Nicoletti, Gonson, Spinner, LLP

Thomas McCrae v. U-Haul, Superior Court, Passaic County, Docket No. PAS-L-5020-07

In December 2009, in the New Jersey State Superior Court, County of Passaic, Partner Kevin Pinter and associate Angela Lainhart engaged in a five day jury trial defending U-Haul in an action stemming from a slip and fall incident outside of a U-Haul facility located in Paterson, New Jersey.

Plaintiff, a fifty-seven year old unemployed Paterson resident, alleged that he slipped and fell on March 2, 2007 at approximately 9:30 p.m., on snow and ice located in the parking lot area of the U-Haul facility located immediately next door to plaintiff’s residence, on Market Street in Paterson, New Jersey. It is undisputed that the U-Haul facility was closed at the time of the incident. According to plaintiff, his son, Thomas Toney, had dropped him off at home that evening after the pair had attended a New Jersey Devils hockey game. Plaintiff testified that his son dropped him off by pulling into a portion of the U-Haul parking lot located 20 feet away from his apartment driveway, so that plaintiff had to walk on U-Haul property in order to access his own driveway, located next door. Toney, however, testified that he dropped his father off in the private driveway for his father’s apartment, and admitted on cross that his vehicle was completely on his father’s property immediately preceding the accident. When confronted with enlarged photographs of the scene and a tape measure on cross at trial, plaintiff claimed that he wasn’t so good with measurements, and estimated that his son had dropped him off maybe 5 feet away from his own driveway.
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As a result of the fall, plaintiff sustained a bimalleolar ankle fracture, requiring open reduction and internal fixation, and a prolonged course of physical therapy. Plaintiff’s orthopedic expert testified that plaintiff would likely need ankle fusion surgery in the future, while our expert vehemently disputed this claim.

Due to various pre-trial motions in limine, we were precluded from mentioning plaintiff’s heroin addiction, methadone use at the time of the accident, and the specifics of his criminal history, including several felony convictions for sale of narcotics in a school zone. The trial Judge allowed us to bring out only that plaintiff had been “convicted of a crime in the third degree”, without educating the jury concerning the severity or specifics of such a conviction.

During the initial cross-examination of plaintiff, we had the plaintiff confirm his unemployed status, his lack of any source of income, and inquired as to whether he was currently being sued for non-payment of child support obligations by an ex-wife. Upon plaintiff’s application, and although plaintiff’s counsel had painted plaintiff as a former military man who had received an Honorary Discharge from the Marines, the trial Judge granted a mistrial, finding that the jury had been irreparably prejudiced against the plaintiff due to the child support question.

During the second trial, plaintiff’s counsel again was permitted to bring out his client’s military service, while we were limited to the one inquiry concerning plaintiff’s conviction of a crime in the third degree. After a full trial and deliberating for 25 minutes, the jury returned a defense verdict on December 15, 2009.