On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4109-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Parker, R. B. Coleman and Lyons.
Plaintiffs Ariel Lardiere, an infant, by and through her guardian ad litem, John Piro, and John Piro, individually, appeal from a final judgment of no cause for liability entered on March 8, 2007, following a jury verdict.*fn1 Plaintiff also appeals from an order entered by the trial court on March 30, 2007, denying plaintiff's application for a new trial. We affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On January 22, 2005, defendant Genevieve Piro was taking care of her great-grandchildren at the home of her grandson and his wife. Plaintiff's mother, defendant's grandson's wife, was in the home, but due to recent surgery was resting. Defendant's grandson, plaintiff's father, was also at home. At dinner time, defendant began making the family dinner, which included pasta. Plaintiff's father went outside to look at his snow plow equipment. One of the three great-grandchildren was in her upstairs room. Defendant had brought the youngest great-grandchild into her mother's bedroom for feeding, while plaintiff was left in the living room to watch television.
Defendant took the pot of boiling pasta off the stove to strain the pasta in the sink. As defendant was doing so, she spilled water from the pot onto plaintiff, causing severe burns and scarring. Plaintiff's father testified that defendant told him she had left infant plaintiff in the living room while she went to tend to the pasta, and that after she removed the pot from the stove, she turned around and realized that plaintiff was right next to her. She immediately stopped, causing the boiling water to splash out of the pot onto plaintiff.
In defendant's deposition, which was read to the jury, she stated that,
I went to the pot, took the pot of water, boiling water, and dumped it into the sink, and heard a scream. [Ariel] didn't stay where she was. She came into the kitchen, never heard her, didn't see her, because it's a horseshoe counter, and I took it from the stove and stepped a couple of steps to the sink. Poured the 8 oz. boiling water, and all I heard was a scream. She was stuck in the corner. She got into the corner of the counter that goes around.
When asked what defendant said happened at the time of the accident, plaintiff's mother said during her testimony that "[defendant] said she didn't see Ariel, that she stopped short, got startled, and the water came out of the pot, and the macaroni, and went on the baby."
The family immediately called for medical assistance and the child and the family were soon treated thereafter at the hospital.
On September 16, 2005, plaintiff filed her complaint against defendant alleging personal injury. Plaintiff alleged that defendant negligently spilled the boiling water on her, causing severe burns and scarring.
On the morning of trial, plaintiff's counsel presented the court with an in limine motion. Counsel argued that all testimony regarding a notation in the hospital records concerning plaintiff's mother's statement of how the accident happened should be barred, as should the testimony of the medical personnel in the emergency room regarding the diagnosis of plaintiff. The trial court denied the application with respect to the testimony of emergency medical room personnel. With respect to the first request, the court made it clear that if plaintiff were to have plaintiff's mother testify, that plaintiff's mother's statement made in the emergency room as to how the accident happened could be used by defendant in cross-examination. The court stated, however, if [plaintiff does not] call the mother and [defendant] puts her on the stand, then I have a different take on this. Because if he puts her on the stand, he's bound by her testimony and the only exception to the rule as I understand it, is if he claims surprise.
At the trial, plaintiff's father testified on behalf of plaintiff. Plaintiff's counsel read certain portions of defendant's deposition into the record, ...