                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1417-16T4
STACI PIECH,

      Plaintiff-Appellant/             APPROVED FOR PUBLICATION
      Cross-Respondent,
                                             October 19, 2018

v.                                        APPELLATE DIVISION


GLENN LAYENDECKER,

      Defendant-Respondent,

and

JOHN LAYENDECKER,

      Defendant-Respondent/
      Cross-Appellant,

and

ANN LAYENDECKER,

     Defendant.
______________________________

            Argued October 1, 2018 – Decided October 19, 2018

            Before Judges Fasciale, Gooden Brown and Rose.

            On appeal from Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-3473-14.

            John R. Gorman argued the cause for appellant/cross-
            respondent Staci Piech (Lutz, Shafranski, Gorman and
             Mahoney PA, attorneys; John R. Gorman, of counsel
             and on the brief).

             David P. Skand argued the cause for respondent Glenn
             Layendecker (Eckert Seamans Cherin & Mellott, LLC,
             attorneys; Robert P. Zoller, of counsel and on the
             brief; David P. Skand, on the brief).

             John A. Camassa argued the cause for respondent/
             cross-appellant John Layendecker (Camassa Law
             Firm, PC, attorneys; John A. Camassa, of counsel;
             Christopher M. Brady, on the brief).

      The opinion of the court was delivered by

FASCIALE, J.A.D.

      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.

      Plaintiff Staci Piech was attending a fortieth birthday party hosted by

John Layendecker (John) for his son Glenn Layendecker (Glenn) (collectively

defendants). Plaintiff – an innocent bystander – sustained permanent nerve

damage and scarring when an eighteen-to-twenty inch thin hollow metal pole –

that Glenn used to strike a piñata – broke off and struck her arm (the incident).

The injury was completely unrelated to any dangerous condition or defect on

the property itself.




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      Plaintiff appeals from a judgment of no cause of action, and from an

order denying her motion for a new trial.         John cross-appeals from an

interlocutory order denying his motion for summary judgment, and from the

trial judge's oral refusal to apply the law of the case doctrine. We agree with

plaintiff's primary contentions that the judge provided flawed jury instructions

on the issue of John's standard of care, and that the judge erred by allowing

Glenn, and other eyewitnesses, to opine that they subjectively believed the

incident was essentially unforeseeable.

      Here, as to the host's standard of care owed to plaintiff, the judge

charged both Model Jury Charges (Civil), 5.20F(4), "Social Guest – Defined

and General Duty Owed" (rev. Dec. 2014) (the Model Charge), and Exception

(2) to the Model Charge. That exception states that "[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."

      We hold that when a plaintiff sustains 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 only charge Exception (2). Here, as to the

host's standard of care owed to plaintiff, it was improper for the judge to



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instruct the jury in accordance with the Model Charge that John had a general

duty to warn against dangerous conditions to the property itself, and also

charge Exception (2).

      Thus, on plaintiff's appeal, we reverse the judgment and remand for a

new trial on all issues. We otherwise affirm on John's cross-appeal.

                                     I.

      Plaintiff maintains that this case does not involve injuries caused by the

existence of a dangerous physical condition on John's property. If that were

the case, then the judge would have been obligated to give the standard social

guest premises liability jury charge – the Model Charge.            But plaintiff

contends – as she maintained at trial – that her injuries did not stem from a

dangerous physical condition on the property, but solely from the piñata

activities that John hosted in his backyard. Plaintiff argues that this difference

required the judge to charge the jury with only Exception (2) – that John failed

to use reasonable care for her protection.

      In a typical case involving allegations that a social guest sustained

injuries due to a dangerous condition on a landowner's property, a judge , as

here, would give this charge:

                  A social guest is someone invited to . . . her
            host's premises. The social guest must accept the
            premises of . . . her host as . . . she finds them. In
            other words, the host has no obligation to make his . . .

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                                          4
            home safer for his . . . guest than for himself . . . . The
            host also is not required to inspect his . . . premises to
            discover defects that might cause injury to his . . .
            guest.

                   If, however, the host knows or has reason to
            know of some artificial or natural condition on the
            premises which could pose an unreasonable risk of
            harm to his . . . guest and that his . . . guest could not
            be reasonably expected to discover it, the owner . . .
            owes the social guest a duty to exercise reasonable
            care to make the condition safe or to give warning to
            his . . . guest of its presence and of the risk involved.
            In other words, although a social guest is required to
            accept the premises as the host maintains them, . . .
            she is entitled to the host's knowledge of dangerous
            conditions on the premises. On the other hand, where
            the guest knows or has reason to know of the
            condition and the risk involved and nevertheless
            enters or remains on the premises, the host cannot be
            held liable for the accident.

            [Model Jury Charges (Civil), 5.20F(4), "Social
            Guest."]

In appropriate cases, the judge would add the following language:

                   If you find that the property owner . . . (1) knew
            or had reason to know of the dangerous or defective
            condition, (2) realized or in the exercise of reasonable
            foresight should have realized it involved an
            unreasonable risk of harm to the guest, (3) had reason
            to believe the guest would not discover the condition
            and realize the risk, and (4) failed to take reasonable
            steps to protect the guest from the danger by either
            making the condition safe or warning the guest of the
            condition and the risk involved, you may find the host
            negligent under the circumstances. If, however, you
            find that the defect was obvious and the owner . . . had
            reason to believe the social guest would be aware of

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                                        5
            the defect and the risk involved, you must find the
            host was not negligent even though an injury occurred.

            [Ibid.]

But there are exceptions to this general duty of care. One such exception is

when – like here – a plaintiff suffered injuries from an activity on the property,

rather than from a dangerous condition on the property itself.

      Plaintiff argues that John's duty arose from the activity that he sponsored

and conducted in his backyard, not from a static dangerous condition on the

property. Relying on Hanna v. Stone, 329 N.J. Super. 385 (App. Div. 2000),

plaintiff repeats her argument that the only applicable charge as to John's

standard of care is contained in Exception (2). Hanna instructs that where the

focus is not on a physical condition of the property, but instead, on activities

conducted thereupon, "the person conducting the activity" has the duty to use

reasonable care. Id. at 389. In Hanna, the defendants hosted a party, mainly in

their basement, for their son's birthday, which approximately thirty teenagers

attended. Id. at 388. One of the boys at the party sustained injuries during a

fight. Id. at 388, 390. The parents of the injured boy sued the defendants and

asserted that they negligently supervised the guests. Id. at 389. We concluded

that "the duty of the person conducting [an] activity [on his or her premises],

such as parents sponsoring a party for their son, is 'simply to use reasonable




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care in all the circumstances.'" Ibid. (quoting Cropanese v. Martinez, 35 N.J.

Super. 118, 122 (App. Div. 1955)).

          Here, the activity involved swinging at the piñata at the birthday party

that John hosted in his backyard. Glenn initially used a wiffle-ball bat. Then

he used the thin metal pole – allegedly handed to him by John – which plaintiff

argues was not intended for that purpose.          As Glenn swung at the piñata

multiple times, the pole began failing by bending more and more. His repeated

striking of the piñata finally snapped the pole, causing it to helicopter towards

plaintiff. Plaintiff argues that John failed to use reasonable care by protecting

her from the activity, such as by stopping Glenn from swinging at the piñata.

Plaintiff sustained injuries solely because of the activity of striking the pole

against the piñata – not because of a static dangerous condition of the property

itself.

          We reject John's argument that the piñata set-up constituted an artificial

dangerous condition warranting a 5.20F(4) charge. Hanging a piñata from a

tree is not the type of artificial dangerous condition generally contemplated by

our case law. Our courts have distinguished naturally occurring dangerous

conditions from artificial dangerous conditions mostly in the attractive

nuisance or trespasser contexts.       See, e.g., Scannavino v. Walsh, 445 N.J.

Super. 162, 168 (App. Div. 2016) (indicating that shrubbery that was planted



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                                           7
and did not naturally grow was considered "artificial"); Wytupeck v. Camden,

25 N.J. 450, 463-64 (1957) (stating that an electrical transformer was not a

"natural" condition on the land).

      We see no legal support for John's contention that the piñata was an

"apparatus" that rendered it a dangerous artificial condition. The Restatement

(Second) of Torts makes a distinction between "activities" and "conditions."

            A possessor of land is subject to liability to his
            invitees for physical harm caused to them by his
            failure to carry on his activities with reasonable care
            for their safety if, but only if, he should expect that
            they will not discover or realize the danger, or will fail
            to protect themselves against it.

            [Restatement (Second) of Torts: Activities Dangerous
            to Invitees § 341A (Am. Law Inst. 1979) (emphasis
            added).]

            A possessor of land is subject to liability for physical
            harm caused to his invitees by a condition on the land
            if, but only if, he

            (a) knows or by the exercise of reasonable care would
            discover the condition, and should realize that it
            involves an unreasonable risk of harm to such
            invitees, and

            (b) should expect that they will not discover or realize
            the danger, or will fail to protect themselves against it,
            and

            (c) fails to exercise reasonable care to protect them
            against the danger.




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                                        8
            [Restatement (Second) of Torts: Dangerous
            Conditions Known to or Discoverable by Possessor §
            343 (Am. Law Inst. 1979) (emphasis added). 1]

      Moreover, the set-up of the piñata had nothing to do with the cause of

plaintiff's injuries. She stood on a deck in the backyard – several feet away

from the piñata. We might conclude otherwise had the piñata apparatus fallen

on plaintiff – prior to or during Glenn swinging the pole. In that hypothetical

situation, the set-up design of the piñata might arguably be considered an

artificial dangerous condition. But there is no evidence that the piñata was

erected negligently. We must draw the distinction between cases that involve

injuries sustained due to physical dangerous conditions on the land –

irrespective of whether the condition is natural or artificial – and ones, like

this, which purely involve an injury caused by an activity that the host

conducted or sponsored on his land.

      This court has explained that the term "dangerous condition" refers t o

"physical conditions of the property itself and not to activities conducted on

the property." Roe v. N.J. Transit Rail Operations, Inc., 317 N.J. Super. 72, 79


1
  In Scannavino, 445 N.J. Super. at 172-73, we recognized that the Court has
yet to adopt the Restatement (Third) of Torts. We note, however, that
Restatement (Third) of Torts: General Duty of Land Possessors § 51 (Am. Law
Inst. 2012) also draws a distinction between "conduct" by the land possessor
and "conditions" on the land. (Emphasis added).



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                                       9
(App. Div. 1998). "It is well-settled that a dangerous condition of property

may be found to exist when an unreasonable risk of harm is created by the

combination of a defect in the property itself and the acts of third parties."

Ibid. But this would require a combination of a defect in the property itself

and a third party's action. Such is not the case here. Instead, the dangerous

activity that caused plaintiff's injury was an activity conducted by a person on

the land. In that context, "the social guest upon real property could recover for

negligence in affirmative acts or conduct of the host, as distinguished from the

condition of the premises themselves." Cohen v. Kaminetsky, 36 N.J. 276,

279 (1961).

      Over the objection by plaintiff's counsel, the judge instructed the jury on

the general social guest standard of care, as if plaintiff suffered an injury due

to a dangerous condition that existed on John's property. But, again, there was

no evidence whatsoever that the physical condition of the property itself had

anything to do with the injury.      The judge then instructed the jury on the

standard of care as if the activity caused the injury.

      These instructions contradicted each other.        After all, the charge

applicable to injuries sustained due to activities on property is an exception to

the general social-guest charge. In this case, the idea was not to give both

charges simultaneously, especially because plaintiff never alleged – and there



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                                        10
is no evidence in the record to suggest – that any kind of dangerous condition

existed on the property.

      Had the jury received the correct charge, they would have focused solely

on whether John failed to use reasonable care under the circumstances. The

charge as given, however, also required the jury to evaluate a non-existent and

unalleged dangerous physical condition.       It is probable that giving both

charges confused the jury, required that the jury apply different standards of

care, and produced an unfair outcome.

      Jury charges are essential to a fair trial. Velazquez v. Portadin, 163 N.J.

677, 688 (2000). "Our law has long recognized the critical importance of

accurate and precise instructions to the jury." Washington v. Perez, 219 N.J.

338, 350 (2014). Without a proper jury charge, a jury will not have a proper

road map to guide them in their deliberations. Das v. Thani, 171 N.J. 518, 527

(2002).

      We recognize that not all errors in a jury charge inexorably require a

new trial. We must consider the charge as a whole, whether counsel voiced

any contemporaneous objection, see Rule 1:7-2, and the likelihood that the

flaw was so serious that it was likely to have produced an unfair outcome.

Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002). The jury charge as given –

both for a non-existent dangerous condition on the land and for an activity on



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                                        11
the property – was contradictory and misleading, creating the capability to

confuse the jury as to the central issue in the case, which is determinative to a

finding of liability. Because of this, the judge erred by simultaneously giving

these charges, and should have only provided the jury with Exception (2) of

the 5.20F(4) charge.

                                     II.

        We now turn to a substantial evidentiary error, which permitted several

witnesses to give subjective lay opinion testimony. Plaintiff contends that the

judge erroneously allowed these witnesses to testify as to their opinions

regarding the incident's foreseeability. The judge stated that he would permit

the witnesses to testify as to their subjective opinions regarding using the

metal pole to strike the piñata, but barred counsel from specifically using the

word "foreseeable" when questioning the witnesses.

        Glenn and other witnesses, however, testified that the incident was

essentially unforeseeable.   Glenn testified that what he was doing was not

dangerous and that he had no concerns using the metal pole. An eyewitness to

the incident opined that he had no safety concerns as he watched Glenn

repeatedly strike the piñata with the metal pole, even as he observed the pole

bend.    Another person who watched Glenn use the pole testified that he

believed Glenn was not engaged in a dangerous activity, and that after he



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observed the pole bending, he subjectively "never thought [the pole] would

snap."   This testimony – at a minimum – expressed their collective and

individual opinions that the incident was unforeseeable. The defense then used

plaintiff's deposition testimony on the subject of whether she thought the

incident was foreseeable.

      In accordance with Model Jury Charges (Civil), 5:10B, "Foreseeability

(As Affecting Negligence)" (approved before 1984), the judge charged the jury

on foreseeability, which obviously does not require the jury to address the

subjective beliefs of these eyewitnesses to the incident. Rather, under this

model charge, the jury is required to use an objective standard.          As to

negligence, foreseeability, and proximate cause, the judge instructed the jury:

            [I]f an ordinary person[,] under [similar]
            circumstances . . . and by using ordinary care could
            have foreseen the result that is – that some injury or
            harm or damage would probably occur and either
            would not have acted or[,] if he did act[,] would have
            taken precaution to avoid the result, [then the
            performance of the act or the failure to take such
            precautions would constitute negligence.]

                  ....

                   . . . You must also find that some harm [to
            plaintiff] must have been foreseeable. For the harm to
            be foreseeable, it is not necessary that the precise
            harm that occurred here was foreseeable by either or
            both defendants, but the question is could a reasonable
            person have anticipated the risk that his conduct or
            omission could cause some harm to a guest.

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                                       13
                  In other words, if some harm from a particular
            defendant's conduct was within the realm of
            reasonable foreseeability, then the harm is considered
            foreseeable. But if the risk of harm was so remote [as]
            not to be in the realm of reasonable foreseeability, you
            [must] find no proximate cause.

            [Emphasis added.]

The improper subjective opinion testimony about whether the activity was

dangerous or whether the pole would snap – which plaintiff's counsel sought to

exclude in an in limine motion – went to the heart of defendants' negligence

and whether the incident was objectively foreseeable. Such a determination is

for the jury to decide using the ordinary reasonable person standard. Instead,

the jury might have determined foreseeability by weighing subjective opinion

testimony from at least three witnesses about whether those witnesses believed

it was unlikely that the pole would snap.

      We recognize that "[e]videntiary decisions are reviewed under the abuse

of discretion standard because, from its genesis, the decision to admit or

exclude evidence is one firmly entrusted to the trial court's discretion." Estate

of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).

"Under this standard, 'an appellate court should not substitute its own

judgment for that of the trial court, unless the trial court's ruling was so wide

of the mark that a manifest denial of justice resulted.'"      Hanisko v. Billy



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                                       14
Casper Golf Mgmt., Inc., 437 N.J. Super. 349, 362 (App. Div. 2014) (quoting

State v. Brown, 170 N.J. 138, 147 (2001)).

      We conclude that the judge abused his discretion by permitting the

subjective opinion testimony. It was irrelevant, conflicted with the 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"). The testimony that swinging the

metal pole was not dangerous – especially the witnesses' subjective belief that

the pole would not snap after Glenn bent the pole by repeatedly striking the

piñata – would not assist the jury in determining whether an ordinary

reasonable person could have objectively foreseen the incident. If anything,

that evidence, especially considered together with the summations by

defendants' counsel, most likely led to the jury's finding of no negligence and

that the incident was unforeseeable.

      Thus, we reverse as to Glenn because of this improper testimony

regarding foreseeability.

                                       III.

      On John's cross-appeal, he argues that a prior judge erred by denying his

summary judgment motion. If we agree with plaintiff's contentions that fact



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                                       15
issues precluded summary judgment, and that the judge erred by giving a

flawed jury charge, then John argues that the trial judge committed additional

error by not applying the law of the case doctrine to the prior judge's rationale

for denying summary judgment. As to this last point, John contends that if

plaintiff is granted a new trial, the question of his negligence should be limited

to whether he handed Glenn the pole, as the judge who denied his dispositive

motion seemed to suggest.

      On his cross-appeal, we conclude that John's arguments are without

sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We

add the following brief comments.

      Fact issues defeated summary judgment to John. And the prior judge's

reasons for denying John's summary judgment motion are not binding on the

trial judge.   John's prior motion was for summary judgment, not to limit

plaintiff's trial theory of liability. Such an application would have been denied

because plaintiff's theory of liability – as the evidence at trial showed – was

that John failed to use reasonable care by, at a minimum, not only giving

Glenn the thin hollow metal pole to strike the piñata, but also by failing to

supervise the activity itself, especially when the pole began to bend. The only

ruling the earlier judge made was to deny summary judgment to John. The

earlier judge's reasons for denying summary judgment do not bind the trial



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judge. Plaintiff's liability theory against John at trial – and the additional

evidence adduced at trial – went beyond merely handing a pole to Glenn.

Moreover, denial of summary judgment preserves the issue for trial. See, e.g.,

Blunt v. Klapproth, 309 N.J. Super. 493, 504 (App. Div. 1998) (indicating that

a denial of summary judgment "preserves rather than resolves issues;

therefore, later reconsideration of matters implicated in the motion, including

the reasons in support of the denial, are not precluded").

      The law of the case doctrine generally prohibits a second judge, in the

absence of additional developments or proofs, from differing with an earlier

ruling. The doctrine is a non-binding rule intended to prevent re-litigation of a

previously resolved issue. Lombardi v. Masso, 207 N.J. 517, 538 (2011). "A

hallmark of the law of the case doctrine is its discretionary nature, calling upon

the deciding judge to balance the value of judicial deference for the rulings of

a coordinate judge against those factors that bear on the pursuit of justice and,

particularly, the search for truth." Little v. KIA Motors Am., Inc., 425 N.J.

Super. 82, 92 (App. Div. 2012) (citations and internal quotation marks

omitted).   The trial judge did not abuse his discretion by rejecting John's

request to apply the doctrine.

      Reversed in part; affirmed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.



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