On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2076-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...