Rose Marie Pietrobon v. the Hanover Manor and K & a Realty

• Court: New Jersey Superior Court Appellate Division
• Decided: March 21, 2024
• Docket: A-0539-22
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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?

....

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?

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?

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.").

A-0539-22 24 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,

A-0539-22 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

A-0539-22 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

A-0539-22 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

A-0539-22 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.").

A-0539-22 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."

A-0539-22 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

A-0539-22 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

A-0539-22 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

A-0539-22 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

A-0539-22 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

A-0539-22 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

A-0539-22 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.

A-0539-22 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

A-0539-22 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

A-0539-22 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

A-0539-22 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 ."

A-0539-22 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

A-0539-22 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

A-0539-22 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:

A-0539-22 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

A-0539-22 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

A-0539-22 46 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

A-0539-22 47 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.

A-0539-22 48 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?

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. A-0539-22 49 injury proximately caused by [d]efendant's negligence on May 3, 2015?

If "YES," proceed to question 4.

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)).

A-0539-22 50 "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

A-0539-22 51 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

A-0539-22 52 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.

A-0539-22 53