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Ertle v. Starkey

June 13, 1996

EUGENE E. ERTLE AND MICHELLE ERTLE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
CHARLES E. STARKEY, WILLIAM V. KELLY, JAMES M. BLANEY, AND HAROLD C. WHITE, ALL INDIVIDUALLY AND D/B/A A PARTNERSHIP KNOWN AS STARKEY, KELLY, BLANEY & WHITE; GAVIN T. NATELLI; CHARLES E. STARKEY, TRUSTEE UNDER INDENTURE OF TRUST DATED JANUARY 1, 1977; CHARLES E. STARKEY AND EDWARD J. TURNBACH, INDIVIDUALLY AND D/B/A STARKEY, TURNBACH & WHITE, A PARTNERSHIP; MARY AILEEN STARKEY AND MARGARET P. TURNBACH, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court, Law Division, Monmouth County.

Approved for Publication June 24, 1996. As Corrected August 21, 1996.

Before Judges Petrella and P.g. Levy. The opinion of the court was delivered by Petrella, P.j.a.d.

The opinion of the court was delivered by: Petrella

The opinion of the court was delivered by PETRELLA, P.J.A.D.

Plaintiffs Eugene E. *fn1 and Michele Ertle appeal from a jury verdict of no cause of action in a trip and fall case. The jury returned a verdict which apportioned 80% of the negligence to plaintiff; 10% to the defendant law firm, Starkey, Kelly, Blaney, and White; and 10% to defendant Gavin T. Natelli.

On appeal, plaintiffs argue that the verdict should be set aside because (1) the Judge held a post-verdict, tape-recorded conference with the jurors concerning their verdict without good cause and without the presence of the attorneys; (2) the conference with the jurors had the capacity to affect the Judge's ruling on the motion for a new trial; (3) the jurors relied on extraneous facts having no basis in the evidence and which had the capacity to taint their verdict; (4) the charge to the jury on the issue of actual and constructive notice was incomplete and confusing to the jury; and, (5) the verdict was against the weight of the evidence.

The incident which gave rise to the complaint occurred at about 1:30 p.m. on March 8, 1990, when Ertle, a videographer, was attempting to deliver to the Brick Township law firm of Starkey, Kelly, Blaney & White a videotape taken in a deposition conducted the previous evening. Upon entering the building owned by Natelli, *fn2 Ertle noticed that it had two floors, with access to each floor by way of a stairwell extending from a common landing. The law firm was located at the lower level. Entrance to the law firm was through a plate glass door displaying the law firm's name at the bottom of the stairwell. Ertle testified that he had walked down the stairway while gripping the handrail with three fingers of his right hand and holding the cassette in an envelope between his other two fingers. When he reached the last step of the stairway, Ertle claimed that he let go of the rail and found himself falling through the glass door. As a result, he received lacerations of his left hand. *fn3 On cross-examination, Ertle repeated that he was looking down the stairwell to see where he was going at the time of the accident. He denied having missed any steps.

A licensed professional engineer testified as an expert on plaintiff's case that he had examined and taken photographs of the stairway two days after the accident. He had found that the top step of the stairway was one and one-eighth inches below the level of the foyer and that the bottom step of the stairwell was one and one-eighth inches shorter than the riser heights of every other step on the stairway. He also noted that the glass door of the entrance to the law firm was only forty-four inches from the last step of the stairwell. His examination of a piece of the plate glass door, which had been retrieved from a dumpster, revealed that it was 0.1625 inches thick and was not safety glass. He considered the glass pane of the doorway to have probably been installed at the time of the original construction of the building. *fn4

In his expert opinion, Ertle's injuries were caused by the improper design and construction of the stairway and the entrance to the law firm. The expert explained that the shortfall in the height of the bottom step would have made a person fall forward. He opined that the location of the glass door only forty-four inches from the lower step would thus have led a person over forty-four inches tall "to hit that door." *fn5 Consequently, he concluded that the glass door should have been made of safety glass. Furthermore, in his view, these defects created "an extremely dangerous situation" that was discoverable through a reasonable inspection of the premises.

In the course of approximately six visits to the building just prior to his purchasing it in 1989, Natelli stated that he had "inspected the entire building, went through all the offices, spoke to the tenants," and discussed the sale with the sellers. At that time, he noticed nothing more than cosmetic building needs. Nor did he find any problems with the stairways either before or after he purchased the building. Natelli admitted, however, that he did not have the building inspected by anyone with respect to its safety or its structural integrity. During the trial, there was no indication that any other incidents or accidents had occurred in the area of the entrance to the law firm prior to Ertle's accident.

After the jury returned a unanimous verdict finding Ertle to have been 80% negligent, his attorney moved for a judgment notwithstanding the verdict. In denying the motion, the Judge commented that "it's obvious that what the jury found was that the defects alleged just were not of that serious a nature compared to what they believe was just...." The Judge also mentioned that he "would be chatting with the jury." The plaintiffs' attorney requested permission to listen to the Judge's conversation with the jury. The Judge, anticipating that the plaintiffs were going to move for a new trial, "respectfully suggested that [the attorney]" not listen. The Judge offered to "have [the jury] come back in the jury box ... [for a] pretty free flow [that he] wanted ... on the record." The plaintiffs' attorney raised no objection to the planned Discussion or his exclusion from it.

The Judge brought the jurors back into the courtroom and spoke informally with them. While the Judge was asking the jury members about their experience as jurors, one or more of the jurors indicated that they would have liked to have been able to ask questions during the trial, such as whether there was any other person that had fallen on the stairs at issue. One or more jurors also expressed some skepticism about the plaintiffs' case.

Plaintiffs argue that the "interview" of the jurors should not have been made in the absence of counsel. They also contend that the Judge violated the Code of Judicial Conduct, Canon 3A(6) when he spoke with the jury. *fn6

This Canon by its terms does not apply here. The Judge was neither conducting a hearing nor seeking advice on any pending legal matter. Inasmuch as the jury had completely discharged its function, the case was over as far as it was concerned. Indeed, the record of the colloquy with the jurors demonstrates that the Judge was simply trying to enlighten the members of the jury as to the legal proceeding in which they had been asked to participate as part of the judicial process. Although we do not endorse the procedure used here, we can fully appreciate that in many situations this is desirable in order to help jurors to understand the nature of legal proceedings, which thereby promotes their confidence in the judicial system. By no means was this, nor should it have been, a formal judicial inquiry into trial matters warranting the presence of counsel. ...


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