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Nunez v. Pino

May 27, 2010

DANIEL NUNEZ, PLAINTIFF-APPELLANT,
v.
LUIS PINO, ALICIA PINO, AND CINDY PINO, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-770-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 27, 2010

Before Judges Parrillo and Ashrafi.

In this slip and fall premises liability case, plaintiff Daniel Nunez appeals from the denial of his motion for a new trial following a jury's no-cause verdict finding plaintiff seventy-five percent negligent. We affirm.

On December 2, 2007, the weather was inclement. Throughout the day, there had been periods of intermittent snow. As the evening wore on, however, the weather conditions worsened, and the snow began to fall more steadily. Sometime that evening, plaintiff, a twenty-year old varsity football player for William Paterson University, arrived at the Paterson home of his girlfriend, Talisa Pino. The home was owned by defendants, Luis, Alicia, and Cindy Pino, and familiar to plaintiff, who had been dating Talisa for two years.

The couple watched a movie. Talisa's grandfather, defendant Luis Pino, had retired to bed at 10:00 p.m. Throughout the evening, Talisa's mother, Maria Pino, had warned plaintiff that the weather was worsening and that he should think about leaving. Indeed, plaintiff himself knew it had been snowing for some time. Shortly before midnight, plaintiff's own grandmother called to tell him to drive home carefully because of the inclement weather. Ten to fifteen minutes later, plaintiff decided to leave and return home.

As plaintiff was leaving, Talisa escorted him to the rear exit of the home, where the door was "wide open" with a bucket of salt nearby, and an overhead light illuminated the stairwell. The couple kissed goodnight in the doorway and plaintiff went to walk out the stairs and as I took my first step, my left foot came flying out from under me and kind of just took my momentum -- bringing my body straight in the air and my right leg dragging behind me, in which I landed . . . .

Plaintiff did not look down at the stairs before taking his first step, even though he was aware that ice forms under snow. Nor did he grab the staircase handrails, just three inches past the doorframe, because he "never got a chance to. As I took my first step to exit the premises, that was it, it was just a split second and I was . . . gone."

After the fall, Talisa observed the stairs covered in snow and ice, and "the blacktop was all covered in snow." According to Talisa, "the two top steps were covered in light snow. And under that was ice." In fact, she was able to see the ice from the doorway "[w]ith the reflection of the light."*fn1

Defendants' engineering expert, Henry Naughton, had subsequently inspected the scene of the accident and took measurements and photographs of the rear entrance and stairs. Naughton found the stairs' design, with its two handrails, "certainly safe." He noted that the double spotlight, four-and- one-half inches above the rear doorframe, illuminates the stairs, and if ice is present thereon, "it would certainly reflect it . . . you would look at it and you would see a reflection of a shiny surface."*fn2

Plaintiff was in "agony" after the fall. Talisa and her mother helped bring plaintiff back inside the home where they awaited arrival of an ambulance. Plaintiff was then transported to the local emergency room around 1:20 a.m., where his ankle was splinted. Within days, plaintiff had the William Paterson team doctor, an orthopedic surgeon, perform the surgery to repair his broken ankle. The procedure entailed adding a plate and nine screws to secure the ankle, and a second surgery to remove one of the screws. According to his medical expert, plaintiff will continue to suffer intermittent pain.

Plaintiff sued defendant homeowners alleging that their negligence in failing to provide a reasonably safe place to visit caused his injuries. Defendants answered and claimed plaintiff was comparatively negligent. Following trial, the jury returned a verdict allocating liability seventy-five percent to plaintiff and twenty-five percent to defendants.

Plaintiff appeals, raising the following issues:

I. THE COURT'S DENIAL OF PLAINTIFF-APPELLANT'S MOTION IN LIMINE TO BAR REFERENCES TO PLAINTIFF'S NONEXISTENT "DUTY" TO SALT AND SCRAPE DEFENDANTS' STAIRS IMPERMISSIBLY PREJUDICED PLAINTIFF.

II. THE COURT'S FAILURE TO BAR OR CORRECT THE SURPRISE "FACT" TESTIMONY OF DEFENDANTS' "EXPERT", HENRY NAUGHTON, P.E., OR TO INSTRUCT THE JURY TO DISREGARD THE "REVISED" TESTIMONY OF TALISA PINO, HARMFULLY PREJUDICED THE PLAINTIFF.

We reject both contentions.

(I)

Plaintiff argues that comments made at trial about his failure to take affirmative action to remedy the icy condition of the staircase before using it, absent a limiting instruction, amounted to reversible error, as the evidence was irrelevant since plaintiff, as a social guest, had no duty to ...


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