February 16, 2012
SARAH DALY, PLAINTIFF-APPELLANT,
SOCIETY HILL CONDOMINIUM ASSOCIATION, SOCIETY HILL ASSOCIATES, SOCIETY HILL CONDOMINIUM,*FN1 DEFENDANTS-RESPONDENTS, AND NACHURS/ALPINE SOLUTION, DEFENDANT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 2, 2011
Before Judges R. B. Coleman and Harris.
As she exited her mother's condominium unit, plaintiff Sarah Daly slipped and fell, sustaining injuries to her neck and back. She filed a complaint against defendant Society Hill Condominium Association and other named condominium defendants, contending they sprayed a liquid ice melt product onto the landing and steps leading from the condominium unit and failed to warn the occupants that this had been done.*fn2 The claim of negligence against Society Hill was tried before Judge John A. Fratto and a jury, and at the conclusion of the trial, the jury responded "no," by a vote of seven-to-one, to the first question on the jury verdict sheet: "Was the defendant, Society Hill [C]ondominium Association negligent, which negligence was a proximate cause of the accident of March 1, 2006?" Plaintiff's motion for a new trial was denied and an order memorializing that ruling was entered on November 1, 2010. This appeal ensued.
On appeal, plaintiff argues (1) the trial judge improperly interjected himself into the trial by asking questions of witnesses and (2) the judge's charge improperly required the jury to find the steps of the unit were in a hazardous condition before the jury could consider whether defendant had a duty to warn plaintiff that the steps had been sprayed. We reject these arguments as error and affirm.
The testimony at trial revealed that plaintiff was a teacher who lived with her mother. She arrived home from work between 4:15 and 4:30 p.m. on March 1, 2006. At that time, the steps leading to their condominium unit were dry. Although the day was clear, with no precipitation, a severe ice storm had been forecasted for the next day. Defendant decided to preemptively spray an anti-icing solution onto walking surfaces in common areas, including the steps and landing at plaintiff's unit, in anticipation of the predicted storm.
Plaintiff testified she and her mother ordered a pizza and as plaintiff was attempting to leave to pick it up, about a half hour after she had arrived home, she slipped on the landing or on the first step. She testified "I walked out the door and then I turned around to lock the door with my keys and then I went to leave and slipped." She fell awkwardly onto the steps and, while lying there, she noticed they were wet. Between the time of her arrival at home and her fall, the steps had been sprayed with the anti-icing solution, and no one had alerted her or her mother of that activity.
David Lane, the maintenance supervisor for defendant at the time of the incident, acknowledged he sprayed the steps. After he had moved on to a nearby unit, he heard a woman's voice screaming, and he returned to plaintiff's unit where he observed her lying on her back at the bottom of the steps. He reported the incident to his supervisor, property manager Arthur Guzzi, who promptly arrived with office manager, Kaylyn Marcavage. Marcavage was also an EMT. They assessed the situation, and Guzzi told Lane to continue his duties, which he did.
Lane confirmed that the anti-icing product, when applied, was about the same consistency as water. It had no noticeable odor, and it would dry in about fifteen minutes. Lane acknowledged that he had not attempted to warn plaintiff, her mother or any other residents that the steps were being "pre-treated" for the storm. He also agreed with plaintiff's recollection that the steps were still wet at the time of her fall.
Guzzi testified he had been considering the anti-icing product for several years before actually using it. He had attended seminars on snow and ice removal and at one of the seminars, he learned about the Alpine solution. He spoke about the product with representatives of the maintenance departments at Drexel University and another university in Pennsylvania, and he concluded the liquid solution offered advantages over the granular products defendant had been using. The granular products tended to wash away, blow in the wind or shift on the surfaces to which they were applied. The spray-on product dried in about fifteen minutes and provided a film on the surface of the stairway that would not wash off as readily. It would be more effective when the oncoming storm actually occurred.
Guzzi purchased the product in fifty or fifty-five gallon drums. The accompanying label for use did not indicate it was necessary to wait any period of time before allowing anyone to walk on a treated surface. Guzzi testified he had personally tested the product by walking up and down stairs on which it had been applied to see if he tended to slip. He did not find the surfaces to be slippery, "not at all." Guzzi testified he stood by his decision not to have the workers notify occupants that the condominium association was about to apply the anti-icing product to the common areas. He explained:
[T]here are 375 units in the condominium.
We have a limited time to act, and there was limited manpower. If we stopped to talk to every resident that had a question about the snowstorm or anything else, the men wouldn't have time to finish their job to protect the property and insure the safety of the residents.
Guzzi added that one or two years before plaintiff's accident, the condominium association had attempted to improve traction when the steps were naturally wet from rain. It had remanufactured the steps with a composite material and a grit was put into the paint to increase slip resistance.
After direct and cross-examination of Guzzi by counsel for the parties, the court made the following inquiry regarding the paint used on the steps:
THE COURT: This may be an obvious question. When you painted the stairs with this --
THE WITNESS: With grit.
THE COURT: -- paint with the grit in it, how about the landing itself?
THE WITNESS: Everything.
THE COURT: Same thing.
THE WITNESS: The landing and the stairs. Anything that you would put your foot on was painted with the paint with the grit in it.
Later, near the end of plaintiff's testimony, the court asked her about the steps being painted during a period of time when she was home from college:
Q. And did they paint the steps at that time?
A. I believe the steps were painted at that time, yes.
Q. Okay. Was there anything unusual about the way the steps and the -- and the landing were painted?
A. Not that I noticed, no.
Q. There was testimony that there was some sort of sand or grit in the -- in the paint. Could you notice that -- did you notice that?
Q. No? Okay.
THE COURT: All right. Any further questions?
Scott Derector, defendant's engineering consultant, was permitted to offer expert testimony concerning slip resistance. He indicated "[t]here are many things that go into slip resistance. It's not only the floor surface, it also had to do with the type of shoes, the way someone walks, their conditions. Also, the speed at which they walk, whether they're paying attention to where they're walking as well." As part of his site inspection and investigation, Derector utilized a portable device called a Brungraber Mark II to measure the co-efficient of friction. Although Derector conceded that approval of the Brungraber Mark II had been withdrawn by the American Society of Testing Materials (ASTM), he testified it was still utilized by experts in the field to assess walkway and pedestrian safety. Based on his inspection during which he repeated his tests twelve times or more to validate repeatability of the readings, he measured the co-efficient of friction on the steps. Derector recorded consistent readings of the upper landing and the first tread coming up the landing. The readings were .5 when dry and .6 or .7 when wet with water or the Alpine solution. According to Derector, a .5 reading of a dry surface is considered a safe, slip resistant surface.
Derector admitted, however, that there is no consensus or standard recognized as slip resistant in the engineering and safety community. He noted that someone can fall, even on a slip resistant surface, but based on the readings he obtained, the Alpine product would not make the surface of the steps more slippery than water. In his opinion, the application of Alpine solution to the steps, as a preventative measure for an ice storm, did not make the steps hazardous or defective.
Again, after the attorneys for the parties had completed their respective examinations of the witness, the court posed a number of questions, consisting of the following:
THE COURT: I have a couple of questions.
Q. You testified that in your opinion these steps, . . . if I can use your exact words, when dry, were slip resistant and safe?
A. That's correct.
Q. Right. Can you testify with reasonable engineering certainty that these steps, when wet with water, are slip resistant and safe?
A. I can say that it meets the dry criteria. However, there is no wet criteria. So there's no official component.
[T]here are papers out there that you can go as low as .3 and work on walking a wet surface. So it's lower than that dry number, so it would be safe.
Q. All right. And can you say the same thing with reasonable engineering certainty that when covered with Alpine, the steps are, in your opinion, slip resistant and safe?
Q. All right. Do you have any expertise with respect to painted surfaces as far as slip resistance is concerned?
A. I have tested multiple painted surfaces.
Q. All right. Are you familiar with -- have you tested painted surfaces that are covered with paint that has sand in them or some type of grit?
A. Yes, I have.
Q. And did you notice grit -- I think you testified you felt it with your hand?
Q. And you examined these steps here?
Q. Over a period of time, those steps that has the sand on it, people walking up and down the steps, what does the -- the use of the steps do to the surface?
A. A lot of times you'll see a wear along a pattern where most people frequently walk down and you'll see it will be more worn and sometimes the sand would actually wear off along those locations.
Q. Okay. All right. So do you have an opinion as to the condition of the steps at the time the accident happened and at the time you saw them, two-and-a-half years later, vis-a-vis the same?
A. Yes, I do.
Q. And what would that be?
A. It would be more slip-resistant at the time of the accident than it was at the time of my inspection due to normal wear and tear of people walking down.
After that examination by the court, the attorneys each asked additional questions of the witness, and at the beginning of his instructions to the jury, the trial judge gave a limiting instruction reminding the jurors not to attach undue significance to the fact that he had asked questions of certain witnesses. The judge stated:
I've made certain decisions during the course of this trial. I've even asked some questions of the witnesses.
You should not take it as a clue to how I think, any of the questions I asked or any of the rulings I made. My rulings are based on the rules of evidence and . . . the law as I -- as I know it.
In spite of that limiting instruction, plaintiff argues in this appeal that the questions asked by the judge, quoted at length above, were "defense-oriented questions [that] improperly telegraphed the judge's thoughts on the case to the jury." Plaintiff further asserts the judge committed reversible error "by interjecting himself into the trial as a second defense advocate by repeatedly referring to the subject steps as 'slip resistant.'" We disagree.
Plaintiff recognizes in her brief that because counsel did not object to the judge's questioning, the issues raised are governed by the plain error standard pursuant to Rule 2:10-2. Under that rule [a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.
Based upon our review of the questions posed by the judge in the context of the prior testimony of the witnesses, we are satisfied the questions were not calculated to elicit testimony that would favor one party over the other. Nor do we perceive that the questions had the capacity to bring about an unjust result or a result the jury would not have otherwise reached.
The authority of the judge to ask questions of witnesses is well established. Pursuant to N.J.R.E. 614, "[t]he judge, in accordance with law and subject to the right of a party to make timely objection, may . . . interrogate any witness." In addition, the Supreme Court long ago recognized that "[t]he trial judge may question a witness in order to clarify existing testimony or to elicit further information from him." Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958) (citations omitted). It has long been recognized, however, that "the power to take an active part in the trial of a case must be exercised by the judge with the greatest restraint, especially before a jury." Ibid. (quoting Polulich v. J.G. Schmidt Tool Die & Stamping Co., 46 N.J. Super. 135, 144 (Cty. Ct. 1957)). See also State v. Aeschbach, 107 N.J.L. 433, 438 (E. & A. 1931) (noting that the right of the court to ask pertinent and material questions "cannot be successfully controverted").
More recently, the Court reaffirmed that in presiding over a jury trial, the judge, who holds a powerful symbolic position visa-vis jurors, must maintain a mien of impartiality and must refrain from any action that would suggest that he favors one side over the other, or has a view regarding the credibility of a party or a witness. [State v. O'Brien, 200 N.J. 520, 523 (2009) (citing State v. Taffaro, 195 N.J. 442, 451 (2008)).]
The critical issue is whether it can fairly be said that the interrogation by the judge deprived the complaining party of an impartial trial. State v. Soriano, 107 N.J. Super. 286, 288 (App. Div. 1968), affirmed o.b., 54 N.J. 567 (1969).
With this standard in mind, we are satisfied from a review of the court's questioning of the witnesses, quoted above at length, that such questioning was even-handed and did not project any bias on the part of the judge nor any favoritism or partiality toward either party. The court did not focus unduly on the phrase "slip-resistant and safe." That was the descriptive phrase used by the witness. The judge's inclusion of the phrase in his questions did not unfairly signal a bias on the part of the judge. Nor did the use of that phrase in multiple questions give defendant's expert an unfair opportunity to restate his conclusions. The critical question for the jury's consideration - which, in our view, was not unfairly influenced by the court's questioning of the witnesses - was whether the application of the liquid ice melt solution, which was not disputed, rendered the steps unreasonably dangerous and, if so, whether a warning would have reduced or eliminated such danger.
Plaintiff also contends the instruction given to the jury was wrong as a matter of law. Again, we disagree.
"[I]t is fundamental that the jury charge should set forth in clear understandable language the law that applies to the issues in the case." Toto v. Ensuar, 196 N.J. 134, 144 (2008). Here, the charge, viewed in its entirety, was proper. Plaintiff insists that she was not alleging that defendant was negligent for spraying the steps nor that the spraying created a hazardous condition. Rather, counsel argues in the appellant's brief that "defendant's failure to warn her of the spraying left her in a vulnerable and unsuspecting position when she encountered the wet steps, which ultimately resulted in her slipping and falling." This argument is inherently inconsistent to the extent it accepts that no dangerous condition existed, yet urges the need for a warning. Recognizing the dilemma, the trial judge said at the charge conference, "if they put something down that is not unsafe, not hazardous, why is there a duty to warn? There's no duty to warn of a condition that is not hazardous or not unsafe." Thus, unlike plaintiff, the judge did not assume or ask the jury to assume the steps were unsafe. Instead, he asked the jurors to determine first whether the steps were unsafe and posed a hazard; if so, they were to determine whether defendant could have reduced or eliminated the hazard by giving a warning. Thus, the jury was instructed to consider whether defendant was negligent for failing to warn of the hazard; however, if it concluded there was no hazard, it need not consider whether defendant was negligent in not giving a warning.
In its discussion of the traditional common law approach to landowner or occupier tort liability, our Supreme Court not only noted that liability was predicated on the status of the person as a business invitee, licensee or trespasser but also premised that discussion on the factual circumstance that the person had been injured "because of a dangerous condition on private property." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). The differences in the duties owed related to the degree of danger on the property. The Court observed that "[t]he duty owed to a trespasser is relatively slight." Id. at 434. The landowner owed a duty to warn trespassers "only of artificial conditions on the property that pose a risk of death or serious bodily harm[.]" Ibid.
Defining the higher duty owed to a social guest or licensee, the Court stated: "Although the owner does not have a duty to discover latent defects when dealing with licensees, the owner must warn a social guest of any dangerous condition of which the owner had actual knowledge and of which the guest is unaware." Ibid. In turn, the duty owed by the landowner to the invitee or business guest is "a duty of reasonable care to guard against dangerous conditions on his or her property that the owner either knows about or should have discovered." Ibid. In sum, the duty in each instance is predicated upon and relates to the existence of a dangerous condition on the property that injures or poses a risk of injury to the person coming upon the land.
The Hopkins Court recognized further that the more modern principles that govern tort liability are not limited by the historical classification of persons coming onto the premises. Id. 435-36. The modern principles reflect a general tort obligation to exercise reasonable care against foreseeable harm to others. Id. at 435. Whether a duty exists is ultimately a question of fairness. Id. at 439. "Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Ibid. (citation omitted). "The inquiry involves identifying, weighing and balancing several factors - the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Ibid. Intrinsic to the analysis is the risk and the ability of the parties to avoid or manage the effects of that risk.
As the Court has explained:
Whether a duty of care exists is a question of law that must be decided by the court. In making that determination, the court must first consider the foreseeability of harm to a potential plaintiff, . . . and then analyze whether accepted fairness and policy considerations support the imposition of a duty[.]
Foreseeability of injury, as it affects the existence of a duty, refers to the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care. [Jenkins v. Anderson, 191 N.J. 285, 294-95 (2007) (internal citations and quotation marks omitted).]
The trial court's explanation of the principles of negligence were appropriate and, contrary to plaintiff's assertions, the court appropriately exercised its discretion to refuse to instruct that defendant had a duty to warn without regard to the existence or non-existence of a hazardous condition.
For proper context, we quote at length from the charge given to the jury:
The plaintiff, Ms. Daly, at the time of this accident, was -- is or was what is called in law an invitee. An invitee is one who is permitted to enter or remain on premises for a purpose of the owner or occupier. She enters by invitation expressed or implied.
Now, what that legal mumbo jumbo simply means is this:
The plaintiff, Ms. Daly, a resident in her mother's condo, was entitled to be in the common areas of Society Hill complex on the day this accident occurred and when this accident occurred.
The Association is and was under a duty to exercise ordinary care to render the premises reasonably safe for her purposes. It must exercise reasonable care for the safety of its invitees.
It is not disputed that the steps and the landing prior to the application of the Alpine solution were not hazardous; that is they were in a safe condition or in a reasonably safe condition.
The question for you to determine is whether or not the application of the Alpine solution rendered them unsafe or made them hazardous.
A hazardous condition is, by definition one which is not reasonably safe or it is a condition which is unreasonably unsafe.
So the first question you must determine is whether or not the application of the Alpine made the steps unsafe.
The duty of the Association to provide a reasonably safe place for use by an invitee does not depend on whether they knew or should have known.
Whether the Association, however, knows or should know that it created an unavoidably unsafe condition -- you remember the testimony was this was being put down because of the anticipated winter snow storm -- if you determine that in putting it down they created an unsafe condition, even though it may have been necessary because of the snow storm, then the Association would have a duty under those circumstances to give warning to the invitees, or the people in the condomin -- condominium of that unsafe condition.
If, however, you find that the use of the Alpine did not create an unsafe condition then there is no duty to give warning. You need not consider whether or not the defendant should have warned the plaintiff of the spraying until and unless you find that the condition of the steps and landing at the time of plaintiff's fall was an unsafe condition.
If the defendant did not create an unsafe condition, there is no duty to warn of anything.
The failure to warn, however, can be considered by you if you do find that the condition was unsafe and you can consider that failure to warn in the context of the activities of the plaintiff in being part of or partly responsible for her own action --action -- accident, excuse me.
So, if you find that the steps or the landing were not in a reasonably safe condition and that the Association or their employees created that condition, then plaintiff would be entitled to recover if such condition was a proximate cause of her injuries.
If you find the steps and the landings were in a reasonably safe condition or that the condition of the steps or the landing, whatever it was, was not the cause of her injuries, then the plaintiff has not established defendant's negligence and your verdict should be for the defendant.
Whether the steps and landing were reasonably safe for use by the plaintiff may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the plaintiff would realize the hazard and protect herself against it.
Even though an unsafe condition may be observable by an invitee, you may find that the Association is, nevertheless, still negligent in creating said condition when the condition presents an unreasonable hazard to the plaintiff in the circumstances of this case.
The charge gave clear and understandable direction to the jury. It did not have the capacity to lead the jury to a miscarriage of justice.
The trial judge in this case appropriately asked, "if what was done was not unsafe, not hazardous, why is there a duty to warn?" A warning about a non-hazardous condition is superfluous. Clearly, if the jury had concluded that the association had created an unsafe condition - even if plaintiff was not urging that unsafe condition as the basis for recovery - the duty to warn would have existed, and the judge so instructed the jury. The jury having found no unsafe conditions as a cause or contributed cause of the accident, there was no duty to warn.