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Wednesday, June 30, 2010

MICHAEL SMITHSON v.CARLOS GARCIA (A-2222-08T2)

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-2222-08T2


MICHAEL SMITHSON, Plaintiff-Appellant,

v.

CARLOS GARCIA, Defendant-Respondent.

__________________________


Argued December 15, 2009 - Decided

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8350-04.

Howard H. Sims argued the cause for appellant (Spevack & Cannan, P.A., attorneys; Mr. Sims, on the brief).

James C. Nelson argued the cause for respondent (Litvak & Trifiolis, attorneys; Mr. Nelson, on the brief).

PER CURIAM

This matter is before us for the second time. It arises out of an automobile accident on December 18, 2002, when plaintiff Michael Smithson was a passenger in an automobile that was struck by a motor vehicle operated by defendant Carlos Garcia. Defendant conceded liability, and an expedited jury trial was held solely on the issue of damages. The jury rendered a verdict finding that plaintiff had sustained a permanent injury, N.J.S.A. 39:6A-8, but awarded only nominal damages of one dollar. Plaintiff filed a motion for a new trial, contending that the damages award was against the weight of the evidence; plaintiff requested oral argument on this motion. Defendant filed opposition and, on May 25, 2007, the trial judge denied plaintiff's motion on the papers.

Plaintiff appealed, and in a decision of July 22, 2008, we remanded to afford plaintiff the right to oral argument on his motion pursuant to Rule 1:6-2(d). Smithson v. Garcia, No. A-5623-06 (App. Div. July 22, 2008) (slip op. at 2).

Pursuant to our remand, the trial judge heard argument on plaintiff's motion on November 21, 2008, and at the conclusion, entered an order denying the motion. In her oral opinion from the bench, the judge noted that plaintiff was the only witness at trial; there was no medical testimony, but medical records were submitted to the jury. The judge summarized plaintiff's testimony as follows:

His only testimony as to his complaints of what he was unable to do was . . . I think he said, I can play basketball, but I don't play full court. . . . That he couldn't walk as far on the boardwalk. . . . Those were his only complaints of what his limitations from his daily activities were.

The judge disputed plaintiff's argument that the jury found that "he had . . . herniated discs[,]" stating: "[N]o, they did not. The . . . question was whether there was a permanent injury causally related. You keep saying that, and that's not what was on the verdict sheet." The judge further stated that plaintiff's "articulation in oral argument that the jury found . . . herniations [wa]s not part of the record."

The judge noted that there were "volumes of medical records . . . submitted," and the jury "had about an hour to review them." The judge concluded:

[U]nder the circumstances of [plaintiff's] own testimony, on the subject of his pain[,] suffering, discomforts and inability to pursue [his] normal pleasures, the only thing the jury heard is, I can't play full court basketball and I can't walk along the promenade. . . . Those were the only two things. And the jury saw [plaintiff], observed him and awarded $1 in damages.

. . . .

Under those circumstances[,] the [c]ourt cannot find that the award was against the weight of the evidence as the jury heard and saw it.


On appeal, plaintiff contends that (1) the trial judge erred in finding that the jury's damages verdict was not against the weight of the evidence; and (2) the damages award of one dollar should have been set aside and a new trial held as to the issue of damages only. We agree and, therefore, reverse.

Our rules provide that a motion for a new trial shall be granted "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). The jury's verdict is entitled to "very considerable respect" and will be overturned only in "clear cases." Baxter v. Fairmont Food Co., 74 N.J. 588, 596-97 (1977). Accordingly, a new trial on damages is warranted only where the amount awarded is so disproportionate to the injuries incurred that the award shocks the conscience of the court and allowing the verdict to stand would be manifestly unjust. Monheit v. Rottenberg, 295 N.J. Super. 320, 328 (App. Div. 1996).

When deciding whether the quantum of damages awarded by the jury was inadequate, the court must "consider the evidence in the light most favorable to the defendant[]." Id. at 327. "On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). In reviewing the denial of a motion for a new trial, we apply the same standard as the trial judge except that we must give due deference to the trial judge's "'feel of the case' including credibility." Monheit, supra, 295 N.J. Super. at 327-28 (quoting Feldman v. Lederle Labs, 97 N.J. 429, 463 (1984)).

We have reviewed the record with those standards in mind, and we are convinced that the trial judge's recollection of plaintiff's testimony regarding the impact of his injury upon the quality of his life was incomplete. For example, regarding basketball, plaintiff, who was thirty-one years old at the time of the accident, stated that he "used to play full court with young kids. I used to take them out but not anymore . . . not like I used to." Whereas he used to play full court games lasting up to forty-five minutes, now, he described his basketball playing now as "like shooting around a little bit." Plaintiff also testified that he did not "swim as much[,] . . . walk as far[,] . . . [or] drive as much[,] . . . [b]ecause [his] back starts to hurt." He testified further that cold or rainy weather triggered lower back pain, which caused him to "sleep on the floor."

We also question the scope of the jury's review of the medical records in evidence. As the trial judge noted, "volumes of medical records . . . were submitted." As plaintiff notes in his brief, the court clerk's records reflect that the jury began its deliberations at 2:15 p.m. and had reached a verdict by 3:00 p.m. Having reviewed the approximately sixty pages of medical records appended to plaintiff's brief, we question whether the jury adequately read and considered those documents.

It appears that the trial judge was not familiar with the contents of the medical records. The judge several times corrected plaintiff's counsel in oral argument on the motion, when counsel referred to plaintiff having "herniations [in] the cervical region . . . ." As noted, the trial judge stated that "herniations . . . [are] not part of the record."

Several doctor's reports, however, specifically state a diagnosis of "[c]ervical [d]isc [h]erniation at the C4-C5 level[,]" which was revealed by an MRI conducted on April 21, 2003, approximately four months after the accident. That diagnosis is contained in the reports of (1) Dr. Konstantine Fotiou, plaintiff's chiropractor with whom he treated for several months after the accident; (2) Dr. Edward Lev, a physician to whom Dr. Fotiou referred plaintiff for follow-up treatment; and (3) Dr. David Weiss, who evaluated plaintiff in May 2006, in preparation for trial.

Regarding the impact of this herniation upon plaintiff's mobility, Dr. Fotiou stated:

The diagnostic studies which include, central C4-C5 disc herniation . . . reveal objective medical evidence that in all chiropractic probability there is a causal relationship between the patient's injuries and the aforementioned accident. Furthermore, these injuries have had a direct and negative impact on the patient's quality of life both at home and at work, based upon subjective complaints that continue to [the] present day.


Dr. Weiss' report contains the following description by plaintiff:

In terms of activities of daily living, [plaintiff] notes difficulties when performing his job as a food deliveryman. [Plaintiff] notes that his household duty of dishwashing is modified and restricted. Posturally, [plaintiff] notes that he can sit comfortably for 10 minutes and can stand comfortably for 5 minutes. [Plaintiff] also notes postural difficulties when sleeping. [Plaintiff] notes difficulties when lifting weights greater than 30 pounds. In terms of hobbies and sporting activities, [plaintiff] notes that he can no longer play basketball. [Plaintiff] notes difficulties with prolonged driving of a motor vehicle.

At present, [plaintiff] states the pain level on a scale of 0 to 10 is 2-6/10 in cervical spine and 2-6/10 in the lumbar spine (depending on activity level) . . . .

Prior to the date of the accident, [plaintiff] denies having any pain or difficulties with activities of daily living.

Thus, even assuming plaintiff's testimony tended to minimize or understate his physical condition resulting from the accident, the medical records document that condition in greater detail.

In sum, given the medical evidence of record, and even considering "the evidence in the light most favorable to . . . defendant[,]" Monheit, supra, 295 N.J. Super. at 327, it is clear that plaintiff's permanent injury stems from two herniated discs directly attributable to the accident. On this record, we conclude that allowing the one dollar damages award to stand would be manifestly unjust. Id. at 328. Therefore we reverse and remand for further proceedings. On remand, the trial judge should consider additur as an alternative to a new trial. See Verdicchio v. Ricca, 179 N.J. 1, 39 (2004) (recognizing remittitur "as a remedy to avoid the unnecessary expense and delay of a new damages trial").


Reversed and remanded.

BARBARA SZCZECINA AND MICHAEL SZCZECINA v. PV HOLDING CORP and JOSEPH J. MARTINO AND MELISSA BOOS (A-3437-08T3)

BARBARA SZCZECINA AND MICHAEL SZCZECINA v. PV HOLDING CORP and JOSEPH J. MARTINO AND MELISSA BOOS (A-3437-08T3) 06-25-10

We reverse a $1,000,000 jury verdict following a verbal
threshold, damages-only trial due to clearly inappropriate
statements about the defense made by plaintiff’s counsel in his
opening statement and summation. Those statements included
derisive comments about defendants, their counsel, and their
expert witnesses, as well as counsel's request that the jury
"send a message" through its verdict. Because we conclude that
counsel's conduct infected the jury's verdict, we reverse and
remand for a new trial.

Paragon Contractors, Inc. v. Peachtree Condo Assoc (A-41-09)

Paragon Contractors, Inc. v. Peachtree Condominium
Association (A-41-09) 6-28-10

The conference instituted by the Court in Ferreira v.
Rancocas Orthopedic Associates, 178 N.J. 144 (2003),
was created to remind parties of their obligations
under the Affidavit of Merit statute and to avoid the
dismissal of meritorious claims through inadvertence.
It is not a tolling device. However, because of the
confusion in the courts over the scheduling of the
Ferreira conference and the effect of its omission,
the Court concludes that relief should be afforded to
the parties in the limited circumstances of this case.

Wednesday, June 23, 2010

ALLEN vs CALIPER FARMS NURSERY AND LANDSCAPING (A -4427-08T1)

WILLIAM W. ALLEN, ET AL. VS. V AND A BROTHERS,
INC., d/b/a CALIPER FARMS NURSERY AND LANDSCAPING
SERVICES, ET AL. A-4427-08T1 06-23-10
We hold that an individual officer or employee of a corporation can be held liable for committing a regulatory violation of the Consumer Fraud Act as the result of the definition of "person" found in N.J.S.A. 56:8-1(d) and the inclusion of "person[s]" as potentially liable parties in N.J.S.A. 56:8-2.

ARCHBROOK LAGUNA, LLC v. CHARLES L. MARSH (A-5254-08T3)

ARCHBROOK LAGUNA, LLC v. CHARLES L. MARSH A-5254-08T3 06-17-10

Plaintiff commenced this action, alleging fraud and the breach of defendant's fiduciary duties as a corporate officer. At the time this suit was filed, defendant's action against
plaintiff in Georgia was still pending. And, once this action was filed, plaintiff voluntarily dismissed its counterclaim against defendant in Georgia. After a trial and the entry of final judgment in Georgia, defendant successfully moved to dismiss this action on the basis of the entire controversy doctrine.
In affirming, the court determined, among other things, that the entire controversy doctrine does not only apply when "successive suits" are filed but may be applied when the second suit is filed while the first is still pending. The court also held that application of the entire controversy doctrine in this circumstance required a dismissal with prejudice, not a dismissal without prejudice, as plaintiff argued. Lastly, the court held that defendant should have sought dismissal more expeditiously but did not find the delay so inequitable as to require denial of the motion to dismiss.

Estate of Nick Hanges v. Metropolitan Property & Casualty Insurance Company (A-62-09)

Estate of Nick Hanges v. Metropolitan Property & Casualty Insurance Company (A-62-09)6-21-10

The trial court’s exclusion of decedent’s statement to
the police constitutes an abuse of discretion and
cannot be sustained. Furthermore, because the trial
court should have considered decedent’s statement to
the police as competent, relevant and material
evidence of a “phantom vehicle” and because the
Supreme Court owes no deference to the trial court’s
legal conclusions in respect of its summary judgment
order, the Court concludes that the entry of summary
judgment in defendant’s favor was in error.

Klumpp v. Borough of Avalon (A-49-09)

Klumpp v. Borough of Avalon (A-49-09) 6-22-10

Ordinarily, the relief available to a property holder
from a governmental taking accomplished without
adherence to the Eminent Domain Act’s requirements
would be to pursue an inverse condemnation action
within the six-year statute of limitations period
under N.J.S.A. 2A:14-1. On the unique facts of this
case, however, equity demands that plaintiffs be
allowed the opportunity to amend their complaint to
add a claim for inverse condemnation to pursue
valuation of their property at the time of the taking
that occurred in or around 1965, when the dune was
constructed on their property.

Wednesday, June 16, 2010

Automobiles- Negligence - Cosenza v. McWilliams(A-5615-08T1)

JOHN COSENZA,
Plaintiff-Appellant,
v.
ALAN EUGENE MCWILLIAMS,
HARRISBURG DAIRIES,
Defendants-Respondents,
and
DEVON MEREDITH COSENZA,
Defendant.
______________________________________
May 27, 2010
Argued May 3, 2010 – Decided

Before Judges Rodríguez, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3825-06.

Craig M. Rothenberg argued the cause for appellant (Law Offices of Craig M. Rothenberg, attorneys; Susan V. Ferreira, on the brief).

Leslie A. Parikh argued the cause for respondents (Gebhardt & Kiefer, P.C., attorneys; Ms. Parikh, on the brief).

PER CURIAM
Plaintiff John Cosenza appeals from: an order of judgment filed by the Law Division on February 5, 2009, which dismissed all claims against defendants Alan Eugene McWilliams (McWilliams) and Harrisburg Dairies (Harrisburg); and an order dated June 25, 2009, which denied plaintiff's motion for a new trial. We affirm.
I.
The following facts are pertinent to our decision. On May 17, 2005, plaintiff was a passenger in a Sports Utility Vehicle (SUV) being driven by his daughter, Devon Meredith Cosenza (Devon). The SUV was proceeding north in the left lane on Route I-85 in South Hill, Virginia. At that time, McWilliams was operating a tractor-trailer owned by Harrisburg, and was traveling north in the right lane on the same highway. Plaintiff sustained personal injuries when the SUV collided with McWilliams's tractor-trailer. Plaintiff filed an action against Devon, McWilliams and Harrisburg.
At the trial, plaintiff testified that, on the date of the accident, the weather was dry and clear. The SUV was in the left lane of the highway. At some point, plaintiff observed a large tractor-trailer ahead in the right lane. Plaintiff said that he observed the tractor-trailer's rear tires move into the left lane. Devon turned the SUV to the left. Plaintiff said that he did not recall what happened thereafter. Plaintiff was injured in the accident and he was taken by helicopter to a hospital.
McWilliams testified that he is a professional truck driver, and he has been a tractor-trailer driver for twenty-five years. McWilliams stated that the day of the accident was a beautiful, sunny day. He had traveled to North Carolina to make a delivery and was on his way back to Harrisburg, Pennsylvania. McWilliams was in the right lane. He testified that his tractor-trailer did not leave that lane.
McWilliams stated that, before the accident, he noticed trucks with signs indicating that mowing was in progress ahead. McWilliams was going to move his tractor-trailer into the left lane but decided not to do so when he checked his rear view mirror and saw a vehicle approaching on the left. McWilliams began to slow down. McWilliams said that he was going to let the vehicle pass him on the left and then move to the left lane. He was traveling at sixty-five miles per hour.
McWilliams continued on. He then heard the noise of the "rumble strips that are engraved into the side of the road[.]" McWilliams checked his rear view mirror and saw the vehicle veer to the right and strike his vehicle on the left. He testified that, to his knowledge, no part of his tractor-trailer was in the left lane. McWilliams further testified that, to his knowledge, he did not move his vehicle sideways to the left at any time.
The police report concerning the collision stated that Devon lost control of the SUV and ran off the road to the left. According to the police report, the SUV traveled about 219 feet before it exited the road. The SUV then traveled 120 feet on the shoulder, before reentering the roadway and traveling fifty-seven feet before it struck the tractor-trailer. The SUV then flipped over several times before coming to rest 153 feet from the point of impact.
State Trooper Robert W. Hawkins, Jr. (Hawkins) testified that, after the accident, he spoke with Devon in the emergency room of the hospital. Hawkins asked Devon how fast she had been going. Devon told Hawkins that she had been traveling seventy- five to eighty miles per hour "most of the way" but she "had slowed down[.]" Hawkins testified that there was no physical evidence at the scene which suggested that the tractor-trailer had left the right lane.
Devon testified that she had been traveling about two hours on the highway before the collision. She took notice of her speed about an hour into the drive. Devon noticed that she was traveling between seventy and eighty miles per hour. She said that she slowed down to about sixty-five miles per hour, which was the speed limit on the highway. Devon stated that she was traveling at that speed for over an hour when the accident occurred.
Devon further testified that, prior to the accident, she was in the left lane and traffic was light. At some point, she observed the tractor-trailer in the right lane of travel. It was about one hundred feet ahead of the SUV when she first noticed it. Devon stated that the trailer suddenly came over into her lane, and the trailer was less that "halfway over" when she turned left to try to avoid it.
Devon also testified that she first noticed the trailer entering her lane of travel when it was about "twenty-five feet" away. She stated that she felt grass on the left hand side and "suddenly" had to turn back to the right. She lost control of the SUV and collided with the tractor-trailer. The SUV moved to the left and flipped over several times before it came to rest.
During her deposition, Devon had testified that she was "twenty-five meters" behind the tractor-trailer when it began to move left into her lane of travel. In her direct testimony, Devon said that she did not know anything about meters. She testified, however, on cross examination that she was familiar with meters since she was in high school.
Devon additionally testified that the police report was incorrect because she "never went all the way off the roadway[.]" At her deposition, Devon also had testified that she recalled striking the rear of the trailer but, at trial, she said that she did not believe that she did.
In addition, Devon testified that she did not recall that the SUV skid 219 feet in the left lane before it left the roadway. Devon said that she had not driven a motor vehicle on a regular basis in the nine months prior to the accident, and she normally did not drive an SUV. She usually drove a subcompact.
Plaintiff also presented testimony from Steven Mark Schorr (Schorr), a professional engineer. Schorr was qualified an expert in traffic engineering, highway safety and accident reconstruction. Schorr testified that, as a result of what is known as "high speed off tracking[,]" McWilliams' trailer could have encroached into the left lane even if the tractor did not cross into that lane. Schorr illustrated his testimony with a computer simulation.
Defendants presented testimony from John Desch (Desch), a professional engineer, who was qualified to testify as an expert in traffic engineering and accident reconstruction. Desch testified that, at the time of the collision, the Cosenza vehicle was likely traveling at a speed above the speed limit of sixty-five miles per hour. Desch also testified that there was no physical evidence that McWilliams' vehicle ever left the right lane prior to the collision.
In addition, plaintiff presented medical testimony from Dr. Steven Nehmer and Dr. John Greenberg. Defendants did not present any medical testimony.
At the charge conference, defendants requested that the court charge the jury in according with Virginia's model jury instructions relating to reasonable speed, exceeding the speed limit, the right of a driver to assume that the other driver is not speeding, and the duty of a guest passenger in a speeding vehicle to take action regarding the speed at which the vehicle is traveling. The trial court had previously ruled that the law of Virginia would be applied in this case.
The trial court denied the application, finding that there was no specific testimony indicating that Devon had been driving faster than the speed limit. The court noted the Devon testified that she had been traveling faster than the speed limit, but that was about an hour before the collision. The court also noted that McWilliams was unable to estimate the speed of the Cosenza vehicle. The court additionally pointed out that McWilliams testified that, prior to the accident, he slowed his vehicle down and he could have been traveling at fifty or fifty-five miles per hour.
According to the court, Desch had no idea as to the exact speed that the Cosenza vehicle was traveling. The court concluded that, "to permit [the requested] charge[s] would invite nothing but speculation on behalf of the jury as to whether or not [the Cosenza] vehicle was traveling at a rate of speed in excess of the speed limit[.]"
Plaintiff also moved to strike the portions of Desch's testimony regarding the speed at which the Cosenza vehicle had been traveling at or about the time of the accident. The court granted the motion and stated that it would instruct the jury to disregard Desch's testimony that the Cosenza vehicle was likely traveling at a speed in excess of the speed limit at the time of the accident.
After counsel gave their closing arguments and the court provided its instructions, the jury began its deliberations. While the jury was deliberating, plaintiff settled his claims against Devon. The jury thereafter returned a verdict finding that Devon had been negligent in the operation of her vehicle and her negligence was a proximate cause of the accident. The jury also found that McWilliams had not been negligent. The jury awarded plaintiff $422,000 in damages. On February 5, 2009, the trial court entered a judgment dismissing plaintiff's claims against McWilliams, in accordance with the jury's verdict.
Plaintiff subsequently filed a motion for a new trial. The court considered that motion on May 15, 2009, and placed its decision on the record on June 25, 2009, in which it concluded that the motion should be denied. The court entered an order dated June 25, 2009, memorializing its decision. This appeal followed.
II.
Plaintiff argues that the jury's verdict was against the weight of the evidence. Plaintiff contends that the evidence did not support the jury's finding that McWilliams had not been negligent in the operation of his tractor-trailer. Plaintiff additionally contends that the amount of damages awarded to him shows that the jury failed to abide by the court's instructions. We find no merit in these contentions.
When considering a motion for a new trial, the trial court must determine whether "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). In determining whether to grant a new trial, the trial court may not substitute its own judgment for that of the jury. Dolson v. Anastasia, 55 N.J. 2, 6 (1969).
Rather, the trial court must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). A jury's verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). Furthermore, a jury's evaluation of the evidence should be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004).
The trial court correctly applied these principles when it denied plaintiff's motion for a new trial. In the decision placed on the record on June 25, 2009, the court found that there was sufficient evidence for the jury to rationally find that McWilliams had not been negligent in the operation of his vehicle.
The court pointed out that plaintiff had not presented any dispositive proof that McWilliams negligently operated his tractor-trailer. The court noted that the trial testimony of plaintiff and Devon concerning the accident was, in certain respects, "contradictory and/or inconsistent." Moreover, Devon's trial testimony was inconsistent with her deposition testimony, as well as information on the police report.
The court also pointed out that both plaintiff and Devon had demonstrated a lack of recollection about critical events that occurred after Devon's "evasive maneuver and/or in reaction to [McWilliams'] trailer." The court found that this evidence could have affected the jury's assessment of the credibility of plaintiff and Devon, "as well as the reliability of their testimony."
In addition, the court noted that Schorr had presented a computer simulation to show that, based on the laws of physics, it is virtually impossible to keep a tractor-trailer within a single lane of travel, even without any attempt by the driver to change lanes or any improper operation of the vehicle. The court then observed that, based on this evidence, even if the jury determined that McWilliams' tractor-trailer passed over into the left lane of travel, it could have found that this was due to the operation of the laws of physics, rather than any negligence on the part of McWilliams.
In addition, the court noted that it had charged the jury, in accordance with Virginia law, that a vehicle must be driven "as nearly as practical entirely within a single lane, and shall not be moved from such lane until the driver of such vehicle in the exercise of ordinary care ascertains that such movement can be made with safety." The court found that, in light of Schorr's testimony, a reasonable jury could find that McWilliams did, in fact, drive his tractor-trailer "as nearly [as] practical," within a single lane of travel.
We are convinced that the record fully supports the trial court's findings. We are therefore satisfied that there was sufficient evidence in the record from which the jury could reasonably find that McWilliams had not operated his tractor-trailer in a negligent manner.
Plaintiff further argues that the amount of damages "awarded" to him shows that the verdict was a miscarriage of justice under the law. As we noted previously, plaintiff settled his claims against Devon before the jury returned its verdict. Because the jury did not find McWilliams negligent in this matter, the damages were awarded against Devon. However, the jury's damage award was moot in light of the settlement.
Plaintiff nevertheless argues that the damage award was inadequate and establishes that the no-cause verdict against McWilliams was a miscarriage of justice under the law. We disagree. In our view, the record fully supports the trial court's determination that the damage award represented fair and reasonable compensation, based on the medical evidence in the case.
In its decision on plaintiff's motion for a new trial, the court pointed out that plaintiff had sustained a fracture of the thoracic spine and a laceration of the scalp. The court noted that, within five months after the accident, plaintiff had returned to work on a part-time basis as a paperhanger/painter. The evidence established that plaintiff had a full range of motion in his neck and back and full neurological functioning of the thoracic spine. The court also noted that the evidence showed that the fusion of the thoracic spine had little effect on plaintiff's mobility, since his spine normally has limited range of motion to begin with, as opposed to the other spinal areas.
Moreover, plaintiff's scalp laceration had completely healed with no visible scarring, except on close inspection of the scalp, and plaintiff had not experienced any residual post-concussion syndrome as of the date of the trial. Plaintiff had normal mental status and behavior, no residual depression and normal neurological functioning. In addition, plaintiff showed no discomfort from the scar, nor was he self-conscious about it.
We are convinced that the record fully supports the court's finding. We are therefore satisfied that the trial court correctly determined that the damages awarded to plaintiff constituted fair and reasonable compensation for plaintiff's injuries. We reject plaintiff's contention that the damage award of damages indicates that the jury failed to follow the court's instructions and the verdict regarding McWilliams was a miscarriage of justice.
III.
Next, plaintiff argues that a new trial was required because of certain comments made by McWilliams' attorney in his summation. Again, we disagree.
As we stated previously, the trial court granted plaintiff's motion to strike Desch's opinion regarding the speed that the Cosenza vehicle had been traveling at or about the time of the accident. Before the summations, the trial court had instructed the jurors that it had stricken Desch's testimony on this point. The court also told the jury that it could not consider that testimony in its deliberations.
During his closing argument, McWilliams' attorney argued that the evidence presented during the trial did not establish that McWilliams drove his tractor-trailer negligently. He reviewed the testimony. Among other things, counsel pointed out the inconsistencies between Devon's trial testimony and her statements to Trooper Hawkins, her deposition testimony and the physical evidence in the case. Counsel also noted the inconsistencies in Devon's statements about the speed at which she had been traveling. McWilliams' attorney did not argue that Devon was negligent because she exceeded the speed limit. He did, however, assert that Devon's version of the accident made no sense and her statements concerning the accident were not credible.
In its decision on plaintiff's motion for a new trial, the court noted that, during the trial, it had only ruled that Desch's testimony regarding the speed of the Cosenza vehicle was not supported by the record. The court pointed out that it had not ruled that the testimony made regarding the speed of the Cosenza vehicle could not be considered by the jury for any purpose.
The court found that McWilliams' attorney had properly argued that Devon's statements regarding the speed at which she was traveling had a bearing on the credibility of her other statements regarding the accident. The court added that the speed at which the Cosenza vehicle was traveling had little or no relevance to the issue of McWilliams' negligence. The court observed that a finding that Devon had operated the SUV negligently did not preclude a finding that McWilliams also had been negligent in operating his tractor-trailer.
We are convinced that the record fully supports the court's findings. We are satisfied that the comments by McWilliams' attorney regarding the speed at which the SUV was traveling were fair comment on the evidence, and the evidence was relevant to the credibility findings the jury was required to make in this case.
Plaintiff also argues that he was denied a fair trial because McWilliams' attorney had referred in his summation to plaintiff's and Devon's attorneys as the "Cosenza family attorneys." Plaintiff asserts that this comment gave the jury the impression that he was pursuing his claim in bad faith and he was "in some sort of collusion" with his daughter. The trial court determined that his remark, although "regretful and somewhat inappropriate" was not prejudicial.
In our view, the trial court correctly recognized that the comment by McWilliams' counsel merely stated what was obvious throughout the trial: that the positions of plaintiff and Devon as to McWilliams' alleged negligence were the same. The remark was not meant to disparage plaintiff, Devon or their attorneys. The trial court properly determined that plaintiff was not prejudiced by the remark.
Affirmed.

Negligence- Torts - Winograd v Carnival Corporation (A-6261-08T2)


SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6261-08T26261-08T2
AUDREY WINOGRAD,
Plaintiff-Appellant,
v.
CARNIVAL CORPORATION, COSTA
CROCIERE S.P.A., COSTA CRUISE
LINES N.V. and FLORIDA-CARIBBEAN
CRUISE ASSOCIATION,
Defendants-Respondents.
_______________________________________________________
Argued May 11, 2010 - Decided
Before Judges Skillman and Fuentes.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket
No. L-3680-08.
Paul R. Melletz argued the cause for appellant (Begelman, Orlow & Melletz, attorneys; Mr. Melletz, on the brief).
Carl D. Buchholz, III (Rawle & Henderson) of the Pennsylvania bar, admitted pro hac vice, argued the cause for respondents (Kevin L. McGee (Rawle & Henderson) and Mr. Buchholz, attorneys and on the brief).
PER CURIAM
Plaintiff was a passenger on a cruise ship named the Costa Magica, which was owned by defendant Costa Crociere, S.P.A., an Italian corporation. Kurt Mehta, a friend of plaintiff, who went with her on the cruise, purchased the cruise tickets through a ticket agent who obtained the tickets from defendant Costa Cruise Lines N.V., the sales and marketing agent for the Costa Magica.
Paragraph 1 of the ticket contract for the cruise imposed a one-year statute of limitations on claims for personal injury, stating, in relevant part, in bold print:
1. NOTICE AND LIMITATION OF ACTIONS AGAINST THE CARRIER
The carrier shall not be liable for any physical or emotional injury, illness or death of the passenger unless written notice of the claim with full particulars is delivered to the carrier or its duly authorized agent within 185 days after the date of injury, illness or death. No suit shall be maintainable in any event unless filed within one year after the date of injury, illness or death, and unless served upon the carrier within 120 days after filing.
[Emphasis added.]
Paragraph three of the ticket contract extended the protections of the contract to Costa Crociere's parents and agents, including defendant Costa Cruise Lines N.V., stating, in relevant part,
3. LIMITATIONS OF LIABILITY OF THE CARRIER'S AGENTS, SERVANTS, AND OTHERS
All of the defenses, limitations and exceptions of whatever kind relating to the responsibility and liabilities of the CARRIER that may be invoked by the CARRIER by virtue of this Contract or by law are fully extended to and may also be invoked by all persons who may act on behalf of the CARRIER or on whose behalf the CARRIER
may act. Such persons may include without limitation (i) the CARRIER's parents, subsidiaries, affiliates, successors, assigns, representatives, agents, employees, servants, concessionaires and contractors,
. . . and (iii) Costa Cruise Lines N.V., the Netherlands Antilles corporation that is a sales and marketing agent for the CARRIER and the issuer of this Passage Ticket Contract.
The itinerary for the cruise, which embarked from Port Everglades, Florida, on November 26, 2006, included a November 30, 2006 visit to La Romana, Dominican Republic. Plaintiff and Mehta disembarked from the ship when it arrived at La
Romana and went by shuttle bus to the port. While walking in the shopping district, plaintiff and Mehta were robbed by men with knives, who stole their passports, drivers licenses, credit cards, and other personal effects. Plaintiff alleges that she suffered physical and emotional injury as a result of the robbery.
On November 26, 2008, nearly two years after the robbery, plaintiff filed this action in the Law Division. Plaintiff's complaint named as defendants not only Costa Crociere and Costa Cruise Lines but also Carnival Corporation, which the complaint identified as the owner of Costa Cruise Lines, and Florida-Caribbean Cruise Association, which the complaint identified as a trade organization composed of thirteen member cruise lines including Costa Cruise Lines and the Costa Magica.
The complaint alleged that defendants had been negligent in failing to warn her of the dangers posed to tourists embarking on an excursion to La Romana, Dominican Republic; failing to protect her while in La Romana; and failing to provide her proper medical and psychological treatment after the attack. The complaint also asserted claims for negligent and intentional infliction of emotional distress. In addition, plaintiff's complaint asserted a claim under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. Plaintiff alleged that defendants had engaged in "unconscionable commercial practices" within the meaning of that Act by "knowing[ly] scheduling . . . an excursion to a dangerous location and not warning the Plaintiff of the known risks involved[,]" and instead "advertis[ing] to Plaintiff[] and the public that the trip would be a safe and enjoyable experience."
Defendants filed a motion to dismiss plaintiff's complaint on the ground that it was barred by the one-year limitations period set forth in the ticket contract for the cruise. Defendants also sought dismissal on the ground that the complaint was barred by other provisions of the ticket contract, including a forum selection clause requiring any claim arising out of, concerned with, or incident to any cruise to be heard in Broward County, Florida, and other clauses that preclude liability based on actions occurring onshore, medical care, negligent infliction of emotional distress, and the intentional or negligent acts of non-employees.
Judge Suter granted defendant's motion to dismiss based solely on the one-year limitation set forth in paragraph one of the ticket contract and did not reach the other defenses to plaintiff's action raised by defendants. The judge issued a written opinion, which stated in part:
Federal maritime law authorizes an owner of a sea-going vessel to establish a one-year statute of limitation in its passenger contract. "Generally, contract provisions limiting the time parties may bring suit have been held to be enforceable, if reasonable. Such provisions are accepted by the courts as long as they do not violate public policy."
The issue, then, is whether the contractual limitation in this case was reasonable. . . . Here the court finds that the time limitation for filing suit contained in the Contract is reasonable and enforceable against the plaintiff.
. . . Plaintiff contends that she never saw the contract language before boarding the cruise or during the cruise, as she did not purchase the tickets and Kurt Mehta, the purchaser of the tickets, held on to the tickets. However, in Marek v. Marpan Two, Inc., 817 F.2d 242, 247 (3d Cir. 1987), the Court found that a friend's "possession of the folder is sufficient to charge [plaintiff] with notice of its provisions." Similarly, in Hodes [v. S.N.C. Achille Lauro], 858 F.2d [905], 911-12 [3rd Cir. 1988], the Court found that the appellees are charged with notice of the ticket provisions, even though the tickets had been held by the appellees' travel agent and the appellees did not receive their tickets until immediately before boarding the ship and therefore had no effective opportunity to read the conditions of the contract. Here, Mr. Mehta purchased the tickets through a travel agent and had the tickets at least one week prior to boarding the cruise ship. The fact that Mr. Mehta purchased the ticket for Plaintiff does not change the fact that plaintiff, as a ticketed-passenger of the cruise ship, is charged with notice of the ticket provisions. The court holds that plaintiff had notice of these conditions through her agent travel companion, who procured the tickets.
[Citations omitted.]
We affirm substantially for the reasons set forth in Judge Suter's written opinion. We add the following supplemental comments.
Even if plaintiff's Consumer Fraud Act claim were not subject to the one-year limitations period set forth in paragraph one of the ticket contract, plaintiff would be required under paragraph 19(a) of the contract to bring that claim in Broward County, Florida. Such a forum selection clause in a cruise ticket contract is clearly valid. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-96, 111 S. Ct. 1522, l527-28, 113 L. Ed.2d 622, 631-33 (1991); see also Kubis & Perszyk Associates, Inc. v. Sun Microsystems, Inc., 146 N.J. 176, 186-92 (1996).
The argument presented under Point I of plaintiff's brief was not presented to the trial court. Therefore, that argument is not properly before us on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed.

Negligence-Torts Nunez v. Pino (A-0418-09T2)

   SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0418-09T20 418-09T2

DANIEL NUNEZ,

Plaintiff-Appellant,

v.

LUIS PINO, ALICIA PINO,

and CINDY PINO,

Defendants-Respondents.

_________________________________

Argued April 27, 2010 - Decided May 27, 2010

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-770-08.

G. Martin Meyers argued the cause for appellant (Law

Offices of G. Martin Meyers, P.C., attorneys; Mr. Meyers, on the briefs).

Michael B. Oropollo argued the cause for respondents (Harwood Lloyd, L.L.C., attorneys; Mr. Oropollo, of counsel; Michael A. Augello, Jr., on the brief).

PER CURIAM

In this slip and fall premises liability case, plaintiff Daniel Nunez appeals from the denial of his motion for a new trial following a jury's no-cause verdict finding plaintiff seventy-five percent negligent. We affirm.

On December 2, 2007, the weather was inclement. Throughout the day, there had been periods of intermittent snow. As the evening wore on, however, the weather conditions worsened, and the snow began to fall more steadily. Sometime that evening, plaintiff, a twenty-year old varsity football player for William Paterson University, arrived at the Paterson home of his girlfriend, Talisa Pino. The home was owned by defendants, Luis, Alicia, and Cindy Pino, and familiar to plaintiff, who had been dating Talisa for two years.

The couple watched a movie. Talisa's grandfather, defendant Luis Pino, had retired to bed at 10:00 p.m. Throughout the evening, Talisa's mother, Maria Pino, had warned plaintiff that the weather was worsening and that he should think about leaving. Indeed, plaintiff himself knew it had been snowing for some time. Shortly before midnight, plaintiff's own grandmother called to tell him to drive home carefully because of the inclement weather. Ten to fifteen minutes later, plaintiff decided to leave and return home.

As plaintiff was leaving, Talisa escorted him to the rear exit of the home, where the door was "wide open" with a bucket of salt nearby, and an overhead light illuminated the stairwell. The couple kissed goodnight in the doorway and plaintiff

went to walk out the stairs and as I took my first step, my left foot came flying out from under me and kind of just took my momentum -- bringing my body straight in the air and my right leg dragging behind me, in which I landed . . . .

Plaintiff did not look down at the stairs before taking his first step, even though he was aware that ice forms under snow. Nor did he grab the staircase handrails, just three inches past the doorframe, because he "never got a chance to. As I took my first step to exit the premises, that was it, it was just a split second and I was . . . gone."

After the fall, Talisa observed the stairs covered in snow and ice, and "the blacktop was all covered in snow." According to Talisa, "the two top steps were covered in light snow. And under that was ice." In fact, she was able to see the ice from the doorway "[w]ith the reflection of the light."

Defendants' engineering expert, Henry Naughton, had subsequently inspected the scene of the accident and took measurements and photographs of the rear entrance and stairs. Naughton found the stairs' design, with its two handrails, "certainly safe." He noted that the double spotlight, four-and-one-half inches above the rear doorframe, illuminates the stairs, and if ice is present thereon, "it would certainly reflect it . . . you would look at it and you would see a reflection of a shiny surface."

Plaintiff was in "agony" after the fall. Talisa and her mother helped bring plaintiff back inside the home where they awaited arrival of an ambulance. Plaintiff was then transported to the local emergency room around 1:20 a.m., where his ankle was splinted. Within days, plaintiff had the William Paterson team doctor, an orthopedic surgeon, perform the surgery to repair his broken ankle. The procedure entailed adding a plate and nine screws to secure the ankle, and a second surgery to remove one of the screws. According to his medical expert, plaintiff will continue to suffer intermittent pain.

Plaintiff sued defendant homeowners alleging that their negligence in failing to provide a reasonably safe place to visit caused his injuries. Defendants answered and claimed plaintiff was comparatively negligent. Following trial, the jury returned a verdict allocating liability seventy-five percent to plaintiff and twenty-five percent to defendants. Plaintiff appeals, raising the following issues:

I. THE COURT'S DENIAL OF PLAINTIFF-APPELLANT'S MOTION IN LIMINE TO BAR REFERENCES TO PLAINTIFF'S NONEXISTENT "DUTY" TO SALT AND SCRAPE DEFENDANTS' STAIRS IMPERMISSIBLY PREJUDICED PLAINTIFF.

II. THE COURT'S FAILURE TO BAR OR CORRECT THE SURPRISE "FACT" TESTIMONY OF DEFENDANTS' "EXPERT", HENRY NAUGHTON, P.E., OR TO INSTRUCT THE JURY TO DISREGARD THE "REVISED" TESTIMONY OF TALISA PINO, HARMFULLY PREJUDICED THE PLAINTIFF.

We reject both contentions.

(I)

Plaintiff argues that comments made at trial about his failure to take affirmative action to remedy the icy condition of the staircase before using it, absent a limiting instruction, amounted to reversible error, as the evidence was irrelevant since plaintiff, as a social guest, had no duty to shovel or salt the stairs. Illustrative is defense counsel's opening statement:

By the way, [plaintiff] never asked -- you know, I know it's nasty out here, my grandmother called me and told me it was nasty. I knew it was adverse conditions. Did he ask, you know, should I get some salt and throw it down for you? No.

Counsel thereafter briefly referenced plaintiff's "inaction" during his cross-examination. We discern no reversible error in these remarks.

It is well settled that a host owes a "limited" duty to a social guest as to conditions of the property. Endre v. Arnold300 N.J. Super. 136, 142 (App. Div.),certif. denied150 N.J. 27 (1997). "A host need only warn 'of dangerous conditions of which [the host] had actual knowledge and of which the guest is unaware.'" Ibid.(quoting Hopkins v. Fox & Lazo Realtors132 N.J. 426, 434 (1993)); see also Berger v. Shapiro30 N.J. 89, 97-98, (1959).

A "host need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself." Berger,supra, 30 N.J. at 97. The host is under no duty to inspect his or her premises to discover defects which otherwise might not be known to the casual observer. Id. at 98. Where a "guest is aware of the dangerous condition or by a reasonable use of his [faculties] would observe it, the host is not liable."Id. at 99.

[Endresupra, 300 N.J. Super. at 142 (emphasis added).]

Just as a host need not "undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself[,]"Bergersupra, 30 N.J. at 97, neither must a social guest take affirmative action to remedy a dangerous condition on the host's property. For present purposes, the crux of the social host premises liability analysis is whether plaintiff, as a social guest, was "aware of the dangerous condition or by a reasonable use of his faculties would observe it," id. at 99, not whether he failed to take affirmative action to cure the defect.

We agree with defendants that evidence of whether plaintiff felt it unnecessary to salt or shovel himself has a tendency to show that defendants had no knowledge of the conditions superior to that of plaintiff, who was obviously in a better position to observe the staircase as he stood in the open doorway, or, at the very most, that defendants' possessed knowledge equivalent to that of plaintiff. As such, defendants had no duty to warn plaintiff of, on the one hand, dangerous conditions of which they had no actual knowledge, or on the other hand, conditions that were patently obvious. Endresupra, 300 N.J. Super. at 142; see also Bergersupra, 30N.J. at 99.

Most significant, the limited references to plaintiff's inaction were not presented as a "duty" owed by plaintiff, but rather evidential of defendants' claim that plaintiff was comparatively negligent in not taking proper precautions in descending the rear steps. N.J.S.A. 2A:15-5.2a. As noted,

where a "guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable." Bergersupra, 30 N.J. at 99 (emphasis added). Here, there was ample testimony from which it may be inferred that plaintiff knew or should reasonably have known of the icy condition of the rear stairs. It had been snowing for quite some time. Plaintiff knew that ice forms under snow. The ice was, in fact, illuminated by the lighting over the doorway. The condition of the staircase was plainly visible to plaintiff through both the windows and open doorway. Yet, confronted with the patently obvious, plaintiff nevertheless failed to look down, grab the handrail, or take any other precautionary measures before stepping outside. Such evidence of plaintiff's actions or "inactions" was properly admitted and clearly supports the jury's finding that he was seventy-five percent at fault.

As the trial judge reasoned in denying plaintiff's motion for a new trial:

[T]he issue in the case before this [c]ourt is the duty owed to a social guest by a homeowner.

The host need only know what dangerous conditions of which the host had actual knowledge, and of which the guest is unaware.

The social guest is entitled to the same knowledge possessed by the host of dangerous conditions and should not be expected to assume the risk of such conditions in the absence of a warning.

If, however, the guest is aware of the dangerous condition, or by reasonable use of his faculties would observe it, the host is not liable because of the guest's failure to use due care.

It was shown that plaintiff knew that it had been snowing for a period of time before he left the Pino residence because Maria Pino, Talisa Pino's mother, warned the plaintiff that it was very windy out and that the snow was falling.

Additionally, the plaintiff was aware that it was snowing heavily because his grandmother called him and told him the weather was getting bad, and that he should think of coming home.

The plaintiff left the Pino residence within 15 minutes of receiving his grandmother's phone call. The plaintiff testified he decided to leave the Pino residence because of the snow and the bad weather conditions. The plaintiff also testified he expected some adverse conditions when he left the Pino residence.

The facts of this case are not analogous to those in [Warshany v. Supermarkets General Corp., 161 N.J.Super. 515 (Law Div. 1978)], [because in] the case before this [c]ourt a jury could reasonably find that plaintiff possessed the same knowledge as the defendants about the possible dangerous conditions caused by the snowstorm.

On the other hand, in Warshany, the plaintiff's only means of obtaining similar knowledge would have been her observance of a supermarket employee with a mop in the aisle where she eventually fell.

. . . .

It is clear based on the evidence presented at trial that it is reasonable for the jury to reach the percentages it did in this case.

. . . Through testimony and trial exhibits it was established that the plaintiff could have avoided the accident if he had exercised due care upon leaving the Pino residence.

The defense evidence showed that he was warned by Talisa Pino, Maria Pino, [and] his own grandmother that the weather was getting bad. There was a properly functioning handrail available to him that he did not use, and the condition of the stairs was observable through the door, and was observable again when the door was opened.

Based upon these facts adduced at trial the jury's cause of negligence was rationale and reasonable.

The jury verdict on the comparative negligence issue was rational . . . and reasonable in light of the evidence educed at trial.

. . . .

The jury's finding that it was the plaintiff's own negligence [in] failing to use due care upon leaving the Pino residence [that] was the overwhelming proximate cause of this accident is supported by the weight of the evidence adduced at trial.

We agree.

In any event, to the extent that defense counsel's references to plaintiff's failure to salt or shovel the stairs wrongly implied an affirmative duty on his part, plaintiff's counsel forcefully and effectively countered any such misimpression in his closing argument:

This idea that Daniel should have done something himself. He should have been the one to clear the ice and snow. So . . . that's their standard of reasonableness, that somehow this was his obligation.

Well I submit to you, ladies and gentlemen, when you hear [the judge] explain the law to you at the end of this case you're gonna realize without any question, Daniel Nunez had no obligation. He was not the owner of this property. He had no obligation to clear that ice and snow himself.

So even though it's something that I'm sure he would have been absolutely happy to do, he had no legal obligation. So . . . what he did or didn't do can't be the basis for any negligence on his part.

Moreover, the court properly charged the jury on defendant's legal duty as a host to a social guest and plaintiff has not claimed any error in the judge's jury charge. We presume the jury followed the court's instructions. State v. Burns192 N.J. 312, 335 (2007). Under the circumstances, we discern no error in counsel's reference to plaintiff's omission.

(II)

Plaintiff next claims that there were discrepancies between the trial testimonies and out-of-court pre-trial statements of Talisa and the engineering expert, and that the expert expanded his testimony to corroborate that of Talisa. According to plaintiff, these deviations amounted to "trial by ambush." These claims are without merit, and were convincingly rejected by the trial judge in his denial of plaintiff's new trial motion:

Here, neither Talisa Pino, nor defendant's liability expert, . . . in this [c]ourt's opinion, materially changed their testimony.

The opinion expressed by [the expert] was the same as the one contained within his report. He did not expand or change anything material at trial.

Likewise, Talisa Pino's trial testimony was no different than [what] she stated at her deposition. And the deposition testimony was read to the jury, and the jury heard her trial testimony, and they could weigh whatever differences they deemed necessary.

The assertion that [the expert] expanded his testimony beyond the parameters of his expert report to introduce a new reflection issue is not a valid argument in this court's opinion. In his report [the expert] opined the spot lights above the door illuminated the steps and were on at the time of [plaintiff's] accident.

In his report [the expert] states that, "The condition of the steps was observable through the doorways and . . . was observable again when the door was opened. Even though snow on the steps was observable and it was snowing, [plaintiff] decided to go from the door to the steps without using either handrail or the door framing for his stability."

[The expert] opined in his report and at trial that, "The condition of the stairs was observable to the plaintiff as he was exiting the defendant's house."

. . . .

To this court [the expert's trial testimony was] not a new opinion as compared to what was written in his report of any material significance.

. . . The fact that the word illuminate [is] in his report and the word reflect [was used] at trial does not constitute a material change in testimony.

[The expert's] opinion expressed in his report and at trial was that the condition of the stairs was observable to the plaintiff as he was exiting the defendant's house.

Also, in this [c]ourt's opinion, the fact that there was a light above ice, if ice was there, would create a reflection is arguably not even an expert opinion, and therefore it can't be a changed expert opinion if that's just a layperson's opinion or observation to begin with.

. . . .

For the above reasons, plaintiff's application is denied.

. . . .

. . . Also, just one comment that this jury was very aware that [the expert] wasn't there the date of this particular occurrence, and that he had subsequently been retained to go there to do an examination of the steps.

So this jury knew that he did not know exactly what was there, and he was just gleaning information from documents, and the jury was aware of what documents he gleaned that information from.

We agree and affirm on this issue substantially for the reasons stated by the trial judge in his oral opinion of August 27, 2009, denying plaintiff's motion for a new trial.

 
Affirmed.

In her deposition, Talisa testified that "the top two [steps] looked like they were clear, but that's where there was ice." When asked whether "it would be fair to say it was like an invisible sheet of ice[,]" she stated "[y]es, but you could see the weather, like there was snow covering everything else."

In his expert report, Naughton concluded:

The condition of the steps was observable through the door glazing and was observable again when the door was opened. Even though snow on the steps was observable and it was snowing, Mr. Nunez decided to go from the door to the steps without utilizing either handrail or the door framing for stability.