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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0142-07T10142-07T1 SHARON SERVISS and DAVID G. SERVISS, Plaintiffs-Appellants, v. BLUMIG KENNEL, Defendant-Respondent. ________________________________________________________________

Argued November 6, 2008 - Decided Before Judges Cuff and Baxter. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6014-05. Michael S. Simon argued the cause for appellants (Simon, Monahan & Simon, L.L.C., attorneys; Mr. Simon, on the brief). D. Scott Conchar argued the cause for respondent (Law Offices of William E. Staehle, attorneys; Mr. Conchar, on the brief). PER CURIAM Plaintiffs, Sharon Serviss and David Serviss, appeal from an August 17, 2007 order that entered judgment in favor of defendant Blumig Kennel and dismissed plaintiffs' complaint with prejudice following a jury verdict of no cause. On appeal, plaintiffs raise a single claim: the trial judge abused his discretion when he refused to provide the jurors with
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a written copy of the jury instructions they had requested. We affirm. I. On August 24, 2003, plaintiffs were present at defendant's kennel to pick up their dogs. Plaintiffs, who were about to exit the kennel, were in an enclosed area when an employee of the kennel allegedly permitted an unrestrained dog to run loose in that area. The unrestrained dog ran toward plaintiffs' dog, and in the ensuing melee, plaintiff tripped and fell. On August 17, 2005, plaintiffs filed a personal injury action against defendant for injuries that plaintiff suffered. Plaintiffs' negligence action was tried before Judge Ryan and a jury on July 23, 24, 25, and 26, 2007. On July 26, the judge charged the jury on negligence, proximate cause and burden of proof, which took approximately thirty-five minutes. There were no objections to these instructions from either side. After the instructions were read, the jury retired to deliberate, at approximately 10:57 a.m. At approximately 11:31 a.m., the judge received a written request from the jury, which stated, "Request for Judge's jury instructions." Before bringing the jury back into the courtroom, the judge stated: That can be interpreted a lot of ways. I don't know if they want me to reread a part. I'm not go[ing to] give them a copy of my jury instructions. I would suspect that's what they're looking for. I'm go[ing to] have them come out. I'm go[ing to] simply tell them if they have a specific part they want me to reread I would be happy to do that, but they have got to go back in the jury room and delineate that specifically. Neither party objected to the judge's proposed response to the jury's request. When the jurors re-entered the courtroom, the judge addressed them as follows: [Y]our request is not clear enough to me. You have to be more specific. I suspect that what you're asking for is a copy of what I read to you. It doesn't work that way. . . . [] I will not give you a copy of the jury instructions, but if there's a particular part of the jury instruction that you would like to have reread . . . you can designate what you're seeking[,] I'll go to that area, discuss it with the attorneys, and we'll have you come back in and I would be happy to reread that part to you, but I will not give you a complete copy of it. It deals with a lot of things and if there's something specific please note on . . . paper . . . and send it back out . . . . I suspect that I'll be receiving something from you shortly. I mean you need not make that request. If it doesn't come out don't worry about it, just continue with your deliberations. If you do want to hear something again[,] give me something more specific[] so I can go to that area. All right? So I'll send you back in with that instruction. If a question comes out in a minute or two I know you have another question. If not, continue your -- your deliberations please. The jury was then excused. Neither party objected to the manner in which the judge handled the jury's request.

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Eight minutes elapsed, and the jury returned with its verdict, without having made any request to be recharged and without having communicated any further with the judge. All eight members of the jury deliberated and found that the kennel was not negligent. The judge then accepted the verdict and excused the jury. Plaintiff neither requested that the judge poll the jury nor objected to the court's acceptance of the verdict. On August 17, 2007, the judge entered an order for judgment in favor of defendant. On appeal, plaintiffs argue only one point, that "the trial judge's refusal to provide a copy of the jury instructions to the jury upon request by the jury, or to otherwise ensure that the jury properly understood the instructions and applicable law[,] was an abuse of discretion." They argue that the judgment in defendant's favor should be vacated and the matter remanded to the Law Division for a new trial because of "the combination of the jury clearly being confused, coming to [the] [j]udge for help, not receiving that help, but then, in less than eight minutes, claiming to clear up that confusion on their own, without any court assistance." Plaintiffs do not contend that there was any error relating to the jury charges themselves. II. In deciding whether the judge committed reversible error, we must determine whether the judge's failure to provide a written copy of the jury instructions amounted to an abuse of the judge's discretion. See R. 1:8-8(a) ("The court, in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room."). An abuse of discretion only arises on demonstration of "manifest error or injustice." Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (citation omitted). An abuse of discretion occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (citation omitted). Because plaintiff failed to object to the judge's decision, that decision will not be reversed unless it was "clearly capable of producing an unjust result." R. 2:10-2. "The absence of an objection . . . prevent[s] the trial judge from remedying any possible confusion in a timely fashion." State v. Gaikwad, 349 N.J. Super. 62, 75 (App. Div. 2002) (citation omitted). Once a clarification has been requested by the jury, a "[trial] judge's obligation is to answer the [jury's] question . . . and, in doing so, to clear the confusion which generated the inquiry." State v. Carswell, 303 N.J. Super. 462, 480 (App. Div. 1997).

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However, even in the more demanding setting of a criminal trial, the Court found no reversible error when the jury submitted a question to the judge, and then, an hour later, returned its verdict while that question was still unanswered. State v. Bey (III), 129 N.J. 557, 606-07 (1992), supplemented by, 137 N.J. 334 (1994), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed.2d 1093 (1995). There, the Court explained that "[m]ost importantly . . . the jury answered the question for itself by continuing its deliberations and reaching a unanimous verdict." Id. at 607. Here, after receiving a non-specific request asking for the entirety of the judge's jury instructions, the judge instructed the jury to further deliberate to identify particular areas of confusion regarding the instructions. Therefore, the judge sought to "clarify the jury's inquiry by ascertaining the meaning of its request," State v. Savage, 172 N.J. 374, 394 (2002), and to "clear the confusion . . . generated [by] the [jury's] inquiry." Carswell, supra, 303 N.J. Super. at 480. The judge exercised his discretion by deciding not to provide the jury with the written instructions, a discretion afforded him by Rule 1:8-8(a). Specifically, once the jury made a "[r]equest for [the] [j]udge's jury instructions," the judge told the jury that it could make a specific written request, whereupon he would conference with the attorneys, after which he would "reread that part" of his instructions to the jury. Because plaintiffs failed to object to the judge's initial instructions, the judge did not abuse his discretion by offering to "repeat[] the instructions previously given." State v. Scher, 278 N.J. Super. 249, 271 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995). We reject plaintiffs' assertion that the jury must have been confused because it took the jury only eight minutes to decide the kennel was not negligent. Nothing in the record supports that contention, which is based merely on speculation. It is equally likely that in those eight minutes, the jury was able to resolve for itself--without any rereading--its original question. Moreover, the instructions themselves were neither complex nor difficult to understand. After reading to the jury the standard preliminary remarks for civil trials, the judge instructed the jury on the negligence principles that apply to a slip and fall case, explaining the concepts of reasonable care, proximate cause and apportionment of liability. Under the totality of these circumstances, in light of the jury's decision not to send the judge the more particularized request for further instructions that he suggested, and the uncomplicated nature of the instructions themselves, the judge's decision to refrain from providing the jury with a copy of written instructions did not cause any "manifest error or injustice." Hisenaj, supra, 194 N.J. at 20. Consequently, the judge's course of action was not an

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abuse of discretion nor was it "clearly capable of producing an unjust result." R. 2:10-2. Affirmed.

Plaintiff David Serviss sued per quod. All references to plaintiff shall signify Sharon Serviss. (continued) (continued) 8 A-0142-07T1 November 26, 2008 0x01 graphic

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