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Catando v. Sheraton Poste Inn

Decided: June 27, 1991.

JOAN CATANDO AND FRANK CATANDO, PLAINTIFFS-APPELLANTS,
v.
SHERATON POSTE INN AND RCA CORPORATION, DEFENDANTS-RESPONDENTS



On Appeal from the Superior Court, Law Division, Camden County.

Judges King, Long and R.s. Cohen. The opinion of the court was delivered by Cohen, R.s., J.A.D.

Cohen

Plaintiff Joan Catando was a business visitor at the Sheraton Poste Inn. After parking her car, she walked by a direct route through the parking lot to the entrance of the Inn. As she approached the entrance, her foot caught and she fell. Looking back as she lay on the ground, she saw that there was a cable running across the surface of the parking lot, encased in a metal channel and secured to the macadam with grey duct tape. In the area of her fall, plaintiff saw that a short length of the cable had come out of the channel. It was impossible to say if it was the result of her hitting the channel with her foot, or if it was already out, and, perhaps, caused her fall. The channel, according to plaintiff, was about an inch high and somewhat wider. A short length of it was put in evidence, but we have not seen it.

Plaintiff sued Sheraton Poste Inn and also RCA Corporation. The cable was part of a temporary installation made by RCA of an earth satellite dish antenna in the parking lot. The purpose was to provide television antenna services to the Inn, and that

required a cable to be run from the antenna to the building. It was installed by RCA, with the Inn's approval, across the parking lot surface in the raised channel. The case was tried on liability only. The jury found that both defendants were free of negligence and that plaintiff had negligently caused her own injuries. Plaintiffs appealed; we affirm.

Plaintiffs first challenge the exclusion of expert testimony offered by plaintiffs on the issue of liability. The reason for exclusion was that plaintiffs supplied the expert's name and report on the day first set for trial. Counsel had engaged the expert some time before, and he had inspected the premises. The case seemed insufficiently weighty to counsel, however, to invest in a report and testimony until plaintiff's injuries turned out to be more serious than expected. Counsel's explanation raises more questions than it answers. When did the injuries look more serious? When did counsel decide to use the expert, and why did he not immediately advise his adversaries? Was it a coincidence that the expert's report was dated the first trial date? After the trial date passed and a new date was set, and counsel knew that defendants objected to his late move, why did he not seek some relief from the court, instead of saving the problem for a brinkman's solution at trial?

It is an important judicial goal to see that a case is presented, fairly to the litigants, in a way that makes the merits most readily accessible to the jury. There are circumstances, however, that justify burdening a party with the attorney's tactical decisions. Making a last-minute decision to call an expert mandates notice to the court and counsel when the decision is made, so that a fair remedy can be sought for the potential disruption in the scheduled pace of litigation. Saving such surprises for trial can be unfair to court and counsel, and is sometimes intended to be. It was unfair here, and the trial judge's response was well within the broad range of judgment entrusted to him in such matters. Westphal v. Guarino, 163 N.J. Super. 139, 145-146

(App.Div.), aff'd o.b., 78 N.J. 139 (1978).

Plaintiff next complains that the trial judge declined to charge the content of certain regulations relating to the obligations of hotel-keepers for safety in and around the property. N.J.A.C. 5:10-6.1 et seq. The regulations do not say anything significantly different from the detailed instructions that were given to the jury on the Inn's common-law responsibilities. The jury was not deprived of any information that would have aided the decision-making process.

Plaintiffs also complain that the jury was erroneously instructed that they had to prove defendants had actual or constructive notice of the condition. They made no such objection at trial. Reading the jury instructions as a whole, we are satisfied that they did not convey to the jury that either RCA or the Inn could sit passively without liability for a dangerous condition unless it was somehow brought to their attention. Instead, we believe the jury was correctly advised that RCA was liable for a dangerous condition if it created one, and that the Inn had the active responsibility to safeguard its patrons, to guard them or warn them of dangers, and to seek out conditions needing attention.

There is one ruling challenged by plaintiffs that deserves extended discussion. It was the seating, over plaintiffs' objection, of a juror who had exhibited disqualifying bias against plaintiffs.

We start with the traditional and sound rule that trial court decisions whether to excuse prospective jurors for cause are given substantial deference. They are discretionary decisions which engage the trial judge's superior ability to evaluate the whole person in the courtroom. State v. Marshall, 123 N.J. 1, 85-87 (1991); State v. Singletary, 80 N.J. 55, 64 (1979). The other side of the coin, however, is that securing and preserving an impartial jury goes to the very

essence of a fair trial. State v. Williams, 93 N.J. 39, 60 (1983). The reported cases on the subject are mostly criminal cases, because allegations of jury bias more often appear there, and the consequences of bias are so dire. A civil litigant is also entitled to an unbiased jury, however, and to responsive jury selection processes. The right to be tried by a fair and impartial jury is a fundamental one, to be jealously guarded. Wright v. Bernstein, 23 N.J. 284, 294-295 (1957); State v. Singletary, supra, 80 N.J. at 68-71 (Clifford, J., dissenting), 71-83 (Handler, J., dissenting).

We repeat the questions and answers relating to Juror #5, the one we hold should have been excused for cause:

THE COURT: Is there anyone who has been a plaintiff or a defendant in civil litigation? The plaintiff is the party who brings the action, the defendant is the one who has been charged with some particular --

JUROR NO. 5: The nature of my business, I have civil suits pending constantly.

THE COURT: And what is the nature of your business?

JUROR NO. 5: I have a new car automobile ...


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