On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-180-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Reisner.
In this slip-and-fall case, plaintiffs, John Walsh and his wife Helen Walsh, appeal from a January 21, 2011 order dismissing their complaint on a summary judgment motion. We reverse and remand for further proceedings.
The following facts are drawn from the summary judgment evidence. On January 13, 2008, John Walsh (plaintiff), a driver and delivery person, fell on a staircase inside a warehouse that his employer leased from defendant J&R Associates. The staircase had openings between the steps, except for a solid riser between the seventh step and the landing. Before climbing the stairs, plaintiff turned on a light in an adjacent first-floor room, which "provided [him] adequate lighting to go up the steps." Plaintiff then started to climb the staircase, which was the first of two sets of steps separated by a landing, leading to the mezzanine floor of the building. On the seventh step, he tripped, fell forward on the landing, and hit his head.
On March 8, 2010, plaintiff and his expert engineer, Wayne Nolte, P.E., visited the accident site so that plaintiff could show Dr. Nolte where and how the accident occurred. According to Nolte's later deposition testimony, during the March 8 visit, plaintiff told him that as he was climbing up the steps, his foot hit the riser above the seventh step, causing him to fall forward. On April 6, 2010, Nolte authored an expert report opining that the accident was caused by an increase in the height of the riser (8R) between the seventh step and the landing when compared to the distance between the previous steps. Due to the variation in height, plaintiff brought his foot to a level that he thought would bring it flat onto the landing, but instead his foot hit the riser. Nolte's April 6 report stated that "the mechanics of the accident described by Mr. Walsh" was "consistent with the configuration of this stairway." *fn1
At plaintiff's deposition on August 12, 2010, he was questioned about the area where he fell. He responded that he tripped on the seventh step. When asked "what part of the step caused you to trip," he answered "[s]omewhere I'm guessing right here." When asked to "draw a circle around the area where you believe you tripped," plaintiff drew a circle at the leading edge of the seventh step.
Based on that deposition testimony, and the report of a defense expert, defendant moved for summary judgment, asserting that there was no factual basis for plaintiff's expert's opinion on causation, because plaintiff tripped on the leading edge of the seventh step. In its summary judgment papers, defendant included only selected portions of Nolte's deposition transcript. Significantly, defendant included a page of the deposition that ended when Nolte was asked the following: "Did Mr. Walsh tell you when you had discussions with him [about] the accident location that his left foot hit the riser at [8R]?" However, defendant left out the next page, on which Nolte answered "Yes." On the remainder of that omitted page, Nolte specifically repeated that plaintiff told him that his foot contacted the riser located above the seventh step.
In his opposition to the motion, plaintiff included the page that defendant omitted, in which Nolte specifically described plaintiff as having told him that his foot hit the riser. Plaintiff also submitted his own affidavit, explaining that the accident occurred this way: "When I reached the top, I put my right foot on the step and my left foot struck the top of the riser, causing me to be propelled across the landing where I struck my head on the second step on the set of stairs leading to the top." Plaintiff further confirmed that he had read Nolte's April 6 report and that Nolte's report accurately reflects "exactly what I told him."
In his affidavit, plaintiff explained in some detail that he was confused by the questions asked at his deposition. He stated: "When I was deposed I was asked a series of questions about the location of the accident which I believed were all asking the same thing, upon which step did I fall. . . . I continually told the attorney that I tripped on the seventh step. . . . To the extent that the testimony and my marking of the picture suggests that I tripped on the front of the step and not the riser, my testimony gave the wrong impression." Plaintiff also took issue with defense counsel's attempt to characterize his testimony as describing "the portion of the step that caused me to trip," stating, "I did not realize until after I read the transcript what his statement following my testimony implies." Plaintiff then reiterated that "my foot came into contact with the riser of the seventh step and this caused me to fall."
Based on this record, the motion judge concluded that plaintiff's affidavit was a "sham affidavit" which was insufficient to create a material factual dispute about where he fell. Plaintiff's expert admitted at his deposition that there would be no basis for liability if plaintiff's foot struck the edge of the step instead of the riser, and the judge construed plaintiff's deposition testimony as ...