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Feldman v. Outback Steakhouse of Florida, Inc.

Superior Court of New Jersey, Appellate Division

June 12, 2013

GAIL L. FELDMAN, Plaintiff-Respondent,
v.
OUTBACK STEAKHOUSE OF FLORIDA, INC., a/k/a OUTBACK STEAKHOUSE, INC. a/k/a OUTBACK STEAKHOUSE a/k/a OUTBACK MID ATLANTIC-I, L.P., and OSI RESTAURANT PARTNERS, L.L.C., Defendants-Appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 9, 2013

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3786-08.

Norman W. Briggs argued the cause for appellants (Briggs Law Office, L.L.C. attorneys; Mr. Briggs and Adrienne Chapman, on the brief).

Kenneth G. Andres, Jr., argued the cause for respondent (Andres & Berber attorneys; Mr. Andres, Jr., of counsel; Tommie Ann Gibney, on the brief).

Before Judges Reisner, Yannotti and Harris.

PER CURIAM

Defendants Outback Steakhouse of Florida, Inc., Outback Mid Atlantic-I, L.P., and OSI Restaurant Partners, L.L.C., (collectively, defendants or Outback) appeal from a June 8, 2012 judgment awarding plaintiff Gail Feldman $552, 000.93, based on a molded jury verdict in her slip-and-fall case.

On this appeal, defendants contend that the trial judge erred in: giving a spoliation charge based on defendants' failure to produce an incident report concerning plaintiff's fall; excluding evidence that the court found was irrelevant to plaintiff's future wage loss; and calculating past lost wages for purposes of awarding plaintiff pre-judgment interest. Defendants also challenge a July 28, 2010 protective order directing that defendants' counsel return certain privileged materials that plaintiff's counsel inadvertently sent to defendants' insurance company during settlement negotiations. Having reviewed the record, we conclude that the trial court did not abuse its discretion in making the challenged rulings, the verdict was not a miscarriage of justice, and defendants' appellate contentions are entirely without merit. Accordingly, we affirm.

I

Plaintiff filed a complaint alleging that she was severely injured in a fall caused by a defect in the sidewalk outside an Outback Steakhouse restaurant. She presented the following pertinent trial evidence.

On November 24, 2006, plaintiff had dinner at Outback with her friend, Susan Johnson, and Johnson's seven year old daughter, Nicole. After finishing the meal, plaintiff went outside to smoke a cigarette, accompanied by Johnson and Nicole.

Plaintiff moved "to the left to move away from the doors, " Nicole "moved to the right, " and Susan "was behind" plaintiff. Plaintiff "did what [she] normally [does] when [she] smoke[s], " she "saunter[s], . . . move[s], . . . [and] step[s]." Plaintiff "[t]ook a step or two backwards. [Her] heel caught in the sidewalk, in the wedge, the crack, the sidewalk, and [she] went down on [her] left side." She fell "backwards . . . . [o]n [her] left side." As a result of the fall, she was severely injured, and was transported to the hospital from the accident scene by ambulance.

Plaintiff presented the videotaped deposition of board certified orthopedic surgeon Robert Taffet, M.D., to detail the extent of plaintiff's injuries and treatment. According to Dr. Taffet, plaintiff suffered permanent injuries to her hip and leg, had knee and back problems, and required multiple procedures to deal with her injuries. She had a severe hip fracture which required surgery, and she "may eventually need a hip replacement." She also had "multiple fragments, of the . . . top area of the femur, and she sustained lumbar disc herniation." ...


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