. Div. 2003), certif. denied, 178 N.J. 454 (2004)). The trial court "must ensure that the proffered expert does not offer a mere net opinion." Id. at 372 (citing Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).
"The net opinion rule . . . mandates that experts be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable." Townsend v. Pierre, 221 N.J. 36, 55 (2015) (internal quotation marks and citation omitted). "The net opinion rule . . . does not mandate that an expert organize or support an opinion in a particular manner that opposing counsel deems preferable. An expert's proposed testimony should not be excluded merely because it fails to account for some particular condition or fact which the adversary considers relevant." Id. at 54.
Here, the fact that Sgaramella failed to cite specific provisions of the ADA regulations did not reduce his opinion to a net opinion. Indeed, defendant's initial attempt to bar Sgaramella's report as a net opinion was not premised on the fact that it lacked specific statutory or regulatory citations; rather, the objection was that the report failed to explain how, why or when the slab became elevated, and therefore failed to explain any cause for the condition. We believe the judge's initial decision not to exclude the report was entirely proper, and the actual testimony was consistent with the report.
Nevertheless, we are firmly convinced that the judge's subsequent instructions to the jury did not effectively exclude Sgaramella's essential opinion as an engineering expert, i.e., that the walkway was a tripping hazard likely caused by seasonal thermal changes that elevated one of the slabs. The fact that ADA regulations set a standard for acceptable differences in elevation was relevant, but it was not critical to the essence of the testimony.
The more difficult question is whether the judge's decision to sua sponte correct what he perceived as an earlier mistake, and to do it immediately before summations, was an error "clearly capable of producing an unjust result." R. 2:10-2. We think it was not for the following reasons.
Plaintiff argues the decision eviscerated Sgaramella's testimony, but, as already noted, we disagree. Moreover, the actual condition of the walkway when plaintiff fell was disputed, and Sgaramella was of no help to the jury in resolving that dispute because he admittedly relied upon the description contained in deposition testimony and photographs and acknowledged never viewing the site. Importantly, the jury had in evidence a photograph that is part of the appellate record. It suffices to say that the alleged defect in the walkway is difficult to discern.
Lastly, the major thrust of the defense on liability was that defendant had no actual or constructive notice of a problem with the walk. There was no evidence of actual notice, and, in fact, it was undisputed that no one had ever fallen before. There was also no evidence that anyone had reported the condition. Telling the jury to disregard testimony about ADA standards had no discernible effect upon its consideration of this critical issue. In short, it would have been preferable for the judge not to have stricken the testimony and not to have given the jury an instruction, but we think any error in this regard did not affect the jury's consideration of the critical issues in the case.
III.
Lastly, plaintiff argues that although it was requested and seemingly agreed to by defense counsel and the judge, the final charge did not include Model Jury Charge (Civil) § 5.20F(8), "Duty Owed — Condition of Premises," "Notice of Particular Danger as Condition of Liability" (approved March 2000, revised December 2014). There was no objection at trial when the instruction was not given.
Plaintiff mistakenly cites the provision as section F(10) of the Model Charge but that "mode of operation" charge has no relevancy to this case. --------
The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). The judge did not recite the model charge, but he nevertheless told the jurors that a landlord is liable by "reason of defects of which the landlord . . . knew or should have known before the accident," and that a "landlord should have known of the defect if the defect was discoverable . . . through a reasonable inspection of the premises." The judge also told the jurors that plaintiff must prove defendant had "either actual notice or constructive notice" of the condition, "that [she] should have known that this condition existed." Plaintiff argues these instructions failed to convey that a landlord has constructive notice of a condition if it "exist[s] for such period of time that a person of reasonable diligence would have discovered [it]." Model Jury Charge (Civil), § 5.20F(8). There being no objection to the omission, which would have permitted the judge to provide the instruction, and considering the charge as a whole, we cannot conclude that plain error occurred. R. 2:10-2.
Since we affirm the judgment under review, defendant's cross appeal is moot. We dismiss the cross-appeal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION