UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Adriana Serna and Charlie Serna

v. Civil No. 14-cv-049-JD Opinion No.

Olde Jackson Village, Inc. d/b/a Nestlenook Farm & Resort

O R D E R

Adriana Serna and her husband, Charlie Serna, brought suit

against the owners and operators of Nestlenook Farm and Resort

(“Nestlenook”), after Adriana fell and was injured at Nestlenook

while walking from the skating pond to the warming gazebo. The

Sernas allege that Nestlenook was negligent in maintaining the

path from the skating pond to the warming gazebo, in failing to

warn of dangers, and in inadequately training and supervising

the staff at Nestlenook. Nestlenook moves, in limine, to

preclude the Sernas from referring to building codes, offering

lay opinion testimony about the lack of a handrail, and from

relying on a theory that Nestlenook was negligent because of the

lack of a handrail. The Sernas object to the motion. Discussion

Nestlenook contends that because the Sernas do not have an

expert witness to address building codes and the need for a

handrail and because they did not allege that the lack of a

handrail caused Adriana’s fall, they cannot introduce evidence

that the lack of a handrail was a defect that caused Adriana’s

fall. In their objection, the Sernas address only the handrail

issue, arguing that under New Hampshire cases an expert

witness’s opinion is unnecessary because the duty to provide a

handrail is well established. They also argue that Richard A.

Ferdinand can give lay opinion testimony about the lack of a

handrail. In its reply, Nestlenook reiterates the argument that

the lack of a handrail is not relevant in this case and disputes

the admissibility of Ferdinand’s opinion.

Adriana Serna was visiting Nestlenook with her friend,

Melissa Ferdinand, and Melissa’s daughters and their friend.

Adriana and the girls rented skates, put them on in a warming

gazebo, and walked to the skating pond. After skating, Adriana

fell as she reached to open the door to the gazebo. Melissa’s

husband, Richard A. Ferdinand, went to Nestlenook a few days

later to inspect the area where Adriana fell.

2 A. Building Codes

The Sernas do not dispute that part of Nestlenook’s motion

which seeks to preclude all evidence of building codes.

Therefore, no evidence of building codes, including the BOCA

National Property Maintenance Code and the International

Maintenance Code, will be permitted at trial.

B. Evidence of the Lack of Handrail

Nestlenook contends that the Sernas can offer no evidence

about the lack of a handrail along the path to the warming

gazebo. In support, it argues that the Sernas did not allege

that the lack of a handrail caused Adriana’s fall, that expert

opinion is necessary to show that a handrail would have

prevented Adriana’s fall, and that Ferdinand cannot give

opinions that the lack of a handrail caused the fall. The

Sernas argue that evidence of the lack of a handrail is

admissible.

1. Claim

The Sernas bring a claim of negligence, Count I, against

Nestlenook. To prove negligence under New Hampshire law, a

plaintiff “must demonstrate that the defendant had a duty to the

plaintiff, that she breached that duty, and that the breach

proximately caused injury to the plaintiff.” England v.

3 Brianas,

(2014). Duty in a negligence case

depends on “what risks, if any, are reasonably foreseeable under

the particular circumstances.” Macie v. Helms,

(2007). Causation requires evidence to show a reasonable

probability that without the defendant’s conduct the plaintiff

would not have been injured. Beckles v. Madden,

(2010).

Nestlenook relies on Brown v. Bonnin,

(1989),

for the proposition that because the Sernas alleged that the

slippery condition of the pathway caused Adriana’s fall, they

cannot also claim that the lack of a handrail caused the fall.

The Sernas contend that Brown is inapposite to the circumstances

of this case.

In Brown, the plaintiff brought suit to recover for her

injuries after she fell while walking down stairs outside her

apartment building.

. The plaintiff

testified that although a handrail existed on the right side of

the stairs, she was descending on the left side, without a

handrail, and she slipped on a gluey substance on the second

step and fell.

. At trial, the judge instructed the

jury to disregard evidence about the risers, the nosings, the

treads, and the handrail on the stairs.

. On appeal,

the supreme court affirmed that ruling because the plaintiff’s

4 claim was that she slipped on something gluey on the second

stair, not that the nosings, treads, or risers were defective,

and because the plaintiff chose to descend the stairs on the

side without a railing.

. The trial court also

precluded the plaintiff’s expert from testifying about the

building code’s handrail requirement because he was merely

repeating the code, which was hearsay, but not providing an

expert opinion, and the supreme court affirmed that ruling.

.

In contrast, the Sernas allege that both the slippery

pathway and the lack of a handrail contributed to cause

Adriana’s fall. The Sernas allege by way of background that

Adriana, and the girls who went skating with her, walked on the

path from the gazebo and down the stairs to the pond. On the

way back, Adriana walked up the stairs, with the railing, to the

path, without a railing, and fell when she reached for the door

of the gazebo. They allege that “[s]he tried to steady herself,

but there was no hand rail on this portion of the pathway.”

They also allege that “[t]he lack of a hand railing leading

from the top of the stairs to the warming gazebo and the

improper lighting made an unreasonably perilous situation even

more dangerous; and said danger could have been easily

remedied.” They further allege that Nestlenook “knew, or should

5 have known, of the dangerous condition of the premises including

the pathways therein, and that the patchwork sections of

rubberized matting of differing surfaces textures would be

especially dangerous in icy conditions, and that the failure to

provide a railing for skaters represented an unreasonably

dangerous risk . . . .”

In Count I, the Sernas allege that the pathway was icy,

snowy, slippery, uneven, buckled, and dangerous and that “this

pathway, which lacked a hand rail, was the only way patrons

could get between the pond and the warming gazebo.” They also

allege that the pathway was dangerous and had no handrail.

Based on the allegations in their complaint, the Sernas

allege that Nestlenook was negligent, in part, because there was

no handrail on the path from the stairs to the gazebo and that

the lack of a handrail contributed to cause Adriana’s fall.

Specifically, the Sernas allege that Nestlenook had a duty to

provide a handrail because of the risk of slipping on the

pathway; that the icy, slippery, and uneven conditions on the

pathway caused Adriana to slip; and the lack of a handrail

contributed to cause her to fall. Therefore, evidence of the

lack of a handrail on the pathway is relevant to show that

Nestlenook was negligent. See Fed. R. Evid. 401.

6 2. Expert

To the extent Nestlenook contends that the Sernas must have

an expert to introduce evidence that the lack of a handrail was

a defect, they provide no authority in support of that

assertion. The Sernas cite a litany of cases, beginning in

1883, to show that the New Hampshire Supreme Court has

repeatedly recognized the duty to construct and maintain a

proper railing without requiring expert opinion. In response,

Nestlenook argues that the cited cases pertain to situations

where railings would be expected.

This case does not appear to be “one of the rare causes of

action in which the law predicates recovery upon expert

testimony.” Salem v. U.S. Lines Co.,

(1962).

Rather, when there is sufficient factual evidence of the

potential danger, a jury can decide whether railings or

handholds were required.

. Therefore, Nestlenook

has not shown that evidence about the lack of a handrail in this

case can be introduced only through expert opinion.

3. Lay Opinion

Nestlenook seeks to bar Richard Ferdinand from testifying

at trial to any opinions that a handrail was necessary or that

the lack of a handrail was hazardous. The Sernas argue that

Ferdinand can provide lay opinion under Federal Rule of Evidence

7 701. They candidly admit, however, that they could find no

supporting federal cases.

Rule 701 provides that if a witness is not an expert under

Federal Rule of Evidence 702, an opinion must be “rationally

based on the witness’s perception,” must be “helpful to clearly

understanding the witness’s testimony or to determining a fact

in issue,” and must not be “based on scientific, technical, or

other specialized knowledge within the scope of Rule 702.” The

witness’s perception must be based on firsthand knowledge, that

is, the witness’s own observations at the scene of the accident.

Lacaillade v. Loignon Champ-Carr, Inc.,

, at *1-

*2 (D.N.H. Nov. 14, 2011) (citing cases). The requirement that

the opinion be helpful to the jury bars opinions when the

witness is no better suited than the jury to arrive at that

assessment. United States v. Meises,

(1st Cir.

2011). Further, a lay opinion cannot be based on someone else’s

observations or perceptions. Smith Marine, Inc. v. Kyle Conti

Constr., LLC,

, at *8 (D. Mass. July 15, 2013).

As presented here, an opinion by Ferdinand about the need

for a handrail on the gazebo pathway would not meet the

requirements of Rule 701. Ferdinand did not witness the

accident. Although he did see the pathway, the Sernas have not

shown that his observations would be helpful the jury who will

8 have evidence of the lack of a handrail on the pathway.

Further, to the extent the Sernas intend to have Ferdinand

provide opinions based on information he gleaned from others at

Nestlenook, that is not a proper basis for a Rule 701 opinion.

Therefore, Richard Ferdinand will not be permitted to give

opinions about the need for a handrail or the danger due to not

having a handrail.

Conclusion

For the foregoing reasons, the defendant’s motion in limine

to preclude certain evidence (document no. 24) is granted to the

extent that Richard A. Ferdinand will not be permitted to

testify in the form of opinions at trial and the plaintiffs will

not be permitted to reference or introduce evidence of building

codes or standards. The motion is otherwise denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

August 19, 2015

cc: Stephen E. Borofsky, Esq. Paul B. Kleinman, Esq. John M. Lewis, Esq. David S. Brown, Esq.

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