On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3819-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
Plaintiff Amelia Antoinetti*fn1 appeals from a jury verdict in favor of defendants New Jersey Turnpike Authority, Garden State Parkway Division (NJTA), HMS Host Corp., and Auto Grill Group, Inc. The jury found defendants not liable for injuries plaintiff allegedly sustained when she fell on October 15, 2004, at the Forked River rest-stop on the Garden State Parkway. Plaintiff argues that the trial court erred when it limited the scope of her expert witness's testimony and when it gave the instructions to the jury pertaining to the duty defendants owed to plaintiff as a business invitee. We affirm.
We gather the following facts from the evidence presented at trial.
On October 15, 2004, plaintiff and her husband were driving from their home in Connecticut to Atlantic City to attend an antiques show. They stopped at the Forked River rest area on the Garden State Parkway at approximately 7:00 p.m. Visibility at the rest-stop was poor because the sun had set and it was raining. As she walked in the direction of the rest-stop building, plaintiff tripped on a broken area of the curb and fell onto her left arm. According to plaintiff, "when I got to the curb my foot went in the curb and it went in the depression, and I . . . looked down, I saw the broken curb . . . [a]nd I went splat onto the concrete slab." Plaintiff claims to have suffered permanent injury to her arm, which required surgery and months of physical therapy.
In her complaint, plaintiff alleged negligence against NJTA as the party responsible for maintaining the curbs at the rest area. She also argued that HMS Host had a duty to monitor the facilities, notify NJTA if a dangerous condition existed, and warn patrons of the defective condition during the period of time it remained unabated.
Because the jury found the issue of liability dispositive, we will not recite any facts concerning damages. In addition to her own testimony, plaintiff called as witnesses a number of NJTA and HMS Host employees and Alex Sacher, Ph.D., a polymer chemist whom plaintiff offered as an expert in the field of biomechanics. Plaintiff sought to have Sacher opine on why and how plaintiff fell on the night of the accident.
Responding to defendants' objection to Sacher's testimony, the trial court conducted a N.J.R.E. 104 hearing outside the presence of the jury to determine whether he was qualified to offer expert testimony in the field of biomechanics or the science of human locomotion. After hearing from Sacher, and considering the arguments of counsel, the court concluded that Sacher's experience and education did not qualify him as an expert in biomechanics. The court thus limited his testimony as "an expert in surfaces, walking surfaces." In so doing, the court specifically rejected the proffer that Sacher could opine on plaintiff's manner of walking.
Before counsel from both sides had presented their respective closing arguments, the trial judge invited the lawyers to send him proposed jury charges via email. Because the case was scheduled to resume after the weekend, the judge advised counsel that this electronic communication should be sent to him over this two-day period. The judge directed counsel to indicate any objections to the proposed jury charges via email. Counsel then presented their summations to the jury before breaking for the weekend.
Adhering to the court's directions, plaintiff's counsel indicated, via email, that he wanted the court to charge the jury that HMS Host had an affirmative duty to notify NJTA of any dangerous conditions on the property it knew existed, or through the exercise of a reasonable inspection should have known, and of its affirmative duty to warn its customers of the conditions until repaired. He objected, via email, to any charge that omitted HMS Host's affirmative obligation to warn patrons.
When the trial resumed after the weekend, the trial judge instructed the jury that HMS Host had a general duty to warn pedestrians of any known, or reasonably discoverable, dangerous conditions, without imposing on HMS Host the affirmative duty to warn as plaintiff's counsel had requested. After deliberating for less than one hour, the jury ...