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Gary Esposito and Dawn Esposito v. Sdb Investments

July 2, 2012

GARY ESPOSITO AND DAWN ESPOSITO
v.
SDB INVESTMENTS, INC.



The opinion of the court was delivered by: Joseph N. Laplante United States District Judge

Opinion No. 2012 DNH 113

MEMORANDUM ORDER

Plaintiff Gary Esposito was looking forward to a relaxing week vacationing with family and friends at the Georges Mills Cottages & Lodging on Otter Pond in Georges Mills, New Hampshire. Any expectation he had of relaxing, though, was crushed mere hours into his stay, when he took a nighttime tumble over a rock in an unlit pathway and ruptured his quadriceps tendon. Esposito and his wife have brought suit against the owner and operator of the cottages, SDB Investments, Inc., asserting claims for negligence and loss of consortium. Specifically, plaintiffs allege that SDB failed to exercise reasonable care in maintaining the pathways and outside lighting on the premises. SDB denies those allegations and claims that Esposito's own negligence caused his fall. This court has subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity).

The parties have each filed a motion in limine in advance of the upcoming trial. See L.R. 16.2(b)(3). The plaintiffs have requested a view of the premises where Esposito fell. SDB, in turn, has moved to exclude evidence of its subsequent removal of the rock Esposito tripped on, as well as evidence of other remedial measures it took after the fall. After reviewing the parties' submissions, this court rules on the motions in limine as set forth below.

I. View

The plaintiffs have moved for a jury view of the premises on which Esposito fell. They argue that a view is necessary in this case to assist the jury in evaluating a number of disputed issues, including whether:

* the Georges Mills Cottages & Lodging is a rustic location, such that Esposito should have expected rocks in the pathways;

* the existing lighting sufficiently illuminates the area where Esposito fell;

* it would have been a "good idea" for SDB to install a motion-sensitive light in that area;

* the fall could have been prevented if Esposito was carrying a flashlight; and

* Esposito used the most reasonable pathway on the night of his fall.

None of these reasons justify a view in this case.

Whether to permit a jury view "is entrusted to the sound discretion of the trial court." United States v. Crochiere, 129 F.3d 233, 236 (1st Cir. 1997). "In making this determination, the court may consider such factors as the orderliness of the trial, whether the jury would be confused or misled, whether it would be time-consuming or logistically difficult, and whether cross-examination had been permitted regarding the details of the scene." Id. In addition, the court may consider whether "there is sufficient evidence describing the scene in the form of testimony, diagrams, or photographs." Id.

Applying these factors, the court does not believe a view is warranted. First, although the court is sympathetic to the idea that the jury could benefit from seeing the lighting around the area of Esposito's fall, it would be necessary to conduct the view at around 9:30 p.m. at night--the time of the fall--in order to ensure that the jury views the lighting in a condition most similar to its condition at the time of the incident. Plaintiffs have not requested a nighttime view, though, and in any event the ...


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