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Jackson v. Helen A. Fort Middle School

March 14, 2007

MARIO JACKSON AND MARIE JACKSON, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
HELEN A. FORT MIDDLE SCHOOL, PEMBERTON TOWNSHIP BOARD OF EDUCATION, AND EDWARD H. DION, DEFENDANTS, AND LEVY CONSTRUCTION COMPANY, INC. AND REGAN, YOUNG, ENGLAND, BUTERA, P.C., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3599-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 18, 2007

Before Judges Cuff, Winkelstein and Baxter.

Plaintiffs Mario and Marie*fn1 Jackson appeal from a judgment of no cause of action entered in favor of defendants Regan, Young, England, Butera, P.C. (Regan) and Levy Construction Company, Inc. (Levy). In this appeal, plaintiffs contend that a defense attorney's comment during his opening statement and during cross-examination of plaintiff's wife, as well as the use of the professional judgment charge by the trial judge require a new trial. Plaintiffs also argue that the trial judge should have directed a verdict in their favor or granted plaintiffs' motion for a new trial. We disagree and affirm.

In the mid-1990s, defendant Pemberton Township Board of Education (Board) entered into contracts for the renovation of defendant Helen A. Fort Middle School (School).*fn2 The Board employed Regan as the architect for the project and Levy as the general contractor. Defendant Edward Dion was the Board's construction manager for the project.

In 1995, Regan instructed Levy to install two signs on the exterior of a set of doors to indicate that the doorway was accessible to persons with physical handicaps. However, no access ramp had been installed outside this doorway. The ramp had not been constructed when Levy ended its work on the project in late 1995 or by January 1999 when plaintiff attended an event at the School.

On January 11, 1999, plaintiff, in his wheelchair, exited the doorway bearing the handicap-accessible signs. Plaintiff's wheelchair was being maneuvered by his daughter, who opened one of the doors and backed out of the doorway, pulling plaintiff's wheelchair. Plaintiff's daughter pivoted the wheelchair, expecting to find a ramp. Instead, the wheels of the wheelchair fell over the edge of the pad, the chair fell on its side, and plaintiff sustained serious injuries.

Plaintiffs filed a complaint seeking damages for their injuries against defendants Board, Dion, Regan, and Levy. Prior to trial, the Board and Dion entered into settlement agreements with plaintiffs. Following a lengthy trial against Regan for professional negligence and against Levy for negligence, the jury found that neither had been negligent.

The facts as they pertain to the installation of the signs are as follows. In the mid-1990s, the Board began a multi-phase project to renovate the School. One phase of that project involved extensive changes to the interior of the School building. Regan was the architect selected by the Board for that phase of the project, while Levy was the general contractor chosen to perform the renovation work specified by Regan. Regan's architect in charge of the project was Scott England.

The only renovation work to be performed by Levy on the exterior of the School building during this phase was the placement of two signs near the outside of a doorway of the School. Two doors, each about three feet in width, comprised the doorway. Immediately outside of the doorway was a concrete pad that was raised about three inches above the sidewalk that led to the doorway.

While the renovations were underway, there was no ramp in place to make the doorway accessible to physically handicapped persons who depended upon wheelchairs for mobility. For that reason, England's first set of architectural plans concerning the signs to be placed at the doorway's exterior called for two signs directing affected persons to use the handicap-accessible doors at the main entrance to the School.

Subsequently, England amended the plans to require placement of two handicap-accessible signs at the doorway's exterior. At that time, there was no ramp in place at the pad in front of the doorway when England made the amendment, nor did the then-current architectural plans include any provision for the construction of such a ramp.

According to England, the change in plans concerning the two signs was initiated by a conversation he had during the construction period with the Board's building and grounds supervisor, Dennis Starr. England testified that, during a meeting at the School in the midst of construction, Starr directed him to install the handicap-accessible signs at the exterior of the doorway. Starr noted that the Board would soon build a ramp to facilitate wheelchair travel over the three-inch barrier presented by the concrete pad. England also testified that Dion, the Board's construction manager for the project, may also have been present at the meeting and during the conversation.

According to England, Starr had the authority to make changes to and recommendations on the Board's construction projects and had done so on other such projects in the past. England testified that he made the amendment to the construction plans concerning the sign in reliance on Starr's statement that a ramp was going to be constructed soon as part of the project.

England stated that his architectural firm had "done a lot of work in this [school] district, and any time that client [the Board] had said they were gonna do something, they did it. So I had no reason to not believe that they were not gonna follow up" and build the ...


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