NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 COURT: -- paint with the grit in it, how about the landing itself?
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 ...