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Tuesday, November 3, 2015

Award affirmed on trip over chunk of concrete WINTER v. CLUB @ OLD ORCHARD, LLC NO. A-2199-13T3.


NO. A-2199-13T3.

FRANK WINTER and MARIE WINTER, his wife, Plaintiffs-Respondents, v. THE CLUB @ OLD ORCHARD, LLC, Defendant-Appellant, and OLD ORCHARD COUNTRY CLUB ASSOCIATES, L.P., Defendant.

Superior Court of New Jersey, Appellate Division.
Decided October 13, 2015.
Denise Fontana Ricci argued the cause for appellant (Wade Clark Mulcahy and Bolan Jahnsen Dacey, attorneys; Paul F. Clark and Ms. Ricci, on the brief).
Robert A. Morley argued the cause for respondent (Shebell & Shebell, LLC, attorneys; Thomas F. Shebell, III, of counsel; Mr. Morley, on the brief).
Before Judges Reisner and Whipple.


In this trip-and-fall case, defendant, the Club at Old Orchard, LLC (defendant or the club), appeals from a November 18, 2013 judgment in favor of plaintiffs Frank and Marie Winter1 and a December 20, 2013 order denying defendant's new trial motion. For the reasons that follow, we affirm.


For purposes of this opinion, the trial evidence can be summarized as follows. Plaintiff, a club member who played golf on the club's course daily, was seventy-eight years old at the time of the accident. According to plaintiff, while on an asphalt-paved walk that led to the club's parking lot, he tripped on a chunk of concrete set in the ground. His feet then became caught in a low-hanging rope adjacent to the concrete chunk, and he fell on his face. Both the concrete chunk and the rope were located immediately adjacent to the walk, on some gravel landscaping that separated the asphalt walk from a concrete sidewalk running along the club's circular driveway.2 Plaintiff testified that the fall occurred when he heard someone honking a horn to get his attention; he turned toward the driveway, in the direction of the concrete chunk and the rope, and promptly tripped.
Plaintiff presented expert medical testimony concerning his serious resulting injuries, which included a broken eye socket, internal damage to his nose which affects his breathing, and persistent "post-traumatic vascular headaches." Family members and friends corroborated plaintiff's testimony as to changes in his personality and the continuing physical limitations he experienced after the accident. All of that testimony was undisputed. The defense did not present a medical expert.
Robert Krelik, who was the club's general manager at the time plaintiff fell, testified that he knew the chunk of concrete "was there" and he "knew that concrete was going to be a problem sooner or later."3 He admitted knowing that the chunk of concrete "presented a danger" and stated that he "probably should have dug it out." Krelik further stated that when he saw plaintiff "with his face on the ground" after the fall, he "knew [that the concrete chunk] caused it, in my own mind anyway."
Plaintiff also presented testimony from William Poznak, a civil engineer and land surveyor. Poznak testified that the chunk of concrete was actually the base for a sign, and should have been removed when the sign was removed. He explained that its location, right next to the paved walk and in an area where pedestrians could be expected to step, constituted a tripping hazard. Poznak opined that its location violated accepted national standards for the maintenance of walkways and areas immediately adjacent to walkways, where pedestrians could be expected to walk. Poznak explained that "[p]eople do walk on walkways, adjacent to walkways and you want those people to have a safe walkway area."
On cross-examination, Poznak confirmed that "the gravel area" located between the asphalt walk and the concrete sidewalk "was within the walkway area." He further explained that a wooden strip that ran next to the gravel area stopped before the spot where the concrete base was located, making it easy for pedestrians to walk through the gravel area at that point, to reach the adjacent sidewalk. He opined that the entire area of asphalt walk, gravel strip, and concrete sidewalk, was intended as a walkway. The defense did not present an expert to contradict Poznak's testimony.
The defense presented one trial witness, an accountant who oversaw the management of the club after it went into receivership. This witness testified that at the time of plaintiff's fall, the concrete base was still in use as part of a system used to rope off the driveway when the club was closed at night. This contradicted Krelik's testimony that the concrete base was no longer in use and should have been removed. However, it was irrelevant to the issues of whether the concrete presented a tripping hazard to pedestrians and whether defendant knew of the hazard.
In his opening statement, plaintiff's counsel argued that the club had a duty to make sure that the rope, located next to the concrete base, was high enough off the ground that it did not constitute a tripping hazard. In defense counsel's opening statement, he contended that placing hanging ropes in various locations around the golf course was an inherent part of the operation of a course, to control the areas where golf carts could be driven. Based on that premise, defendant argued that plaintiff should have known to watch out for the rope located near the concrete base, and that plaintiff was negligent for failing to watch where he was walking.
In its verdict, the jury found that both parties were negligent, attributing seventy percent of the liability to defendant and thirty percent to plaintiff. The jury awarded plaintiff a total of $600,000 in pain and suffering damages, and awarded $100,000 to his wife for per quod damages. The trial judge appropriately molded the damages award consistent with the verdict.


On this appeal, defendant presents the following points of argument for our consideration:
I. UNFAIR DISCRETIONARY RULINGS COMBINED WITH PLAIN ERROR TO PRODUCE AN UNJUST RESULT.A. The Standards Proffered by the Plaintiffs to Establish the Duty Owed by the Club Do Not Apply to this Trip and Fall that did not Occur Within a Walkway.B. The Court should have Granted Defendant's Request for a Special Jury Question on the Issue of Whether the Plaintiff Fell in a Walkway.C. There was a Plain Error in the Jury Charge that Included a Mode of Operation Instruction (Not Argued Below).D. The Court Erred in Not Answering the Jury Question with a Read-back of the Expert's Testimony Regarding the Standard.II. THE AGGREGATE EFFECT OF THE CUMULATIVE ERRORS REQUIRES THAT THE CASE BE REMANDED. (Not Argued Below).III. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE AWARD WAS EXCESSIVE.
Having considered these arguments in light of the trial record and the applicable law, we conclude that the trial judge properly exercised discretion in his evidentiary rulings; there was no plain error as to a jury charge to which defendant did not object; and the verdict does not represent a miscarriage of justice. See R. 2:10-2. Except to the extent addressed below, defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendant argues that the judge should have granted its request for a special jury question as to whether plaintiff fell in a walkway. Submission of a special jury question is discretionary with the trial judge. See R. 4:39-1 ("The court may require a jury to return only a special verdict. . . ."); R. 4:39-2 ("The court may submit to the jury, . . . written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict."). We find no abuse of the judge's discretion here. This was not a complex case that needed to be tried on the basis of a special verdict sheet limited to factual questions. See Campione v. Soden150 N.J. 163 (1997).
Moreover, the trial court correctly reasoned that defendant's proposed question was not necessary and might skew the verdict sheet in defendant's favor. As Krelik's testimony illustrated, plaintiff's liability claim was not limited to whether the concrete base was located in a walkway, but whether its placement created a tripping hazard for persons using the asphalt walk.4 In denying defendant's request, the trial judge noted that "the jury could easily arrive at a conclusion of negligence, without even considering whether the area in question was a walkway."
Further, as the judge correctly noted, defendant's argument was "predicated on the assumption that only paved areas can be walkways." Posing the question defendant requested could have signaled to the jury that the court was accepting defendant's very narrow interpretation of the national safety standards, as opposed to Poznak's broader construction. We find no abuse of the trial judge's discretion in declining to include defendant's requested jury question.
Defendant next argues, for the first time on appeal, that the judge should not have included a "mode of operation" charge. See Model Jury Charge (Civil), 5.20F(11), Notice Not Required When Mode of Operation Creates Danger (1970).5 Because defense counsel did not object to this portion of the charge, we apply the plain error rule. R. 1:7-2; R. 2:10-2. Based on the Supreme Court's very recent holding in Prioleau v. Kentucky Fried Chicken, Inc., ___ N.J. ___ (2015), we agree that it was error to give the mode of operation charge. However, on this record we conclude the error was not clearly capable of producing an unjust result. See R. 1:7-2; R. 2:10-2.
Given the state of the law at the time, it is not surprising that the court gave this charge, particularly in the absence of an objection. Defendant's opening statement told the jury that stringing ropes throughout the golf course was part of the club's mode of operation, and plaintiff presented testimony that the rope involved in this accident tended to sag and create a tripping hazard. Reasonable jurors could have concluded that the club's chosen mode of directing golf cart traffic, by using ropes strung across the paths, created a dangerous condition for pedestrians. However, as the Court clarified in Prioleau, the mode of operation charge is only appropriate in a narrow set of circumstances involving customer self-service, a situation not presented here. Id. at ___ (slip op. at 21-23).6
Nonetheless, we find no plain error. The purpose of a mode-of-operation charge is to relieve a plaintiff of proving that a defendant had notice of a particular dangerous condition, so long as that defendant's mode of operation created the condition. See Id. at ___ (slip op. at 23-24); Nisivoccia v. Glass Gardens, Inc.175 N.J. 559, 563-65 (2003). In this case, whether defendant had notice of the sagging rope was not a central issue in the case. The bright yellow rope was obvious and noticeable, and was located in an area where club employees could readily observe it; in fact, defense counsel vigorously argued that plaintiff should have noticed it. There was also unrebutted testimony from a club member that the rope frequently sagged, and the jury could readily have inferred that the club had actual knowledge of its condition. Further, with respect to the concrete base, defendant's general manager admitted both actual notice of the danger and negligence with respect to the failure to correct a tripping hazard. Consequently, although it was error to give a mode of operation charge, we cannot conclude that the error had the clear capacity to produce an unjust result. See R. 1:7-2; R. 2:10-2.
We find no abuse of the trial judge's discretion in declining the jury's request for "a copy of the civil engineering standard pertaining to the walkway and walkway area." Defense counsel suggested that the judge provide the jury with a copy of the two written engineering standards to which Poznak had referred in his testimony, or with a redacted copy of Poznak's expert report. Those documents were not in evidence. Alternately, he suggested a read back of Poznak's testimony, limited to the portions where he referred to those standards. The judge construed the jury's note as a request for the civil engineering documents and declined to provide them because they were not in evidence. The judge so instructed the jury and told them to rely on their recollection of Poznak's testimony. The jury did not, thereafter, ask for a read back of that testimony.
We review the judge's ruling for abuse of discretion and we find none. See State v. Wolf44 N.J. 176, 185 (1965). Contrary to defendant's argument here, we agree with the trial judge that the jury was not asking for a read back of Poznak's testimony. It was asking for documents that were not in evidence. But even if the jury had requested a read back, a fair response would have required a reading of all or nearly all of Poznak's testimony, including direct and cross-examination, because his explanation of the civil engineering standards appeared throughout his testimony. Our reading of Poznak's testimony, which was both articulate and unrebutted, convinces us that a read back would have been unhelpful to the defense.
Finally, the trial court did not err in denying defendant's motion for a new trial. See R.2:10-1. The verdict was not against the weight of the evidence. See Dolson v. Anastasia55 N.J. 2, 7 (1969). And we find nothing conscience-shocking in the damages award, which was reasonable in light of plaintiff's serious injuries and the significant pain and physical limitations they caused him. See He v. Miller207 N.J. 230, 249 (2011).


1. Frank Winter sued for his injuries in the fall. His wife asserted a per quod claim. We will refer to Frank Winter as "plaintiff."
2. Color photographs, which were introduced in evidence and appear in plaintiff's appendix, clearly illustrate the scene and are worth the proverbial thousand words.
3. Krelik was unavailable to testify at the trial, but portions of his deposition were read to the jury.
4. The photographs in plaintiff's appendix illustrate how close the concrete was to the asphalt walk and how easily a pedestrian could have tripped over it. Likewise the photos illustrate how low the adjacent rope was sagging.
5. The case was tried in 2013. In December 2014, the charge was renumbered as 5.20F(10).
6. In Prioleau, the defendant objected to the mode of operation charge, and hence, the plain error rule did not apply. See Prioleau v. Kentucky Fried Chicken, Inc.434 N.J.Super. 558, 568 (App. Div. 2014), aff'd, ___ N.J. ___ (2015).