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Boland v. Dolan

May 17, 1995

CHARLES BOLAND, PLAINTIFF-RESPONDENT,
v.
PETER DOLAN AND JUDY DOLAN, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 273 N.J. Super. 175 (1994).

The opinion of the Court was delivered by Garibaldi, J. Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Stein, and Coleman join in this opinion.

The opinion of the court was delivered by: Garibaldi

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

CHARLES BOLAND V. PETER DOLAN, ET AL. (A-80-94)

Argued January 30, 1995 -- Decided May 17, 1995

GARIBALDI, J., writing for a unanimous Court.

The issue on appeal is whether a jury's use of a magnifying glass on a properly admitted photograph during deliberations constituted new or additional evidence, required instruction from an expert, or resulted in harmless error under Rule 2:10-2.

Charles Boland slipped and fell in the vestibule of a three-family beach home owned by his landlords, Peter and Judy Dolan. Boland claimed that as he walked into the vestibule with a clapboard and volleyball net in his hands, something caught his foot and he fell, fracturing his ankle in several places. Boland sued the Dolans for negligently permitting a dangerous condition on their property. Boland claimed that a defective plastic runner had caused his fall. On the other hand, the Dolans' alleged that Boland's slip and fall was caused in whole or in part by the worn right sole of his topsider shoe. Before Boland was transported to the hospital, another tenant in the Dolan home took a photograph that showed the bottom of that shoe. That photograph (Photograph) was properly admitted into evidence during trial.

There was testimony regarding the Photograph from Boland, the Dolans and an expert. The Dolans' attorney alluded to the jury's use of a magnifying glass when cross-examining Boland and in his summation and, during their deliberations, the jury asked to use a magnifying glass. Over the objection of Boland's attorney, the trial court permitted the jury to use a conventional magnifying glass. Thereafter, the jury returned a verdict of no cause of action in favor of the Dolans.

Boland made a motion for a new trial, contending that the court's "admission" of the magnifying glass into evidence constituted a miscarriage of Justice in that it was prejudicial. The trial court denied the motion. On appeal, the Appellate Division reversed the decision of the trial court and remanded the matter, stating that it could not determine through the use of a magnifying glass whether a jury has knowledge and experience to decide that a shoe had lost its slip resistance without the aid of expert testimony.

The Supreme Court granted certification.

HELD: The jury's use of a magnifying glass during deliberations did not constitute new evidence; rather, it was a mere aid to assist the natural vision of the jurors. Moreover, use of a familiar device like an ordinary magnifying glass generally does not require expert testimony. Lastly, the jury's use of the magnifying glass was not error capable of producing an unjust result.

1. The Court finds persuasive the reasoning of other courts that have held that the use of a magnifying glass by a jury in its deliberations is not error. Those courts have analogized the use of a magnifying glass to the use of eyeglasses. In addition, as early as 1914, New Jersey courts have taken judicial notice of the undistorted effect of magnifying glasses on pieces of evidence. (pp. 9-14)

2. The Appellate Division failed to follow the well established rule that a jury may use a magnifying glass to see or understand better a properly admitted exhibit. Actually, the cases relied on by the Appellate Division support the position that presenting the jury with a magnifying glass does not constitute supplementing the evidence. The Dolan's attorney referred to the magnifying glass throughout trial and in his summation and Boland's attorney had plenty of opportunity to view the Photograph with or without the magnifying glass. The evidence to be viewed with the magnifying glass was testified to by Boland, the Dolans, and an expert witness; the trial Judge properly allowed the jury to use the magnifying glass, which only illustrated or heightened evidence properly admitted or testimony of witnesses properly allowed; and Boland had adequate time to rebut any negative inferences. Thus, the magnifying glass did not constitute new evidence. (pp. 14-17)

3. Expert testimony is necessary for subject matter that is beyond the knowledge of the average juror or if it enhances the jury's understanding of the evidence. An instrument of "common knowledge," like an ordinary magnifying glass, generally requires no expert testimony. (pp. 18-20)

4. Under the harmless error rule, a reviewing court should reverse only if a trial error is clearly capable of producing an unjust result. The magnifying glass merely highlighted or illustrated the testimony of the witnesses as well as admissible evidence, and its use did not create sufficient prejudice to justify granting Boland a new trial pursuant to the harmless error rule.

Judgment of the Appellate Division is REVERSED, and the judgment of the trial court is REINSTATED.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI'S opinion.

GARIBALDI, J.

This appeal arises out of a slip-and-fall accident that occurred while plaintiff, Charles Poland, was a tenant in a three-family beach house owned by defendants, Peter and Judy Dolan. At the time of the accident, plaintiff was inside the vestibule of the house. As he walked into the vestibule with a clapboard and volleyball net in his hands, "something caught his foot and he slipped." As a result of his fall, plaintiff suffered multiple fractures to his ankle.

Plaintiff sued defendants for negligently permitting a dangerous condition on their property. Plaintiff's theory was that a defective plastic rug runner caused his slip and fall. Defendants' theory was that plaintiff's slip and fall was caused in whole or in part by the worn right sole of his topsider shoe. Before plaintiff was taken to the hospital, another tenant took a ...


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