Piech v. Layendecker, 456 N.J. Super. 367 (App. Div. 2018). This opinion by Judge Fasciale effectively summarizes all the issues, and the result on each issue, in its opening paragraph. “This personal injury social-guest liability case deals with flawed jury charges, the erroneous admission of subjective lay opinion testimony into evidence, the proper denial of summary judgment, and the inapplicability of the law of the case doctrine.”
The rest of the story is that this appeal arose out of an injury involving a pinata at a fortieth birthday party. Plaintiff was injured when a metal pole that the birthday “boy” was using to strike at the pinata broke off and struck plaintiff’s arm. As Judge Fasciale noted, “[t]he injury was completely unrelated to any dangerous condition or defect on the property itself.”
The jury returned a defense verdict. Plaintiff appealed, and defendants cross-appealed. The cross-appeal asserted that their motion for summary judgment had wrongly been denied, and that the law of the case doctrine should have applied in their favor. Judge Fasciale dealt with those issues tersely near the end of his opinion, finding defendants’ arguments without merit and affirming on the cross-appeal.
But plaintiff prevailed on her appeal. The Law Division judge had charged the jury with both the Model Civil Jury Charge titled “Social Guest- Defined and General Duty Owed” and Exception (2) to that charge. That exception stated “[i]n cases where the host is conducting some ‘activity’ on the premises at the time of [the] guest’s presence, [the host] is under an obligation to exercise reasonable care for the protection of [the] guest.” Judge Fasciale held that here, where plaintiff “sustain[ed] an injury resulting solely from an ‘activity’ on the host’s property– as opposed to an injury caused by a combination of that activity and a physical dangerous condition on the property– then the judge should charge only Exception (2).” The pinata set-up itself was not a dangerous condition, and in any event, it did not cause plaintiff’s injury. Because the two charges were contradictory and confusing, a new trial was required.
It was also error to allow one of the defendants, and other witnesses, all of whom were laypeople, to testify as to the unforeseeability of the injury. Though the abuse of discretion standard of review applied, Judge Fasciale found that allowing the testimony about foreseeability was an abuse of discretion. The testimony “was irrelevant, conflicted with the [jury] 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’).” That was an independent ground for reversing the jury verdict and ordering a new trial.