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Sylvia Rubin and Howard Fried, Her Husband,*Fn1 v. the Macerich Company

April 12, 2012

SYLVIA RUBIN AND HOWARD FRIED, HER HUSBAND,*FN1 PLAINTIFFS-APPELLANTS,
v.
THE MACERICH COMPANY, T/A FREEHOLD RACEWAY MALL AND MACY'S, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0653-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 25, 2012

Before Judges Graves, J. N. Harris and Koblitz.

Plaintiff Sylvia Rubin appeals the July 16, 2010 and July 21, 2010 final orders of no cause of action entered in defendants' favor and the December 3, 2010 order denying her request for a new trial in this personal injury case.*fn2 Rubin suffered a fractured right shoulder after falling at defendant Macy's, Inc. (Macy's) department store located in defendant Freehold Raceway Mall (Mall). The jury returned a unanimous verdict finding that both the Mall and Macy's were negligent in the maintenance of the entrance to Macy's. The jury voted six to one, however, that the Mall's negligence was not a proximate cause of Rubin's injuries, and voted unanimously that Macy's negligence was not a proximate cause of her injuries. At trial, Rubin unsuccessfully sought to introduce evidence of subsequent remedial measures taken by the Mall to rebut testimony that the area where Rubin fell was in the same condition on the day of the fall as depicted in a photo taken after the remedial repair.

The trial judge also barred Rubin from introducing evidence of a prior consistent statement she made at the hospital shortly after the accident. Rubin sought to offer this evidence to refute defendants' allegation that her testimony indicating she fell over the incomplete repair work on the floor outside of Macy's entryway was a fabrication. We agree with Rubin that these evidentiary rulings were an abuse of discretion and had the clear capacity to mislead the jury. We therefore reverse and remand for a new trial on all issues.

On September 3, 2007, seventy-three-year-old Rubin made some purchases at Macy's and then entered the Mall to do a little window shopping. When she finished, Rubin decided to exit the Mall through Macy's because her car was parked in that area. As she entered Macy's, she tripped over something and fell. She testified:

A: I -- actually, I was like floundering. I was flung forward and I tried to catch my balance, but there was nothing -- I tried to see if there was something to hold onto, but there was nothing to grab onto. And I literally fell on my right side, on my right shoulder and my whole thigh, and slid. It's a very slippery floor, the tile or marble or something, you know on the floor.

Q: You didn't slip on the floor initially?

A: No, no. I definitely tripped in -- right outside Macy's in the Mall and fell into Macy's. And I was sliding and I stopped a few feet from the -- that cosmetic counter, which I was very grateful for if my head had hit that, it would been a lot worse.

Q: Now, when you first fell, when you're laying on the floor, did you know what you tripped on?

A: At first, no, but as soon as I turned around, I saw.

Q: All right. When you turned around and you looked back at the pathway that you just came from, what did you see?

A: I saw the floor raised. There was some wood planks right along that line and there was nothing else. I mean, that was -- that was the thing I tripped over.

Q: Right. So, between where you were and that thing sticking up --

A: It was just a smooth floor.

Q: It was a smooth floor. There was nothing to trip on?

A: No, there was nothing there.

Nicholas Miele, the Mall security guard, and John Bruzzese, Macy's operations manager, both came to Rubin's assistance.

Miele indicated that his duties included ensuring that conditions were safe when the Mall opened. He testified that when he arrived at the scene of the accident, he found Rubin eighteen and one-half feet away from the floor repair site,

"laying on the ground pretty much almost flush against the counter inside Macy's." Rubin indicated that she landed approximately fourteen feet from the repair work after sliding on the tile floor. Miele testified that he asked Rubin "[H]ow did this happen?" to which "she said she didn't really know . . . [A]ll she said [was] that she fell inside Macy's and she wasn't sure where she fell." Miele also testified that the wood planks were flush with the tile floor, having been placed inside the space where tiles had been removed.

Rubin sought to admit one page from her hospital record that noted she reported tripping in a construction area, contending it was a prior consistent statement contained in a business record. The Mall objected to the statement as hearsay, arguing there was no issue as to what caused her injury or medical treatment. The proffered record states in pertinent part:

The patient is a 73 year-old female status post injury to her right shoulder approximately 1 hour prior to arrival in the emergency room. The patient reports she was walking into Macy's and they were doing some construction and she tripped on something which ...


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