On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4774-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2012
Before Judges Fuentes, Grall and Ashrafi.
Plaintiffs Jonathan Vinci and his parents appeal from a judgment after a jury trial dismissing their complaint for personal injuries Jonathan suffered at an after-school event. Defendants school board and parents association cross-appeal from rulings allowing the jury to deliberate on plaintiffs' claims. Because we affirm the jury's verdict, we need not address issues raised on the cross-appeal.
At the time of the slip and fall accident, Jonathan was ten years old and in fifth grade at a public school in Clifton. The Home and School Association (HASA), a not-for-profit organization of parents, sponsored an annual Halloween party called "Family Fun Night" to be held from 7 to 9 p.m. in the school's "all purpose room" (gymnasium/auditorium). HASA arranged for games, snacks, and a disc jockey to entertain the children, and it requested assistance from parent-volunteers to supervise the party along with its own executive board members.
The school principal approved a flyer prepared by HASA to advertise the party, and the flyer was distributed to students during school hours. It included a requirement that "[e]ach child must be accompanied by an adult." In HASA's view, the purpose of this requirement was to ensure that parents would attend and participate in the supervision of their own children. Jonathan's mother, Vincenza Vinci, was under the impression that "accompany means, just bring them there, drop them off, and then you can leave." She believed supervision would be the responsibility of school personnel.
Despite her understanding that she need not stay, Mrs.
Vinci dressed in costume at the urging of her children and remained at the party throughout the evening. She arrived at about 7 p.m. with Jonathan, her four-year-old daughter, her neighbor and the neighbor's son, and another friend of Jonathan. Most of the evening, she stayed with her daughter near a popcorn machine, and she socialized with other parents. Meanwhile, Jonathan played, danced, and moved around the room with friends. From time to time, Mrs. Vinci saw Jonathan running with other boys as they played. The children were active but generally well-behaved, and Mrs. Vinci did not recall anyone admonishing the children for inappropriate conduct. She did not tell him not to run.
Shortly before the party ended, Jonathan was playing tag with other boys. As he ran on the gym floor, he slipped and fell near the stage. Another parent was sitting on the stage and witnessed the fall. The parent and his wife noticed a puddle roughly two to three feet in diameter in proximity of the spot where Jonathan fell. The witness could not say whether Jonathan slipped on the puddle, and he had not seen the puddle before the accident. He testified that at some point during the evening he had noticed some other liquid spills near the snacks table. He was not specific as to the nature of the spills or how long the spills had been there before the accident occurred.
Defense witnesses denied observing any spilled liquids or food on the floor. Mrs. Vinci recalled popcorn kernels and cake crumbs on the floor near where she was standing. She was not aware of spills of water or beverages except for a small "drop" that she cleaned. Also, while Mrs. Vinci estimated about forty adults in attendance, including "perhaps four [or] five" HASA representatives, the school principal recalled there were about ninety adults present, including more than twenty HASA representatives. The other parent who saw the accident estimated about seventy-five adults in attendance.
At the time her son fell, Mrs. Vinci was saying goodbye to other parents. She was alerted to the accident by Jonathan's scream. She hurried to help him and saw a twelve-by-eighteen-inch puddle approximately two feet from where he lay. She had not previously seen the puddle.
In fact, no witness testified at trial or in the course of discovery about seeing the puddle that allegedly caused the fall until after the accident occurred. No one could say how long the puddle had been on the floor. School personnel and representatives of the parents' association testified they had not observed or been made aware of any spills. Consequently, they had not asked a janitor to clean the floor although one was on duty in the school.
Jonathan suffered a displaced fracture of the femur that required surgeries and pins. The injury left him with a scar and allegedly a limp and permanent loss of strength and range of motion of the leg. Nevertheless, he had recovered sufficiently by the time of trial to testify that he felt no serious effects of the injury and that he was playing lacrosse with a team.
Jonathan and his parents filed their complaint in November 2008 against the Clifton Board of Education and HASA,*fn1 alleging a dangerous condition of the school ...