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Kilhullen v. ABM Industries

August 21, 2009

JAMES KILHULLEN AND JENNIE KILHULLEN, PLAINTIFFS-APPELLANTS,
v.
ABM INDUSTRIES, INC., DEFENDANT-RESPONDENT, AND CINTAS CORPORATION AND DUTCHTOWN NURSERY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8357-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 10, 2009

Before Judges Gilroy and Chambers.

This is a personal injury negligence slip and fall action. Plaintiffs James Kilhullen and Jennie Kilhullen, his wife, appeal from various evidentiary rulings of the trial court following a jury verdict of no cause of action against them. We affirm.

I.

On November 28, 2005, plaintiffs*fn1 filed a complaint sounding in negligence against defendants ABM Industries, Inc. (ABM), Cintas Corporation (Cintas), and Dutchtown Nursery (Dutchtown). Prior to trial, the court granted summary judgment to all defendants, except ABM. Plaintiffs do not appeal from the grant of summary judgment to the other defendants. Accordingly, the term "defendant" shall hereinafter refer to ABM only. On May 21, 2008, the jury returned a unanimous verdict, determining that defendant was not negligent. The trial court entered a confirming order of judgment the same day.

II.

In December 2003, Ethicon, a subsidiary of Johnson & Johnson, employed plaintiff as a wire mill drawer at its Somerville facility, a 720,000 square-foot campus with approximately 1,200 employees. Defendant provides housekeeping services at the Somerville facility, and as such, it is responsible for cleaning the buildings' interiors, including maintaining the interior stairways and landings, and accepting floor mat deliveries from Cintas. Dutchtown is a third-party, unaffiliated company that provides external snow removal services at the facility.

Plaintiff worked the midnight shift at Ethicon, from 11:00 p.m. until 7:00 a.m., Mondays through Fridays. When he left work at 7:00 a.m. on Friday, December 5, 2003, he observed that ice melt had been placed on the sidewalks in anticipation of an expected snowstorm. The storm hit the Somerville area later that day and continued into Sunday morning.

On Sunday, December 7, 2003, plaintiff reported to work at 11:00 p.m. By that time, Dutchtown had already plowed the parking lot, cleared the sidewalks, and placed additional ice melt on the walkways. However, Ethicon had not requested that defendant perform its housekeeping services over the weekend or prior to 7:00 a.m. Monday morning.

On Monday, December 8, 2003, at approximately 6:00 a.m., plaintiff exited his building through its main entrance to purchase coffee in a cafeteria located in a separate building on the campus. At approximately 6:50 a.m., plaintiff walked back to his building, utilizing sidewalks covered in ice melt, intending to enter his building through its rear entrance. This was the first time that day plaintiff had used that entrance during his shift.

On arrival at his building, plaintiff observed that no mat had been placed outside the rear entrance of the building on which to wipe his feet. Accordingly, plaintiff "kicked [his] shoes against the door sill" and stomped his feet as he entered the building. Plaintiff then proceeded to descend a stairway, making observation of the stairway and landing. He did not observe any water or ice melt on either. Although he remembered observing a floor mat at the bottom of the stairway the prior week, "[t]here was no mat at the bottom of the stairway" at that time.

As plaintiff reached the bottom of the stairway, he took a step onto the floor, and his foot slid out from underneath him, causing him to fall. After lying on the floor for approximately one minute, plaintiff stood and noticed that the entire right side of his shirt and pants were wet and "had the gooey stuff from the ice melt" on them.

Approximately five or six minutes after his fall, plaintiff began to feel pain. He reported the incident to John Kratzer, his supervisor who was responsible for the safety and maintenance of the building. Kratzer sent plaintiff to the campus nurse for medical treatment.

Shortly after 7:00 a.m., Kratzer received complaints from other employees about the slippery conditions of the stairway. To remedy the problem, Kratzer notified site engineering and asked that its staff mop up the water and place a mat at the stairway landing. Site engineering complied.

As supervisor, Kratzer was under a duty to report incidents of injuries to employees when employees are injured. After plaintiff advised him of his injury, Kratzer went to the stairway and observed that the tile floor and the stairway were wet. However, before filling out an incident report, Kratzer met with plaintiff. At that meeting, plaintiff told Kratzer "that he had entered through the back door . . . and walked down the stairway which is immediately adjacent to that entrance and he slipped walking or stepping from the very last step onto . . . the wet tile floor."

In Part D of the incident report, Kratzer provided that plaintiff had "slipped when he placed his left foot on the wet floor at the base of the stairway." Further, he stated in subsection 18 of the report that "[t]he floor at the bottom of the stairway was wet and slippery due to water and the chemical used to melt the snow. The chemical used to melt the ice on the stoop outside this doorway was 'caked' on the bottom of the [plaintiff's] shoes, which gave him no traction." Under the subsection entitled "Basic Causes," Kratzer listed "[i]nadequate housekeeping standards given the weather conditions." Additionally, he noted that he had asked site engineering to place a mat at the bottom of the stairway to remedy the problem.

On November 28, 2005, plaintiffs filed their complaint alleging negligence and sought damages for pain and suffering, and loss of consortium. Prior to trial, defendant filed a motion in limine, seeking "to preclude the plaintiff[s] from introducing certain portions of the incident report prepared by [Kratzer] as well as any evidence of post-remedial actions undertaken by [defendant] following the accident."

On May 13, 2008, the court granted the motion, questioning the trustworthiness of the incident report. The court explained that: th[e] record would not go in under a business record exception but rather any testimony with regard to what's contained in the report c[ould] be elicited by the author of the report and to the extent that the report contains information that would somehow refresh that witness'[s] recollection of what he may have written five years ago, it is certainly permissible for you to use that report in that regard.

The court also noted that there were two troublesome statements in the report: 1) that inadequate housekeeping was the cause of the accident; and 2) certain remedial measures were taken after the accident. As to placing a mat at the bottom of the stairway, defendant argued that the remedial measure was only admissible if control over the area was disputed, and it was not. Plaintiffs contended that issues relating to the placing of mats both before and after the accident were contested. The court agreed and declined to preclude the parties from addressing the issue of mat placement.

Plaintiff also filed a motion in limine seeking to bar the testimony of Mark Sullivan, defendant's resident day supervisor at Ethicon, because he "was never named as a witness in discovery" by defendant, and accordingly, plaintiffs had not deposed him. Defendant countered that in January 2007 it had advised plaintiffs by letter of Sullivan's name and last known address and his name was "all over everybody's deposition[s]." Based on defendant's letter providing notice of Sullivan's position at Ethicon and last known whereabouts, the court declined to preclude his testimony. Instead, it suggested that plaintiff depose Sullivan before he testified.

The trial began on May 14, 2008. Plaintiffs' first witness was Scott Hinkle, Ethicon's facilities engineer who oversaw contract services, including those of housekeeping and snow removal. Hinkle testified that defendant's responsibilities included cleaning the stairways and landings, and obtaining necessary floor mats. He explained that defendant had hired Cintas as its subcontractor to provide the mats; Cintas would place the mats in the buildings and remove them for cleaning as needed.

Hinkle was unaware of the times when defendant performed its cleaning services at the facility, but like Dutchtown, he believed that defendant was required to perform its services as needed to keep the building free of safety hazards. Lastly, Hinkle testified that the cleaning contract placed responsibility for safety hazards on defendant, and thus, if ...


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