06-15-11
The subsequent discussion makes it clear that this was not an objection to defense counsel's plan to make a motion for dismissal at the close of Allen's case. The discussion was about the scope of defense counsel's cross-examination. On defense counsel's representation that he would not question Allen about the contract if there was a stipulation as to her signature because the question was a legal one, Allen's attorney agreed to the stipulation. He then moved on to discuss other outstanding pre-trial issues. When defense counsel moved for a directed verdict at the close of Allen's case, there was no objection.
Under these circumstances, we reject Allen's claim that the defense was inadequately pled or waived. It is clear that the parties' understood that in pleading assumption of risk as an affirmative defense, defendant gave effective notice of its intention to rely on the contract's exculpatory clauses. Allen's arguments to the contrary are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
