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Negligence -Torts - Nunez v. Pino (A-0418-09T2)

DANIEL NUNEZ,Plaintiff-Appellant,

v.

LUIS PINO, ALICIA PINO and CINDY PINO,

     Defendants-Respondents.

Argued April 27, 2010 – Decided May 27, 2010

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-770-08.

G. Martin Meyers argued the cause for appellant (Law Offices of G. Martin Meyers, P.C., attorneys; Mr. Meyers, on the briefs).

 Michael B. Oropollo argued the cause for respondents (Harwood Lloyd, L.L.C., attorneys; Mr. Oropollo, of counsel; Michael A. Augello, Jr., on the brief).

PER CURIAM

In this slip and fall premises liability case, plaintiff Daniel Nunez appeals from the denial of his motion for a new trial following a jurys no-cause verdict finding plaintiff seventy-five percent negligent.  We affirm.

On December 2, 2007, the weather was inclement.  Throughout the day, there had been periods of intermittent snow.  As the evening wore on, however, the weather conditions worsened, and the snow began to fall more steadily.  Sometime that evening, plaintiff, a twenty-year old varsity football player for William Paterson University, arrived at the Paterson home of his girlfriend, Talisa Pino.  The home was owned by defendants, Luis, Alicia, and Cindy Pino, and familiar to plaintiff, who had been dating Talisa for two years.

The couple watched a movie.  Talisas grandfather, defendant Luis Pino, had retired to bed at 10:00 p.m.  Throughout the evening, Talisas mother, Maria Pino, had warned plaintiff that the weather was worsening and that he should think about leaving.  Indeed, plaintiff himself knew it had been snowing for some time.  Shortly before midnight, plaintiffs own grandmother called to tell him to drive home carefully because of the inclement weather.  Ten to fifteen minutes later, plaintiff decided to leave and return home. 

As plaintiff was leaving, Talisa escorted him to the rear exit of the home, where the door was "wide open" with a bucket of salt nearby, and an overhead light illuminated the stairwell.  The couple kissed goodnight in the doorway and plaintiff

went to walk out the stairs and as I took my first step, my left foot came flying out from under me and kind of just took my momentum -- bringing my body straight in the air and my right leg dragging behind me, in which I landed . . . .

Plaintiff did not look down at the stairs before taking his first step, even though he was aware that ice forms under snow.  Nor did he grab the staircase handrails, just three inches past the doorframe, because he "never got a chance to.  As I took my first step to exit the premises, that was it, it was just a split second and I was . . . gone."

After the fall, Talisa observed the stairs covered in snow and ice, and "the blacktop was all covered in snow."  According to Talisa, "the two top steps were covered in light snow.  And under that was ice."  In fact, she was able to see the ice from the doorway "[w]ith the reflection of the light."[1]

Defendants engineering expert, Henry Naughton, had subsequently inspected the scene of the accident and took measurements and photographs of the rear entrance and stairs.  Naughton found the stairs design, with its two handrails, "certainly safe."  He noted that the double spotlight, four-and-one-half inches above the rear doorframe, illuminates the stairs, and if ice is present thereon, "it would certainly reflect it . . . you would look at it and you would see a reflection of a shiny surface."[2]

Plaintiff was in "agony" after the fall.  Talisa and her mother helped bring plaintiff back inside the home where they awaited arrival of an ambulance.  Plaintiff was then transported to the local emergency room around 1:20 a.m., where his ankle was splinted.  Within days, plaintiff had the William Paterson team doctor, an orthopedic surgeon, perform the surgery to repair his broken ankle.  The procedure entailed adding a plate and nine screws to secure the ankle, and a second surgery to remove one of the screws.  According to his medical expert, plaintiff will continue to suffer intermittent pain.

Plaintiff sued defendant homeowners alleging that their negligence in failing to provide a reasonably safe place to visit caused his injuries.  Defendants answered and claimed plaintiff was comparatively negligent.  Following trial, the jury returned a verdict allocating liability seventy-five percent to plaintiff and twenty-five percent to defendants.  Plaintiff appeals, raising the following issues:

I.   THE COURTS DENIAL OF PLAINTIFF-APPELLANTS MOTION IN LIMINE TO BAR REFERENCES TO PLAINTIFFS NONEXISTENT "DUTY" TO SALT AND SCRAPE DEFENDANTS STAIRS IMPERMISSIBLY PREJUDICED PLAINTIFF.

II.  THE COURTS FAILURE TO BAR OR CORRECT THE SURPRISE "FACT" TESTIMONY OF DEFENDANTS "EXPERT", HENRY NAUGHTON, P.E., OR TO INSTRUCT THE JURY TO DISREGARD THE "REVISED" TESTIMONY OF TALISA PINO, HARMFULLY PREJUDICED THE PLAINTIFF.

We reject both contentions.

(I)

Plaintiff argues that comments made at trial about his failure to take affirmative action to remedy the icy condition of the staircase before using it, absent a limiting instruction, amounted to reversible error, as the evidence was irrelevant since plaintiff, as a social guest, had no duty to shovel or salt the stairs.  Illustrative is defense counsels opening statement:

By the way, [plaintiff] never asked -- you know, I know its nasty out here, my grandmother called me and told me it was nasty.  I knew it was adverse conditions.  Did he ask, you know, should I get some salt and throw it down for you?  No.

Counsel thereafter briefly referenced plaintiffs "inaction" during his cross-examination.  We discern no reversible error in these remarks.

It is well settled that a host owes a "limited" duty to a social guest as to conditions of the property.  Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997).  "A host need only warn of dangerous conditions of which [the host] had actual knowledge and of which the guest is unaware."  Ibid.  (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)); see also Berger v. Shapiro, 30 N.J. 89, 97-98, (1959).

A "host need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself."  Berger, supra, 30 N.J. at 97.  The host is under no duty to inspect his or her premises to discover defects which otherwise might not be known to the casual observer.  Id. at 98.  Where a "guest is aware of the dangerous condition or by a reasonable use of his [faculties] would observe it, the host is not liable." Id. at 99.

[Endre, supra, 300 N.J. Super. at 142 (emphasis added).]

Just as a host need not "undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself[,]" Berger, supra, 30 N.J. at 97, neither must a social guest take affirmative action to remedy a dangerous condition on the hosts property.  For present purposes, the crux of the social host premises liability analysis is whether plaintiff, as a social guest, was "aware of the dangerous condition or by a reasonable use of his faculties would observe it," id. at 99, not whether he failed to take affirmative action to cure the defect.

     We agree with defendants that evidence of whether plaintiff felt it unnecessary to salt or shovel himself has a tendency to show that defendants had no knowledge of the conditions superior to that of plaintiff, who was obviously in a better position to observe the staircase as he stood in the open doorway, or, at the very most, that defendants possessed knowledge equivalent to that of plaintiff.  As such, defendants had no duty to warn plaintiff of, on the one hand, dangerous conditions of which they had no actual knowledge, or on the other hand, conditions that were patently obvious.  Endre, supra, 300 N.J. Super. at 142; see also Berger, supra, 30 N.J. at 99.

Most significant, the limited references to plaintiffs inaction were not presented as a "duty" owed by plaintiff, but rather evidential of defendants claim that plaintiff was comparatively negligent in not taking proper precautions in descending the rear steps.  N.J.S.A. 2A:15-5.2a.  As noted,

where a "guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable."  Berger, supra, 30 N.J. at 99 (emphasis added).  Here, there was ample testimony from which it may be inferred that plaintiff knew or should reasonably have known of the icy condition of the rear stairs.  It had been snowing for quite some time.  Plaintiff knew that ice forms under snow.  The ice was, in fact, illuminated by the lighting over the doorway.  The condition of the staircase was plainly visible to plaintiff through both the windows and open doorway.  Yet, confronted with the patently obvious, plaintiff nevertheless failed to look down, grab the handrail, or take any other precautionary measures before stepping outside.  Such evidence of plaintiffs actions or "inactions" was properly admitted and clearly supports the jurys finding that he was seventy-five percent at fault.

As the trial judge reasoned in denying plaintiffs motion for a new trial:

[T]he issue in the case before this [c]ourt is the duty owed to a social guest by a homeowner.

     The host need only know what dangerous conditions of which the host had actual knowledge, and of which the guest is unaware.

     The social guest is entitled to the same knowledge possessed by the host of dangerous conditions and should not be expected to assume the risk of such conditions in the absence of a warning.

     If, however, the guest is aware of the dangerous condition, or by reasonable use of his faculties would observe it, the host is not liable because of the guests failure to use due care.

     It was shown that plaintiff knew that it had been snowing for a period of time before he left the Pino residence because Maria Pino, Talisa Pinos mother, warned the plaintiff that it was very windy out and that the snow was falling. 

     Additionally, the plaintiff was aware that it was snowing heavily because his grandmother called him and told him the weather was getting bad, and that he should think of coming home.

     The plaintiff left the Pino residence within 15 minutes of receiving his grandmothers phone call.  The plaintiff testified he decided to leave the Pino residence because of the snow and the bad weather conditions.  The plaintiff also testified he expected some adverse conditions when he left the Pino residence. 

     The facts of this case are not analogous to those in [Warshany v. Supermarkets General Corp., 161 N.J. Super. 515 (Law Div. 1978)], [because in] the case before this [c]ourt a jury could reasonably find that plaintiff possessed the same knowledge as the defendants about the possible dangerous conditions caused by the snowstorm.

     On the other hand, in Warshany, the plaintiffs only means of obtaining similar knowledge would have been her observance of a supermarket employee with a mop in the aisle where she eventually fell.

     . . . .

     It is clear based on the evidence presented at trial that it is reasonable for the jury to reach the percentages it did in this case. 

     . . . Through testimony and trial exhibits it was established that the plaintiff could have avoided the accident if he had exercised due care upon leaving the Pino residence.

     The defense evidence showed that he was warned by Talisa Pino, Maria Pino, [and] his own grandmother that the weather was getting bad.  There was a properly functioning handrail available to him that he did not use, and the condition of the stairs was observable through the door, and was observable again when the door was opened.

     Based upon these facts adduced at trial the jurys cause of negligence was rationale and reasonable.

     The jury verdict on the comparative negligence issue was rational . . . and reasonable in light of the evidence educed at trial.

     . . . .

     The jurys finding that it was the plaintiffs own negligence [in] failing to use due care upon leaving the Pino residence [that] was the overwhelming proximate cause of this accident is supported by the weight of the evidence adduced at trial.

We agree.

In any event, to the extent that defense counsels references to plaintiffs failure to salt or shovel the stairs wrongly implied an affirmative duty on his part, plaintiffs counsel forcefully and effectively countered any such misimpression in his closing argument:

This idea that Daniel should have done something himself.  He should have been the one to clear the ice and snow.  So . . . thats their standard of reasonableness, that somehow this was his obligation.

     Well I submit to you, ladies and gentlemen, when you hear [the judge] explain the law to you at the end of this case youre gonna realize without any question, Daniel Nunez had no obligation.  He was not the owner of this property.  He had no obligation to clear that ice and snow himself.

     So even though its something that Im sure he would have been absolutely happy to do, he had no legal obligation.  So . . . what he did or didnt do cant be the basis for any negligence on his part.

Moreover, the court properly charged the jury on defendants legal duty as a host to a social guest and plaintiff has not claimed any error in the judges jury charge.  We presume the jury followed the courts instructions.  State v. Burns, 192 N.J. 312, 335 (2007).  Under the circumstances, we discern no error in counsels reference to plaintiffs omission.   

(II)

Plaintiff next claims that there were discrepancies between the trial testimonies and out-of-court pre-trial statements of Talisa and the engineering expert, and that the expert expanded his testimony to corroborate that of Talisa.  According to plaintiff, these deviations amounted to "trial by ambush."  These claims are without merit, and were convincingly rejected by the trial judge in his denial of plaintiffs new trial motion:

Here, neither Talisa Pino, nor defendants liability expert, . . . in this [c]ourts opinion, materially changed their testimony.

     The opinion expressed by [the expert] was the same as the one contained within his report.  He did not expand or change anything material at trial.

     Likewise, Talisa Pinos trial testimony was no different than [what] she stated at her deposition.  And the deposition testimony was read to the jury, and the jury heard her trial testimony, and they could weigh whatever differences they deemed necessary.

    

The assertion that [the expert] expanded his testimony beyond the parameters of his expert report to introduce a new reflection issue is not a valid argument in this courts opinion.  In his report [the expert] opined the spot lights above the door illuminated the steps and were on at the time of [plaintiffs] accident.

     In his report [the expert] states that, "The condition of the steps was observable through the doorways and . . . was observable again when the door was opened.  Even though snow on the steps was observable and it was snowing, [plaintiff] decided to go from the door to the steps without using either handrail or the door framing for his stability."

     [The expert] opined in his report and at trial that, "The condition of the stairs was observable to the plaintiff as he was exiting the defendants house."

     . . . .

    

To this court [the experts trial testimony was] not a new opinion as compared to what was written in his report of any material significance.

     . . . The fact that the word illuminate [is] in his report and the word reflect [was used] at trial does not constitute a material change in testimony.

     [The experts] opinion expressed in his report and at trial was that the condition of the stairs was observable to the plaintiff as he was exiting the defendants house.

     Also, in this [c]ourts opinion, the fact that there was a light above ice, if ice was there, would create a reflection is arguably not even an expert opinion, and therefore it cant be a changed expert opinion if thats just a laypersons opinion or observation to begin with.

     . . . .

     For the above reasons, plaintiffs application is denied.

     . . . .

     . . . Also, just one comment that this jury was very aware that [the expert] wasnt there the date of this particular occurrence, and that he had subsequently been retained to go there to do an examination of the steps.

     So this jury knew that he did not know exactly what was there, and he was just gleaning information from documents, and the jury was aware of what documents he gleaned that information from.

 

We agree and affirm on this issue substantially for the reasons stated by the trial judge in his oral opinion of August 27, 2009, denying plaintiffs motion for a new trial.

 
     Affirmed.



[1] In her deposition, Talisa testified that "the top two [steps] looked like they were clear, but thats where there was ice."  When asked whether "it would be fair to say it was like an invisible sheet of ice[,]" she stated "[y]es, but you could see the weather, like there was snow covering everything else."

[2] In his expert report, Naughton concluded:

The condition of the steps was observable through the door glazing and was observable again when the door was opened.  Even though snow on the steps was observable and it was snowing, Mr. Nunez decided to go from the door to the steps without utilizing either handrail or the door framing for stability.

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