NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1156-14T4

PHILIP VITALE, APPROVED FOR PUBLICATION Plaintiff-Respondent, August 22, 2016 v. APPELLATE DIVISION SCHERING-PLOUGH CORPORATION,1

Defendant-Appellant. ____________________________

Argued April 27, 2016 — Decided August 22, 2016

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6175-11.

Gavin J. Rooney argued the cause for appellant (Lowenstein Sandler LLP, attorneys; Douglas S. Eakeley, of counsel; Mr. Rooney and Joseph A. Fischetti, on the briefs).

Craig M. Rothenberg argued the cause for respondent (Rothenberg, Rubenstein, Berliner & Shinrod, LLC, attorneys; Mr. Rothenberg, of counsel; Mr. Rothenberg and John D. Gagnon, on the briefs).

Jay A. Gebauer argued the cause for amicus curiae Allied Barton Security Services, LLC (Fowler Hirtzel McNulty & Spaulding, LLP,

1 According to defendant Schering-Plough Corporation, on November 4, 2009, it merged with Merck & Co. to form the entity Merck & Co., Inc. attorneys; Mr. Gebauer and Quinn M. McCusker, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

This appeal raises a novel question of law in New Jersey:

whether a provision in an employment contract limiting a

worker's right to sue a third party for negligence is

enforceable. Plaintiff Philip Vitale was employed as a security

guard by Allied Barton Security Services, LLC (Allied Barton),

which contracted with defendant Schering-Plough Corporation to

provide security services at defendant's facilities. At the

commencement of his employment with Allied Barton, plaintiff

signed a disclaimer waiving his right to sue any of Allied

Barton's customers "to which [he] may be assigned, arising from

or related to injuries which are covered under the Workers'

Compensation statutes." In August 2009, plaintiff was injured

while working for Allied Barton at one of defendant's work

sites. Thereafter, he received workers' compensation benefits

from Allied Barton and also filed this personal injury suit

against defendant.

A jury subsequently found defendant's negligence caused

plaintiff's injuries and awarded plaintiff $900,000 in damages,

with additional amounts awarded by the court in prejudgment

interest, counsel fees, and expenses under the offer of judgment

2 A-1156-14T4 rule, R. 4:58-2. Defendant appeals from the denial of summary

judgment, arguing the disclaimer was valid and enforceable. In

the alternative, defendant also appeals from the final judgment,

arguing a new trial is warranted because the court erred both by

refusing to instruct the jury on comparative negligence, and

allowing a lay witness to provide opinion testimony. We affirm

the trial court's determination that the contractual limitation

on plaintiff's ability to sue defendant is unenforceable as

against public policy as expressed in case law and in the

Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -142, but

reverse as to the court's refusal to allow the jury to consider

comparative negligence.

I

Plaintiff began working as a security guard with Allied

Barton in September 2005. Although he was assigned to many of

defendant's work sites, he was never directly employed by

defendant, which had its own in-house security employees. In

2008, plaintiff was promoted to the position of field manager,

supervising Allied Barton security guards who worked at

defendant's sites. One of his duties as field manager was to

ensure that the guards had proper uniforms, and for that purpose

he stored extra uniforms in the basement of the guardhouse at

defendant's Kenilworth facility.

3 A-1156-14T4 Allied Barton did not have exclusive use of the guardhouse

basement. Defendant's security managers had keys to the

basement door, and the basement was used for storage by

defendant's maintenance and information technology employees.

The basement also contained equipment belonging to another of

defendant's contractors.

Defendant was responsible for the maintenance of both the

guardhouse and the stairwell to the basement, which one entered

from outside of the guardhouse. Defendant employed its own

security manager, who managed the guardhouse and was responsible

for inspecting the property and identifying any safety hazards.

Defendant also employed maintenance staff, who were responsible

for cleaning and repairing the guardhouse. The maintenance

staff were required to return items to their original location

after using them for the purpose of preventing safety hazards.

Plaintiff visited the guardhouse basement approximately

once per month. The stairwell had a light fixture, and without

that light, it was pitch black. The light switch was located at

the top of the stairwell, to the left as one opened the door.

Plaintiff's regular practice was to unlock the basement door,

turn on the stairwell light, and proceed down the stairs. At

the time of his accident, the stairwell's heavy, metal door had

a handle on the left, and opened outward to the right, blocking

4 A-1156-14T4 the security camera.

In the early morning of August 31, 2009, plaintiff took the

basement keys from the guardhouse, told his coworker he had to

go downstairs for something, and subsequently fell down the

basement stairs. Plaintiff had no recollection of the accident,

or of the moments immediately before and after his fall.

Plaintiff's coworker, Alec Schaffer, went looking for plaintiff

approximately twenty minutes after plaintiff left with the

basement keys. When Schaffer opened the basement door he

noticed the light was off. After he turned on the light, he saw

plaintiff at the bottom of the stairs, having landed on a brown

paper "cement type" bag. At the top of the stairs, near the

door, Schaffer saw a ladder, crates, an industrial-type

extension cord, and a fifty-pound bag of ice melt that had been

knocked down a few stairs. Based upon the positioning of the

bag of ice melt, Schaffer believed plaintiff had tripped over

the bag, causing him to fall.

According to Schaffer, plaintiff "was in a daze" and was

"out of it." The front of plaintiff's head was red, and his

glasses were off and on the stairs. Plaintiff said, "he fell or

tripped or something."

When emergency services arrived, plaintiff was conscious

and sitting in a chair. He complained of pain in his right

5 A-1156-14T4 ankle and left leg, and did not recall losing consciousness.

Plaintiff testified that since the accident he has suffered from

severe headaches and pain in his neck, shoulder, and lower back,

which radiates down his leg. Notwithstanding his participation

in physical therapy, he continues to have limited mobility and

strength in his shoulder and arm. Plaintiff had eye surgery in

2012 that largely alleviated the headaches, but he continues to

suffer cognitive difficulties, which limit his social and

professional life. Plaintiff's experts opined plaintiff's

symptoms were the result of permanent injuries he suffered in

the fall. Defense experts opined plaintiff likely suffered only

minor, non-permanent injuries from the fall, and his symptoms

were consistent with his age and pre-existing medical

conditions.

II

Defendant moved for summary judgment based upon the waiver

of liability plaintiff signed on September 27, 2005, when he

began his employment at Allied Barton. The waiver stated:

WORKER'S COMP DISCLAIMER

Payment on Work-Related Injuries

I understand that state Workers' Compensation statutes cover work-related injuries that may be sustained by me. If I am injured on the job, I understand that I am required to notify my manager immediately. The manager will inform me of

6 A-1156-14T4 my state's Workers' Compensation law as it pertains to seeking medical treatment. This is to assure that reasonable medical treatment for an injury will be paid for by Allied's Workers' Compensation insurance.

As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights I may have to:

- make a claim, or

- commence a lawsuit, or

- recover damages or losses

from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the Workers' Compensation statutes.

Plaintiff, who has a high school education, had no

recollection of reading or signing the disclaimer, nor did he

"recall ever receiving any explanation or information indicating

that [he] would waive [his] rights to file a lawsuit against

anyone who caused [him] injury in exchange for employment with

Allied-Barton."

Defendant and amicus Allied Barton argue the trial court

erred in denying summary judgment, asserting the disclaimer

plaintiff signed with Allied Barton was valid and enforceable.

They cite out-of-state cases in which the same or similar

disclaimers have been upheld and argue the disclaimer is

consistent with New Jersey law on exculpatory clauses because it

7 A-1156-14T4 does not preclude plaintiff from any remedy for a workplace

injury, but simply limits plaintiff's remedy to workers'

compensation benefits.

Plaintiff responds that the disclaimer violates public

policy because it violates the letter and the spirit of the WCA.

We hold the disclaimer violates public policy both because

plaintiff was asked to waive his right to sue a third party, in

violation of N.J.S.A. 34:15-40, and to the extent the disclaimer

included a waiver of claims for reckless and intentional

conduct.

III

We review the grant of summary judgment de novo, applying

the same legal standard as the trial court. State v. Perini

Corp.,

(2015). Summary judgment must be

granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-

2(c). "To the extent that the grant or denial of summary

judgment is based on an issue of law, we owe no deference to an

interpretation of law that flows from established facts."

Perini Corp., supra,

.

8 A-1156-14T4 Not all employment contracts that limit the rights of

employees are contracts of adhesion. See Rodriguez v. Raymours

Furniture Co.,

(2016). When an employee

has little to no bargaining power and a contract is presented on

"a take-it-or-leave-it" basis, the contract is one of adhesion.

See

Allied Barton's disclaimer constituted a contract of

adhesion similar to the agreement to arbitrate contained in the

employment application in Rodriguez. Plaintiff had no ability

to bargain; he had the choice of either signing the disclaimer

as part of his employment contract or refusing the needed job.

Although a court may enforce a contract of adhesion, such

contracts are unenforceable if unconscionable. See

.

Whether an employment provision is enforceable depends on an

analysis of the subject of the provision, the sophistication of

the employee, and whether the employee has some bargaining

power. See Martindale v. Sandvik, Inc.,

(2002)

(upholding an agreement to arbitrate contained in an adhesion

employment application where the employee was a sophisticated

human resources officer). "When making the determination that a

contract of adhesion is unconscionable and unenforceable,

[courts] consider, using a sliding scale analysis, the way in

which the contract was formed and, further, whether enforcement

of the contract implicates matters of public interest."

9 A-1156-14T4 Stelluti v. Casapenn Enters., LLC,

(2010). In

other words, "[t]he unconscionability determination requires

evaluation of both procedure and substance."

.

Plaintiff does not allege any procedural unconscionability.

He has no recollection of signing the disclaimer, and he has

presented no evidence Allied Barton engaged in "fraud, deceit,

or misrepresentation" in obtaining his signature on the form.

See

. Although the parties were

in an unequal bargaining position, plaintiff was entitled to

reject the disclaimer and seek employment elsewhere. See

(finding a gym's contract of adhesion valid because the

plaintiff "could have taken her business to another fitness

club"). Thus, whether the workers' compensation disclaimer is

unenforceable depends on whether the disclaimer violates public

policy.

"As a general and long-standing matter, contracting parties

are afforded the liberty to bind themselves as they see fit.

Out of respect for that very basic freedom, courts are hesitant

to interfere with purely private agreements."

(citations

omitted). Exculpatory clauses, however, are "disfavored in the

law." Hojnowski v. Vans Skate Park,

(2006).

They "have been subjected to close judicial scrutiny," Stelluti,

10 A-1156-14T4 supra,

, because they undermine the principles of

our tort system by encouraging "a lack of care," Hojnowski,

supra,

.

Nevertheless, exculpatory agreements are enforceable if

they "clearly and unambiguously reflect the 'unequivocal

expression of the party giving up his or her legal rights that

this decision was made voluntarily, intelligently and with the

full knowledge of its legal consequences.'" Marcinczyk v. State

Police Training Comm'n,

, 593 (2010) (quoting

Gershon v. Regency Diving Ctr., Inc.,

(App. Div. 2004)). "Even if unambiguous, it is well-established

that exculpatory contracts will not be enforced where they are

contrary to public policy." Id. at 594. "[S]ources of public

policy include legislation; administrative rules, regulations or

decisions; and judicial decisions." Hitesman v. Bridgeway Inc.,

(App. Div. 2013) (alteration in

original) (quoting Pierce v. Ortho Pharm. Corp.,

(1980)), aff'd,

(2014).

For example, one may not contract away the statute of

limitations in a case alleging a violation of the New Jersey Law

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

Rodriguez, supra,

. Nor may one diminish by

contract "a statutorily imposed duty," nor execute "a pre-injury

11 A-1156-14T4 release from liability for intentional or reckless conduct."

. Exculpatory agreements for

negligent conduct also "violate public policy in a variety of

settings, such as in residential leases or in connection with

rendering professional services." Hojnowski, supra,

(citations omitted).

IV

Plaintiff raises public policy concerns in the areas of

premises liability and the WCA. "[P]ublic policy does not

demand a per se ban against enforcement of an exculpatory

agreement based on the mere existence of a duty recognized in

the common law in respect of premises liability."

. "To properly balance the public-policy

interests implicated . . . one must consider the nature of the

activity and the inherent risks involved."

.

In Stelluti, our Supreme Court concluded that exercising at

a health club had inherent risks. Thus, the health club

reasonably limited their liability with respect to negligence

claims arising from exercise-related activities through an

exculpatory agreement.

. The health club,

however, "could not exculpate itself from . . . reckless or

gross negligence."

. Moreover, the Court noted it

was "not address[ing] the validity of the agreement's disclaimer

12 A-1156-14T4 of liability for injuries that occur on the club's sidewalks or

parking lot that are common to any commercial enterprise that

has business invitees."

.

The present case does not involve inherently risky

behavior. Plaintiff was injured while attempting to walk down a

flight of stairs, in the normal course of his job duties, on the

premises of his employer's commercial client. This case is thus

distinguishable from Stelluti, and more akin to a typical

premises liability case involving a business invitee.

The applicable legal standard is:

In New Jersey, "[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is in the scope of the invitation." That is because business owners "are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm." It follows that . . . the risk of loss should fall on the party best suited to avert injury.

[Hojnowski, supra,

(alteration in original) (citations omitted) (first quoting Nisivoccia v. Glass Gardens, Inc.,

(2003); and then quoting Kuzmicz v. Ivy Hill Park Apartments, Inc.,

(1997)).]

Also, unlike Stelluti, this case does not involve an

invitee waiving the right to sue for premises liability directly

with the business owner. Rather, this case arises from an

agreement between plaintiff and his employer, with plaintiff

13 A-1156-14T4 having waived potential negligence claims against unidentified

third parties. As a customer of Allied Barton, defendant is

clearly a third-party beneficiary of the agreement. See

Broadway Maint. Corp. v. Rutgers, State Univ.,

, 259-

60 (1982). Plaintiff was unaware of the nature of the risks he

was undertaking when he signed the disclaimer because he did not

know who Allied Barton's clients were. He therefore could not

know of the working conditions he might encounter while working

at facilities of clients of Allied Barton.

The disclaimer also creates a disincentive for defendant to

maintain a safe workplace for contractors working on its

premises. Defendant concedes the area in which plaintiff was

injured was accessible by relatively few of its own employees.

Where the company is otherwise insulated from liability through

a disclaimer such as the one at issue, the company has a reduced

incentive to maintain a safe workplace for its contractors.

To the extent plaintiff waived his right to recover for

reckless or intentional conduct, the disclaimer is also invalid

as against public policy.

.

Defendant contends plaintiff did not waive such rights, because

the disclaimer only addresses claims covered by the WCA, and

claims of reckless and intentional misconduct are not covered by

the WCA. We do not construe the WCA's "intentional wrong"

14 A-1156-14T4 exception as broadly as defendant suggests.

Under the "intentional wrong" exception, the remedy

provided by the WCA is exclusive, with the exception of injuries

resulting from an employer's "intentional wrong." N.J.S.A.

34:15-8. This exception "must be interpreted very narrowly"

for the purpose of furthering the "underlying quid pro quo

goals" of the WCA. Mabee v. Borden, Inc.,

(App. Div. 1998). To satisfy the narrow exception, our

Supreme Court requires "an intentional wrong creating

substantial certainty of bodily injury or death." Van Dunk v.

Reckson Assocs. Realty Corp.,

(2012).

Thus, conduct that would be considered reckless or

intentional under general tort law may result in injuries

covered by the WCA and thus unlawfully waived by the disclaimer.

V

The next question presented is whether plaintiff's waiver

is congruent with the WCA. In interpreting a statute, a court's

goal is to effectuate the Legislature's intent. N.J. Div. of

Child Prot. & Permanency v. Y.N.,

(2014).

"The starting point of all statutory interpretation must be the

language used in the enactment."

"An enactment that is

part of a larger statutory framework should not be read in

isolation, but in relation to other constituent parts so that a

15 A-1156-14T4 sensible meaning may be given to the whole of the legislative

scheme." Wilson ex rel. Manzano v. City of Jersey City,

(2012).

"If the statutory language is clear and unambiguous, and

reveals the Legislature's intent, we need look no further."

Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-Liab. Ins.

Guar. Ass'n,

(2013). "Only when faithful

adherence to the words of the statute leads to more than one

plausible interpretation or to an absurd result or to a result

at odds with the objective of the overall legislative scheme do

we look to extrinsic sources, such as legislative history."

.

The WCA was enacted in 19112 "to address the variety of

difficulties workers encountered in attempting to recover in

tort against their employers for work-related injuries," by

creating a no-fault system of compensation for workers injured

in the course of their employment. Estate of Kotsovska ex rel.

Kotsovska v. Liebman,

(2015).

The WCA is "social legislation designed to place the cost

of work-connected injury on the employer who may readily provide

for it as an operating expense." Hersh v. Cty. of Morris, 217

2 Act of Nov. 4, 1911, ch. 95 (codified as amended at N.J.S.A. 34:15-1 to -142).

16 A-1156-14T4 N.J. 236, 243 (2014) (quoting Livingstone v. Abraham & Straus,

Inc.,

(1988)). As "remedial social

legislation," it "should be given liberal construction in order

that its beneficent purposes may be accomplished."

(quoting Cruz v. Cent. Jersey

Landscaping, Inc.,

(2008)).

Our Supreme Court recently held a contract limiting the

statute of limitations in a LAD case was contrary to the public

policy of New Jersey, stating:

And the anti-discrimination public policy to be fulfilled through LAD claims may not be contractually curtailed by a limitation on the time for such actions. The waiver provision at issue in this matter is therefore unenforceable as to the LAD.

[Rodriguez, supra,

.]

Similar to the WCA, "the LAD is remedial legislation" that

should "be liberally construed 'in order to advance its

beneficial purposes.'" Smith v. Millville Rescue Squad, ___

N.J. ___, ___ (2016) (slip op. at 19) (quoting Nini v. Mercer

Cty. Cmty. Coll.,

(2010)).

New Jersey workers' compensation law recognizes that an

employee may have two employers, both of which may be liable for

compensation. Hanisko v. Billy Casper Golf Mgmt., Inc.,

(App. Div. 2014); see also Wunschel v. City

of Jersey City,

(1984) (stating the "joint

17 A-1156-14T4 employer doctrine" may be used to establish "employment status

for the purposes of workers' compensation"). In such cases, the

employee is barred from maintaining a negligence action against

either employer. New Amsterdam Cas. Co. v. Popovich,

(1955).

"[I]f a finding of joint employment is made, one joint

employer may sue a co-employer for contribution in the event it

refused to pay its pro rata share." Conway v. Mister Softee,

Inc.,

(1968). The co-employers' contractual

relationship, however, may affect any right of indemnification,

Domanoski v. Borough of Fanwood,

(App.

Div. 1989), or subrogation, New Amsterdam Cas. Co., supra,

.

The Division of Workers' Compensation has "exclusive

original jurisdiction of all claims for workers' compensation

benefits." N.J.S.A. 34:15-49(a). Thus, our Supreme Court has

recognized the forum best suited to decide the joint employment

relationship is the workers' compensation court.

.

"New Jersey has developed its special-employee doctrine by

adopting the three-prong test recommended by Professor Larson

for establishing a special-employment relationship." Volb v.

G.E. Capital Corp.,

(1995); see also Arthur

18 A-1156-14T4 Larson et al., Larson's Workers' Compensation Law (2016).

When a general employer lends an employee to a special employer, the special employer becomes liable for workers' compensation only if:

(a) The employee has made a contract of hire, express or implied, with the special employer;

(b) The work being done is essentially that of the special employer; and

(c) The special employer has the right to control the details of the work.

When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen's compensation.

[Hanisko, supra,

(quoting Blessing v. T. Shriver & Co.,

(App. Div. 1967)).]

As to the first factor, "[a]n employee's consent is required

because the employee loses certain rights along with those he

gains when he enters a new employment relationship. Most

important, the worker loses the right to sue the special

employer at common law for negligence." Murin v. Frapaul

Constr. Co.,

(App. Div. 1990). Of

these three factors, the most important is whether the special

employer "had the right to control the special employee's work."

. Two additional factors may also

be considered: (1) whether the special employer pays the

19 A-1156-14T4 employee's wages; and (2) whether the special employer "has the

power to hire, discharge or recall the employee."

(quoting

).

Thus the type of relationship between plaintiff, defendant,

and Allied Barton has been recognized and accommodated within

the WCA for decades, perhaps as far back as 1937. See Wood v.

Market-Arlington Co., Inc.,

(Dep't Labor

1937). In 1967, we discussed the concept of joint employers in

a context similar to this case, where a company hired security

guards and supplied them to work guarding other businesses'

worksites.

.

We are not persuaded by a decision of the Supreme Court of

Pennsylvania, Bowman v. Sunoco, Inc.

(Pa.

2013), or one from the District of Columbia Court of Appeals,

Brown v. 1301 K St. Ltd. P'ship,

(D.C. Cir.

2011), which found Allied Security's workers' compensation

disclaimer enforceable. These decisions do not reflect a

consideration of our State's history concerning joint employers,

nor the policy underpinning our State's workers' compensation

statute. Both lead us to a different conclusion regarding the

workers' compensation disclaimer.

20 A-1156-14T4 VI

Defendant argues that, if the denial of summary judgment is

not reversed, a new trial is nevertheless required because the

court erred in not charging the jury on plaintiff's comparative

negligence. We agree.

In its answer, defendant asserted a defense of comparative

negligence, and it pursued that theory at trial. In his opening

statement, defense counsel argued plaintiff may have fallen due

to his own negligence in entering the stairwell without turning

on the light. During the charge conference, however, the trial

court granted plaintiff's motion for a directed verdict on that

issue, finding no evidence to support a conclusion that

plaintiff had been negligent. Thus, in his closing, defense

counsel conceded plaintiff was not negligent, contrary to

counsel's opening argument.

Thereafter, the trial court denied defendant's post-trial

motion for a new trial, which was based in part upon the court's

refusal to charge comparative negligence. The court stated:

As to the issue of the inference of comparative negligence, the only . . . piece of evidence that is being suggested as the basis is the fact that the lights were off. I don't know how that would allow a jury to infer that he tried to go down the steps in the dark. You know, even if there had never been anything on the steps. . . in any of his other journeys, it just seems illogical to assume that somebody -- or even infer

21 A-1156-14T4 that somebody would go down into a pitch black -- what was it three or four o'clock in the morning. . . , no windows, no lights, no nothing, without turning the light on.

. . . .

. . . [T]he evidence was that there was this bag that appeared to have been knocked over on the step from its position. . . . There was a ladder. There was an extension cord.

. . . .

So the single piece of evidence available to the jury as to . . . how Mr. Vitale might have fallen down would be, well, the light was off. Well, I don't know that that in any way reasonably infers that he was negligent.

. . . .

. . . [T]he only piece of evidence that we have in the record is the light switch being off at the time. There is no way a jury can . . . reasonably infer that he attempted to negotiate the steps in the pitch black. How is he going to find what he's looking for in the basement if he doesn't turn the light on? It just doesn't make any sense.

. . . [Y]ou're asking a jury to infer that somebody would go down an entire flight of stairs with a door at the end of it in the dark. Why would they infer that? Why would anybody infer that?

. . . .

. . . How would you reasonably infer someone would be unreasonable? I don't know that you should or could, but it would be pure speculation.

22 A-1156-14T4 Under Rule 4:40-1, a party may make a motion for a directed

verdict "either at the close of all the evidence or at the close

of the evidence offered by an opponent." A motion for directed

verdict must be denied if, "accepting as true all the evidence

which supports the position of the party defending against the

motion and according him the benefit of all inferences which can

reasonably and legitimately be deduced therefrom reasonable

minds could differ." Potente v. Cty. of Hudson,

(2006) (quoting Monaco v. Hartz Mountain Corp.,

(2004)). "[W]e apply the same standard that governs

the trial courts." Frugis v. Bracigliano,

(2003).

"New Jersey law favors the apportionment of fault among

responsible parties." Boryszewski v. Burke,

(App. Div. 2005), certifs. denied,

(2006).

"[A]n employee's contributory negligence is generally available

as a defense when the employee sues a third person in an

ordinary negligence action." Kane v. Hartz Mountain Indus.,

Inc.,

(App. Div. 1994), aff'd o.b.,

(1996). Under the Comparative Negligence Act (CNA),

N.J.S.A. 2A:15-5.1 to -5.8,

In all negligence actions . . . in which the question of liability is in dispute, . . . for negligence resulting in injury to the

23 A-1156-14T4 person . . . the trier of fact shall make the following as findings of fact:

(1) The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence or fault, that is, the full value of the injured party's damages.

(2) The extent, in the form of a percentage, of each party's negligence or fault. The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all the parties to a suit shall be 100%.

[N.J.S.A. 2A:15-5.2(a).]

"The guiding principle of our State's comparative fault system

has been the distribution of loss 'in proportion to the

respective faults of the parties causing that loss.'" Brodsky

v. Grinnell Haulers, Inc.,

(2004) (quoting

Blazovic v. Andrich,

(1991)).

To assert a defense of comparative negligence, "there must

be evidence in the record from which a legitimate inference may

be drawn that plaintiff's conduct was negligent and that his [or

her] negligence was a proximate cause" of his injuries. La

Morgese v. Kern-O-Mix, Inc.,

(App. Div.

1964). Although a defendant must produce some evidence, "the

quantum of evidence required to qualify for an apportionment

charge is low."

.

24 A-1156-14T4 Here, plaintiff had an obligation to exercise reasonable

care by using his own faculties to observe and avoid dangerous

conditions. See, e.g., Berger v. Shapiro,

(1959)

("If the guest is aware of the dangerous condition or by a

reasonable use of his [or her] faculties would observe it, the

host is not liable."). Arguably, a slight piece of evidence

supported the conclusion that plaintiff acted negligently by

proceeding in the dark. When Schaffer found plaintiff at the

bottom of the stairs, the stairwell light was off and the

stairwell was pitch black. Schaffer was able to turn on the

light without falling down the stairs. Thus, plaintiff may have

voluntarily negotiated the staircase landing in the dark. From

this slim evidence, the jury could infer plaintiff was negligent

in not immediately turning on the stairwell light, causing him

to trip over a hazard that he otherwise would have been able to

avoid, resulting in his fall down the stairs.

Significant countervailing evidence indicates plaintiff

tripped over an object negligently stored at the top of the

stairwell before he had the opportunity to turn on the light,

and the object was no longer at the top of the stairwell when

Schaffer entered. Further, plaintiff's failure to immediately

turn on the light would have been contrary to his normal

practice. As the trial court noted, an attempt to negotiate the

25 A-1156-14T4 basement steps in complete darkness would have been

unreasonable. This factual dispute, however, should have been

resolved by the jury rather than the court.

Based on the existing evidence of plaintiff's negligence,

albeit slim, the trial court erred in granting plaintiff's

motion for judgment on the issue of comparative negligence, and

the court should have charged the jury on that defense.

We thus reverse the judgment and remand for a new trial on

liability only, at which plaintiff's comparative negligence

should be considered by the jury. The verdict on damages need

not be retried. See Ogborne v. Mercer Cemetery Corp.,

(2009) ("When the damages award is not tainted by the

error in the liability portion of the case and is fairly

separable, retrial need not include the issue of damages.").

VII

Defendant argues a new trial is warranted based upon the

trial court's admission of Schaffer's lay opinion testimony as

to the cause of plaintiff's fall. We review evidentiary rulings

for an abuse of discretion, and should not reverse unless "there

has been a clear error of judgment." State v. Nantambu,

(2015) (quoting State v. Harris,

(2012)). Here, Schaffer's testimony was merely a repetition of

what was introduced into evidence, without objection, by way of

26 A-1156-14T4 Schaffer's investigative report. See R. 2:10-2 (stating an

appellate court may "notice plain error not brought to the

attention of the trial" court only if "it is of such a nature as

to have been clearly capable of producing an unjust result").

No abuse of discretion occurred.

At trial, over defense counsel's objection, Schaffer was

permitted to testify as to his belief that plaintiff tripped

over the clutter at the top of the stairs. On direct

examination by plaintiff's counsel, Schaffer was questioned

about the special incident report that he prepared after

plaintiff's accident. In the course of that questioning, the

following testimony was elicited:

Q. Under "Incident Caused By" you wrote "clutter entrance." What did you mean by that?

A. That's what I meant, cluttered, meaning those items that we were talking about before. Obviously it caused the accident.

MR. GOLD: Objection.

THE COURT: I will overrule it if it's obvious to him, he's the eyewitness.

. . . .

THE COURT: It's his observation.

BY MR. ROTHENBERG:

Q. -- you can continue.

A. So, . . . that's why I put down clutter

27 A-1156-14T4 incident, okay. I saw that bag and the -- and the stuff up there, you know. You're trying to get down the stairs and the light was out.

Q. You then wrote, "Reason for Incident," and it says "unknown." What did you mean by that?

A. . . . . I don't know why it happened. I didn't know why he went down the stairs, okay. So, it was unknown why the situation occurred. Why did he take the keys? Why did he have to go downstairs? I don't know. So, that's why I put it down.

Q. But as [to] what caused him to fall you believe it was the cluttered --

A. Yeah, the clutter --

MR. GOLD: Objection.

THE WITNESS: -- and stuff.

MR. GOLD: -- leading.

THE COURT: Well, I will -- I will overrule the objection, it has already been asked and answered. You can continue.

Thereafter, defense counsel cross-examined Schaffer

regarding his opinion, and the subject was covered again on re-

direct and on re-cross, with Schaffer explaining that he

believed plaintiff tripped over the bag of ice melt, because the

bag had been knocked over, down a few stairs.

Post-trial, defendant moved for a new trial, in part based

upon the court's alleged error in admitting Schaffer's lay

opinion as to the cause of plaintiff's fall. The court denied

28 A-1156-14T4 the motion, finding Schaffer had testified only as to his

observations and reasonable inferences from his observations.

Under N.J.R.E. 701, lay opinion is admissible if the

testimony "(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." "Pivotal to the

admissibility of N.J.R.E. 701 evidence is perception acquired

through the senses." In re Trust Created by Agreement Dated

Dec. 20, 1961,

(2008).

Schaffer's testimony that plaintiff had tripped and fallen

over a bag of ice melt was rationally based on his perception of

the scene. When Schaffer discovered plaintiff at the bottom of

the stairwell, he saw a bag of ice melt knocked down a few steps

and observed other items stored at the top of the stairwell.

His testimony was not speculative nor did his testimony negate

the possibility that plaintiff stumbled and fell for some other

reason, as argued by defendant. Schaffer's impressions were

significant because he was first on the scene and obligated to

complete a report regarding the incident. See, e.g., State v.

LaBrutto,

(1989) (holding the

investigating police officer could testify as a non-expert,

based on his own observations, as to the point of impact of two

cars in an automobile accident case). Significantly, the

29 A-1156-14T4 testimony did not produce an unjust result because Schaffer's

testimony was a repetition of the information contained in his

investigative report.

Affirmed in part, reversed in part and remanded for further

proceedings. We do not retain jurisdiction.

30 A-1156-14T4