Before: Judges Pressler, Conley and Carchman.
The opinion of the court was delivered by: Conley, J.A.D.
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
The opinion of the court was delivered by
Plaintiff sustained serious injuries while skiing with her daughter on one of defendants' ski slopes when she fell into an uncovered concrete box a short distance off the trail. Plaintiff and her husband sued defendants alleging various theories of negligence. Following two unsuccessful motions for summary judgment brought by defendants based upon a release signed by plaintiffs, the matter was tried before a jury over seven days. The jury no caused on the issue of negligence. On appeal plaintiffs contend:
POINT I. THE TRIAL COURT ERRED IN ALLOWING DEFENSE COUNSEL TO QUESTION PLAINTIFF CONCERNING AN ALLEGED EXCULPATORY CLAUSE.
POINT II. THE TRIAL COURT ERRONEOUSLY PRECLUDED PLAINTIFF FROM QUESTIONING DEFENSE WITNESSES FOR PURPOSES OF IMPEACHMENT RESPECTING SUBSEQUENT CHANGES TO THE ACCIDENT SCENE.
POINT III. A NEW JURY JUDGES SHOULD HAVE BEEN SUMMONED AFTER ONE PROSPECTIVE JUROR EXPRESSED BIAS IN OPEN COURT.
POINT IV. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO FEASIBLE ALTERNATIVES TO THE DESIGN, LOCATION AND/OR LACK OF SAFETY FEATURES OF THE BOX WHICH PLAINTIFF FELL INTO.
POINT V. THE JURY VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.
We have carefully considered these contentions. We conclude that error in the Judge's jury charge on the New Jersey Ski Statute (Ski Statute), N.J.S.A. 5:13-1 to -11 (point IV), and error in defense counsel's use of the release provisions (point I) require a new trial. Although we need not address the remaining points, we comment as to point II that plaintiffs should have been permitted to use photographs showing warning poles by the concrete box, taken eleven days after the accident, to cross-examine defendants' witness who had asserted that no warnings were ever posted. Snyder v. American Assoc. of Blood Banks, 282 N.J. Super. 23, 46 (App. Div. 1995), aff'd, 144 N.J. 269 (1996). If on retrial the plaintiff uses the photos for such impeachment purposes, a limiting instruction should be given. E.g., Lavin v. Fauci, 170 N.J. Super. 404, 408 (App. Div. 1979).
In 1990 plaintiffs, Kathleen Brough and her husband David Isralowitz, purchased a condominium in Hidden Valley and joined the Hidden Valley Ski Club. On February 17, 1992, Kathleen and her daughter Beth were skiing the "Browse Along Trail" owned and operated by defendants. The trail starts with a beginner section, turns into an intermediate section for approximately fifty feet and then ends as a beginner section. Kathleen had previously skied that trail approximately two hundred times. On that particular day, she was skiing ahead of Beth in the last section of the trail when she "hockey stopped" *fn1 on the right hand side of the trail and turned toward the hill to watch her daughter. Suddenly she fell backwards. She did not know what caused her to fall. She fell downward and ended up in a concrete box, also referred to as a catch basin or junction box.
Beth testified at trial that she saw her mother hockey stop approximately twenty feet in front of her, wave and then start to lose her balance and slip backwards. Although Beth did not actually see her mother's backward descent, she did see her "disappear."
The concrete box, apparently used to connect two drainage culverts, measured four feet nine inches by four feet. It was estimated as sixteen to twenty-four inches deep. Although the box was obviously designed with a cover, it was uncovered at the time of the accident. An hour after the accident, the cover was put back on. The area where plaintiff fell contained no warnings of a dangerous drop or as to the location of the concrete box.
Plaintiff did not remember seeing the box on her prior trips down the trail and testified that the box was adjacent, i.e., "touching" the trail. Irv Kinney, a Ski Patroller at Hidden Valley and the first to respond to the scene, estimated that the distance from the top of the concrete box's wall to the trail was approximately eight feet. He testified that the concrete box was "at the edge of the treeline" approximately eleven feet removed from the snow.
Plaintiffs' expert and accident reconstructionist, Dick Penniman, inspected the site of the accident on August 25, 1992. It was his opinion that the location of the concrete box was not necessary and that concrete and steel were inappropriate construction materials for a structure in the proximity of a ski trail. In his view, the box could have been located either further up or down the hill to reduce potential contact with skiers. In this respect, he testified:
I've never seen anything like it before and I wouldn't expect a skier -- first of all, to have been exposed to something like this on a regular basis before and secondly, because of the configuration of the trail they won't see it as they're skiing down, if they're skiing in the middle of the trail or even close to the edge they can't see over that breakover. They're not even going to be aware it's there, all they're going to know there are some trees and stuff on the sides of the trails, they're not going to be aware of anything like this.
Although he conceded that he was not aware of any written codes or standards that require the box to be buried, he also said that "there is a custom and practice that would say that any obstacle of this kind on or near a trail should be padded, fenced or otherwise eliminated." Warnings as well would have reduced the risk of harm. A cover on the box, at the least, he thought would have avoided the injury. It was, finally, ...