In a case involving personal injuries suffered at a birthday party, the Appellate Division held that: (1) 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, the trial judge should only charge 5.20F(4)(E) exception (2); and (2) it was improper for the trial court to allow subjective opinion testimony about whether an activity was dangerous.  Piech v. Layendecker, - N.J. Super. – (App. Div. 2018).

Plaintiff, Stacey Piech, was attending a fortieth birthday party hosted by the defendant, John Layendecker.  She sustained permanent nerve damage and scarring when an eighteen-to-twenty inch thin hollow metal pole that Glen Layendecker was using to strike a piñata broke off and struck her arm.  The injury was completely unrelated to any dangerous condition or defect on the property itself.

The case was tried to verdict and a no cause of action was entered in favor of the defendants.  The plaintiff appealed and the Appellate Division reversed.

The trial court had charged both 5.20F(4) (social guest – defined and general duty owed), and exception (2) to the model charge.

The Appellate Division held that the exception which states that “in 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,” is the only charge to be given in a case where a plaintiff sustains an injury resulting solely from an “activity” on the host’s property.  The issuance of both charges to the jury was reversible error.

Additionally, the trial court had allowed several witnesses to testify as to their subjective opinions that the incident was essentially unforeseeable.  The court noted that the model jury charge on foreseeability requires an objective standard and the improper allowance of subjective opinion testimony was again reversible error.  The court held that the judge had abused his discretion by permitting the testimony as it was irrelevant, conflicted with the charge on foreseeability and violated N.J.R.E. 701, which allows lay witnesses to testify in the form of opinions or inferences if it is rationally based on the perception of the witness and will assist in understanding the witness’ testimony or in determining a fact in issue.