indicating that a denial of summary judgment "preserves rather than resolves issues; therefore, later reconsideration of matters implicated in the motion, including the reasons in support of the denial, are not precluded"
How later courts described this case
- indicating that a denial of summary judgment "preserves rather than resolves issues; therefore, later reconsideration of matters implicated in the motion, including the reasons in support of the denial, are not precluded"
- stating that an electrical transformer was not a "natural" condition on the land
- indicating that shrubbery that was planted A-1417-16T4 7 and did not naturally grow was considered "artificial"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1417-16T4
STACI PIECH,
Plaintiff-Appellant/ APPROVED FOR PUBLICATION
Cross-Respondent,
October 19, 2018
v. APPELLATE DIVISION
GLENN LAYENDECKER,
Defendant-Respondent,
and
JOHN LAYENDECKER,
Defendant-Respondent/
Cross-Appellant,
and
ANN LAYENDECKER,
Defendant.
______________________________
Argued October 1, 2018 – Decided October 19, 2018
Before Judges Fasciale, Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-3473-14.
John R. Gorman argued the cause for appellant/cross-
respondent Staci Piech (Lutz, Shafranski, Gorman and
Mahoney PA, attorneys; John R. Gorman, of counsel
and on the brief).
David P. Skand argued the cause for respondent Glenn
Layendecker (Eckert Seamans Cherin & Mellott, LLC,
attorneys; Robert P. Zoller, of counsel and on the
brief; David P. Skand, on the brief).
John A. Camassa argued the cause for respondent/
cross-appellant John Layendecker (Camassa Law
Firm, PC, attorneys; John A. Camassa, of counsel;
Christopher M. Brady, on the brief).
The opinion of the court was delivered by
FASCIALE, J.A.D.
This personal injury social-guest liability case deals with flawed jury
charges, the erroneous admission of subjective lay opinion testimony into
evidence, the proper denial of summary judgment, and the inapplicability of
the law of the case doctrine.
Plaintiff Staci Piech was attending a fortieth birthday party hosted by
John Layendecker (John) for his son Glenn Layendecker (Glenn) (collectively
defendants). Plaintiff – an innocent bystander – sustained permanent nerve
damage and scarring when an eighteen-to-twenty inch thin hollow metal pole –
that Glenn used to strike a piñata – broke off and struck her arm (the incident).
The injury was completely unrelated to any dangerous condition or defect on
the property itself.
A-1417-16T4
2
Plaintiff appeals from a judgment of no cause of action, and from an
order denying her motion for a new trial. John cross-appeals from an
interlocutory order denying his motion for summary judgment, and from the
trial judge's oral refusal to apply the law of the case doctrine. We agree with
plaintiff's primary contentions that the judge provided flawed jury instructions
on the issue of John's standard of care, and that the judge erred by allowing
Glenn, and other eyewitnesses, to opine that they subjectively believed the
incident was essentially unforeseeable.
Here, as to the host's standard of care owed to plaintiff, the judge
charged both Model Jury Charges (Civil), 5.20F(4), "Social Guest – Defined
and General Duty Owed" (rev. Dec. 2014) (the Model Charge), and Exception
(2) to the Model Charge. That exception states that "[i]n cases where the host
is conducting some 'activity' on the premises at the time of [the] guest’s
presence, [the host] is under an obligation to exercise reasonable care for the
protection of [the] guest."
We hold that when a plaintiff sustains an injury resulting solely from an
"activity" on the host's property – as opposed to an injury caused by a
combination of that activity and a physical dangerous condition on the
property – then the judge should only charge Exception (2). Here, as to the
host's standard of care owed to plaintiff, it was improper for the judge to
A-1417-16T4
3
instruct the jury in accordance with the Model Charge that John had a general
duty to warn against dangerous conditions to the property itself, and also
charge Exception (2).
Thus, on plaintiff's appeal, we reverse the judgment and remand for a
new trial on all issues. We otherwise affirm on John's cross-appeal.
I.
Plaintiff maintains that this case does not involve injuries caused by the
existence of a dangerous physical condition on John's property. If that were
the case, then the judge would have been obligated to give the standard social
guest premises liability jury charge – the Model Charge. But plaintiff
contends – as she maintained at trial – that her injuries did not stem from a
dangerous physical condition on the property, but solely from the piñata
activities that John hosted in his backyard. Plaintiff argues that this difference
required the judge to charge the jury with only Exception (2) – that John failed
to use reasonable care for her protection.
In a typical case involving allegations that a social guest sustained
injuries due to a dangerous condition on a landowner's property, a judge , as
here, would give this charge:
A social guest is someone invited to . . . her
host's premises. The social guest must accept the
premises of . . . her host as . . . she finds them. In
other words, the host has no obligation to make his . . .
A-1417-16T4
4
home safer for his . . . guest than for himself . . . . The
host also is not required to inspect his . . . premises to
discover defects that might cause injury to his . . .
guest.
If, however, the host knows or has reason to
know of some artificial or natural condition on the
premises which could pose an unreasonable risk of
harm to his . . . guest and that his . . . guest could not
be reasonably expected to discover it, the owner . . .
owes the social guest a duty to exercise reasonable
care to make the condition safe or to give warning to
his . . . guest of its presence and of the risk involved.
In other words, although a social guest is required to
accept the premises as the host maintains them, . . .
she is entitled to the host's knowledge of dangerous
conditions on the premises. On the other hand, where
the guest knows or has reason to know of the
condition and the risk involved and nevertheless
enters or remains on the premises, the host cannot be
held liable for the accident.
[Model Jury Charges (Civil), 5.20F(4), "Social
Guest."]
In appropriate cases, the judge would add the following language:
If you find that the property owner . . . (1) knew
or had reason to know of the dangerous or defective
condition, (2) realized or in the exercise of reasonable
foresight should have realized it involved an
unreasonable risk of harm to the guest, (3) had reason
to believe the guest would not discover the condition
and realize the risk, and (4) failed to take reasonable
steps to protect the guest from the danger by either
making the condition safe or warning the guest of the
condition and the risk involved, you may find the host
negligent under the circumstances. If, however, you
find that the defect was obvious and the owner . . . had
reason to believe the social guest would be aware of
A-1417-16T4
5
the defect and the risk involved, you must find the
host was not negligent even though an injury occurred.
[Ibid.]
But there are exceptions to this general duty of care. One such exception is
when – like here – a plaintiff suffered injuries from an activity on the property,
rather than from a dangerous condition on the property itself.
Plaintiff argues that John's duty arose from the activity that he sponsored
and conducted in his backyard, not from a static dangerous condition on the
property. Relying on Hanna v. Stone, 329 N.J. Super. 385 (App. Div. 2000),
plaintiff repeats her argument that the only applicable charge as to John's
standard of care is contained in Exception (2). Hanna instructs that where the
focus is not on a physical condition of the property, but instead, on activities
conducted thereupon, "the person conducting the activity" has the duty to use
reasonable care. Id. at 389. In Hanna, the defendants hosted a party, mainly in
their basement, for their son's birthday, which approximately thirty teenagers
attended. Id. at 388. One of the boys at the party sustained injuries during a
fight. Id. at 388, 390. The parents of the injured boy sued the defendants and
asserted that they negligently supervised the guests. Id. at 389. We concluded
that "the duty of the person conducting [an] activity [on his or her premises],
such as parents sponsoring a party for their son, is 'simply to use reasonable
A-1417-16T4
6
care in all the circumstances.'" Ibid. (quoting Cropanese v. Martinez, 35 N.J.
Super. 118, 122 (App. Div. 1955)).
Here, the activity involved swinging at the piñata at the birthday party
that John hosted in his backyard. Glenn initially used a wiffle-ball bat. Then
he used the thin metal pole – allegedly handed to him by John – which plaintiff
argues was not intended for that purpose. As Glenn swung at the piñata
multiple times, the pole began failing by bending more and more. His repeated
striking of the piñata finally snapped the pole, causing it to helicopter towards
plaintiff. Plaintiff argues that John failed to use reasonable care by protecting
her from the activity, such as by stopping Glenn from swinging at the piñata.
Plaintiff sustained injuries solely because of the activity of striking the pole
against the piñata – not because of a static dangerous condition of the property
itself.
We reject John's argument that the piñata set-up constituted an artificial
dangerous condition warranting a 5.20F(4) charge. Hanging a piñata from a
tree is not the type of artificial dangerous condition generally contemplated by
our case law. Our courts have distinguished naturally occurring dangerous
conditions from artificial dangerous conditions mostly in the attractive
nuisance or trespasser contexts. See, e.g., Scannavino v. Walsh, 445 N.J.
Super. 162, 168 (App. Div. 2016) (indicating that shrubbery that was planted
A-1417-16T4
7
and did not naturally grow was considered "artificial"); Wytupeck v. Camden,
25 N.J. 450, 463-64 (1957) (stating that an electrical transformer was not a
"natural" condition on the land).
We see no legal support for John's contention that the piñata was an
"apparatus" that rendered it a dangerous artificial condition. The Restatement
(Second) of Torts makes a distinction between "activities" and "conditions."
A possessor of land is subject to liability to his
invitees for physical harm caused to them by his
failure to carry on his activities with reasonable care
for their safety if, but only if, he should expect that
they will not discover or realize the danger, or will fail
to protect themselves against it.
[Restatement (Second) of Torts: Activities Dangerous
to Invitees § 341A (Am. Law Inst. 1979) (emphasis
added).]
A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land
if, but only if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it
involves an unreasonable risk of harm to such
invitees, and
(b) should expect that they will not discover or realize
the danger, or will fail to protect themselves against it,
and
(c) fails to exercise reasonable care to protect them
against the danger.
A-1417-16T4
8
[Restatement (Second) of Torts: Dangerous
Conditions Known to or Discoverable by Possessor §
343 (Am. Law Inst. 1979) (emphasis added). 1]
Moreover, the set-up of the piñata had nothing to do with the cause of
plaintiff's injuries. She stood on a deck in the backyard – several feet away
from the piñata. We might conclude otherwise had the piñata apparatus fallen
on plaintiff – prior to or during Glenn swinging the pole. In that hypothetical
situation, the set-up design of the piñata might arguably be considered an
artificial dangerous condition. But there is no evidence that the piñata was
erected negligently. We must draw the distinction between cases that involve
injuries sustained due to physical dangerous conditions on the land –
irrespective of whether the condition is natural or artificial – and ones, like
this, which purely involve an injury caused by an activity that the host
conducted or sponsored on his land.
This court has explained that the term "dangerous condition" refers t o
"physical conditions of the property itself and not to activities conducted on
the property." Roe v. N.J. Transit Rail Operations, Inc., 317 N.J. Super. 72, 79
1
In Scannavino, 445 N.J. Super. at 172-73, we recognized that the Court has
yet to adopt the Restatement (Third) of Torts. We note, however, that
Restatement (Third) of Torts: General Duty of Land Possessors § 51 (Am. Law
Inst. 2012) also draws a distinction between "conduct" by the land possessor
and "conditions" on the land. (Emphasis added).
A-1417-16T4
9
(App. Div. 1998). "It is well-settled that a dangerous condition of property
may be found to exist when an unreasonable risk of harm is created by the
combination of a defect in the property itself and the acts of third parties."
Ibid. But this would require a combination of a defect in the property itself
and a third party's action. Such is not the case here. Instead, the dangerous
activity that caused plaintiff's injury was an activity conducted by a person on
the land. In that context, "the social guest upon real property could recover for
negligence in affirmative acts or conduct of the host, as distinguished from the
condition of the premises themselves." Cohen v. Kaminetsky, 36 N.J. 276,
279 (1961).
Over the objection by plaintiff's counsel, the judge instructed the jury on
the general social guest standard of care, as if plaintiff suffered an injury due
to a dangerous condition that existed on John's property. But, again, there was
no evidence whatsoever that the physical condition of the property itself had
anything to do with the injury. The judge then instructed the jury on the
standard of care as if the activity caused the injury.
These instructions contradicted each other. After all, the charge
applicable to injuries sustained due to activities on property is an exception to
the general social-guest charge. In this case, the idea was not to give both
charges simultaneously, especially because plaintiff never alleged – and there
A-1417-16T4
10
is no evidence in the record to suggest – that any kind of dangerous condition
existed on the property.
Had the jury received the correct charge, they would have focused solely
on whether John failed to use reasonable care under the circumstances. The
charge as given, however, also required the jury to evaluate a non-existent and
unalleged dangerous physical condition. It is probable that giving both
charges confused the jury, required that the jury apply different standards of
care, and produced an unfair outcome.
Jury charges are essential to a fair trial. Velazquez v. Portadin, 163 N.J.
677, 688 (2000). "Our law has long recognized the critical importance of
accurate and precise instructions to the jury." Washington v. Perez, 219 N.J.
338, 350 (2014). Without a proper jury charge, a jury will not have a proper
road map to guide them in their deliberations. Das v. Thani, 171 N.J. 518, 527
(2002).
We recognize that not all errors in a jury charge inexorably require a
new trial. We must consider the charge as a whole, whether counsel voiced
any contemporaneous objection, see Rule 1:7-2, and the likelihood that the
flaw was so serious that it was likely to have produced an unfair outcome.
Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002). The jury charge as given –
both for a non-existent dangerous condition on the land and for an activity on
A-1417-16T4
11
the property – was contradictory and misleading, creating the capability to
confuse the jury as to the central issue in the case, which is determinative to a
finding of liability. Because of this, the judge erred by simultaneously giving
these charges, and should have only provided the jury with Exception (2) of
the 5.20F(4) charge.
II.
We now turn to a substantial evidentiary error, which permitted several
witnesses to give subjective lay opinion testimony. Plaintiff contends that the
judge erroneously allowed these witnesses to testify as to their opinions
regarding the incident's foreseeability. The judge stated that he would permit
the witnesses to testify as to their subjective opinions regarding using the
metal pole to strike the piñata, but barred counsel from specifically using the
word "foreseeable" when questioning the witnesses.
Glenn and other witnesses, however, testified that the incident was
essentially unforeseeable. Glenn testified that what he was doing was not
dangerous and that he had no concerns using the metal pole. An eyewitness to
the incident opined that he had no safety concerns as he watched Glenn
repeatedly strike the piñata with the metal pole, even as he observed the pole
bend. Another person who watched Glenn use the pole testified that he
believed Glenn was not engaged in a dangerous activity, and that after he
A-1417-16T4
12
observed the pole bending, he subjectively "never thought [the pole] would
snap." This testimony – at a minimum – expressed their collective and
individual opinions that the incident was unforeseeable. The defense then used
plaintiff's deposition testimony on the subject of whether she thought the
incident was foreseeable.
In accordance with Model Jury Charges (Civil), 5:10B, "Foreseeability
(As Affecting Negligence)" (approved before 1984), the judge charged the jury
on foreseeability, which obviously does not require the jury to address the
subjective beliefs of these eyewitnesses to the incident. Rather, under this
model charge, the jury is required to use an objective standard. As to
negligence, foreseeability, and proximate cause, the judge instructed the jury:
[I]f an ordinary person[,] under [similar]
circumstances . . . and by using ordinary care could
have foreseen the result that is – that some injury or
harm or damage would probably occur and either
would not have acted or[,] if he did act[,] would have
taken precaution to avoid the result, [then the
performance of the act or the failure to take such
precautions would constitute negligence.]
....
. . . You must also find that some harm [to
plaintiff] must have been foreseeable. For the harm to
be foreseeable, it is not necessary that the precise
harm that occurred here was foreseeable by either or
both defendants, but the question is could a reasonable
person have anticipated the risk that his conduct or
omission could cause some harm to a guest.
A-1417-16T4
13
In other words, if some harm from a particular
defendant's conduct was within the realm of
reasonable foreseeability, then the harm is considered
foreseeable. But if the risk of harm was so remote [as]
not to be in the realm of reasonable foreseeability, you
[must] find no proximate cause.
[Emphasis added.]
The improper subjective opinion testimony about whether the activity was
dangerous or whether the pole would snap – which plaintiff's counsel sought to
exclude in an in limine motion – went to the heart of defendants' negligence
and whether the incident was objectively foreseeable. Such a determination is
for the jury to decide using the ordinary reasonable person standard. Instead,
the jury might have determined foreseeability by weighing subjective opinion
testimony from at least three witnesses about whether those witnesses believed
it was unlikely that the pole would snap.
We recognize that "[e]videntiary decisions are reviewed under the abuse
of discretion standard because, from its genesis, the decision to admit or
exclude evidence is one firmly entrusted to the trial court's discretion." Estate
of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).
"Under this standard, 'an appellate court should not substitute its own
judgment for that of the trial court, unless the trial court's ruling was so wide
of the mark that a manifest denial of justice resulted.'" Hanisko v. Billy
A-1417-16T4
14
Casper Golf Mgmt., Inc., 437 N.J. Super. 349, 362 (App. Div. 2014) (quoting
State v. Brown, 170 N.J. 138, 147 (2001)).
We conclude that the judge abused his discretion by permitting the
subjective opinion testimony. It was irrelevant, conflicted with the charge on
foreseeability, and violated N.J.R.E. 701 (stating that a lay witness may testify
"in the form of opinions or inferences . . . if it (a) is rationally based on the
perception of the witness and (b) will assist in understanding the witness'
testimony or in determining a fact in issue"). The testimony that swinging the
metal pole was not dangerous – especially the witnesses' subjective belief that
the pole would not snap after Glenn bent the pole by repeatedly striking the
piñata – would not assist the jury in determining whether an ordinary
reasonable person could have objectively foreseen the incident. If anything,
that evidence, especially considered together with the summations by
defendants' counsel, most likely led to the jury's finding of no negligence and
that the incident was unforeseeable.
Thus, we reverse as to Glenn because of this improper testimony
regarding foreseeability.
III.
On John's cross-appeal, he argues that a prior judge erred by denying his
summary judgment motion. If we agree with plaintiff's contentions that fact
A-1417-16T4
15
issues precluded summary judgment, and that the judge erred by giving a
flawed jury charge, then John argues that the trial judge committed additional
error by not applying the law of the case doctrine to the prior judge's rationale
for denying summary judgment. As to this last point, John contends that if
plaintiff is granted a new trial, the question of his negligence should be limited
to whether he handed Glenn the pole, as the judge who denied his dispositive
motion seemed to suggest.
On his cross-appeal, we conclude that John's arguments are without
sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We
add the following brief comments.
Fact issues defeated summary judgment to John. And the prior judge's
reasons for denying John's summary judgment motion are not binding on the
trial judge. John's prior motion was for summary judgment, not to limit
plaintiff's trial theory of liability. Such an application would have been denied
because plaintiff's theory of liability – as the evidence at trial showed – was
that John failed to use reasonable care by, at a minimum, not only giving
Glenn the thin hollow metal pole to strike the piñata, but also by failing to
supervise the activity itself, especially when the pole began to bend. The only
ruling the earlier judge made was to deny summary judgment to John. The
earlier judge's reasons for denying summary judgment do not bind the trial
A-1417-16T4
16
judge. Plaintiff's liability theory against John at trial – and the additional
evidence adduced at trial – went beyond merely handing a pole to Glenn.
Moreover, denial of summary judgment preserves the issue for trial. See, e.g.,
Blunt v. Klapproth, 309 N.J. Super. 493, 504 (App. Div. 1998) (indicating that
a denial of summary judgment "preserves rather than resolves issues;
therefore, later reconsideration of matters implicated in the motion, including
the reasons in support of the denial, are not precluded").
The law of the case doctrine generally prohibits a second judge, in the
absence of additional developments or proofs, from differing with an earlier
ruling. The doctrine is a non-binding rule intended to prevent re-litigation of a
previously resolved issue. Lombardi v. Masso, 207 N.J. 517, 538 (2011). "A
hallmark of the law of the case doctrine is its discretionary nature, calling upon
the deciding judge to balance the value of judicial deference for the rulings of
a coordinate judge against those factors that bear on the pursuit of justice and,
particularly, the search for truth." Little v. KIA Motors Am., Inc., 425 N.J.
Super. 82, 92 (App. Div. 2012) (citations and internal quotation marks
omitted). The trial judge did not abuse his discretion by rejecting John's
request to apply the doctrine.
Reversed in part; affirmed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
A-1417-16T4
17