On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1377-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Simonelli.
In this premises liability action, plaintiff Katherine Cotgreave appeals from the December 19, 2008 Law Division final judgment entered following a jury verdict of no cause of action against defendants Beverly Corris and Kathy Reiner. Plaintiff also appeals from the February 20, 2009 order denying her motion for a new trial. We reverse.
The following facts are derived from the evidence presented at trial.
Defendants are co-owners of a home in Keansburg, which they had purchased in October 2004. On the evening of March 5, 2005, plaintiff was a social guest at the home. A friend drove her there and parked the car in the driveway, which ran from the front steps of the house to a sidewalk abutting the property. Plaintiff had been to the property twice before, arriving in the same manner as she did on March 5, 2005.
Plaintiff left defendants' home between 11:30 p.m. and midnight. As she proceeded down the driveway toward her friend's car, which the friend had moved to the street to the right side of the driveway, she lost her footing at the point where the driveway meets the sidewalk, and fell to the ground. As she described it, she got to the end of the driveway, "didn't know it dropped off," and "just went and dropped off the end of the driveway." Plaintiff suffered injuries to her back and a fractured ankle requiring an open reduction and internal fixation. She filed a complaint against defendants seeking damages for her injuries.
During defense counsel's opening statement at trial he mentioned a home inspection report defendants had obtained prior to purchasing the property, which did not reveal any problems with the driveway, and that others came to the house on a regular basis after the purchase. Plaintiff's counsel objected and moved for a mistrial, claiming that defendants had not produced the home inspection report in discovery and it constituted hearsay. Defense counsel responded that he intended to use the report not to establish there was no dangerous condition but to establish what defendants knew or did not know about any hazardous conditions on their property. After reviewing the report, plaintiff's counsel agreed to the judge's suggestion to give a limiting instruction that the jury should consider the report for the exclusive purpose of showing defendants' state of mind as to why they did or did not take certain action regarding the driveway, not as evidence of whether or not a dangerous condition existed.
There is no dispute that there are no lights at the end of the driveway where plaintiff fell, and that motion sensors for lights on the house only activated when someone walked halfway up the driveway or stepped out of the house onto the front porch. Plaintiff described the lighting at the end of the driveway at the time of her fall as "dim[,]" and explained that due to the poor lighting, she was not aware that the driveway was higher than the sidewalk. Corris admitted that the lighting at the end of the driveway at midnight was "fairly dark."
Plaintiff's engineering expert, Wayne Nolte, Ph.D., explained that the driveway was constructed of two-by-four wooden boards that extended from the front door of the house to the sidewalk. The driveway was at a three inch higher elevation than the sidewalk. To compensate for that elevation, there were two pieces of wood at the end of the driveway, one of which was sloped downward at twenty degrees, and the other sloped downward at forty-five degrees. Nolte opined that the extreme three-inch slope at the end of the driveway was a hazardous condition that caused the accident. He also opined that the condition was a latent defect because at night when walking down the driveway from the house
All you see is the driveway going to the sidewalk.
There's no distinguishing marks or anything to inform that in the path that you're following, and really dropping off from your visibility in the direction that you're walking down the driveway, is this drop-off and this multiple slope. There's nothing like that. So you really wouldn't see it as you walk down the driveway.
Prior to Nolte's re-direct examination, the court gave a limiting instruction that the jury could not consider the inspection report as evidence of "whether or not the condition of the premises was hazardous[,]" but should only consider the report "for the sole and the limited purpose of the knowledge of the defendants. That is, based upon whatever may have been said in the report, what the defendants knew about the condition of the premises." Nolte then testified that if the home inspector had found a condition in the ...