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Russell v. Merck & Co.

Decided: July 2, 1986.

TONY RUSSELL, PLAINTIFF-RESPONDENT,
v.
MERCK & COMPANY, INC., DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Union County.

Michels, Gaulkin and Stern. The opinion of the court was delivered by Stern, J.s.c., temporarily assigned.

Stern

Defendant appeals from a judgment in favor of plaintiff for injuries plaintiff sustained when playing softball on a field owned and maintained by defendant, his employer.

Defendant challenges the determinations of the trial court that it owed plaintiff the duty of care applicable to an invitee as opposed to a licensee and claims that, in any event, plaintiff's status was a question for the jury to resolve in the absence of judgment in defendant's favor as a matter of law. Defendant also argues that the verdict was against the weight of the

evidence and that the court erred in permitting plaintiff's expert witness to testify from his report.

Following trial, the jury found plaintiff and defendant each 50% negligent and assessed plaintiff's damages at $80,000. Judgment was entered for plaintiff in the amount of $40,000, plus interest and costs.

In early May 1982 plaintiff, an employee of defendant, was approached by another employee, Bobby Zullo, the captain of the Dynasty softball team, who suggested that he try out for the team. Zullo had also solicited new members for the team by placing an ad in the Daily Reporter, a company newspaper published by defendant. The Dynasty team was one of 12 intramural teams in a softball league composed of and run by defendant's employees. The team members chose team captains who in turn selected a league coordinator. The coordinator scheduled the teams for use of the two fields which were owned by defendant and located adjacent to its buildings in Rahway. The games were played after work and defendant provided the equipment in addition to the field.

On May 4, 1982, plaintiff was on defendant's Grand Avenue field for the first time to try out for the Dynasty team. He was fielding balls in right field when, according to plaintiff, he hit a "big rock, among other things," fell, and "twisted my knee and everything up." According to plaintiff "the field had big rocks in it. It had tree stumps" and "the ground was all unlevel" with small rocks and stones thereon. Plaintiff further testified that he tripped over a rock "as large as a football," and that he had not previously noticed it.

Robert Gregory, employed as defendant's grounds supervisor, testified that his responsibilities included maintenance of the softball fields, including the Grand Avenue field where the accident occurred. He explained that in April 1982 his crew put down clay in the appropriate areas of the Grand Avenue field and that the field was enclosed by a fence which had existed before the area was made into a ball field. There were signs on

the fence which read: "No Trespassing, Private Property, Merck & Company".

According to Gregory, the company had received complaints about the trees in right field. Although the trees were located beyond the playing areas, the employees had wanted the entire field open so more employees could practice on it at one time. In 1981 Merck hired a company to remove trees from that area. Gregory claimed that the ...


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