On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1757-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2006
Before Judges Sabatino and Messano.
Plaintiff appeals the Law Division's entry of a directed verdict in favor of defendant at the close of plaintiff's proofs in this negligence case. We reverse.
This matter arises out of a ladder accident that occurred on August 6, 2002. On that day plaintiff Joseph Agnelli, Sr. was on the premises of his widowed sister-in-law, defendant Margaret Agnelli. Plaintiff, who is handy, routinely had helped out Margaret around her house with assorted tasks after her husband, plaintiff's brother, passed away. At times plaintiff would go to Margaret's house, retrieve tools from her garage, and fix the item in need of repair. On this particular occasion, plaintiff came to Margaret's home with his son in order to reattach a gutter. Margaret had requested plaintiff to come to her house for that purpose.
The testimony in his case-in-chief reflected that upon arriving at Margaret's home, plaintiff removed a metal ladder from her garage. The ladder was eight feet long and had a conventional A-shaped frame. Margaret was not home. He placed the ladder in a dog pen near the detached gutter. His son lay on the roof holding the gutter in place. According to plaintiff, he opened up the ladder and checked it for steadiness. He then climbed up to the third rung, and paused briefly to remove a nail. At that point the ladder twisted and buckled, causing plaintiff to fall to the ground and fracture his hip.
Plaintiff alleged that Margaret was aware, or at least should have been aware, that her ladder was unstable prior to his use of it on the date of the accident. In support of that contention, plaintiff relied upon several items of testimony.
Among other things, plaintiff presented Margaret's deposition testimony, which was read aloud to the jury. The testimony recounted that Margaret and daughter Kathleen had taken the same ladder out of the garage on a day several weeks before the accident. Kathleen briefly attempted to ascend it, but then discontinued the effort. Specifically, Margaret stated in this regard:
We took the ladder out a few weeks prior to Joe [plaintiff] coming up because we were going to fix the gutter, and we don't do heights well. We got up one or two steps and said["]forget this,["] and that was the end of it.
Plaintiff also presented on this issue the testimony of his wife, Julia Agnelli. She contended on direct examination that, approximately two to four weeks before her husband's accident, her sister-in-law Margaret had intimated to her that there was "something wrong" with the ladder:
Q: Mrs. [Julia] Agnelli, I want to take you to anytime before August 6th of 2002 before your husband's accident. Do you recall ever having any conversations with [defendant] Mrs. [Margaret] Agnelli about any of the tools in her house?
A: Yeah. One time I was over, my husband was fixing a sink, and -- because she had a drip. So, I -- he used to fix things, and me and Peggy ...