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Serviss v. Kennel

November 26, 2008

SHARON SERVISS AND DAVID G. SERVISS, PLAINTIFFS-APPELLANTS,
v.
BLUMIG KENNEL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6014-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 6, 2008

Before Judges Cuff and Baxter.

Plaintiffs, Sharon Serviss and David Serviss,*fn1 appeal from an August 17, 2007 order that entered judgment in favor of defendant Blumig Kennel and dismissed plaintiffs' complaint with prejudice following a jury verdict of no cause. On appeal, plaintiffs raise a single claim: the trial judge abused his discretion when he refused to provide the jurors with a written copy of the jury instructions they had requested. We affirm.

I.

On August 24, 2003, plaintiffs were present at defendant's kennel to pick up their dogs. Plaintiffs, who were about to exit the kennel, were in an enclosed area when an employee of the kennel allegedly permitted an unrestrained dog to run loose in that area. The unrestrained dog ran toward plaintiffs' dog, and in the ensuing melee, plaintiff tripped and fell.

On August 17, 2005, plaintiffs filed a personal injury action against defendant for injuries that plaintiff suffered. Plaintiffs' negligence action was tried before Judge Ryan and a jury on July 23, 24, 25, and 26, 2007. On July 26, the judge charged the jury on negligence, proximate cause and burden of proof, which took approximately thirty-five minutes. There were no objections to these instructions from either side. After the instructions were read, the jury retired to deliberate, at approximately 10:57 a.m.

At approximately 11:31 a.m., the judge received a written request from the jury, which stated, "Request for Judge's jury instructions." Before bringing the jury back into the courtroom, the judge stated:

That can be interpreted a lot of ways. I don't know if they want me to reread a part. I'm not go[ing to] give them a copy of my jury instructions. I would suspect that's what they're looking for. I'm go[ing to] have them come out. I'm go[ing to] simply tell them if they have a specific part they want me to reread I would be happy to do that, but they have got to go back in the jury room and delineate that specifically.

Neither party objected to the judge's proposed response to the jury's request.

When the jurors re-entered the courtroom, the judge addressed them as follows:

[Y]our request is not clear enough to me. You have to be more specific. I suspect that what you're asking for is a copy of what I read to you. It doesn't work that way. . . . [] I will not give you a copy of the jury instructions, but if there's a particular part of the jury instruction that you would like to have reread . . . you can designate what you're seeking[,] I'll go to that area, discuss it with the attorneys, and we'll have you come back in and I would be happy to reread that part to you, but I will not give you a complete copy of it. It deals with a lot of things and if there's something specific please note on . . . paper . . . and send it back out . . . . I suspect that I'll be receiving something from you shortly.

I mean you need not make that request. If it doesn't come out don't worry about it, just continue with your deliberations. If you do want to hear something again[,] give me something more specific[] so I can go to that area. All right? So I'll send you back in with that instruction. If a question comes out in a minute or two I ...


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