"When there is an error in the verdict sheet, but the trial court's charge has clarified the legal standard for the jury to follow, the error may be deemed harmless."
How later courts described this case
- "When there is an error in the verdict sheet, but the trial court's charge has clarified the legal standard for the jury to follow, the error may be deemed harmless."
- noting the jury is presumed to have understood the judge's instructions
- "An issue not briefed on appeal is deemed waived."
- noting, when a party fails to object, the reviewing court must determine whether any error was clearly capable of producing an unjust result
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0539-22
ROSE MARIE PIETROBON,
individually, and by and
through her guardian/guardian
ad litem, JASMINE
PIETROBON,
Plaintiffs-Respondents,
v.
THE HANOVER MANOR
and K & A REALTY,
Defendants-Appellants.
____________________________
Argued March 6, 2024 – Decided March 21, 2024
Before Judges Firko and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-2694-17.
John C. Simons argued the cause for appellants
(Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys; Richard J. Mirra, of counsel and on the
briefs; Amelia Rose Lyte, on the briefs).
Andrew Alexander Fraser argued the cause for
respondents (Laddey, Clark & Ryan, LLP, attorneys;
Timothy Edward Dinan, on the brief).
PER CURIAM
In this slip and fall case, defendants The Hanover Manor and K & A Realty
appeal from a jury verdict in favor of plaintiff Rose Marie Pietrobon1 awarding
her $4,709,918.44 based on a molded verdict. On appeal, defendants contend
that the trial judge erred: in permitting defendants' witnesses to be questioned in
a way that suggested they intentionally destroyed evidence; in giving an adverse
inference charge to the jury; in allowing plaintiff's experts to testify about her
subjective complaints of fear; in permitting plaintiff to read the hearsay
statement of a deceased witness into evidence; in forbidding questioning of
plaintiff's mother Marie Pietrobon 2 regarding plaintiff's Social Security
Disability (SSD) status; and not delineating between ordinary negligence and
mode-of-operation on the verdict sheet. We reject defendants' arguments and
affirm.
1
We refer to Rose Marie Pietrobon as "plaintiff" in our opinion even though
the second amended complaint names her and her guardian ad litem, Jasmine
Pietrobon, as plaintiff.
2
Individuals who share a last name with plaintiff and other individuals are
referred to by their first names for ease of reference. By doing so, we intend no
disrespect.
A-0539-22
2
I.
We summarize the evidence and procedural history pertinent to the issues
raised on appeal. The facts, although disputed in several reports, are relatively
uncomplicated.
The Accident
Plaintiff is a sixty-five-year-old woman who has been developmentally
disabled since birth. She resides with her parents and her sister Jasmine. On
May 3, 2015, plaintiff attended a party hosted by the Ripa family at The Hanover
Manor. There was a self-service cocktail hour that lasted from 2:00 p.m. to 3:00
p.m. followed by a sit-down meal served by wait staff. The dance floor was
open between courses. Marie testified at her deposition that the cocktail hour
included "watermelon . . . grapes, . . . strawberries, a[nd] cantaloupe."3 The wait
staff cleaned up the cocktail hour buffet after the cocktail hour ended and cleared
away the plates and food on the tables.
Michael Iuspa,4 a guest at the party, testified at his deposition that he saw
plaintiff get up from her table to join another woman on the dance floor when
3
A video of Marie's deposition was played for the jury at trial in lieu of live
testimony due to her age and illness.
4
Due to his age, a video of Iuspa's testimony was played for the jury in lieu of
live testimony.
A-0539-22
3
she "stepped on [something] and . . . fell pretty hard" on a "grape" or "some
melon." Iuspa testified the fruit was squashed and you could see that someone
"pressed on it." He saw the fruit when plaintiff "fell down" and testified it came
from the self-service buffet and testified he saw other guests pick her up and put
her on a chair. Marie ran to plaintiff after she fell, who was "hysterically
crying," and touching her left leg. Plaintiff fell after the dinner course ended,
between 5:00 p.m. and 5:30 p.m. The dancing stopped and everyone was being
attentive to plaintiff. Marie testified she observed a man "cleaning" the dance
floor after plaintiff fell.
Jasmine received a phone call about plaintiff's accident and drove to the
party to bring her home. At the time, Jasmine did not realize that plaintiff had
a fractured hip. Several guests helped plaintiff stand up so she could get into
Jasmine's car. Defendants claimed that plaintiff tripped over her own feet rather
than on a piece of fruit based largely on the disc jockey Louis Arico's testimony
that he "was right there" when plaintiff fell, and saw her fall "after dinner."
According to Arico, plaintiff "g[o]t up and c[a]me towards the dance floor and
tripped" on "[h]er feet." He "d[id]n't see anything that was on the floor."
Debbie Ricigliano, The Hanover Manor's former manager, prepared an
incident report regarding plaintiff's fall, which had been "thumb-tacked to a
A-0539-22
4
bulletin board in [her] office for a period of time." Steve O'Sullivan, the maître
d', testified at his deposition that he didn't know what happened to the incident
report but recalled it included the time, date, and apparently anything anyone
interviewed could recollect about the incident, such as how it happened and the
timing. O'Sullivan testified the incident report contained phone numbers and
names of witnesses. He had "no idea" what happened to the surveillance video
that captured plaintiff's fall but had the opportunity to review it "for three, four
minutes" and admitted he was unable to ascertain what caused plaintiff to fall.
O'Sullivan stated the video showed plaintiff dancing, and it appeared to
him that "she just fell backwards, as if she just tripped." O'Sullivan testified
wait staff are not allowed to serve food across the dance floor "because of
spillage" and confirmed the floor is "marble, granite." In terms of training,
O'Sullivan testified the wait staff undergo "hands on" training and are taught
"how to spot for any spills."
John Tsanakos, a manager at the facility, testified at his deposition that he
was "part of" the training of new wait staff. Tsanakos testified the policy at The
Hanover Manor is "[if] you drop something, you pick it up right away," or within
"[f]ive minutes max," and they "never left anything on the floor." During the
cocktail hour, Tsanakos testified he "would always walk around the area to make
A-0539-22
5
sure there's no accident-prone situation," and he was in and out of the room
where the party was held but did not see plaintiff fall. He thought she was fine
because "she literally walked out" and "was not carried out."
Upon learning plaintiff fell, Tsanakos went over to her and testified "[i]t
didn't seem like nobody was hurt." He inspected the area where plaintiff fell
and everything "was fine, nothing was on the floor," so he left and "went to the
office to check the video." Tsanakos explained the video was a constant
recording and after a week, "it would just loop over the old video." He did not
save the video footage of plaintiff's fall. Tsanakos testified he watched the video
and "remember[ed] seeing [plaintiff] dancing and her stumbling and falling . . .
back." He stated an incident report was created and "was put on [Ricigliano's]
board for a while" and he "remember[ed] seeing it," but the incident report did
not contain any information about fruit being on the floor.
However, Tsanakos testified he recalled supplying plaintiff with a
"template" of the incident report form during discovery and confirmed the form
asks for the "date, location, description of the incident, weather conditions,
walking surface condi[tions] as well as when and how the incident occurred."
He also remembered receiving a letter on July 9, 2015, from plaintiff's former
counsel notifying him to maintain all videos and incident reports and testified
A-0539-22
6
the incident report was still on the bulletin board when he received the letter.
At the time of trial, Tsanakos testified he didn't know what happened to the
incident report.
Plaintiff's Injuries and Surgery
Four days later after the accident, plaintiff was transported to the hospital
for an evaluation. Plaintiff underwent an X-ray and was diagnosed with a "100
percent displaced femoral neck fracture" and required a partial hip replacement
as noted by her orthopedic surgeon, Dr. Mark Berman. On May 8, 2015,
plaintiff underwent surgery. Following the surgery, she had a significant leg
length discrepancy, with her left leg being longer than the right leg.
Following her surgery, plaintiff was hospitalized for over a week. She
was transferred to Daughters of Israel for in-patient rehabilitation for a month
before coming home. Plaintiff continued with outpatient physical therapy, but
it didn't improve her condition.
Barbara Carpenito's Handwritten Statement
On December 7, 2015, witness Barbara Carpenito, a guest at the party,
prepared a handwritten statement, at the behest of plaintiff's counsel, in which
Carpenito was asked:
A-0539-22
7
Question No. 3:
Q[:] "Did you witness the accident in question?
If you did witness the a[ccident] in question, please
describe the events in detail as they occurred, to the best
of your knowledge?
A[:] Carpenito responded "yes" and responded:
[Plaintiff] got up and stepped on the dance floor and
slipped on something on the floor, and fell
immediately."
Question No. 7:
Q[:] "Was there something on the floor that
caused [plaintiff] to fall? If yes, please decide what it
was, including the size, shape, and consistency.
A[:] Not sure what it was, but there was something,
food possibly, squashed on the floor."
Carpenito also drew a diagram depicting what she saw regarding plaintiff's
accident. On June 9, 2016, Carpenito gave a recorded statement to defendants'
insurance investigator, which was transcribed. Defendants would not provide
the statement they obtained from Carpenito to plaintiff on the grounds of
privilege. Carpenito was never deposed. Regrettably, Carpenito passed away
before trial.
The Litigation and Pre-Trial Proceedings
On April 17, 2017, plaintiff filed a negligence and premises liability
complaint against defendants. On February 13, 2018, plaintiff moved to compel
A-0539-22
8
defendants to provide Carpenito's June 9, 2016 statement made to their insurance
investigator, which the motion judge granted. Defendants moved for
reconsideration. Before ruling, the motion judge entered an order providing he
would conduct an in camera review of Carpenito's two statements to determine
whether her June 9, 2016 statement given to defendants' insurance investigator
was inconsistent with her December 7, 2015 handwritten statement that plaintiff
had obtained and whether there were grounds to require disclosure on the basis
of substantial need and undue hardship under Rule 4:10-2(c).5 The motion judge
determined that plaintiff was not entitled to Carpenito's June 9, 2016 statement
5
Rule 4:10-2(c) provides in pertinent part:
[A] party may obtain discovery of documents,
electronically stored information, and tangible things
otherwise discoverable under R[ule] 4:10-2(a) and
prepared in anticipation of litigation or for trial by or
for another party or by or for that other party's
representative (including an attorney, consultant,
surety, indemnitor, insurer or agent) only upon a
showing that the party seeking discovery has
substantial need of the materials in the preparation of
the case and is unable without undue hardship to obtain
the substantial equivalent of the materials by other
means. In ordering discovery of such materials when
the required showing has been made, the court shall
protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney
or other representative of a party concerning the
litigation.
A-0539-22
9
because the content was nearly the same as her December 7, 2015 statement,
which plaintiff already had, and there were "no material inconsistences" in the
two statements.
In 2018, plaintiff was evaluated by Dr. Mary Ann Kezmarsky, a
psychologist, because of anxiety she developed after the fall. Dr. Kezmarsky
testified plaintiff's IQ is in the extremely low range, and she noted plaintiff is
"much like a child" when you talk to her. According to Dr. Kezmarsky, plaintiff
"is so afraid" and "wants to be with mommy, or her sister," or someone that is
going to take care of her to make sure she doesn't get hurt.
Dr. Kezmarsky stated plaintiff sleeps with her mother due to the fear,
needs hands-on supervision in the shower, and uses a cane. Dr. Kezmarsky tried
to administer biofeedback, but plaintiff "was very fearful of the apparatus." Dr.
Kezmarsky concluded that plaintiff's "significant fear" was secondary to the slip
and fall accident, and "the issues at this point . . . [are] permanent."
On May 1, 2019, the motion judge ordered that plaintiff submit to an
independent neuropsychiatric evaluation to determine her competency to testify
at trial. Dr. Kenneth C. Kutner conducted the evaluation and concluded plaintiff
was incompetent to testify at trial.
A-0539-22
10
On December 20, 2019, plaintiff moved for leave to file and serve an
amended complaint to add a count for fraudulent concealment and spoliation of
evidence regarding the incident report prepared by Ricigliano. The motion was
granted.
On April 13, 2021, defendants moved in limine to bar certain statements
made to plaintiff's experts, Dr. Berman, Dr. Bradley Cash, a physical medicine
rehabilitation expert, and Dr. Daniel Wolstein, a vocational and rehabilitation
expert, as hearsay, and to bar Dr. Kezmarsky's expert report as an inadmissible
net opinion. Following oral argument, the motion judge denied both motions,
however, he barred the experts from testifying as to statements made by plaintiff
or Jasmine regarding the specific cause of the accident. Defendants moved for
leave to appeal those orders, which we denied. Plaintiff moved for leave to file
and serve a second amended complaint to substitute Jasmine in place of Marie
as her guardian ad litem, which was granted.
The Trial and Related Motions
The matter was tried before a jury on nine non-consecutive days in
September 2022. Before the trial began, the trial judge dismissed plaintiff's
claim for fraudulent concealment. Defendants moved in limine to preclude
plaintiff from playing a "Day-in-the Life" video of plaintiff during trial. The
A-0539-22
11
trial judge denied the motion. During trial, plaintiff moved to exclude a portion
of Marie's testimony regarding plaintiff's SSD status, which was granted.
Plaintiff also moved in limine during trial to admit Carpenito's December
7, 2015 handwritten statement into evidence pursuant to N.J.R.E. 804(b)(6),
which defendants opposed. However, the motion was granted. The trial judge
permitted plaintiff to read the December 7, 2015 statement to the jury finding,
"it is so highly relevant and I agree that this does not present any new theory"
and "on balance, the probative value exceeds the prejudice."
On the issue of liability, plaintiffs presented testimony from Dennis
Gemberling, an expert in hospitality and food service industry management.
Gemberling testified that he "assume[d]" The Hanover Manor had practices and
policies in place to prevent what happened to plaintiff, but it "just didn't follow
them." He explained the ballroom was set up in a way that "created a situation
where guests were going to have to carry plates of food essentially from one end
of the room across the dance floor to the other side of the room." Gemberling
testified "that just creates the potential for food that's going to fall off plates
very easily, particularly when there's dancing going on."
Based upon his review of the records, Gemberling opined the wait staff
"weren't really watching the floor," and there was no indication that defendants
A-0539-22
12
were monitoring the dance floor or cleaned up spills within five minutes, as is
customary in the food service industry. Gemberling stated "you want to separate
the entertainment from the food service" and have tables in close proximity to
the buffet to avoid a situation where individuals are coming over to the dance
floor.
Gemberling testified the fruit plaintiff slipped on "had been there for
potentially quite some time" based on Iuspa's testimony that he saw the fruit on
the dance floor right after plaintiff fell, which was several courses after the
buffet had been served. Gemberling concluded defendants' departure from
industry standards and practices resulted in a dangerous condition, fruit on the
dance floor, causing plaintiff to slip and fall and sustain injuries.
Jasmine testified that despite her disability, plaintiff "was very happ y go
lucky" and "[v]ery friendly, very social" before her accident and enjoyed going
out with her friends, helping with chores around the house, and walking a dog.
While plaintiff never obtained a paying job, Jasmine testified she volunteered at
a local hospital before it closed. Jasmine stated plaintiff "never had any physical
limitations" before the accident and could take care of herself, walk normally,
ride a bike, sleep by herself, and be left alone for periods of time.
A-0539-22
13
Dr. Berman testified about plaintiff's surgery and subsequent
impairments, which include her leg length discrepancy throwing "off her
pelvis," and that she suffers from back pain and "chronic pain" when she walks.
Dr. Berman testified that plaintiff now has a "significant limp" and the feeling
of an "unsteady gait." In Dr. Berman's opinion, plaintiff's injuries were "directly
related to the injury she sustained" at The Hanover Manor and are "permanent"
in nature.
Dr. Kezmarsky testified there "had been no real change in [plaintiff's] fear
and anxiety" since the accident, and she was "homebound." In terms of
plaintiff's fear of falling, Dr. Kezmarsky testified "[w]ith the level of intellectual
functioning that she is at, she doesn't have the capacity to problem solve that
out. It is just, that fear is stuck, she can't go get rid of it."
Accordingly, Dr. Kezmarsky opined the "significant fear" that plaintiff
was experiencing "was secondary to the slip and fall and the traumatic events
surrounding the incident," and at this point, the issues "could be considered
permanent" and caused plaintiff to "los[e] that little bit of independence that she
had that used to make her feel pretty good."
Dr. Cash testified he evaluated plaintiff after her surgery. Dr. Cash opined
plaintiff's walking and gait pattern is worsening over time and will never return
A-0539-22
14
to normal. Dr. Cash opined that plaintiff "will now require [twenty-four]-hour
care seven days supervision" due to her "reduced functional status, her lack of
ability to function independently, to walk . . . eat or dress independently."
Wolstein agreed with Dr. Cash that plaintiff will need "24/7, 365 days per
year" care in the future, and the lowest amount of money the jury could award
to cover the future costs of care would be in the range of $1,264,000 to
$2,474,000, which would involve plaintiff residing in a skilled nursing facility.
At the highest end, Wolstein testified the range could be between $4,369,000
and $5,308,000, which would account for in-home care.
At trial, O'Sullivan testified that he watched the video after he was
informed plaintiff had fallen. On direct examination, defense counsel asked
O'Sullivan: "And are you at all involved in what . . . happen[ed] to the video?"
O'Sullivan responded, "[n]o." On cross-examination, the trial judge allowed
plaintiff to inquire about the whereabouts of the video but not to insinuate that
O'Sullivan destroyed the video purposely or taped over it.
Tsanakos testified on direct examination that Ricigliano created the
incident report, "[i]t was put on her board for a while," he recalled seeing it, and
was able to view the contents of the report. On cross-examination, plaintiff
A-0539-22
15
questioned Tsanakos about how the incident report was created and what it
contained. Specifically, plaintiff asked Tsanakos:
Q: You told the jury a woman, named . . . [Ricigliano],
worked for you in 2015 and she created an incident
report after the event?
A: Yes.
Q: And you told us at your deposition that the incident
report that you create includes the name, phone
numbers, and the description of the incident, correct?
A: True.
Defendants did not object to this line of questioning.
Plaintiff also cross-examined Tsanakos regarding the spoliation letter:
Q: You told us at your deposition that you received a
letter regarding [plaintiff] correct?
A: Yes.
....
Q: And what's the date that it was sent to you?
A: Looks like July 9, 2015.
Q: July 9, 2015, correct?
A: Right . . . .
Q: So two months and few days after [plaintiff] slipped
and fell?
A-0539-22
16
A: Yes.
Q: And this is from an attorney, is it not?
A: Uh, it's from an attorney, yes.
Q: And it says that the attorney represents [plaintiff] in
connection with a serious and permanent injury she
sustained when she was caused to fall on May 3rd, 2015
on the dance floor at [The] Hanover Manor, correct?
A: True.
Q: And it says, puts you on notice: "In anticipation of
a claim with regard to the aforementioned . . . please
retain and provide all videos, surveillance, security
tapes, photographs, and any and all incident reports in
your possession relating to that accident," correct?
A: True.
Q: It goes on to say in the next sentence, "If these
things are destroyed, there'll be a claim for spoliation
made against you," correct?
[Defense counsel]: Objection, Judge.
[Plaintiff's counsel]: I'll withdraw it.
THE COURT: Thank you.
[Plaintiff's counsel]: In the next paragraph, it says, "To
reiterate, the failure to retain and provide this office
with the video surveillance, security tapes,
photographs, and any and all incident reports would be
in our view a destruction of evidence for the civil
claim," correct?
A-0539-22
17
A: That's what it says.
Besides the objection to the question that was withdrawn, defendants did not
otherwise object to plaintiff's cross-examination of Tsanakos about the incident
report.
Plaintiff also questioned Tsanakos about the video on cross-examination:
Q: You told the jury that you allowed the surveillance
tape to be taped over about a week [after the accident]?
A: I didn't allow it.
Q: Was the surveillance video taped over about a week
later?
A: Yes it was, not purposely.
Regarding the purpose of the video surveillance system, plaintiff asked
Tsanakos:
Q: We asked you what the purpose of having
surveillance in the ballroom was. Do you recall your
answer?
A: I first bought it because of theft. We had some theft
going on in the place, and that's the main reason why I
bought it.
Q: You also told us for liability reasons, correct, if . . .
somebody slips and falls?
A: Of course.
A-0539-22
18
Defendants presented competing medical testimony from Dr. Howard
Blank, an expert in orthopedics. Dr. Blank reviewed plaintiff's medical records
and examined her in October 2018. Blank testified plaintiff's limp "was very
mild," but she appeared to "shuffle her feet," and used a cane. Dr. Blank did not
think plaintiff's leg discrepancy was significant and would not cause her pain.
He opined her "prognosis was reasonably good," and "she would [not] have any
further problems." While Dr. Blank did not expect plaintiff to improve, he also
did not "expect her to get worse."
The jury returned a verdict in favor of plaintiff finding no comparative
negligence, awarded $3,800,000 for future medical expenses, and $750,000 for
past and future pain and suffering, disability, impairment, and loss of enjoyment
of life. No post-judgment motions were made.
II.
In considering defendants' arguments, we apply well-established
standards of appellate review. In general, we apply a narrow scope of review to
civil jury verdicts. We ordinarily do not set them aside and order a new trial
unless there has been a proven manifest injustice. See R. 4:49-1; see also Kozma
v. Starbucks Coffee Co., 412 N.J. Super. 319, 324 (App. Div. 2010);
Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005).
A-0539-22
19
Most of defendants' contentions on appeal assert the trial judge erred in
making evidential rulings. Such rulings to admit or exclude evidence are
generally subject to a wide degree of discretion. Ordinarily we will not set aside
civil verdicts on this basis unless the court has abused its discretion, including
with respect to issues of the admissibility of expert opinion. Hisenaj v. Kuehner,
194 N.J. 6, 16 (2008); see also Dinter v. Sears, Roebuck & Co., 252 N.J. Super.
84, 92 (App. Div. 1991) (citations omitted). We cannot find that any of the trial
judge's rulings produced a miscarriage of justice in this case.
A.
On appeal, defendants argue that the trial judge erred in permitting
defense witnesses O'Sullivan and Tsanakos to be questioned in a manner that
implied they deliberately taped over the surveillance video and destroyed the
incident report in order to hide evidence. Defendants assert plaintiff's trial
strategy was to "cast a shadow of suspicion" over defendants resulting in a
prejudicial effect of this strategy being substantially outweighed by any
probative value as to counsel's questions.
Plaintiff counters she did not imply evidence was deliberately destroyed,
but questioned defendants' witnesses about the video and incident report "to
show relevant evidence was not preserved." Plaintiff also contends these
A-0539-22
20
witnesses testified about the video and incident report on direct examination and
therefore, cross-examination was warranted and not prejudicial.
"When a trial court admits or excludes evidence, its determination is
'entitled to deference absent a showing of an abuse of discretion, i.e., [that] there
has been a clear error of judgment.'" Rowe v. Bell & Gossett Co., 239 N.J. 531,
551 (2019) (alteration in original) (quoting Griffin v. City of E. Orange, 225
N.J. 400, 413 (2016)). Accordingly, "we will reverse an evidentiary ruling only
if it 'was so wide [of] the mark that a manifest denial of justice resulted.'" Ibid.
(quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 497 (1999)).
However, when a party does not object to an alleged error at trial, Rule
2:10-2 requires the appellate court to "determine whether any error . . . was 'of
such a nature as to have been clearly capable of producing an unjust result.'"
Toto v. Ensuar, 196 N.J. 134, 144 (2008) (quoting Mogull v. CB Com. Real Est.
Grp., Inc., 162 N.J. 449, 464 (2000)); see also T.L. v. Goldberg, 238 N.J. 218,
232 (2019) ("To warrant reversal and entitlement to a new trial, the plain error
must have been clearly capable of producing an unjust result."). "If not, the
error is deemed harmless and disregarded." Toto, 196 N.J. at 144. "Relief under
the plain error rule, R. 2:10-2, at least in civil cases, is discretionary and 'should
A-0539-22
21
be sparingly employed.'" Baker v. Nat'l State Bank, 161 N.J. 220, 226 (1999)
(quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)).
At trial, defendants made a general objection to plaintiff's questioning of
O'Sullivan and Tsanakos about the incident report, arguing it is "not something
that's germane to the case" and "is too prejudicial". The trial judge ultimately
allowed the questioning, ruling that "it sounds to me that [plaintiff's counsel] is
simply indicating it exists" but cautioned, "[j]ust don't make any inferences or
say that where did it go, did you destroy it[?]" However, defendants did not
object at trial to several specific questions they now challenge on appeal.
Therefore, we review those lines of questioning under the plain error standard.
R. 2:10-2.
On appeal, defendants specifically object to plaintiff's questioning of
O'Sullivan as to "where the incident report went" and "what were [d]efendant's
policies for retaining the reports . . . " Following the trial judge's ruling allowing
questioning as to the incident report, plaintiff's counsel asked O'Sullivan :
Q: Do you know what happened to [plaintiff's] incident
report?
A: No, I do not.
Q: You told us at your deposition at the time that the
defendant had no policy or procedure about keeping or
retaining incident reports, correct?
A-0539-22
22
A: Okay. Yes.
Defendants made no objection.
We have noted "a question in cross-examination is improper where 'no
facts concerning the event on which the question was based were in evidence
and the [questioner] made no proffer indicating his ability to prove the
occurrence.'" Manata v. Pereira, 436 N.J. Super. 330, 348 (App. Div. 2014)
(quoting State v. Rose, 112 N.J. 454, 500 (1988)). Moreover, "[o]rdinarily the
scope of cross-examination of a witness rests in the discretion of the trial judge
. . . and an appellate court will not interfere with the control thereof by him
unless clear error and prejudice is shown." Janus v. Hackensack Hosp., 131 N.J.
Super. 535, 540 (App. Div. 1974).
We conclude it was not error for plaintiff to ask O'Sullivan about his
knowledge of the incident report or the policies for retaining them. The incident
report was relevant to the litigation, and the record shows plaintiff did not
insinuate that O'Sullivan deliberately destroyed the report. A single question as
to "what happened to [plaintiff's] report" and another confirming there was no
policy to keep the report was not error, let alone enough to have been "clearly
capable of producing an unjust result." Goldberg, 238 N.J. at 232.
A-0539-22
23
Moreover, Tsanakos testified on direct as to the existence, creation, and
contents of the incident report. Plaintiff did not cross-examine Tsanakos to find
out whether he destroyed the incident report; instead, plaintiff questioned him
to establish the report existed and was now missing. We discern no error an d
conclude plaintiff's cross-examination of Tsanakos was proper. Manata, 436
N.J. Super. at 348. At trial, plaintiff read the exact wording of the spoliation
letter and used cross-examination to show that the report should have been
preserved and was not. Again, we conclude this line of questioning was proper
and not clearly capable of producing an unjust result, given the case as a whole.
Goldberg, 238 N.J. at 232.
Defendants also argue it was improper for plaintiff to question O'Sullivan
about "what happened to the video." However, plaintiff asked only one question
of O'Sullivan on cross-examination on this issue: "[W]hat happened to [the
video] after you looked at it?" O'Sullivan responded he "ha[d] no idea ."
Defendants did not object to that question at trial. Clearly, plaintiff was allowed
to inquire on cross-examination the whereabouts of the video once defendants
opened the door on direct examination. See N.J.R.E. 611(b) ("Cross-
examination should not go beyond the subject matter of the direct examination
and matters affecting the witness's credibility.").
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Plaintiff also did not improperly suggest that the surveillance system was
purchased for liability reasons when cross-examining Tsanakos. At trial,
Tsanakos confirmed that was true, consistent with what he previously testified
to at his deposition. This was proper under the circumstances. See Parker v.
Poole, 440 N.J. Super. 7, 22 (2015) ("Deposition testimony of a witness may be
used 'for the purpose of contradicting or impeaching' a witness at trial." (quoting
R. 4:16-1(a))). And, defendants never objected to this line of questioning, and
there is nothing to indicate it produced an unjust result. Toto, 196 N.J. at 144.
Furthermore, plaintiff did not suggest O'Sullivan destroyed the video or
that he purposely taped over it. We are satisfied plaintiff's line of questioning
was not clearly capable of producing an unjust result. See Toto, 196 N.J. at 144
(noting, when a party fails to object, the reviewing court must determine whether
any error was clearly capable of producing an unjust result). Thus, we reject
defendants' argument.
B.
Defendants contend the trial judge erred by giving the jury an adverse
inference charge as to the incident report despite a prior order that dismissed
plaintiff's fraudulent concealment count and determined plaintiff was not
entitled to an adverse inference charge at trial. At the charge conference,
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25
defendants asserted there was a ruling that there was no spoliation found
regarding the incident report. Plaintiff countered the trial judge didn't rule on
spoliation but made a ruling on fraud on the basis defendants were on notice to
preserve evidence, in particular, the incident report, not the video, and failed to
do so.
The trial judge revised his earlier decision not to give the adverse
inference charge stating, "there may have been no basis on the record [then], but
I've now heard all of the evidence in this case and there's clearly evidence of the
existence of an incident report that was in the possession of . . . defendants and
no longer is, with no explanation as to where it went." The trial judge explained
there was no fraudulent concealment in this case, but "[t]hat doesn't obviate the
need for an adverse inference charge."
Here, the trial judge modified the adverse Model Civil Jury Charge to
apply to the incident report as opposed to a missing witness and charged the jury
as follows:
Reference has been made to—in this case to an incident
report which is relevant to the matter before you and
that the defendant has failed to produce it. The rule is
that, where a party, whether it be the plaintiff or the
defendant, fails to produce a document which that party
would naturally be expected to produce, you have a
right to infer that the document, if the document had
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26
been produced, it would have been adverse to the
interest of the party, plaintiff or defendant.
The reason for this rule is that, where you would
normally expect a party to produce a document and that
party without reasonable explanation fails to do so, that
leaves a natural inference that the non-producing party
fears exposure of the facts which would be unfavorable
to him, her, or it.
Appropriate and proper jury instructions are essential for a fair trial.
Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 256 (2015). "A jury is entitled
to an explanation of the applicable legal principles and how they are to be
applied in light of the parties' contentions and the evidence produced in the
case." Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002) (quoting Rendine v.
Pantzer, 276 N.J. Super. 398, 431 (App. Div. 1994), aff'd, 141 N.J. 292 (1995)).
To that end, "[j]ury charges 'must outline the function of the jury, set forth the
issues, correctly state the applicable law in understandable language, and plainly
spell out how the jury should apply the legal principles to the facts as it may
find them.'" Prioleau, 223 N.J. at 256 (quoting Velazquez v. Portadin, 163 N.J.
677, 688 (2000)).
"Nonetheless, not every improper jury charge warrants reversal and a new
trial. 'As a general matter, [appellate courts] will not reverse if an erroneous
jury instruction was 'incapable of producing an unjust result or prejudicing
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27
substantial rights.'" Prioleau, 223 N.J. at 257 (alteration in original) (quoting
Mandal v. Port Auth. of N.Y. & N.J., 430 N.J. Super. 287, 296 (App. Div.
2013)).
A spoliation charge may be appropriate whether the adverse party has
destroyed the evidence intentionally or negligently, if the party had a duty to
preserve the evidence. See Bldg. Materials Corp. of Am. v. Allstate Ins. Co.,
424 N.J. Super. 448, 472 (App. Div. 2012); Manorcare Health Servs. v. Osmose
Wood Preserving, Inc., 336 N.J. Super. 218, 226 (App. Div. 2001).
To establish spoliation, the party asserting evidence was spoliated must
show:
(1) pending or probable litigation [between the two
parties]; (2) knowledge by the [alleged spoliating party]
of the existence or likelihood of litigation; (3)
foreseeability of harm to the [other party], or in other
words, discarding the evidence would be prejudicial to
[the other party]; and (4) evidence relevant to the
litigation.
[Id. at 226 (quoting Aetna Life and Cas. Co. v. Imet
Mason Contractors, 309 N.J. Super. 358, 366 (App.
Div. 1998)).]
At trial, plaintiff established all four elements of spoliation as to the
incident report: there was pending and probable litigation involving The
Hanover Manor as soon as plaintiff slipped and fell; both parties knew of the
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28
existence of likelihood of litigation following the fall; discarding the incident
report was prejudicial to plaintiff, as the report contained a description of what
happened, and phone numbers and addresses for any witnesses; and the incident
report was clearly relevant to the litigation as to whether defendants were
negligent in causing plaintiff's fall, See N.J.R.E. 401. Manorcare, 336 N.J.
Super. at 226.
Plaintiff established the incident report was created by defendants, was
kept in the office "for awhile" but was misplaced and unavailable at trial.
Moreover, Tsanakos testified he received the spoliation letter from plaintiff's
former counsel advising him to maintain all incident reports and that the report
was still in Ricigliano's office when he received the letter, but he didn't know
what happened to it. We find no error in the trial judge's decision to give an
adverse inference charge. Manorcare, 336 N.J. Super. at 330-31; Rosenblit v.
Zimmerman, 166 N.J. 391, 401 (2001); see also Davis v. Barkaszi, 424 N.J.
Super. 129 (App. Div. 2012) (quoting Cockerline v. Menendez, 411 N.J. Super.
596, 621 (App. Div. 2010)) (The jury should be given an adverse inference
instruction "if plaintiff makes a 'threshold showing' that defendant improperly
caused the loss of evidence.").
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29
Defendants' reliance on Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81
(2008), is misplaced. In Tartaglia, our Court identified five factors that must be
shown to establish fraudulent concealment, not spoliation of evidence , as
defendants assert in their merits brief. Id. at 118. One of the elements for
fraudulent concealment detailed in Tartaglia is "[t]hat defendant intentionally
withheld, altered or destroyed the evidence with purpose to disrupt the
litigation." Ibid. But, in contrast, intent is not a factor in determining spoliation
of evidence. Manorcare, 336 N.J. Super. at 226; Aetna, 309 N.J. Super. at 368.
Thus, we reject defendants' argument that plaintiff was not entitled to an adverse
inference charge because her fraudulent concealment count had been dismissed.
The fact there was no evidence of fraud or intent on defendants' part is irrelevant
to the analysis.
Defendants maintain the incident report did not contain any facts of
consequence. But O'Sullivan testified the report included anything anyone
could recollect about plaintiff's incident, including how it happened, along with
names and phone numbers of witnesses. Moreover, Tsanakos confirmed that
The Hanover Manor's template incident report asks for the "date, location,
description of the incident, weather conditions, walking surface condi[tions]" as
well as "when [the incident] occurred" and "how it was reported and when."
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30
No reasonable juror would believe that after a patron suffered a severe
injury on the restaurant's premises, its managers would fail to complete a report
documenting the incident and gather the specifics as to what happened.
Defendants' explanation for the missing incident report is incredulous and if
offered would likely have hurt rather than helped the defense.
However, even if giving the adverse inference charge was error, it was
harmless, and did not lead "to an unjust result." Willner v. Vertical Reality,
Inc., 235 N.J. 65, 79 (2018). The trial judge gave the adverse inference charge,
but the jury was free "to accept or reject the inference." Davis, 424 N.J. Super.
at 148.
C.
We next address defendants' argument that the trial judge erred in
allowing plaintiff's experts—particularly Dr. Kezmarsky—to testify based on
plaintiff's hearsay statements, which they claim "were allowed to be dressed up
in expert garb and used as 'evidence' while shielding her from cross-
examination." Defendants raised similar arguments pretrial before the motion
judge as we stated previously: they moved to bar Dr. Kezmarsky's testimony as
an impermissible net opinion, asserting she merely parroted plaintiff's subjective
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31
complaints, and also moved to exclude statements made by plaintiff or Jasmine
to Doctors Berman, Cash, and Wolstein, as hearsay.
The motion judge denied defendants' motion as to Dr. Kezmarsky,
concluding her expert report "is grounded in 'facts or data' as required by
[N.J.R.E.] 703," and included biofeedback testing results, intelligence testing,
and interviews of plaintiff and Jasmine. In rejecting defendants' argument, the
motion judge found Dr. Kezmarsky was essentially functioning as a treating
physician, and thus, statements made to her by plaintiff and Jasmine were
admissible under N.J.R.E. 803(c)(4). The motion judge concluded:
To bar expert testimony as to the subject matter of an
interview of an individual such as [plaintiff] conducted
by a medical or other professional is to overlook the
fact that individuals suffering from severe disabilities
seek and obtain medical treatment and interact with
such professionals for the purpose of securing the same
and to conclude in effect such professionals are unable
to use the information from interviews of such
individuals properly for purposes of rendering
professional judgments.
The motion judge stated defendants could ask the trial judge for a N.J.R.E. 104
hearing as to Dr. Kezmarsky's opinions, but they never did. Regarding Doctors
Berman, Cash, and Wolstein, the motion judge found their testimony as to
statements made by plaintiff or Jasmine in interviews they conducted "are not
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32
barred as hearsay" because such statements form a portion of the facts or data
upon which experts rely on their opinions as permitted by N.J.R.E. 703.
The admissibility of expert opinion is guided by N.J.R.E. 702 and 703 and
the net opinion rule. N.J.R.E. 702 provides: "If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an opinion
or otherwise." In turn, N.J.R.E. 703 contemplates that an expert's opinion must
be founded on "facts or data." Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008); accord
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 3 on N.J.R.E.
703 (2023-24).
In Davis v. Brickman Landscaping, Ltd., 219 N.J. 395 (2014), our Court
elaborated on the parameters of the net opinion rule and the factors to be
employed when applying it.
An expert may not provide an opinion at trial that
constitutes "mere net opinion." Pomerantz Paper Corp.
v. New Cmty. Corp., 207 N.J. 344, 372 (2011). The
rule prohibiting net opinions is a corollary of New
Jersey Rule of Evidence 703, State v. Townsend, 186
N.J. 473, 494 (2006), which provides that an expert's
testimony "may be based on facts or data derived from
(1) the expert's personal observations, or (2) evidence
admitted at the trial, or (3) data relied upon by the
expert which is not necessarily admissible in evidence
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33
but which is the type of data normally relied upon by
experts in forming opinions on the same subject,"
Weissbard & Zegas, Current N.J. Rules of Evidence,
cmt. 1 on N.J.R.E. 703 (2014). Thus, the net opinion
rule can be considered a "restatement of the established
rule that an expert's bare conclusions, unsupported by
factual evidence, [are] inadmissible." Buckelew [v.
Grossbard, 87 N.J. 512, 524 (1981)].
The net opinion rule "requires that the expert 'give the
why and wherefore' that supports the opinion, 'rather
than a mere conclusion.'" Pomerantz Paper Corp., 207
N.J. at 372 (quoting Polzo v. Cnty. of Essex, 196 N.J.
569, 583 (2008)). For example, "a trial court may not
rely on expert testimony that lacks an appropriate
factual foundation and fails to establish the existence of
any standard about which the expert testified." Id. at
373. Therefore, an expert offers an inadmissible net
opinion if he or she "cannot offer objective support for
his or her opinions, but testifies only to a view about a
standard that is 'personal.'" Ibid.
[Id. at 410.]
"Expert testimony should not be received if it appears the witness is not in
possession of such facts as will enable him [or her] to express a reasonably
accurate conclusion as distinguished from a mere guess or conjecture." Vuocolo
v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div. 1990).
On appeal, defendants primarily argue that Dr. Kezmarsky's expert
testimony was improper and should have been barred under N.J.R.E. 702 and
703 because her opinion was not supported by adequate facts and simply
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34
"parroted" plaintiff's subjective complaints of fear under the guise of an expert
opinion. We discern no abuse of discretion in allowing Dr. Kezmarsky's
testimony.
Our Court has noted that "any medical examination, whether physical or
psychiatric, must begin with the subjective statement of the patient . . . ."
Saunderlin v. E.I. Du Pont Co., 102 N.J. 402, 412 (1986). Our Court warned
against requiring "physical manifestations 'observable' and 'measurable'" of
psychological injury. Id. at 415. Yet, "in no event will a medical doctor's mere
'parroting' of the patient's statement be sufficient." Id. at 416.
Here, Dr. Kezmarsky did not merely "parrot" plaintiff's subjective
complaints, explaining the sources she relied on to reach her conclusions, such
as the attempted biofeedback therapy on plaintiff and completed IQ testing. The
interviews, in combination with plaintiff's inability to withstand biofeedback
therapy and IQ scores, led Dr. Kezmarsky to conclude plaintiff's fear and anxiety
were due to the slip and fall accident and that her fear was "permanent" in nature.
Townsend, 221 N.J. at 553. We agree with the trial judge that Dr. Kezmarsky's
opinion constituted proper expert opinion under N.J.R.E. 702 and 703.
We are also convinced Dr. Kezmarsky did not render a net opinion. Given
plaintiff's limited intellectual ability, Dr. Kezmarsky opined plaintiff could not
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35
respond to therapy and does not "have the capacity" to "problem solve" her fear
based on her interviews and testimony, and supported her conclusions with "the
why and wherefore." Townsend, 221 N.J. at 554. Moreover, Dr. Kezmarsky
first interviewed plaintiff as a treating psychologist in an effort to alleviate her
fears and anxiety since the fall. Such statements were not hearsay under
N.J.R.E. 803(c)(4) because the statements were "made in good faith for purposes
of . . . medical diagnosis or treatment; and . . . describe[] medical history; past
or present symptoms or sensations; their inception; or their general cause."
The same holds true of Doctors Berman, Cash, and Wolstein. Defendants
similarly argue that these experts detailed plaintiff's subjective complaints of
fear, which were not relevant to their testimony, and constituted improper
hearsay. Again, these statements are not barred as hearsay under N.J.R.E. 703,
as they formed the basis for their opinions. Each of these experts interviewed
and examined plaintiff and reviewed medical records in reaching their opinions,
which was well within their purview under N.J.R.E. 703. See also James v.
Ruiz, 440 N.J. Super. 45, 65 (App. Div. 2005).
We discern no abuse of discretion in allowing plaintiff's experts to testify
about her subjective complaints of fear. Absent expert testimony, plaintiff could
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36
not adequately prove the damages she suffered in the past and will suffer in the
future. Thus, we reject defendants' argument.
D.
Next, defendants argue the trial judge erred in allowing plaintiff to read
Carpenito's December 7, 2015 statement to the jury. Defendants contend
plaintiff failed to disclose an intention to use the statement pretrial, and the use
of the statement was an unfair surprise. Plaintiff counters the statement was
known to defendants before trial, and there was no error. We are unpersuaded
by defendants' argument.
The motion judge did not complete his in camera review or rule on
whether plaintiff was entitled to Carpenito's June 9, 2016 statement until several
days into the trial. Indeed, at the commencement of trial, plaintiff alerted the
trial judge that the parties were still awaiting the motion judge's decision on this
issue. On September 16, 2022, mid-trial, the motion judge ruled on defendants'
reconsideration motion and denied plaintiff's request to compel disclosure of
Carpenito's June 9, 2016 statement. Because the motion judge found "no
material inconsistencies between these statements," he held "there is no basis
drawn from comparison of the two statements to warrant disclosure" of the latter
statement.
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37
Upon reviewing that ruling, plaintiff immediately moved in limine to
admit Carpenito's December 7, 2015 handwritten statement under N.J.R.E.
804(b)(6). Plaintiff argued Carpenito's December 7, 2015 statement was
trustworthy and made in good faith, as it was consistent with Iuspa's testimony
and her June 9, 2016 statement, as determined by the motion judge. Defendants
opposed the motion on the basis it was "highly prejudicial" to use the December
7, 2015 statement at trial.
The trial judge noted "[a]rguably, that was a mistake" and found plaintiff's
explanation "more than quite understandable." The trial judge granted plaintiff's
motion to admit Carpenito's December 7, 2015 statement into evidence pursuant
to N.J.R.E. 804(b)(6), with certain redactions, ruling it was "highly relevant"
and "on balance, the probative value exceeds the prejudice." Regarding
defendants' argument the statement was an unfair surprise, the trial judge
determined "[t]here's nothing that could have been done . . . by . . . defendant[s]
that would have made any difference had defendant[s] been aware of the
intention to introduce this document . . . I think [Carpenito] says nothing
different than the witness who testified on the stand, Iuspa."
Hearsay is defined as "a statement that (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party offers in evidence
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38
to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is
presumptively inadmissible unless an exception applies. N.J.R.E. 802. N.J.R.E.
804(b)(6) provides an exception to the hearsay rule in civil cases, allowing into
evidence "a statement made by a person unavailable as a witness because of
death if the statement was made in good faith upon declarant's personal
knowledge in circumstances indicating that it is trustworthy." There are four
requirements to qualify for this exception:
(1) the declarant must be dead; (2) the statement must
have been made in good faith; (3) the statement must
have been made upon the declarant's own personal
knowledge; and (4) there must be a probability from the
circumstances that the statement is trustworthy.
[Est. of Grieco v. Schmidt, 440 N.J. Super. 557, 564
(App. Div. 2015) (quoting DeVito v. Sheeran, 165 N.J.
167, 194 (2000)).]
"The court need find only a probability that the statement is trustworthy from
the flavor of the surrounding circumstances. The determination is a subjective
one." Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 380 (2010).
We have noted N.J.R.E. 804(b)(6) "does not include a corroboration
requirement." Est. of Grieco, 440 N.J. Super. at 566.
Defendants do not argue the court improperly admitted the statement
pursuant to N.J.R.E. 804(b)(6), but instead argue the statement should have been
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39
excluded because it was unfair surprise. They claim it was an unfair surprise
because plaintiff did not include Carpenito's December 7, 2015 statement in her
Pretrial Exchange Information pursuant to Rule 4:25-7(b).
Rule 4:25-7(b) provides that "in cases that have not been pretried,
attorneys shall confer and, seven days prior to the initial trial date, exchange the
pretrial information as prescribed by Appendix XXIII to these rules." Appendix
XXIII provides that parties must provide to opposing counsel "[a] list of all
witnesses . . . to be called in the party's case in chief"; "[a] list of all exhibits to
be offered in the party's case in chief"; "[a] list of any proposed deposition or
interrogatory reading(s) by page and line number or by question number"; "[a]ny
in limine or trial motions intended to be made at the commencement of trial";
and "[a] list of all anticipated problems with regard to the introduction of
evidence in each party's case in chief . . . ." Pretrial Information Exchange,
Pressler & Verniero, Current N.J. Court Rules, Appendix XXIII to R. 4:25-7(b),
www.gannlaw.com (2024). The "[f]ailure to exchange and submit all the
information required by [Rule 4:25-7(b)] may result in sanctions as determined
by the trial judge." R. 4:25-7(b).
Our courts have noted these pretrial rules and requirements exist for "[t]he
obvious purpose . . . to promote fair advocacy and to discourage gamesmanship
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40
or unfair surprise at trial." Rice v. Miller, 455 N.J. Super. 90, 105 (App. Div.
2018). "Unfair surprise is a proper basis to exclude evidence not properly
provided to the opposing party during discovery." Hayes v. Delamotte, 231 N.J.
373, 391 (2018). "The prohibition against unfair surprise prevents the
introduction of evidence not properly disclosed by the opposing party, . . . but
does not prevent counsel from using to their strategic advantage the evidence
properly presented at trial . . . ." Ibid.
We are satisfied the trial judge did not abuse his discretion by admitting
the December 7, 2015 statement pursuant to N.J.R.E. 804(b)(6). Rowe, 239 N.J.
at 551. The statement meets all four requirements to the hearsay exception. Est.
of Grieco, 440 N.J. Super. at 564. Carpenito is deceased, as plaintiff provided
her obituary as an exhibit to the motion in limine. Carpenito's statement was
made based upon her personal knowledge, as one of the questions on the
questionnaire, which was admitted into evidence, asked if she witnessed the
accident, to which she wrote "Yes." Further, the statement was both made in
good faith and likely trustworthy given the circumstances. Ibid.
Carpenito filled out plaintiff's questionnaire and gave a statement of her
own free will, noting in her responses that she did not know any of the people
involved in the accident, but "was only familiar with who [plaintiff] was ."
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41
Moreover, there is no indication from the statement, or from the record, that
Carpenito had any reason to be untruthful, and clearly was not trying to aid
plaintiff as a friend, as Carpenito stated she did not know her well.
Saliently, Carpenito's statement that "Rose (plaintiff) got up and stepped
on the dance floor [and] immediately slipped on something on the floor [and]
fell immediately," was consistent with Iuspa—plaintiff's eyewitness—who also
testified he saw plaintiff "t[ake] a few steps from where she was . . . to the dance
floor and she stepped on [something] and . . . fell pretty hard." He thought
plaintiff had fallen on a "grape" or "some melon" that "was squashed" on the
dance floor, consistent with Carpenito's statement that there was "food possibly,
squashed on the floor." Also, Carpenito's December 7, 2015 statement had,
according to the motion judge, "no material inconsistencies" with her June 9,
2016 statement, which supports the notion that her account is both trustworthy
and made in good faith. Ibid.; Beckwith, 185 N.J. Super. at 63.
In light of the circumstances surrounding the admission of Carpenito's
December 7, 2015 statement at trial, there was no unfair surprise to defendants.
In defendants' brief in opposition to plaintiff's motion to compel filed in 2018,
defendants acknowledged that plaintiff's former counsel "forwarded" the
statement "[b]y email dated December 11, 2015" to their insurer. Although
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42
Carpenito was not listed by plaintiff as a witness in her Pretrial Information
Exchange, plaintiff was not calling Carpenito as a live witness due to her demise
but stated a motion in limine would be filed based "on her unavailability." And,
the motion judge had not ruled on defendants' motion for reconsideration
relative to Carpenito's June 9, 2016 statement until the trial was in progress.
Therefore, plaintiff did not have a reason to move in limine until after the ruling
was made.
As recognized by the trial judge, plaintiff would not have known whether
the December 7, 2015 statement was consistent with the June 9, 2016 statement
until the motion judge conducted an in camera review and issued a ruling. This
is not the "gamesmanship" that our pretrial rules were created to discourage.
Rice, 455 N.J. Super. at 105. We conclude the trial judge did not abuse his
discretion, no "manifest denial of justice resulted" in admitting the December 7,
2015 statement under N.J.R.E. 804(b)(6), and there was no unfair surprise to
defendants. Rowe, 239 N.J. at 551 (quoting Griffin, 225 N.J. at 413).
E.
Defendants next argue the trial judge erred in barring deposition testimony
of Maria regarding plaintiff's SSD status from being admitted at trial.
Defendants aver plaintiff's disability status is relevant on the issue of damages
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43
and supports a finding that she was unable to be employed long before the
accident. We disagree.
At her deposition, Maria testified that plaintiff qualified for SSD
sometime in her twenties. Plaintiff moved to exclude that portion of Maria's
testimony on the grounds it would confuse the jury that social security ca n pay
for plaintiff's care in the future. In opposition, defendants argued the testimony
was relevant because the jury was told that plaintiff is developmentally disabled,
and the degree of her disability and whether the accident aggravated her
condition, is a condition for the jury to decide.
The trial judge excluded the testimony, reasoning the mother's testimony
on the SSD issue was " a vague response" and had "no substance, no basis," and
"could very easily confuse the jury . . . without more." We discern no abuse of
discretion in barring the testimony.
Generally speaking, "a [Social Security Administration (SSA)]
determination is hearsay . . . ." Villanueva v. Zimmer, 431 N.J. Super. 301, 313
(App. Div. 2013). "The only hearsay exception that might apply" to a social
security disability determination "is the 'public records exception' under
N.J.R.E. 803(c)(8)." Ibid. Under that exception, a party seeking to admit a
hearsay statement must demonstrate that it is either:
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44
(A) a statement contained in a writing made by a public
official of an act done by the official or an act,
condition, or event observed by the official if it was
within the scope of the official's duty either to perform
the act reported or to observe the act, condition, or
event reported and to make the written statement; or (B)
statistical findings of a public official based upon a
report of or an investigation of acts, conditions, or
events, if it was within the scope of the official's duty
to make such statistical findings.
[N.J.R.E. 803(c)(8).]
However, we have stated that "N.J.R.E. 803(c)(8) does not authorize the
admission of an SSA determination of disability as a hearsay exception . . . ."
Id. at 317. Further, "[a]n SSA disability determination is of dubious probative
value in a personal injury action" because "[t]he lack of a meaningful adversarial
process with respect to the cause, existence, and extent of a plaintiff's alleged
disability renders the SSA's conclusions on that issue unreliable." Id. at 318.
Defendants' proffer was plaintiff's SSD status would have shown that she
was unable to work before the fall and thus, her damages should be lower. But
plaintiff did not make a claim for lost wages. Moreover, the jury heard
uncontroverted testimony from Maria and Jasmine that plaintiff never had a
paying job but only did volunteer work. In addition, Dr. Wolstein testified that
the estimates he gave for plaintiff's twenty-four-hour future care only accounted
for future medical costs stemming from her injury and were not related to those
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45
she would incur based on her preexisting disability. Therefore, we conclude
plaintiff's SSD status is irrelevant and improper hearsay. See Id. at 317. The
trial judge did not abuse his discretion in excluding Maria's testimony about
plaintiff's SSD status.
F.
Finally, defendants argue that the jury verdict sheet was confusing
because the trial judge failed to delineate between ordinary negligence and
mode-of-operation theories of premises liability. At the charge conference,
defendants conceded that there was a "potential factual nexus" for a mode-of-
operation charge "based upon the plaintiff's theory of the case." However,
defendants argued that the jury should be instructed on only the mode -of-
operation theory rather than ordinary negligence because plaintiff had not
established that defendants had notice of the food on the floor on which she
allegedly slipped.
Plaintiff countered the jury should also be charged on ordinary negligence
because it is reasonable for the jury to conclude that food was on the floor "for
an unreasonable period of time and [defendants] had constructive notice of it,
they just didn't see it." The trial judge agreed, noting "even if the jury for some
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reason doesn't want to buy mode[-]of[-]operation, [it] can still find liability
because of constructive notice of . . . a dangerous condition."
The mode-of-operation doctrine creates an inference of negligence which
excuses a plaintiff from having to prove notice and shifts the burden to defendant
to show it exercised due care. Prioleau, 223 N.J. at 263. The Prioleau Court
clarified "the mode-of-operation [doctrine] is not a general rule of premises
liability, but [rather] a special application of foreseeability principles in
recognition of the extraordinary risks that arise when a defendant chooses a
customer self-service business model." Id. at 262.
Principles which apply when a business allows customers to handle
products and equipment, unsupervised by employees, due to the increased risk
"that a dangerous condition will go undetected and that patrons will be injured."
Ibid. While "the mode-of-operation doctrine has never been expanded beyond
the self-service setting," such a setting encompasses where customers "may
come into direct contact with product displays, shelving, packaging and other
aspects of the facility that may present a risk." Ibid. (citing Nisivoccia v. Glass
Gardens, Inc., 175 N.J. 559, 563-66 (2003)).
Here, defendants argue the trial judge erred by charging the jury on both
ordinary negligence and mode-of-operation. The trial judge instructed the jury
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on all elements of negligence, including in the context of premises liability and
gave instructions on both actual and constructive notice. The trial judge also
charged the jury on mode-of-operation, stating:
In self-service settings, patrons may be at risk for
injury from the manner in which the business
employees handle the business's products or equipment
or from the inherent quality of the merchandise itself.
If you find the plaintiff has proven that the
defendants' business was being operated as a self-
service operation, that the plaintiff's accident occurred
in an area affected by the business's self-service
operation, and that there is a reasonable factual nexus
between the defendants' self-service activity and the
dangerous condition allegedly producing the plaintiff's
injury, then the plaintiff is relieved from the burden of
proving that . . . defendants had actual or constructive
knowledge of the particular dangerous condition.
In such circumstances, an inference of negligence
arise[s] that shifts the burden to the defendant to
produce evidence that it did all that a reasonably
prudent business would do in the light of the risk of
injury . . . that the self-service operation presents.
To reiterate, you cannot hold . . . defendant, [The]
Hanover Manor, liab[le] under the mode-of-operation
rule unless you are persuaded by a preponderance of the
evidence that the plaintiff slipped on a substance that
came from the self-service buffet.
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The verdict sheet used at trial asked: 6
1. Was the [d]efendant negligent and its negligence a
proximate cause of the accident?
YES____ NO____ VOTE____
If "YES," proceed to question 2.
If "NO," you have completed your deliberations.
2. Was the [p]laintiff negligent and her negligence a
proximate cause of the accident?
YES____ NO____ VOTE____
If "YES," please determine what percentage of
such total negligence is attributable to
[d]efendant and [p]laintiff (taking the combined
negligence of all parties to this lawsuit as being
100%)
a. Defendant Answer____
b. Plaintiff Answer____
TOTAL 100% VOTE_____
If [p]laintiff's total negligence is 50% or more,
you have completed your deliberations.
If "NO," or if [p]laintiff's total negligence is less
than 50%, proceed to question 3.
3. State whether [p]laintiff has proven by a
preponderance of the evidence that she suffered an
6
The actual verdict sheet marked by the jury is not included in the record, only
plaintiff's proposed verdict sheet, which the trial judge adopted.
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injury proximately caused by [d]efendant's negligence
on May 3, 2015?
YES____ NO____ VOTE____
If "YES," proceed to question 4.
If "NO," you have completed your deliberations.
4. What sum of money will fairly, fully, and reasonably
compensate [p]laintiff Rosemarie Pietrobon for her
harms and losses proximately caused by [d]efendant's
negligence on May 3, 2015? Fill out each line:
(a) future medical expenses $_________
VOTE________
(b) past and future pain and suffering, disability,
impairment and loss of enjoyment of life
$_________ VOTE________
Our Court has "recognize[d] the importance of the verdict sheet as 'an
essential component' of the trial court's 'road map' for the jury's deliberations."
State v. Cuff, 239 N.J. 321, 340 (2019) (quoting State v. Galicia, 210 N.J. 364,
387 (2012)); see also N.Y.-Conn. Dev. Corp. v. Blinds-To-Go (U.S.) Inc., 449
N.J. Super. 542, 557 (App. Div. 2017). "Jurors are likely to refer, and refer
often, to the directions on the verdict form." Cuff, 239 N.J. at 340 (quoting State
v. Nelson, 173 N.J. 417, 449 (2002)). "Thus, 'we encourage completeness and
consistency in the preparation of verdict sheets.'" Id. at 340-41 (quoting State
v. Gandhi, 201 N.J. 161, 198 (2010)).
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"Because a verdict sheet constitutes part of the trial court's direction to the
jury, defects in the verdict sheet are reviewed on appeal under the same 'unjust
result' standard of Rule 2:10-2 that governs errors in the jury charge." Galicia,
210 N.J. at 388. "The failure to provide clear and correct jury charges and
instructions on the verdict sheet is error . . . ." N.Y.-Conn. Dev. Corp., 449 N.J.
Super. at 557. However, because the jury instructions "serve as the jury's
primary guide as it considers the charges and the evidence," errors in a verdict
sheet can be regarded as harmless unless the verdict sheet was misleading. Cuff,
239 N.J. at 341; see also Galicia, 210 N.J. at 387 ("When there is an error in the
verdict sheet, but the trial court's charge has clarified the legal standard for the
jury to follow, the error may be deemed harmless.").
At the outset, to the extent defendants challenge the charge itself, they
have waived that issue by not briefing it. See Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed
waived."). Nonetheless, we conclude the trial judge properly charged the jury
as to mode-of-operation in accordance with Walker v. Costco Wholesale
Warehouse, 445 N.J. Super. 111, 121 (App. Div. 2016).
Walker, which involved a slip and fall allegedly caused by free cheesecake
samples at Costco, provides that, when mode-of-operation is applicable, the trial
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court "shall include with the model charge a specific instruction advising the
jurors that they cannot hold [defendant] liable under a mode-of-operation theory
unless they find that plaintiff has persuaded them by a preponderance of the
evidence that he slipped on a substance that came from the stand with the free
samples." Ibid.
That is exactly what the trial judge did here—he tailored the Model Jury
Charge to ensure the jurors understood they had to find a factual nexus between
plaintiff's injury and the self-service buffet to find defendants liable under mode-
of-operation, even emphasizing, "[t]o reiterate, you cannot hold the defendant,
[The] Hanover Manor, liab[le] under the mode-of-operation rule unless you are
persuaded by a preponderance of the evidence that . . . plaintiff slipped on a
substance that came from the self-service buffet." It is presumed the jurors
understood that instruction and gave their verdict accordingly. See Gandhi, 201
N.J. at 197 (noting the jury is presumed to have understood the judge's
instructions). For these reasons, the trial judge did not err in charging the jury.
Walker, 445 N.J. Super. at 128.
Further, the verdict sheet was not inadequate or misleading. Defendants
maintain Walker mandates that a trial court must specifically pose questions as
to mode-of-operation on the verdict sheet. However, there is nothing in Walker
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that supports that theory. Walker mandates that, if a mode-of-operation theory
of liability is applicable, the jury be charged that, to hold the defendant liable
under that theory, it must find a factual nexus exists between the dangerous
condition allegedly leading to plaintiff's injury and defendant's self -service
component. Ibid. Walker does not mandate that instruction be given on the
verdict sheet, or require special interrogatories as to mode-of-operation be posed
on the verdict sheet. Ibid. And, the jury verdict sheet did not have to specify
which theory it found defendants negligent under. In sum, we conclude the
verdict sheet was not inadequate or misleading.
To the extent we have not addressed any arguments raised by defendants,
they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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