MARYJO CASTELLI VS. ANTHONY SOLLITTO (L-8134-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2029-17T3
MARYJO CASTELLI,
Plaintiff-Appellant,
v.
ANTHONY SOLLITTO and
MATILDE SOLLITTO,
Defendants-Respondents.
__________________________
Argued December 12, 2018 – Decided January 11, 2019
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8134-15.
Michael J. Confusione argued the cause for appellant
(Hegge & Confusione, LLC, attorneys; Michael J.
Confusione, of counsel and on the brief).
John V. Mallon argued the cause for respondents
(Chasan Lamparello Mallon & Cappuzzo, PC,
attorneys; John V. Mallon, of counsel and on the brief;
Richard W. Fogarty, on the brief).
PER CURIAM
Plaintiff Maryjo Castelli appeals a jury verdict finding no cause for her
negligence claim against defendants Anthony Sollitto and Matilde Sollitto for
plaintiff's personal injuries arising from a slip and fall allegedly on defendants'
property. We affirm.
I.
Plaintiff filed a negligence complaint alleging she suffered personal
injuries when she slipped and fell on ice on the walkway that led from the
sidewalk to defendants' two-family home. The trial evidence showed defendants
were plaintiff's landlords at the home: plaintiff leased the second floor and
defendants resided on the first floor with their son, Anthony Sollitto, Jr. When
plaintiff returned to the home at 11:00 p.m. on a cold February evening in 2014 ,
she reportedly slipped on ice, fell and landed on a walkway near where it abutted
the sidewalk in front of the home. The walkway extended in a perpendicular
direction from the sidewalk, elevated three steps, and continued toward the front
door of the home. Plaintiff sustained injuries and fractures to her right foot and
leg. Soon after the fall, Anthony Sollitto, Jr., and another individual exited the
home and assisted plaintiff.
There was conflicting testimony at trial concerning the presence and
location of the ice plaintiff claimed caused her fall. Plaintiff asserted the ice
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was on the walkway between the sidewalk and the stairs. Plaintiff's expert
testified that the topography of the property and presence of retaining walls on
the sides of the walkway caused water to accumulate on the walkway between
the sidewalk and the walkway stairs. He also testified that the pooling water
would freeze in that location when the temperature fell below freezing.
Anthony Sollitto, Jr., testified that the only ice he observed in the area
where plaintiff fell was on the sidewalk and that there was no ice on the
walkway. His father, defendant Anthony Sollitto, testified he lived at the home
for thirty-three years, never observed water accumulating on the walkway
between the sidewalk and stairs and did not see any ice in that area earlier in the
evening of plaintiff's accident.
Prior to counsels' summations, the court discussed its proposed jury
charge with counsel. 1 In pertinent part, the court's instructions included the
1
The court noted that it had conducted an off-the-record charge conference with
counsel and had provided counsel with a copy of its proposed jury charge. The
court summarized the off-the-record discussions and allowed counsel to place
any arguments concerning the charge on the record. We do not endorse off-the-
record jury charge conferences because the Rules require they be on the record,
see R. 1:8-7(a), and off-the-record conferences generally do not permit proper
appellate review, see Drake v. Human Servs. Dep't, 186 N.J. Super. 532, 537
(App. Div. 1982) (noting the Appellate Division usually does not consider
matter not contained in the record below). In any event, the court's off-the-
record conference is of no moment here because it is undisputed the parties
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model jury instructions on negligence and foreseeability,2 as well as the
instructions on the duty of an owner of a multi-family house to tenants and others
and liability for defects in public streets and sidewalks. 3
Plaintiff requested an instruction that defendants' alleged violation of a
municipal ordinance requiring repair of hazardous conditions on their property
could be considered in determining defendants' negligence. Defendants
objected to the charge, and plaintiff's counsel agreed the instruction should not
be included. The trial judge also noted she could not include the charge because
reviewed and consented to the jury charge the court utilized to instruct the jury ,
and were permitted to place their positions concerning the charge on the record.
In addition, the parties agree there was no objection to the jury charge and that
we review the charge for plain error. R. 2:10-2.
2
The court instructed the jury in accordance with Model Jury Charges (Civil),
5.10A, "Negligence And Ordinary Care ̶ General" (approved before 1984), and
Model Jury Charges (Civil), 5.10B, "Foreseeability (As Affecting Negligence)"
(approved before 1984).
3
The court instructed the jury in accordance with Model Jury Charges (Civil),
5.20D, "Duty Of Owner Of Multi-Family House To Tenants And Others"
(approved May 1997), and Model Jury Charges (Civil), 5.20B, "Liability For
Defects In Public Streets And Sidewalks" (approved Nov. 1999), respectively.
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our Supreme Court's decision in Luchejko v. City of Hoboken, 207 N.J. 191(2011), dispensed with the issue. 4
Following the summations of counsel, the court instructed the jury in
accordance with its proposed charge. The court also discussed the schedule and
directed that the jury "go in the jury room and talk about how you want to
approach this. Okay? If you all can stay, and you want to get started, and you
want to be willing to stay later, we will stay as long as you want to stay." The
judge noted that the jurors had been previously told the court day would end at
4:30 p.m. The court instructed that the jury "should spend . . . a few minutes
figuring out what [they] want to do in terms of schedule and then we'll be waiting
to hear from you. You can . . . ring the buzzer to tell us what time you want to
stay til." The jury next advised the court that a juror had to leave at 4:30 p.m.
and that it requested to break for the day.
One of the jurors, who could not return the following day, was dismissed
without objection. The court dismissed the remaining seven jurors for the day.
The court instructed the remaining jurors not to "deliberate until you're all back
together."
4
In Luchejko, the Court reaffirmed that a third party has no private cause of
action against a homeowner for breach of duties imposed by a municipal
ordinance. 207 N.J. at 200-01.
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The remaining jurors returned the following day. The judge noted that
when the issue of scheduling had been addressed the previous day, she had not
gone "through the formality of having [the jury] write anything out," because
she and the jury "talked about [the scheduling issue] together on the record."
The judge, however, explained that if the jury needed to discuss any issues with
the court during its deliberations it "does have to write it out and that's so . . .
we have a clear record of what is asked and what's answered." The jury later
sent a note asking "how many votes" it needed for a verdict, and the court
explained that because a juror had been excused, the jury's verdict must be by a
vote of six to one.
The jury continued its deliberations and returned a verdict finding plaintiff
failed to prove by a preponderance of the evidence that either defendant was
negligent. The court subsequently entered a final judgment in defendants' favor
dismissing the complaint. This appeal followed.
II.
Plaintiff contends the trial court erred by charging the jury on liability for
injuries caused by defects in a sidewalk abutting residential property and by
failing to charge the jury on liability based on an alleged violation of a municipal
ordinance. Plaintiff also contends the court erred when it did not order that the
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jury begin its deliberations anew after excusing a juror. Having reviewed the
record in light of the applicable law, we find plaintiff's claims, each of which is
raised for the first time on appeal, are bereft of merit.
Proper jury charges are essential to a fair trial, Reynolds v. Gonzalez, 172 N.J.
266, 288 (2002), and the failure to provide clear and correct jury charges may
constitute plain error, Das v. Thani, 171 N.J. 518, 527 (2002). Indeed, "[e]rroneous
instructions are poor candidates for rehabilitation as harmless, and are ordinarily
presumed to be reversible error." State v. Afanador, 151 N.J. 41, 54 (1997).
However, generally, we "will not disturb a jury's verdict based on a trial court's
instructional error 'where the charge, considered as a whole, adequately conveys the
law and is unlikely to confuse or mislead the jury, even though part of the charge,
standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002)
(quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).
Here, we find no error in the court's decision to instruct the jury on the
principles of liability of a residential homeowner for hazardous conditions on an
abutting sidewalk. Plaintiff's contention the instruction should not have been given
because there is no evidence that the ice that caused her fall was on the sidewalk is
belied by the record. Anthony Sollitto, Jr.,'s testimony that the only ice in the area
where plaintiff fell was located on the sidewalk provided ample evidence supporting
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the court's charge to the jury. See Walker v. Costco Wholesale Warehouse, 445
N.J. Super. 111, 120 (App. Div. 2016) ("In civil matters, the trial court should
give an instruction that appropriately guides the jury on the legal basis of a
plaintiff's claim or a defendant's affirmative defense, so long as there is a
reasonable factual basis in the evidence to support that claim or defense.").
We are also unpersuaded by plaintiff's contention that the court erred by
giving the residential sidewalk liability charge because defendants' property is not
residential. Where there is a "hybrid use [of property,] when the owner's
occupancy, in terms of time or space, is greater than or equal to the rental
occupancy, the property shall be considered residential regardless of whether
the rental space generates a profit." Wasserman v. W.R. Grace & Co., 281 N.J.
Super. 34, 39 (App. Div. 1995). Under circumstances identical to those
presented here, in Smith v. Young, we held that a two-floor, owner-occupied,
two-family home was "distinctly residential" for purposes of sidewalk liability.
300 N.J. Super. 82, 97-98 (App. Div. 1997). We concluded that "[t]he property
at issue here, being an owner-occupied, two-family home is clearly within the
exempted category, absolving the owners from the duty to maintain abutting
sidewalks under currently prevailing standards." Id. at 100; see also Grijalba v.
Floro, 431 N.J. Super. 57, 69, 71 (App. Div. 2013) (noting that "owner-occupied
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two-family homes" are "usually deemed residential" while reasoning two-to-
three-family owner-occupied homes are a "gray area" subject to "a case-by-case,
fact-sensitive" analysis).
Here, the undisputed evidence showed defendants' property included a two-
family home in which they resided on the first floor and plaintiff leased the second.
Thus, contrary to plaintiff's assertion, there was sufficient evidence supporting the
court's instruction on residential homeowners' liability for hazardous conditions
existing on a sidewalk abutting their property. See generally, Walker, 445 N.J.
Super. at 120.
The court also did not err by failing to expressly explain that the jury's
application of the law on residential sidewalk liability was conditioned on a
determination that the ice that caused plaintiff's fall was located on the sidewalk.
Plaintiff did not object to the instruction which lacked the specificity she now
claims was required, and we thus can presume she perceived that its omission
did not result in any prejudice. See, e.g., State v. Singleton, 211 N.J. 157, 182
(2012) (finding "there is a presumption that [a] charge was not [in] error and
was unlikely to prejudice the defendant's case" where there was no objection to
the charge). Moreover, the plain language of the charge otherwise makes clear
that the principles of residential sidewalk liability apply only if the alleged
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hazardous condition exists on the sidewalk. We therefore discern no error in the
court's charge, let alone plain error.
Although plaintiff withdrew her request that the court include an
instruction on liability based on a violation of a municipal ordinance and
acquiesced to the court's decision not to include the instruction, she argues the
court's decision not to include the instruction constitutes plain error. The
argument is without sufficient merit to warrant discussion in a written opinion ,
R. 2:11-3(e)(1)(E), other than to note that the trial judge correctly determined
the Court's decision in Luchejko required rejection of plaintiff's initial request
for the charge. See Luchejko, 207 N.J. at 200-01.
Plaintiff last argues that the court committed plain error by failing to
instruct the remaining jurors to deliberate anew following its dismissal of one
of the original jurors. Plaintiff contends the court violated Rule 1:8-2(d)(1),
which governs juror substitutions and provides that where "a substitution of an
alternate juror is made, the court shall instruct the jury to recommence
deliberations and shall give the jury such other supplemental instructions as may
be appropriate." Plaintiff did not object to the court's directions to the jury
following the dismissal of the juror and, therefore, we review the issue under
the plain error standard. R. 2:10-2; Cf. Melendez v. Rodde, 176 N.J. Super. 283,
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286 (App. Div. 1980) (holding that a trial court's failure to grant a new trial
motion founded on the court's failure to instruct the jury to recommence
deliberations after a juror substitution constituted harmless error).
We find no error in the court's instructions to the jury following the
removal of the juror. There is no evidence the jury began its deliberations prior
to the juror being excused. To the contrary, the jury was sent to the jury room
for the express purpose of determining its schedule for the deliberations and ,
after being afforded an opportunity to confer on that issue, advised the court it
wanted to be dismissed for the day. It was at that time the juror was excused ,
and the court appropriately instructed the remaining jurors to return the
following day for its deliberations. There was no need for the court to advise
the jury to recommence its deliberations when it returned after the juror was
excused because the jury had not begun its deliberations in the first instance.
See State v. Miller, 76 N.J. 392, 429 (1978) ("Until the jury retires to deliberate
on its verdict, if there is good cause to excuse a juror, no statute or rule of law
is violated, nor is there any conceivable prejudice to a defendant or the State.").
We have carefully considered each of plaintiff's contentions. To the
extent we have not expressly addressed an argument, we have determined it is
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without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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