NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued December 9, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1593-09.
Christopher F. Struben argued the cause for appellant (Michael A. Percario, LLC, attorneys; Mr. Struben and Roger J. Ermola, II, on the briefs).
Felicia G. Smith argued the cause for respondent Visual E-Fex, LLC (Law Offices of William E. Staehle, attorneys; Ms. Smith, on the brief).
Joseph M. Gaul, Jr., argued the cause for respondent Jeffrey D. Wernes (Gaul, Baratta & Rosello, LLC, attorneys; Mr. Gaul, of counsel and on the brief; Richard J. Isolde, on the brief).
Before Judges Fuentes, Simonelli and Haas.
After plaintiff Anthony Guerriero was struck and injured by a go-kart owned by defendant Jeffery Wernes in the parking lot of Wernes's employer, defendant Visual E-Fex, plaintiff filed a negligence action against Wernes and Visual E-Fex. The matter proceeded to trial, where the trial judge granted Visual E-Fex's motion for an involuntary dismissal of plaintiff's claims against it at the close of plaintiff's evidence. Thereafter, during the presentation of Wernes's case, the judge permitted him to read portions of a discovery deposition of plaintiff's expert to the jury. The jury returned a verdict in favor of Wernes.
Plaintiff has appealed and argues that the judge erred by granting Visual E-Fex's motion to dismiss and allowing his expert's deposition to be presented to the jury. After reviewing the record in light of the contentions advanced on appeal, we affirm the judge's decision to grant Visual E-Fex's motion to dismiss, but reverse and remand the judgment entered in favor of Wernes.
Visual E-Fex owns and operates a commercial signage business in West Linden, where it makes customized signs and also applies vinyl decals to cars and other equipment. The shop is located off Saint Georges Avenue and adjoins a strip mall.
For the three years prior to the incident on August 5, 2008, Visual E-Fex had employed Wernes as "a shop hand." Wernes was responsible for "keep[ing] the order of the shop[, ]" and he also installed signs and lettering, answered the telephone, and dealt with customers. Wernes was not employed to sell go-karts or any other type of vehicle.
In April 2008, Wernes purchased a go-kart from an online dealer. "It came in a paper box" and Wernes had to "put it together" by installing "the wheels and the top part of the cage." As he did so, he "[p]retty much just skimm[ed] through" the manual "to find what I needed." Wernes operated the go-kart sporadically between April and August 2008. He started it about ten times and drove it on only three or four occasions. Wernes testified that the go-kart operated without any problems during the entire period he owned it. It never lunged forward when he started it prior to August 5, 2008.
By July 2008, Wernes had decided to sell the go-kart because he was having financial problems. He placed an ad on Craig's List, but did not receive any viable responses. At the shop, he talked about the go-kart with Albert Angrisani and Paul Deem, the owners of Visual E-Fex. Deem told Wernes that he could park the go-kart in front of the shop in an effort to sell it. Angrisani agreed to this arrangement. Both Angrisani and Deem testified that Visual E-Fex was not in the business of selling vehicles and would not receive any financial or other benefit from permitting Wernes to park the go-kart in the parking lot with a "for sale" sign on it. Because Wernes had never had any mechanical problems with the go-kart, he never informed Angrisani or Deem of any concerns about the vehicle's safety. Neither owner ever touched or operated the go-kart.
Wernes brought the go-kart to the shop three or four days before August 5, 2008. During that time, no one expressed any interest in purchasing it.
In "mid to late July" 2008, plaintiff had dropped off a Fender Stratocaster guitar at the shop to have some "lettering" placed on it. He returned to the shop between 4:30 and 5:00 p.m. on August 5, 2008 to pick up the guitar. Plaintiff did not notice the go-kart when he entered the shop. He brought a case of beer for the owners. Angrisani and plaintiff drank a beer and talked about the guitar ...