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Rickards v. Hess


February 25, 2010


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2076-06.

Per curiam.


Submitted November 10, 2009

Before Judges Parrillo and Lihotz.

Plaintiff Wayne Rickards appeals from the denial of his motions to set aside the jury verdict and order a new trial following a no cause defense verdict in this negligence action for injuries incurred in a fall on the property of defendant Florence Hess.*fn1 We affirm.

These facts were elicited at trial. Plaintiff worked as a property damage and casualty appraiser for Mark-1 Restorations, Inc., which was retained by New Jersey Manufacturers (NJM), defendant's homeowner's insurance carrier, to assess damage to defendant's roof.

Defendant's two-family residence had a separate apartment on the second floor accessible by an exterior wooden staircase attached to the dwelling. The staircase was constructed in 1990 by Don Barlics, an independent contractor retained by defendant. The staircase construction was such that the steps were not directly secured to the stringer; rather, a piece of wood on either end of the tread, called a "cleat," was nailed into the inside face of each stringer and the step-tread was laid on top of the cleats. The stairs were exposed to the elements. In the winter, rock salt was applied, and defendant oil-treated the wood approximately every two years.

On December 21, 2004, plaintiff, accompanied by his construction assistant, Howard J. Deviny, Jr., arrived at defendant's property to prepare an estimate of the leaky roof. When no one answered plaintiff's knock at the front door, he and Deviny ascended the exterior staircase to knock on the second-floor apartment door. No one answered. As plaintiff walked up the staircase, he did not notice the stairs "wiggle," "wobble," "bend" or otherwise seem unsure under his weight. On this day, the steps were clear except for a layer of rock salt. Deviny climbed atop the roof to inspect for possible damage while plaintiff remained on the exterior second-floor landing. Upon completion of the inspection, plaintiff proceeded down the staircase. After descending nine or ten steps, plaintiff placed his foot on the next step and it gave way without warning. Plaintiff fell. His knee struck the next lower step, and he tumbled to the ground, landing on the pavement below. Plaintiff also scraped his hands and bruised his left wrist and shoulder.

When plaintiff regained his bearings, he and Deviny walked around the property and inspected the exterior step to determine why it gave way. Plaintiff observed the nails securing the cleat to the stringer had failed. Deviny took photographs of the damaged step, and plaintiff called NJM to report the accident. Plaintiff then drove himself to his next assignment. That same day, after she learned of the accident, defendant called Barlics, who repaired the stairway.

Plaintiff's complaint alleged defendant was negligent in the means and method of construction, and that she breached her duty to reasonably inspect and maintain the exterior wooden staircase. At trial, plaintiff and Deviny described what occurred on December 21, 2004, and the condition of the step after plaintiff's fall. Plaintiff also related the nature and extent of his knee injury for which he had arthroscopic surgery to repair a torn meniscus in September 2005.

John S. Posusney, a licensed civil engineer, appeared as plaintiff's expert. Posusney conducted a site inspection and opined the defective construction and lack of maintenance of the stairs caused the accident. He asserted the subject stairs were "constructed to fail" as the progressive failure [of the step] was initiated by failure of one or more of the fasteners on one side that attached the cleat. That one failed, caused that end of the tread to disengage ultimately causing an under capacity or overloading of the other tread, or the other side of the tread. And that then had a disengagement of the tread from the cleat. The one cleat remained on the stringer. The entire tread and another cleat, most likely, were . . . missing.

Posusney also explained the fasteners' continual exposure to the outdoors, and the use of rock salt led to corrosion and rusting. Posusney concluded defendant failed to reasonably inspect and maintain the steps. He suggested preventative maintenance, which defendant had not conducted, would have avoided the stair's failure. In his expert opinion, property owners must undertake reasonable periodic inspections of their property, which in this matter would have been bi-yearly.

Defendant testified and explained no one had ever fallen or slipped on the staircase. Barlics, who was her handyman, provided general maintenance for her property and rented a portion of her garage, where he kept his tools. Defendant described Barlics as "the kind of person that sees things if something goes wrong. [L]ike, if . . . my gutters need leaves cleaned out of them or . . . sometimes if the garbage is out or something. Whatever he sees he takes care of." Defendant performed no repairs or inspection of the stairs herself. She did hire others to oil-treat or paint the staircase several times since it was constructed.

Due to an unexpected medical problem, Florence Gangemi, defendant's long-term second-floor tenant, could not appear. Defendant was permitted to read her June 21, 2007 deposition testimony. Gangemi resided in the second-floor apartment for fifty years. She testified that she goes up and down the steps four times each day and never had a problem or knew of anyone who had fallen on the steps, prior to December 21, 2004. When she left her apartment that day, she noticed the missing step, which was repaired when she returned later in the afternoon. Gangemi was home when plaintiff and Deviny arrived, but did not hear them knock because she was sleeping.

At the close of evidence, plaintiff moved for judgment on liability based upon defendant's negligent construction and failure to reasonably maintain and adequately inspect the staircase. The motion was denied. The jury returned it's no cause verdict by a 5-1 vote.

Plaintiff moved for judgment notwithstanding the verdict (JNOV) and, alternatively, for a new trial asserting error in the jury charge. In a written opinion, the court denied the motions, stating after it "accepted virtually every position articulated" by plaintiff's request to charge the jury, "the charge was clear and provided Mr. Rickards the benefit of more strict standards than that required under the law." This appeal ensued.

Plaintiff's first claim of error relates to the denial of his motion for a directed verdict on liability and the denial of his post-trial motion for JNOV. He supports his claim by asserting defendant "introduced absolutely no evidence that a reasonable or adequate inspection of the steps to detect deterioration was ever conducted by [defendant] or anyone acting on her behalf." Plaintiff characterizes defendant's evidence of oil-treating the steps and Barlics's handyman services as occasional "cosmetic repairs." We reject this argument.

Motions for a directed verdict, R. 4:40-1, and motions for JNOV, R. 4:40-2, are governed by the same standard as motions for involuntary dismissal. See R. 4:37-2(b). The trial court must determine whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment" in favor of the non-movant. Ibid.; Dolson v. Anastasia, 55 N.J. 2, 5 (1969); Alves v. Rosenberg, 400 N.J. Super. 553, 565 (App. Div. 2008); Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2010). "[I]f reasonable minds could differ, the motion must be denied." Pressler, supra, comment 1 on R. 4:40-2 (citing Dolson, supra, 55 N.J. at 5-6).

In denying the motions here, the trial court determined sufficient evidence was proffered by defendant such that reasonable minds could differ as to whether her conduct constituted reasonable maintenance and inspection of the exterior staircase, or whether the stairs were negligently constructed. Accordingly, the jury must determine the issue. The facts at odds with plaintiff's argument included: no concerns regarding the stair's structural integrity were raised by the building inspector, who approved defendant's construction project, including the addition of the exterior staircase; neither defendant nor her tenant experienced prior problems in the daily use of the steps; the stairs had no visually obvious abnormalities; defendant oil-treated or painted the stairs biannually, and no defects were ever noted by the workers; and, finally, defendant and Barlics periodically walked around the property to determine the need for repairs, and Barlics independently would "take care of" any problem he observed.

We also concur with the trial judge's view that defendant's lack of expert proof is not determinative of the issue, especially when plaintiff's own expert's credibility was challenged. Alves, supra, 400 N.J. Super. at 566. When credibility is in issue, the fact-finder is free to reject the expert proofs. Ibid. Defendant's attack on Posusney's expert opinion gave the jury reason to question his opinion. First, Posusney admitted he had not inspected the site prior to issuing his written opinion. Second, Posusney agreed there were no clear standards formulated to assess the reasonableness of a safety inspection of an exterior wooden staircase. As the trial judge noted, "the building code gives "just a general description that [the property] has to be inspected and maintained. . . . it doesn't give you a frequency. It doesn't tell you how to do it for obvious reasons."

Based on our review, we discern no error in denying plaintiff's motions for a directed verdict or JNOV. Viewing the record, in the light most favorable to defendant, we conclude there was sufficient evidence, in the record, to allow the jury to find defendant properly inspected and maintained her exterior staircase.

Plaintiff also contends the court erred in denying his motion for a new trial based upon, what he characterizes as "contradictory and confusing jury charges." A motion for a new trial shall be granted if, after "giv[ing] due regard to the opportunity of the jury to pass upon the credibility of the witnesses," the court determines "it clearly and convincingly appears that there was a miscarriage of justice under the law."

R. 4:49-1. We "accept as true the evidence supporting the jury's verdict and all permissible inferences therefrom." Pressler, supra, comment 4 on R. 2:10-1 (citing Bell Atlantic v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.), certif. denied, 162 N.J. 130 (1999)); Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); Dolson, supra, 55 N.J. at 5.

The relevant portion of the jury charge, identified by plaintiff as erroneous, addressed a property owner's duty of reasonable care to invitees engaged in activity on the owner's premises. We set forth at length the portion of the charge challenged by plaintiff. The judge instructed the jury, as follows:

Ms. Hess owned real property. Generally, the owner of real property is liable to any person on that property for harm caused by the owner's failure to exercise reasonable care, while an activity is being conducted on the property.

The owner owes a duty to exercise reasonable care to persons engaged in the activity there. The owner of the premises must exercise reasonable care in allowing activities to be conducted there, so as to avoid injury to people invited to be on the premises or allowed to be there.

Here, Mr. Rickards alleges he was injured on property, which was under the control of or ownership of Ms. Hess. He contends that she was negligent by failing to exercise reasonable care -- in the maintenance of the property and in the construction of the stairway.

The owner's duty to inspect or maintain or repair property is not absolute. The duty to exercise reasonable care means that the owner must maintain the property in a reasonably safe condition for the use and enjoyment of those persons on the property who are invited there, invitees.

Ms. Hess claims that she is not negligent in this case, because she had no knowledge of the defect which caused the injury to Mr. Rickards. An owner of real property is only liable for injuries to someone who is invited onto the real property, by reasons of defects of which the owner knew or should have known . . . . An owner should have known of the defect if the defect was discoverable by the owner through a reasonable inspection of the premises.

In other words, here, for Ms. Hess to be liable [for] Mr. Rickards['] injury, Mr. Rickards must establish, first, that the property was in defective condition.

Second, that the existence of that condition was known or should have been known to the owner before he came onto the property.

Third, that the owner, after that point when the owner knew or should have known of the defect, failed to act reasonably under the circumstances.

And, four[th], that the injury suffered by Mr. Rickards was proximately caused by that negligence.

If you find that the defect was not known to Ms. Hess, or was not reasonably discoverable by her, or that she acted reasonably under the circumstances after she knew of the defect, or should have known about it, or that her negligence was not a proximate cause of harm to Mr. Rickards, you must find for Ms. Hess.

An owner, such as Ms. Hess, is liable for injury caused by hazardous conditions, created by an independent contractor when the condition is due to the defective construction.

In those instances, someone like Mr. Rickards, a plaintiff, need not prove that the owner had actual knowledge of the defect or would have known about the defect, had she personally made an inspection.

So, to repeat, an owner of property is liable to anyone invited onto the property -- for harm caused when an invitee is on the property engaged in the activity for which he came to the property.

Plaintiff argues the charge is contradictory, confusing and erroneously contained a notice requirement, thus creating a manifest miscarriage of justice. We are not persuaded by plaintiff's arguments.

"'It is fundamental that a trial court is not bound to instruct a jury in the language requested by a party. If the subject matter is adequately covered in the text and purport of the whole charge, no prejudicial error comes into existence.'" Bolz v. Bolz, 400 N.J. Super. 154, 163 (App. Div. 2008) (quoting State v. Thompson, 59 N.J. 396, 411 (1971)). Additionally, we must examine the jury charge as a whole to determine whether it properly stated the applicable law in a manner that was clear and not misleading to the jury. Domurat v. Ciba Specialty Chems. Corp., 353 N.J. Super. 74, 93 (App. Div.), certif. denied, 175 N.J. 77 (2002) (citation omitted). Furthermore, "'[c]courts uphold even erroneous jury instructions when those instructions are incapable of producing an unjust result or prejudicing substantial rights.'" Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997) (quoting Fisch v. Bellshot, 135 N.J. 374, 392 (1994)); see also R. 2:10-2 (holding an error will not be cause for reversal unless it is "clearly capable of producing an unjust result").

There is no question that plaintiff presented two possible bases for defendant's negligence: first, in allowing her contractor to install the staircase, which was improperly constructed; and second, that she was negligent for failing to inspect and maintain the staircase for defects. The defenses were that defendant was unaware of any problem with the steps, and she employed others to perform maintenance-type services every two years.

At the charge conference, plaintiff asserted the property owner has potential liability in the case of negligent construction and negligent maintenance, without regard to whether the owner had actual or constructive notice of the hazard inherent in the facility or system she either constructs or over which she retains control, because of the non-delegable duty to maintain the stairway. Defendant's counsel objected to a portion of the charge discussing defective construction, arguing the portion of the charge, which excluded a notice requirement was inappropriate, and, therefore, the charge was too deferential to plaintiff.

In accommodating plaintiff's requests, the court included a charge that defendant was liable for any injuries caused by hazardous conditions created by her contractor, Barlics, if the condition was due to defective construction. Moreover, if the condition was due to defective construction, plaintiff need not prove defendant had actual or constructive notice of the stair's defect. The court additionally instructed that defendant, as the property owner, was generally liable to invitees for harm caused by her failure to exercise reasonable care to protect against foreseeable dangers, due to activities being undertaken on the property, and retains a duty to inspect and maintain her property to provide reasonably safe conditions for its use and enjoyment by invitees, like plaintiff. Plaintiff now challenges the inclusion of a notice requirement in a portion of the charge.

Plaintiff's suggested charge addressing negligent construction was given to the jury. He does not take issue with this provision, which excluded an element of notice. The charge stated, "plaintiff need not prove that the owner had actual knowledge of the defect or would have known about the defect, had she personally made an inspection." However, in the context of negligent repair or maintenance, the court instructed "[t]he duty to exercise reasonable care means that the owner must maintain the property in a reasonabl[y] safe condition for the use and enjoyment of those persons on the property who are invited there, invitees." In this regard, the trial judge noted defendant must know or should have known of the defect and failed to act reasonably under the circumstances. An owner of land owes a duty to an invitee "'to use reasonable care to make the premises safe . . . [.]'" Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 406 (2006) (quoting Handleman v. Cox, 39 N.J. 95, 111 (1963)). That duty would include the obligation of making a reasonable inspection to discover dangerous conditions and warn an invitee of the dangerous condition. Ibid. Further, this duty cannot be delegated or transferred to others, making the owner liable for her independent contractor's failure to exercise reasonable care in maintaining or repairing the property. De Los Santos v. Saddlehill, Inc., 211 N.J. Super. 253, 261-63 (App. Div. 1986), certif. denied, 107 N.J. 101 (1987).

In the context of plaintiff's allegations of negligent maintenance, the trial judge correctly explained the defendant's duty of care applicable to plaintiff, as an invitee; that is, "to exercise reasonable care in guarding against dangerous property conditions about which the defendant[] knew or should have known." Ertle v. Starkey, 292 N.J. Super. 1, 10 (App. Div. 1996). "A landlord is not an insurer for the safety of his tenants, but he is under a legal duty to maintain a common stairway under his control reasonably fit for use by occupants of the premises and by others lawfully thereon." Terrey v. Sheridan Gardens, Inc., 163 N.J. Super. 404, 407 (App. Div. 1978).

"[T]he nexus between duty and liability is proof of negligence. Negligence in this context requires not only proof of the condition, which caused the injury, but that the condition was known or should have been known by the [defendant] prior to the occurrence, so that he had an opportunity to correct it. Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 52 (App. Div.), aff'd 63 N.J. 877 (1973).

Plaintiff's contentions of negligent construction and failure to maintain and inspect were not uncontroverted. Defendant's testimony was sufficient to support the jury's conclusions that: (1) that the stairway was not negligently constructed, as there were no problems over the fourteen years the stairs were used; (2) defendant expended reasonable efforts to maintain and repair the stairs through her hired contractors, who painted or oil-treated the wood every other year; and (3) defendant and Barlics periodically walked the property, inspecting for necessary repairs. The jury was free to assess the credibility of the witnesses, including plaintiff's expert, and make its findings. Taking the charge as a whole, and guided by our standard of review, we conclude the contested passage was neither confusing nor likely to mislead the jury. Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). Accordingly, we find no error capable of producing an unjust result. R. 2:10-2.


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