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Byer v. Prudential Fox & Roach

August 28, 2008

FERNE BYER, PLAINTIFF-RESPONDENT,
v.
PRUDENTIAL FOX & ROACH, ANGELA DESCH, DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLANTS,
v.
JOHN MURPHY, REMAX REALTY (VICTOR POLMINORI) AND KAREN LAKE, THIRD-PARTY DEFENDANTS/ RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1182-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 8, 2008

Before Judges Skillman, Yannotti and LeWinn.

Plaintiff Ferne Byer was injured while being shown a prospective residential property by defendant Angela Desch, a real estate agent employed by Prudential Fox & Roach (Prudential). Plaintiff, who was wheelchair-bound at the time, filed a complaint against Prudential and Desch alleging that they were negligent due to their failure to warn her about an uneven floor between the dining area and the outside back deck, which caused her wheelchair to tilt forward and eject her onto the deck, causing her to fracture a bone in her leg. Prudential filed a third-party complaint against Karen Lake, the owner/seller of the property, Remax Realty, the listing agent, and John Murphy, plaintiff's companion who accompanied her when she was shown the property.*fn1

Remax and Lake filed motions for summary judgment; Prudential filed a cross-motion for summary judgment. The trial judge granted summary judgment to Remax and Lake. The judge denied Prudential's summary judgment motion, but ruled that "plaintiff ha[d] not sufficiently established that there was a dangerous condition that Prudential had a duty to guard against pursuant to plaintiff's status as Prudential's invitee." Nonetheless, the judge found a jury question as to whether Prudential "had fallen short of its general duty of care to plaintiff under the circumstances[,]" and denied summary judgment on that basis.

At the conclusion of plaintiff's trial evidence, Prudential and Desch moved for a directed verdict on the ground that plaintiff's two expert witnesses had offered net opinions. The trial judge denied the motion. The jury thereafter returned a verdict, awarding $675,000 in damages and apportioning liability eighty percent to defendants Desch and Prudential, and twenty percent to plaintiff, resulting in a net award of $540,000. Prudential's motion for a new trial was denied.

On appeal, Prudential and Desch argue that: (1) the trial judge erroneously charged the jury on the applicable standard of care; (2) the judge erred in admitting "net opinions" of plaintiff's two expert witnesses; (3) the judge erred in permitting "surprise" expert testimony in rebuttal; (4) summary judgment was erroneously granted to third-party defendants; and (5) defendants' motion for remittitur should have been granted. For the reasons that follow, we reject these arguments and affirm.

I.

In April 2002, plaintiff, who had become paralyzed as the result of an incident years earlier, was wheelchair-bound. She was forty-five years old at the time and was employed as a math teacher. She sought to purchase a handicap-accessible one-level ranch house close to the school where she taught.

Plaintiff contacted the wife of a colleague, Paula Hartman, who worked at Prudential and was aware that plaintiff was wheelchair-bound. Plaintiff explained her needs to Hartman. Shortly thereafter, plaintiff received a telephone call from defendant Desch, explaining that Hartman was out of town but that she had been briefed by Hartman as to plaintiff's situation and would fill in for her.

Accompanied by her boyfriend, Murphy, plaintiff met with Desch, looked at pictures of houses that Desch had brought with her, and set out to view some of the properties. Plaintiff rejected the first house as unsuitable. She, Murphy and Desch then proceeded to a second house, which was owned by Lake and listed for sale with third-party defendant Remax.

Plaintiff testified that upon arrival at the Lake residence, Desch went in to secure a place for plaintiff to sit. Murphy carried plaintiff into the house, placed her in a seat in the living room and then went back to the car for her wheelchair. Shortly after Murphy placed plaintiff in her wheelchair, Desch went into the dinette area and opened a sliding glass door that led to an outdoor deck. Desch then said to plaintiff: "Oh Ferne, you have to come here. See this deck. It's such a nice deck out here. Come on out and see it for yourself."

Plaintiff "started heading toward" Desch who had stepped outside. Going toward the door, plaintiff stated that she "popped a wheelie" over the threshold. As the wheelchair went across the tracking at the base of the door, the wheelchair's front castor wheels landed on the deck causing plaintiff to pitch forward onto the deck with the wheelchair following on top of her. Plaintiff stated that she heard a bone break and immediately experienced excruciating pain in her leg.

When asked why she did not stop and look where the deck was, plaintiff replied:

From my view . . . of the threshold, it was like my parents' house, . . . very little lip. . . . I'm so used to going over tracking that doesn't even bother me or the wheels or anything. These sports chairs, the wheels, the way they're constructed, it very easily rolls over surfaces like that.

I expected the same level . . . from the kitchen level, I expected it to be the same level on the other side just like the lip, the metal tracking to go over which to me is a not big deal thing. You know, I'm in my wheelchair now 17 years. Okay, maybe back then it was 13 years. 13 years is a long time in a wheelchair, and that was like nothing for me to do or to think that I was able to do.

Plaintiff also testified that Desch visited her in the hospital and apologized for not taking more care in showing plaintiff the deck area.

Murphy corroborated plaintiff's testimony. He stated that, after he placed plaintiff in the wheelchair in the living room, Desch was in the kitchen near the glass sliding doors; she opened the door and called Ferne: "[C]ome here. You've got to see this deck." As plaintiff wheeled toward the glass sliding doors, Murphy looked around the living room. He heard plaintiff scream, turned around and saw her on her knees on the deck with the wheelchair on top of her.

Desch gave a different account of the accident. She testified that she has been a licensed realtor since December 2001 and had never shown a house to a wheelchair-bound person prior to this occasion. Plaintiff instructed Desch not to touch or navigate the wheelchair and that Murphy would assist. Desch stated that this was her first visit to the Lake property. She also acknowledged that she had never been trained on how to show a house.

Desch stated that plaintiff and Murphy looked at the bedrooms and the bathroom after the living room. As Desch headed toward the kitchen, she saw plaintiff at the sliding glass doors leading to the deck. Plaintiff asked if they could go outside, and Desch helped plaintiff to open the door. Plaintiff leaned over and looked at the deck. She "put both hands on her wheels and motioned to go out." The chair tilted and plaintiff slid out and fell on the deck. Desch testified that after plaintiff fell the chair bounced back; its rear wheels remained on the kitchen floor and the front wheels became stuck on the door track. She stated that Murphy had to pull the chair away to get through.

Desch denied that she opened the door first and beckoned plaintiff out to the deck. She stated that it was plaintiff's idea to go outside onto the deck. The doorway area was clear and Desch did not know whether she would have noticed the drop if she had opened the door and stepped out first. Desch testified that she did not warn plaintiff because she did not "see a hazard" or anything that "needed a warning." She explained that "it was just a kitchen and a deck" and she "did not think that it was that high."

Stephen Reses, a pharmacist who once owned a medical equipment company, was permitted, over defendants' objection, to testify for plaintiff as an expert in wheelchair design and function. When presented with plaintiff's scenario concerning her "wheelie" over the threshold, and evidence that there was a two-and-three-quarter-inch drop-off from the top of the door threshold to the deck, Reses opined: "[I]f the wheelchair pitches forward, because it suddenly drops onto the porch or the decking which is that much of a drop . . . your wheelchair's going to go down, and somebody's going to go flying." Reses added that, while a spill could occur from a stop, "the rolling scenario is . . . much more probable to cause her to spill over." Reses explained further:

[S]he's rolling along. She does her little wheelie. She's really expecting the floor to be at the same height on the other side, and suddenly she has . . . almost a three-inch drop that she encounters and the chair went forward. Her whole balance is thrown off.

Reses examined plaintiff's wheelchair. He noted that no safety belts or arm rests were attached to the chair and verified that plaintiff's prescription for the wheelchair did not include an order for either item. Reses noted that the wheelchair "is completely functional. I see nothing in ...


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