Opinion
DOCKET NO. A-1106-14T4
06-13-2016
ANABELLE DuBEAU and WILLIAM DuBEAU, Plaintiffs-Respondents, v. TSI COLONIA, LLC, Defendant-Appellant, and KESSLER PHYSICAL THERAPY and REHABILITATION, Defendant.
Eric T. Evans argued the cause for appellant (Gordon & Rees, LLP, attorneys; Robert C. Neff, Jr. (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP), of counsel and on the brief). Jeffrey S. Intravatola argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys, Mr. Intravatola, of counsel; Mr. Intravatola, Richard J. Mirra and Edward F. Ryan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5005-11. Eric T. Evans argued the cause for appellant (Gordon & Rees, LLP, attorneys; Robert C. Neff, Jr. (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP), of counsel and on the brief). Jeffrey S. Intravatola argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys, Mr. Intravatola, of counsel; Mr. Intravatola, Richard J. Mirra and Edward F. Ryan, on the brief). PER CURIAM
Plaintiff Anabelle DuBeau commenced this action against defendants TSI Colonia, LLC (defendant) and Kessler Physical Therapy and Rehabilitation (Kessler) for personal injury damages sustained as a result of her fall at defendant's gym. A jury found both defendant and Kessler liable, and the judge molded the verdict based on the jury's allocation of liability between the two defendants, awarded prejudgment interest, and entered judgment against defendant and Kessler in the amounts of $241,531.16 and $130,055.24, respectively. In appealing, defendant argues the trial judge erred in denying its motions: to bar plaintiff's liability expert from testifying; for an involuntary dismissal at the close of plaintiff's case-in-chief, pursuant to Rule 4:37-2(b); and for judgment at the close of the evidence, pursuant to Rule 4:40-1. We find no error and affirm.
Plaintiff William DuBeau voluntarily dismissed his per quod claim prior to the start of trial.
A portion of the building was leased by defendant to Kessler.
The jury found defendant sixty-five percent liable and Kessler thirty-five percent liable.
Kessler has not filed an appeal.
The case was tried over the course of eight days, but the issues posed in this appeal focus on the relationship between the evidence presented at trial and the testimony of an engineering expert about a tripping hazard in defendant's gym.
The testimony demonstrated that, as prescribed by her physician, plaintiff was engaged in physical therapy at the hands of Kessler. The prescribed therapy required the use of various pieces of equipment, most of which was contained within Kessler's portion of the premises. Toward the end of each session, however, plaintiff was required to use a stationary bicycle in defendant's gym. On each prior occasion, plaintiff was accompanied by her therapist as they walked through a portion of defendant's gym to the bicycle.
On July 15, 2009, plaintiff was accompanied for the first time by Monica Kumar, a therapist who had not previously worked at this Kessler facility. While on their way to the stationary bicycle, plaintiff fell and was injured. The evidence concerning the cause of her fall lies at the heart of the issues raised in this appeal.
Plaintiff's usual therapist, who had worked with plaintiff on eight prior occasions since plaintiff first engaged Kessler's services on June 24, 2009, was unavailable on the day in question. Although she had worked at other Kessler facilities, Kumar had never previously been to these premises.
As part of its case-in-chief, plaintiff called Robert S. Sleece, an engineering expert, who, in both his report and during his testimony at trial, opined on the dangerousness of the instrumentality he believed caused the fall. Sleece testified that an area of defendant's gym, which contained free-standing weights, benches and related apparatus, was elevated slightly higher than the rest of the gym floor. In other words, when walking from the aisle that passed through the gym, a patron would step up onto a slightly higher surface when entering the area containing free weights and other equipment. According to the expert, this raised area — which tapered up to the point of being two-and-one-half inches higher than the level of the aisle — had a "one-half inch vertical face," which was not sufficiently marked because the surfaces of the aisle and the raised area were, in his opinion, "the same color"; he opined this caused a tripping hazard to patrons that might encounter it:
Now that free weight area is about two and a half inches above the normal floor. It's a dark gray or black and at the edge of that free weight area is a ramp. It ramps down at roughly a two to one rate, but at the end of it[,] it doesn't — it doesn't ramp down flush to the floor. It has a one-half inch vertical face to the edge of the ramp and then you have the floor of the gym, which is covered with rubberized — a seamless rubberized material.In presenting a link between this condition, which Sleece found hazardous, and the cause of plaintiff's fall, Sleece testified that plaintiff "walked adjacent to this area, and as she got to a corner prepared to make a right turn toward the recumbent bicycle area she encountered the ramped corner. That was the location where the accident occurred." When asked for his understanding as to how plaintiff's fall occurred, Sleece acknowledged that the factual predicate for his opinion came from the deposition testimony of both plaintiff and Kumar. And it is here that we come to the crux of the problem before us.
Plaintiff testified at trial that as she and Kumar walked through the gym, and as "the bikes [came] into view," she "caught [her] knee on a platform and all of a sudden . . . found [her]self falling." When asked "how high [she] thought the platform was," plaintiff answered: "[a]bout a foot." During cross-examination, plaintiff gave the following testimony:
This testimony came as no surprise because plaintiff similarly testified at her deposition.
Q. When you had your incident it is your testimony that you actually hit your knee on something, correct?
A. Yes.
Q. And that's what caused you to get startled and you twisted and — and fell, correct?
A. Yes.
Q. You did not trip on anything, correct?
A. No.
Q. No, you did not trip?
A. I did not trip.
Plaintiff's version diverges from Sleece's understanding of what occurred and tends to eviscerate any link between the accident and the instrumentality described by Sleece. She testified that she fell because she struck her knee on a platform about a foot off the ground; Sleece assumed she tripped on the one-half-inch-high vertical face of the free weight flooring. If this was all the jury received about the fall, it may very well have been erroneous to permit the jury to consider whether the hazard described by Sleece caused plaintiff's fall. See Townsend v. Pierre, 221 N.J. 36, 57 (2015).
In other words, plaintiff was required to establish that defendant owed and breached a duty of care that proximately caused actual damages. Weinberg v. Dinger, 106 N.J. 469, 484 (1987); see also Townsend, supra, 221 N.J. at 51. Sleece's testimony may have established a breach of defendant's duty to patrons by showing the existence of a one-half-inch vertical face tripping hazard, but plaintiff's testimony that she fell because she bumped into a foot high platform tends to break the link between the breach cited by the expert and the manner of her fall.
We note, however, that plaintiff's account of her fall was not the only account provided during plaintiff's case-in-chief. Plaintiff's counsel read to the jury a portion of Kumar's deposition, during which she testified, in responding to a question that she "tell . . . in [her] own words" what she recalled happening, that she:
was walking [plaintiff] to the recumbent bicycle located within [defendant's part of the gym]. [Plaintiff] was behind me as I was walking in front of her. I was walking in front of — and then as we turned the corner [plaintiff] fell or tripped and fell on the middle free weight area or ledge and landed on her left knee.This evidence provided the nexus needed between the expert's opinion about the one-half inch tripping hazard and plaintiff's fall. It also constituted evidence that mandated the denial of defendant's motion for an involuntary dismissal at the end of plaintiff's case-in-chief or at the end of the presentation of all evidence.
[Emphasis added.]
As for defendant's argument that Sleece's testimony provided only a net opinion — because of the alleged lack of a link between what the evidence suggests happened and the instrumentality discussed by the expert — this case differs significantly from Townsend, upon which defendant greatly relies. There, an expert testified about shrubbery alongside a roadway that caused an obstruction for motorists; the Court held that this opinion "diverged from the evidence" because the defendant testified that her view "was unimpeded" by the shrubbery described by the expert. Townsend, supra, 221 N.J. at 57. To be sure, plaintiff's testimony about being caused to fall by an object a foot high also diverges from Sleece's testimony about a tripping hazard one-half-inch above the floor; but Kumar's testimony that plaintiff tripped as they turned the corner — where they likely would have encountered the one-half-inch-high tripping hazard — provided an evidential link for Sleece's opinion.
For the same reason, we find no error in the judge's denial of either defendant's motion for an involuntary dismissal at the end of plaintiff's case-in-chief or defendant's motion for judgment at the close of all the evidence. Rule 4:37-2(b), which applies to the former, declares that such a motion "shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor"; Rule 4:40-1, which applies to the latter, calls for the application of the same standard. Both motions triggered a purely "mechanical" consideration of the evidence. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). That process requires denial of the motion if, in accepting as true the evidence favorable to plaintiff and in giving plaintiff "the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ" as to whether the plaintiff is entitled to judgment. Ibid. A judge must not be "concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Id. at 5-6; see also ADS Assoc. v. Oritani Sav. Bank, 219 N.J. 496, 510-11 (2014); Hitesman v. Bridgeway, Inc., 218 N.J. 8, 25-26 (2014); N.B. v. S.K., 435 N.J. Super. 298, 304 n.7 (App. Div. 2014).
Even if, as seems to be the case, plaintiff's testimony ran counter to her theory of liability, Kumar's deposition testimony that plaintiff "fell or tripped" as they "turned the corner" provided, along with the expert's testimony, more than a scintilla of evidence to support a judgment in plaintiff's favor either at the close of plaintiff's case or at the close of all the evidence. As for the motion at the close of all the evidence, we are mindful Kumar was called to the stand by defendant and testified she did not see what caused plaintiff to fall; Kumar, however, did not dispute the location of the event that she described in the deposition testimony that was read during plaintiff's case-in-chief. Ultimately, the determination of what happened was for the trier of fact. The mechanical Dolson test the judge was required to apply did not provide him with the opportunity to reach his own conclusions about the facts or the credibility of the witnesses; the judge, therefore, correctly denied defendant's Rule 4:37-2(b) and Rule 4:40-1 motions.
We recognize the evidence suggested two separate factual theories of liability, i.e., plaintiff either tripped on the defect described by Sleece or she fell after bumping into a foot-high obstacle. After close examination of the trial transcript, we are satisfied the jury did not find defendant liable on the latter theory, principally because plaintiff's counsel urged in his summation only the theory that she tripped on the raised flooring. --------
We lastly observe defendant never moved for a new trial on a claim that the verdict was against the weight of the evidence, nor has it argued we should engage in an analysis of the evidence as if it had previously sought a new trial. Indeed, our inquiry in that regard — had it been urged on appeal — would have been foreclosed by Rule 2:10-1. The issues before this court are limited to the admissibility of the expert's testimony and whether the judge correctly denied defendant's dispositive motions at the close of plaintiff's case-in-chief and at the close of all the evidence. The experienced judge made no error.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION