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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5249-04T15249-04T1 LAWRENCE QUALIANO and CHARLOTTE QUALIANO, his wife, Plaintiffs-Appellants, v. IRWIN SEATING CO. a/k/a and/or d/b/a IRWIN SEATING, NEW JERSEY SPORTS & EXPOSITION AUTHORITY, Defendants-Respondents. ____________________________________________________

Argued September 20, 2006 - Decided January 16, 2007 Before Judges Stern, Collester and Baxter. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-941-03. Colleen MacKuse argued the cause for appellants (Iulo & Soltis, attorneys; Ms. McKuse, on the brief). James F. Kane argued the cause for respondent Irwin Seating Company (Carroll, McNulty & Kull,

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attorneys; Mr. Kane, of counsel; Heather E. Simpson, on the brief). Paul J. Soderman argued the cause for respondent New Jersey Sports and Exposition Authority (Zucker, Facher & Zucker, attorneys; Mr. Soderman, on the brief). PER CURIAM Plaintiffs appeal from a judgment entered on March 21, 2005 in favor of both defendants based on a unanimous jury verdict of no cause for action. Plaintiffs also appeal from the denial on April 25, 2005 of their motion for new trial as to defendant New Jersey Sports and Exposition Authority ("NJSEA"). Plaintiff-husband (hereinafter "plaintiff") claims to have sustained injuries as a result of a seat collapse at the Meadowlands Race Track ("Track"), and his wife sued per quod. On this appeal, they contend a new trial should be granted because the judge precluded "evidence of remedial repairs to the Marquee chair by defendant[] Irwin" Seating Co. ("defendant Irwin") and "of prior incidents of chair failures in the box seat section of the grandstand level[,]" the verdict on product defect in favor of defendant Irwin was against the weight of the evidence, the jury charges on product defect and negligence were erroneous, and the verdict in favor of the NJSEA on the "dangerous condition" issue was against the weight of the evidence and should have been found by the judge as a matter of law. Plaintiffs assert there were "both design and manufacturing defects in the [chair's] weld area" and that NJSEA failed "to properly maintain the chair and respond to complaints from other patrons" that the chair was defective or broken. The jury found no defect under the Product Liability Act nor a "dangerous condition" for purposes of the Tort Claims Act ("TCA"). We affirm the judgment in all respects. I. The evidence presented at the trial includes the following. In 1992, defendant Irwin manufactured over 400 Marquee chairs which were installed in the box seat section of the Track. Each box contained two to eight seats. The box occupied by plaintiff on February 14, 2002 contained five seats. The cushioned theater-type chairs are supported on each side by a metal standard. A metal tab is welded to the standard on both sides, and a "wide angle bracket" attaches the tab to each side of the chair. On the night of February 14, 2002, plaintiff was a patron at the Track when the Marquee seat in which he was sitting "just went down abruptly" and collapsed. According to plaintiff, the stanchion, "the mechanism that holds the seat

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to the stanchion," and "everything [that] was attached to the seat . . . went down to the ground on a . . . left angle." Plaintiff further testified that he felt "disoriented" after the seat collapse and left the Track within fifteen to thirty minutes of the incident, while holding his pants which had ripped open. He neither sought medical attention nor made a report of the incident that night. Plaintiffs brought this action against Irwin and NJSEA, asserting that plaintiff's injuries were caused by manufacturing and design defects in Irwin's chair as well as a dangerous condition caused by NJSEA's failure to properly maintain the seat. Plaintiffs attempted to introduce "notice letters" or incident reports filed by other Meadowlands Track patrons whose chairs had collapsed. Irwin objected on grounds that plaintiffs failed to provide the reports and names of other patrons during discovery, and both defendants claimed that the reports were unduly prejudicial. The court agreed with defendants and barred the incident reports. However, the judge permitted other testimony about seat failures. At trial, two patrons who frequently attended races at the Track testified that they had noticed problems with the seat before the incident. Louis Casbar testified that the seat "was crooked," and he "stopped numerous people from sitting in it" but never saw it "collapse" or heard it make "any noises." John Zoller testified that he went to the Track "[a]lmost every night" and complained about the chair "at least ten times" since 1999. He testified that, on a prior occasion, the chair "fell down to a slant from sitting in it." Then, the chair was "on an angle" until loose bolts were repaired, after which the chair appeared level but still made a "crunching sound" when sat upon. Zoller also testified that he had witnessed other seats collapse in the vicinity of plaintiff's seat. Patricia Olsen, a Meadowlands hostess, testified that she was aware of seats collapsing "three to four times" "possibly two to three years prior" to the night in question. Marcello Esposito, a Meadowlands maintenance supervisor, testified that "a half a dozen[,] [m]aybe a dozen" of the Marquee seats "collapsed" between their installation in 1992 and February 14, 2002. He said some chair collapses were due to weld failures but could not say how many, because the failures were for "different reasons." Joseph Keeney, Carpenter Foreman at the Track, testified that some "weld failures" had occurred but could not specifically remember weld failures in the box-section seats. Plaintiffs also attempted to introduce evidence of rewelding of the seat brackets after the incident involving plaintiff. The judge precluded such evidence under N.J.R.E. 407.

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Plaintiffs presented expert testimony by engineering consultant Michael Natoli. Natoli testified that he interviewed plaintiff and reviewed plaintiff's answers to interrogatories, an Irwin installation manual, and correspondence between Irwin and NJSEA. He also visually inspected the chair at issue on August 7, 2003, approximately eighteen months after the incident occurred and the chair's subsequent repair. Natoli further testified that he inspected the "similar identical chair" in which one Howard Kinsbrunner "was also injured" which "collapsed" in January 2001. According to Natoli's calculations, the chair should have been able to support up to 420 pounds. Mr. Qualiano weighed 205 pounds, so Natoli concluded that the chair was "improperly designed and fabricated" because it was "not overloaded" and failed under a less-than-maximum load. He also testified that the chair should have been designed with a "redundant" bolt connection, and the weld itself was insufficient. According to Natoli, "the [Track] was negligent in the maintenance of [t]he seat" because the failure "occurs over time" creating observable "signs of looseness" and "separation occurring within the welds." Defendant Irwin's expert witness, David Guido, testified that he examined the seat on March 12, 2004 and reviewed answers to interrogatories, drawings, witness depositions, Natoli's report, and specification sheets and manuals for the Marquee chair. Guido opined that the chair was "properly designed and constructed and safe for the intended use." He stated that the weld could support "[o]ver a thousand pounds" and that there was "no evidence to indicate that [the chair's collapse was caused by a] weld failure." He further stated that a redundant bolt design of the kind suggested by Natoli was unnecessary, and depending on how it was installed, could even weaken the connection. At the close of defendants' case, the court granted Irwin's motion for judgment under R. 4:40 on the manufacturing defect claim. Judge Elijah Miller concluded "[t]here was no testimony about manufacturing defect." After deliberation, the jury determined that the plaintiff had not proven that (1) the chair "was defectively designed[,]" and (2) had not established that the "seat/chair constituted a 'dangerous condition[.]'" Plaintiffs moved for a new trial against NJSEA but not Irwin. In his "memorandum of decision of motion" denying the application, Judge Miller concluded: Pursuant to Rule 4:49-1(a), a new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law. In order for the trial judge to find that a new trial is warranted, the movant m[u]st demonstrate that a miscarriage of justice under the law exists. In addition, the trial judge must determine after reviewing the record that there is a sense of wrongness. Baxter v. Fairmount Food Company, 74 N.J. 588, 599 (1977); [] Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997). The Court denies the Plaintiff's application for a new trial. The Court finds that no miscarriage of justice occurred, pursuant to R. 4:49-1. The jury properly determined the
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issue, as it was a matter of fact. See Vincitore v. [N.J. Sports & Expo. Auth.], 169 N.J. 119 (2001); Robinson v. City of Jersey City, 284 N.J. Super. 596, 600[-01] (App. Div. 1995). In addition, pursuant to R. 1:7-2, "[a] party shall only be prejudiced by the absence of an objection if there was an opportunity to object" to a jury charge or instruction. In this case, the Court finds that Plaintiff's counsel had adequate opportunity to comment upon the proposed jury charges when they were submitted to the Court and to all counsel. Likewise, ample opportunity was available at the charge conference, held by the Court on March 7, 2005, prior to the closing arguments. Further, Plaintiff had ample opportunity to object after the jury was instructed, when the Court asked the attorneys on the record whether there were any exceptions to the charge. Thus, the Court finds that the Plaintiff was not prejudiced by the lack of any objections to the jury charge instruction. R. 1:7-2. Further, after reviewing the record, the Court finds that there is no sense of wrongness. Baxter, supra[, 74 N.J.] at 599. See also Lockley v. Turner, 344 N.J. Super. 1 (App. Div. 2001). The jury finding that the seat did not meet the definition of "dangerous condition" was supported by the facts and the law as charged. See Vincitore, supra[, 169 N.J.] at 123, whether property is a "dangerous condition," is generally a question for the finder of fact. [] Here, the jury was unanimous, with a vote of eight (8) to zero. The Court finds th[e] jury findings to be reasonably made under the evidence presented. See Black v. Borough of Atlantic Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)[;] [] Daniel v. N[.] J[.] Dept. of Transp[.], 239 N.J. Super. 563, 573 (App. Div. 1990). Thus, Plaintiffs['] motion for a new trial is denied. See R. 4:49-1(a). There has been no showing that a miscarriage of justice under law exists. See Kita, supra. II. We affirm the denial of the motion for new trial and the judgment substantially for the reasons expressed by Judge Miller. What the judge stated with respect to the motion for new trial as to NJSEA applies to the arguments advanced by plaintiff with respect to Irwin as well. In essence, the case presented a credibility dispute between experts, and we perceive no fundamental unfairness or abuse of discretion in the presentation of the matter to the jury so as to warrant a new trial. A trial court has broad discretion in determining whether to admit or exclude evidence, Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), and the trial court's decision should be disturbed on appeal only for an abuse of discretion or a manifest injustice. State v. Cusmano, 274 N.J. Super. 496, 517 ((App. Div. 1994). III. Plaintiffs argue that the trial court improperly excluded evidence that the chair in issue was repaired after it collapsed on February 14, 2002. At trial, plaintiffs attempted to introduce a "Corrective Action Completion Slip" that Irwin issued to NJSEA regarding repairs to reinforce the weld areas on all of Irwin's Marquee chairs at the Track. Finding plaintiffs attempted to offer the repair evidence as proof of culpability and defect, Judge Miller precluded introduction of the evidence under Brown v. Brown, 86 N.J. 565 (1981) and N.J.R.E. 407. N.J.R.E. 407 specifies that "[e]vidence of remedial measures taken after an event is not admissible to prove

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that the event was caused by negligence or culpable conduct. However, evidence of such subsequent remedial conduct may be admitted as to other issues." Hence, "where such evidence is offered for relevant purposes other than negligence or culpable conduct, it is admissible." Brown, supra, 86 N.J. at 581. If the evidence of remedial repairs is unrelated to a fact in controversy other than the negligence or culpable conduct of a person at a particular time, then it should not be admitted. Kane v. Hartz Mountain Industries, 278 N.J. Super. 129, 147-48 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996) (plaintiff ironworker in workplace injury suit prohibited from offering evidence that employer began using nets after his fall from a 29-foot-high beam, because it was only on cross-examination that the defense expert opined that such nets were impracticable and too costly); Spinelli v. Golda, 6 N.J. 68, 78-79 (1950) (subsequent remedial measure offered to show control was properly excluded, as control was not an issue). Moreover, even if the subsequent remedial conduct is relevant to a fact in issue, the trial court may exclude it under N.J.R.E. 403 if the probative value of the evidence is outweighed by the counter-factors present in that rule. Kane, supra, 278 N.J. Super. at 148. Plaintiffs rely on Harris v. Peridot Chem. (NJ), Inc., 313 N.J. Super. 257 (App. Div. 1998), in claiming the evidence should have been admitted. In Harris, workers from a nearby plant brought action against the owner of a neighboring chemical facility to recover damages for injuries sustained as a result of the workers' exposure to toxins allegedly emitted from the facility. The trial court admitted evidence of subsequent remedial measures, but issued a limiting instruction making clear that the evidence was not to prove negligence. Id. at 290. On appeal, we affirmed the judgment but emphasized that the admission was based on the factual dispute concerning whether the toxic chemicals were discharged by defendant's plant: wholly apart from the fact that defendant's remedial conduct was not voluntary but rather mandated by statute and an administrative order entered by the DEP, we are convinced that this evidence was admissible to prove that the sulfur dioxide and hydrogen sulfide were released from the MgO plant on September 9, 1991. . . . Specifically, evidence of defendant's corrective measures was admissible to prove that the gaseous fumes that injured Smith were in fact released from the MgO unit. [Harris, supra, 313 N.J. Super. at 295 (emphasis added).] Plaintiffs also assert that the evidence of subsequent repairs should have been admitted to establish the credibility of plaintiffs and their expert. Credibility can be an exception to N.J.R.E. 407, but the exception applies to permit an attack on the credibility or to impeach a witness. Lavin v. Fauci, 170 N.J. Super. 403, 407-08 (App. Div. 1979) (evidence admitted to discredit the manufacturer's expert); Hansson v. Catalytic Constr. Co., 43 N.J. Super. 23, 27 (App. Div. 1956). As previously noted, at trial, plaintiffs also attempted to introduce reports of other Meadowlands patrons
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whose chairs had collapsed. Judge Miller barred admission of the other incident reports under N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328 (1992). However, as also previously noted, the judge permitted testimony about other seat failures at the Track. In general, proof of other wrongs or bad acts may not be introduced to show that a person or entity is predisposed toward tortious behavior, or similar specific conduct. N.J.R.E. 404(b); State v. Reddish, 181 N.J. 553, 608 (2004); State v. Koskovich, 168 N.J. 448, 482-83 (2001); State v. Nance, 148 N.J. 376, 386 (1997). Although N.J.R.E. 404(b) is most commonly applied in criminal prosecutions, the premise of the prohibition applies equally to civil cases. See e.g. Showalter v. Barilari, Inc., 312 N.J. Super. 494, 511-512 (App. Div. 1998). Application of the Rule requires a balancing of the probative value of the evidence and its prejudice. See Cofield, supra, 127 N.J. at 338; Biunno, Current N.J. Rules of Evidence, Comment 8(d) on N.J.R.E. 404(b) (2006). See also State v. Hernandez, 170 N.J. 106, 127 (2001); Koskovich, supra, 168 N.J. at 483. Moreover, N.J.R.E. 403 requires exclusion of N.J.R.E. 404(b) evidence if the probative value is outweighed by the danger of prejudice, confusion, or waste of time. See e.g., Nance, supra, 148 N.J. at 386; State v. Kately, 270 N.J. Super. 356, 364-67 (App. Div. 1994); Biunno, Current N.J. Rules of Evidence, Comments 7, 17 on R. 404(b) (2006); N.J.R.E. 104(a), 406(b). Here, the incident reports were of seven chair failures that had occurred over nine years in various locations at the Track. Judge Miller excluded the reports because their prejudicial value outweighed their probative value under N.J.R.E. 404(b), and we can find no abuse of discretion. The judge noted that several of the reports did not make reference to weld failures. In addition, there was no indication that the chairs in the reports were the same Marquee model as the chair involved in Mr. Qualiano's incident. Indeed, some of the reports involved seat failures that had occurred outside of the box seat area where the Marquee chairs were placed and where plaintiff sat, and the trial could have become unduly long and burdensome if the facts surrounding each event were developed. Moreover, in reviewing the record, we cannot avoid consideration of the fact that the judge did permit testimony about other seat and weld failures. Finally, in finding no abuse of discretion by Judge Miller, we also note that plaintiffs did not disclose or provide the reports to Irwin before trial. Plaintiffs argue that the court erred in dismissing the manufacturing defect claim instead of presenting it to the jury. Under the Products Liability Act, the plaintiff must prove "that the product was defective, that the defect arose while in the control of the defendant, [] and that the plaintiff suffered injury thereby." Scanlon v. General Motors Corp., 65 N.J. 582, 590 (1974). It is not sufficient for a plaintiff to merely establish that something was wrong with the product and that an accident thereby resulted. The plaintiff also must show that the defect existed while the

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product was in the control of the particular defendant being sued. Jakubowski v. Minn. Mining & Mfg., 42 N.J. 177, 182 (1964). See also Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 98 (1999). Here, the court found that plaintiffs failed to establish a prima facie case of a manufacturing defect. Plaintiffs' claim rested on the expert testimony of Natoli, who did not examine the chair in its broken state, and no indication was made that he had reviewed its specifications or drawings. Natoli concluded that the chair was defective because "it was allowed to fail. The welded connection is a permanent connection. It's never supposed to fail . . . ." His opinion was essentially that the chair was defective merely because it failed eleven years after its manufacture in 1992. We find no basis for disturbing the dismissal of the manufacturing defect claim in the absence of proof related to a defect occurring while in Irwin's control. Plaintiff claims that the trial court committed plain error "by including a separate general negligence charge in its jury instructions relating to Defendant Irwin's liability under New Jersey's Products Liability Act[.]" However, plaintiffs requested that the trial judge charge the model jury charge 5.10 relating to negligence. In any event, plaintiffs failed to object to the charge, and we cannot find plain error. R. 2:10-2. The lack of objection or request deprives the court of the opportunity to address the alleged imperfections in the charge before the case goes to the jury. State v. Cordero, 293 N.J. Super. 438, 442 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997). Moreover, as we have already noted, in denying the new trial motion as to NJSEA, the trial judge found that: Plaintiff's counsel had adequate opportunity to comment upon the proposed jury charges when they were submitted to the Court and to all counsel. Likewise, ample opportunity was available at the charge conference, held by the Court on March 7, 2005, prior to the closing arguments. Further, Plaintiff had ample opportunity to object after the jury was instructed, when the Court asked the attorneys on the record whether there were any exceptions to the charge. Thus, the Court finds that the Plaintiff was not prejudiced by the lack of any objections to the jury charge instruction. R. 1:7-2. While mere negligence may be immaterial and irrelevant in a product liability setting, we cannot see how the charge adversely impacted plaintiffs or warrants reversal in the totality of circumstances unique to this case. To the contrary, no evidentiary ruling or instruction warrants reversal as to either defendant. The judgment is affirmed.

Plaintiffs' claim for punitive damages was dismissed by the judge at the end of their case. Defendant NJSEA also objected on the grounds of surprise. The record contains the reports as exhibit P15 A-G for identification.
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The Act incorporates common law in this regard. Mathews v. Univ. Loft Co., 387 N.J. Super. 349, 356 n.5 (App. Div.), certif. denied, 188 N.J. 577 (2006). (continued) (continued) 17 A-5249-04T1 January 16, 2007 0x01 graphic

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