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Raimer v. Rosenberg

April 16, 2010

SHARON M. RAIMER AND STEVEN L. RAIMER, PLAINTIFFS-APPELLANTS,
v.
ROSENBERG, HAMMER & SMITH, INC., AND HADDON HILLS APARTMENTS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-120-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 16, 2010

Before Judges Carchman, Lihotz and Ashrafi.

Plaintiff Sharon M. Raimer appeals from a jury verdict finding that defendant Haddon Hills Apartments was not negligent in the maintenance of a sidewalk on which plaintiff slipped and fell. Plaintiff's claims of error focus on three discretionary judicial rulings as well as a claim that the trial judge improperly presented the issue of comparative negligence to the jury. For the first time on appeal, plaintiff also asserts that the judge failed to provide to the potential jurors a preliminary explanation of the case. We reject plaintiff's contentions and affirm the jury verdict.

These are the relevant facts adduced at trial. At approximately 7:00 p.m. on February 7, 2005, plaintiff, a resident at the defendant apartments, was walking from her apartment to her car, which was parked in apartment parking lot. It had snowed on January 19, January 22 and January 23, 2005, resulting in an accumulation of twelve to fifteen inches of snow. Another light snowfall followed on February 4.

Plaintiff was walking from her back door to her car to retrieve a pack of cigarettes and claimed that there was "still ice and frozen snow on my steps." Because of the ice and snow, plaintiff believed "it would be safer if I went across the grass . . . in a direct line to the parking lot." Plaintiff stated there is one, two, three sidewalks that you have to cross over with grass in between the sidewalks. I call these the V walks . . . .

And I went to go cross over the V walks very gingerly over the first sidewalk, through the grass, over the second sidewalk, through the grass and then I took a couple of steps on the third one, almost making it to the car space, and that's when I went down.

After the fall, plaintiff claimed to observe ice and frozen footprints along the area where she fell.

Plaintiff filed a complaint in the Law Division, alleging that defendants "negligently and carelessly failed to warn, failed to prevent injury, maintained, failed to make safe, failed to identify a hazard, failed to eliminate a hazard, and/or were otherwise negligent, as a result of which . . . plaintiff . . . was caused to slip and fall[]" and suffered "severe and multiple injuries[.]"

The original discovery end date of December 24, 2007 was extended five times - by consent of the parties and respective motions by plaintiff and defendants - to September 19, 2008. Non-binding arbitration was scheduled for October 14, 2008, and on October 13, 2008, defendants hand-delivered to plaintiff amendments to interrogatories, which included an August 10, 2007 expert report by Keith Arnesen (the Arnesen report) addressing the weather in January 2005 and the level of snow on the ground on February 7, 2005. The Arnesen report stated:

For the month of January 2005 in west central New Jersey temperatures averaged much above normal the first half of the month and much below normal the second half along with a major snowstorm on the second half along with a major snowstorm on the 22nd to 23rd. Snowfall totals in the vicinity of Haddonfield, NJ were around 10 inches. At 7 am on the February 1st there was about 6 inches of snow remaining on unplowed and untreated surfaces in the vicinity of Haddonfield, NJ. Snow on the untreated and unplowed surfaces had been reduced to one inch by the morning of February 7th and a trace by the 8th at Somerdale, NJ which is about 5 miles to the south of Haddonfield. No precipitation occurred during February 5th, 6th or 7th. It is likely that the approximate conditions at Haddonfield, NJ at 7 p.m. on February 7 2005 were as follows, Temperature- 40 degrees F . . . .

Only a trace of snow on unplowed and untreated surfaces remaining from the January event.

In response to the late submission of the expert report, plaintiff filed a motion to bar defendants from presenting Arnesen's testimony at trial. The court issued a November 6, 2008 oral decision and order denying plaintiff's motion, noting "that [plaintiff]'s request is not supported by the New Jersey Court Rules[.] [T]he defendants electively retained two additional experts[, and that] is permissible."

On February 6, 2009, plaintiff amended her discovery responses by producing 258 photographs and a videotape of the apartment complex taken January 29, January 31, and February 1, 2009. Defendant responded with a motion in limine to preclude use of the videotape and photographs on the basis of relevancy. The judge permitted use of photographs taken in close temporal proximity to the date of the accident - those taken on February 8 and 9, 2005 - but barred photographs taken in 2009.

Trial commenced on April 20, 2009. Plaintiff testified as to weather conditions prior to her accident, as well to the happening of the accident. Cross-examination focused, in part, on the actual location of the slip and fall.

Defendants proffered the testimony of Marie Oetter, the resident manager of the Haddon Hills Apartments from 1978 to 2006. Part of Oetter's managerial responsibilities included "mak[ing] sure" snow and ice were removed from the apartments. Specifically addressing the January 2005 snow storms, Oetter recalled that she had crews working overtime on January 22 and January 23 to remove the twelve-inch snowfall. During her testimony, she indicated that she maintained a staff of nine people engaged in snow removal. She remembered this particular storm and had personally prepared a list of overtime hours reflecting the "overtime from the snow Saturday, January 22, 2005 to Sunday, January 23, 2005." The document (the Oetter document) confirmed that nine people were paid for eight hours of work, including two men who also worked four hours on Saturday. The following colloquy also occurred during Oetter's direct examination:

Q: Okay. That's all I have on that document. And is that -- by the way, during the years, and you've been -- you were there a lot of the years as the manager, is that typically what you would do if there was a big snowstorm like this?

A: Yes.

No testimony was proffered regarding when or for what purpose the document was drafted.

Defendants also presented Arnesen as an expert in meteorology. Arnesen indicated that following the January 23 snowfall of between ten and fifteen inches and a February 4 snowfall of approximately one-half inch, the temperature reached a high of sixty-one degrees and dropped to forty degrees on February 7, 2005. Based on his review of the weather data, Arnesen stated there would be "trace" amounts of snow remaining on the ground, "trace" meaning "less than one half of an inch on that surrounding grassy surfaces." Arnesen also noted, however, that while the one-half inch of snow may have melted, there was still snow on the ground "left over snow from the 22nd/23rd event."

At the conclusion of defendants' case, defendants moved several documents into evidence, including Oetter's list of overtime employees from the January 23 snowstorm. Plaintiff objected to its inclusion, arguing that the document constituted hearsay. The trial judge concluded that the document may be moved into evidence, stating, "I'm satisfied that she testified that, that was ...


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