Boland v. Dolan

• Decision Date: 17 May 1995
• Citation: 140 N.J. 174,657 A.2d 1189
• Parties: Charles BOLAND, Plaintiff-Respondent, v. Peter DOLAN and Judy Dolan, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 174

140 N.J. 174

657 A.2d 1189

Charles BOLAND, Plaintiff-Respondent, v. Peter DOLAN and Judy Dolan, Defendants-Appellants.

Supreme Court of New Jersey.

Argued Jan. 30, 1995.

Decided May 17, 1995.

Jay H. Greenblatt, Vineland, for appellants (Mr. Greenblatt, attorney; Mr. Greenblatt and Charles S. Epstein, on the brief).

Roy D. Curnow, Red Bank, for respondent (Drazin and Warshaw, attorneys).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal arises out of a slip-and-fall accident that occurred while plaintiff, Charles Boland, was a tenant in a three-family beach house owned by defendants, Peter and Judy Dolan. At the time of the accident, plaintiff was inside the vestibule of the house. As he walked into the vestibule with a clapboard and volleyball net in his hands, "something caught his foot and he slipped." As a result of his fall, plaintiff suffered multiple fractures to his ankle.

Plaintiff sued defendants for negligently permitting a dangerous condition on their property. Plaintiff's theory was that a defective plastic rug runner caused his slip and fall. Defendants' theory was that plaintiff's slip and fall was caused in whole or in part by the worn right sole of his topsider shoe. Before plaintiff was taken to the hospital, another tenant took a photograph that showed the bottom of that shoe. That photograph (Photograph) was admitted into evidence.

At issue is whether the jury's use of a magnifying glass on that properly admitted Photograph during deliberations constituted new or additional evidence, required instruction from an expert, or resulted in harmless error under Rule 2:10-2. We conclude that the magnifying glass did not constitute "new evidence." Rather, it was a mere aid to assist the natural vision of the jurors. Use of a familiar device like an ordinary magnifying glass generally does not require expert testimony. Moreover, the jury's use of the magnifying glass was not error capable of producing an unjust result under Rule 2:10-2.

I.

Plaintiff lived in the second floor apartment, and his landlords, Peter and Judy Dolan, lived in the first floor apartment of the Victorian-style house. Plaintiff testified that on the day of the accident, anticipating a hurricane, he hurriedly removed various recreational items from the beach. At trial, plaintiff filled in on a diagram pertinent parts of the scene in the foyer. Plaintiff drew a plastic rug runner and stated that "as soon as [I] set my foot in here, something snagged my foot, slipped, my foot went this way.... But, I went that way, snagged the rug with the runner. I went back,.... I had nowhere to go but straight down and that's when I went down." Two engineers testified as experts on the role of the rug runner in his fall, and much of the testimony at trial focused on the rug runner.

Plaintiff also testified that at the time of the accident, he had worn topsider boat shoes because he worked in the boat business and knew that that type of shoe was made for walking on wet decks, for which the shoe had a "corrugated sole that channels the water away and they are as slip proof as you can get." He further testified that he could not recall how long he had owned those shoes, that they were not "worn through or worn out," and that he "was wearing them every day for work."

While plaintiff was sitting on the rug runner before the ambulance arrived, the tenant from the third-floor apartment took the Photograph that shows the entire sole of plaintiff's right shoe. Eleven days prior to trial, defense counsel, having been substituted as counsel three days earlier, requested that Photograph from plaintiff's counsel. Defense counsel learned of the existence of the Photograph because a photocopy of it had been attached to plaintiff's interrogatories. At trial, plaintiff's counsel conceded that he had not responded to counsel's request prior to trial because he "was out of the office for a couple of days." Therefore, defense counsel did not see the Photograph until he requested it during the first morning of the trial.

At the request of defense counsel, the Photograph was marked into evidence. Plaintiff was extensively cross-examined about the condition of his shoes. He repeatedly testified that the bottoms of his shoes were serviceable and "more than adequate." Defense Counsel showed plaintiff the Photograph. Plaintiff described the Photograph as showing "very clearly the areas [on the shoe] that are white or light tan, are the areas that I walk on and the areas in the archway [sic] are dark, it may appear as though it's worn." Defense counsel then asked the trial judge if he could pass the Photograph to the jury "with a glass." In response, the trial judge told defense counsel to "[j]ust pass the picture." Plaintiff's counsel did not ask plaintiff about the Photograph on re-direct.

On direct examination, defendant Judy Dolan briefly viewed the Photograph and stated that it accurately portrayed the condition of plaintiff's shoe on the day of the accident. Without being shown the Photograph, defendant Peter Dolan then testified that the bottoms of plaintiff's topsiders "were bald with a trace of grooves--traced grooves" on the day of the accident. When he was later shown the Photograph, defendant Peter Dolan stated that it showed the way the shoes looked "right after the accident."

It was not until the end of defense counsel's summation that the Photograph again was discussed. Defense counsel then observed that plaintiff's expert on the rug runner had "switched" his testimony because that expert had heard the testimony about the Photograph. Defense counsel then stated:

What a stroke of luck, what a stroke of luck to get a picture showing the underside of that shoe. And I'm going to ask his Honor to allow you to look at it as though it were blown up under magnification. You can see the underside of that shoe very clearly. How very, very, very smooth it was. Is that honest?

Plaintiff did not object to defense counsel's summation. Only on appeal did he first assert that such an argument was prejudicial.

Plaintiff's counsel did not question his own client or any witnesses about the Photograph. He did, however, refer to the Photograph in his summation:

Now, it's incredible that if you listen to what the Dolans have to say [sic] it is the picture perfect defense. They're saying that he was carrying a volleyball net and it just by happenstance, the volleyball net caught the cement corner as he's walking up and then he goes down. And then--also they looked at his boat shoes, and he has no tread on his boat shoes. I mean it's all picture perfect.

The trial judge made no direct reference to the Photograph or the magnifying glass in his jury charge. After the jury left the courtroom, defense counsel asked the court to allow the jury to use a magnifying glass to view the Photograph. The trial judge replied, "Okay," and then asked if the charge had been sufficient. Only then did plaintiff's counsel state, "the only problem I have is the magnifying glass. I don't know if that's appropriate. There's been no testimony that it doesn't distort the photograph. I have no idea what that magnifying glass is going to do to these photographs." Pursuant to that post-jury-charge objection, the trial judge instructed plaintiff's counsel to "look at it, see what you think." During that examination, defense counsel stated, "[i]t is optically the same as magnifying, by enlarging a print for the photograph." Plaintiff's counsel then objected to the jury being given the magnifying glass because "there should be--have been evidence on that issue."

Sustaining plaintiff's counsel's objection, the trial judge instructed a court officer to take all exhibits to the jury. After deliberating for approximately one-half hour, the jury requested a magnifying glass. Outside the presence of the jury, the trial judge discussed the jury's request with counsel. Defense counsel insisted that the "magnifying glass is not evidence, it doesn't prove anything, it's like a ruler. And I wouldn't have to bring somebody into this Courtroom to calibrate a ruler in order to give it to the jury as an aid." He also explained how he could not have obtained a blown-up version of the Photograph for juror use in lieu of using the magnifying glass because the Photograph was only turned over by plaintiff during the course of trial.

In opposition to the jury's request, plaintiff argued that defendants were trying to "change the evidence in this case." The trial judge disagreed, stating that defense counsel "talked about--through the issues, so he's not changing anything." Plaintiff's counsel then argued that he had not had an opportunity to look at the Photograph with the magnifying glass until the trial judge had urged him to do so after the jury was removed. He argued that the Photograph "comes as a complete surprise to us. That we are not ready for, before this trial and counsel had every opportunity to have those things blown up, and we could have dealt with that during trial...." In response, defense counsel reiterated that he had requested in writing the Photograph more than one week prior to trial, but that plaintiff's counsel had failed to comply with that request.

The trial judge then allowed the jury to use a conventional magnifying glass. In so ruling, the trial judge mentioned that defense counsel had previously requested that the jury use a specialized type of magnifying glass called a "lupe." Plaintiff's counsel then "strenuously objected" to the use of the magnifying glass by the jury. The trial judge overruled his objection, stating not only did [defense counsel] use it, but the jury asked for it, ... it's not like a dictionary where you can look through and find definitions for this, and definitions for that,.... This is simply a tool for them to look at the photographs ... it's not a distortion or changing the photograph.

As a result, the jury obtained...