STACI PIECH V. GLENN LAYENDECKER, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, DOCKET NO. A-1417-16T4, (Approved for Publication October 19, 2018)
Plaintiff Staci Piech was attending a 40th birthday party hosted by the defendant John Layendecker (John) for his son Glenn Layendecker (Glenn) when an eighteen-to-twenty inch thin hollow metal pole used by Glenn to strike a piñata broke off and struck her arm causing permanent nerve damage. The jury returned a verdict of no cause in favor of the defendants. Plaintiff appealed the jury verdict and John cross-appealed the trial court’s denial of his motion for summary judgment and its refusal to apply the law of the case doctrine.
At the outset, the Appellate Division agreed with Plaintiff that the judge provided flawed jury instructions regarding defendant John’s standard of care, and that the judge erred by allowing various witnesses to opine that they subjectively believed that Plaintiff’s accident was unforeseeable.
The trial court charged the jury with conflicting charges. One related to a dangerous condition on the property and the other charge related to the host conducting an activity on the property at the same time the plaintiff is present. The Appellate Division noted that Plaintiff did not allege a dangerous condition but rather claimed that her injuries were due solely from the piñata activities. This difference required the judge to charge the jury that John failed to use reasonable care for her protection. It further rejected John’s argument that the piñata set-up constituted an artificial dangerous condition warranting a dangerous condition charge. It held that hanging a piñata from a tree was not the type of artificial dangerous condition generally contemplated by case law. It also noted:
We must draw the distinction between cases that involve injuries sustained due to physical dangerous conditions on the land – irrespective of whether the condition is natural or artificial – and ones, like this, which purely involve an injury caused by an activity that the host conducted or sponsored on his land.
Op at p. 9
The Appellate Division’s analysis of the lay witness testimony was as follows:
Glenn and other witnesses testified that the incident was essentially unforeseeable. Glenn testified that what he was doing was not dangerous and that he had no concerns using the metal pole. An eyewitness to the incident opined that he had no safety concerns as he watched Glenn repeatedly strike the piñata with the metal pole, even as he observed the pole bend. Another person who watched Glenn use the pole testified that he believed Glenn was not engaged in a dangerous activity, and that after he observed the pole bending, he subjectively “never thought [the pole] would snap.” This testimony – at a minimum – expressed their collective and individual opinions that the incident was unforeseeable. The defense then used plaintiff’s deposition testimony on the subject of whether she thought the incident was foreseeable.
Op at pp. 12-13
The Appellate Division concluded that the trial judge abused his discretion by permitting the subjective opinion testimony because t was irrelevant, conflicted with the charge on foreseeability, and violated N.J.R.E. 701 (stating that a lay witness may testify “in the form of opinions or inferences . . . if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness’ testimony or in determining a fact in issue”). Significantly, the Appellate Division concluded that improper lay opinion testimony coupled with the summations by defendants’ counsel, most likely led to the jury’s finding of no negligence and that the incident was unforeseeable.
The Appellate Panel found defendants’ arguments regarding summary judgment and law of the case to be without merit. It saw no reason to disturb the motion judge’s denial of summary judgment due to the existence of fact issues.
The motion judge’s reasons for denying summary judgment did not bind the trial judge. The law of the case doctrine generally prohibits a second judge, in the absence of additional developments or proofs, from differing with an earlier ruling. The doctrine is a non-binding rule intended to prevent re-litigation of a previously resolved issue. The Appellate Division found that the trial judge did not abuse his discretion in rejecting John’s request to apply the law of the case doctrine.
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