On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1019-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Parrillo.
In this personal injury negligence action, plaintiff Katherine Leggio appeals from entry of judgment, following a jury verdict, in favor of defendant Curtis Lanes, and from denial of her motion for a new trial.*fn1 We affirm.
Curtis Lanes is a bowling alley in Ewing, owned and operated by Bucks Mercer Management Corporation and doing business as Curtis Lanes (Curtis Lanes), whose principal is Charles Dimick, Jr. Plaintiff has worked at Curtis Lanes since approximately 2000, primarily in the kitchen, which services the facility's restaurant and bar operation.
On October 25, 2006, after working the afternoon shift, plaintiff remained on the premises, socializing with her co-workers and bowling three games. Afterwards, she went to her locker to retrieve her personal possessions. When she realized she did not have the key to open her locker, plaintiff approached the customer service counter where a master key is stored and where Curtis Lanes employee David Popp was working at the time. Plaintiff asked Popp for the master key.
This much is undisputed. Plaintiff and Popp, however, differ as to what occurred next. According to plaintiff:
. . . I told [Popp] somebody shut my locker and I need the key to open my locker.
And he was laughing and we were joking. He picked up the key and he said you want this key and I said yeah and he slammed it down on the desk and I went down on my knee and I covered by eye because something hit me. It hurt.
And when I lifted my head I heard my daughter screaming for my husband and other people around me saying that my blood was --I was oozing and what not.
Popp offered a different version:
[Plaintiff] asked me, Dave, can you hand me the key, somebody shut my locker. And I said okay. I turned to my right where the keys were sitting on the desk, grabbed the keys, turned, handed her the keys, and she held her eye and fell to the ground.
Popp also "remember[ed] quite vividly holding the keys while her daughter was helping [plaintiff] on the ground[,] wondering what happened."
Officer Michael Flynn of the Ewing Police Department was dispatched to Curtis Lanes. Upon his arrival, he saw plaintiff, who complained that her left eye was burning and that she felt something was in it. She was unable to open her eye, which was "tearing heavily." When Officer Flynn inquired as to what happened, plaintiff explained that, after bowling, she went to the counter to get the master key to open her locker. Officer Flynn's police report summed up plaintiff's version of what happened next:
David grabbed the key off the counter and handed it to Kathy. All of a sudden she felt something hit her in the eye and that[']s when the pain started.
Flynn's report also reiterated Popp's account:
I spoke to David who stated that the keys were on top of the counter and he handed them right to Kathy. He believed that the keys did not strike or hit anything.
Officer Flynn inspected the keys, which were attached to a piece of plastic. One of the keys had a small chip missing, but Flynn reported that "it is unsure at this time if that chip was missing prior to this incident."
Plaintiff was transported by ambulance to Mercer Hospital. The triage nurse's report states: "pt reports key was slammed on desk and pt felt something strike her in eye, pt denies ability to see, pupil darkened, filled with blood, pt unable to see out of eye at all, back to [emergency department] for immediate eval." After being examined by a ...