July 24, 2007
MARY LUISI, PLAINTIFF-APPELLANT,
MARINA ASSOCIATES D/B/A HARRAH'S CASINO ATLANTIC CITY,*FN1 DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, L-2251-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2007
Before Judges Weissbard and Payne.
Plaintiff, Mary Luisi, appeals from a no-cause verdict entered in her slip-and-fall case following a jury trial. On appeal, Luisi focuses her arguments on a surveillance videotape taken at Harrah's Casino where she fell, which she claims shows that a floor buffing machine passed the area of the fall immediately before its occurrence, leaving the floor slick. Luisi, who admits to having consumed four to five alcoholic drinks on the day of her fall, claims that the fall was caused by the slick floor. The jury found otherwise.
During the course of the trial, the casino's videotape depicting Luisi's fall was shown to the jury multiple times, accompanied by Luisi's narration, given while standing next to the video monitor. After several replays of the video, the following exchange occurred:
Q: Okay. Is there anything you would like to utilize the tape for that you haven't already testified too? If not, you can go back to the witness stand.
THE COURT: Well, it's not the witness's choice, Mr. Perl. It's your choice, Is there anything more that you want to show on that tape or are we finished with it?
THE WITNESS: No, we can continue.
BY MR. PERL:
Q: Well, is there anything that you feel is relevant in this tape that you would like --
THE COURT: We're not interested in what the witness feels is relevant in the tape, Mr. Perl. If you want to play more of it, please do so without comment.
Following this exchange, Luisi continued her narration of the videotape, and then resumed her seat on the witness stand.
On appeal, Luisi claims that the court's comments "although ostensibly not intended to prejudice plaintiff and certainly subject to different interpretations, nevertheless had the clear capacity to unduly prejudice the jury against plaintiff's case." We find no reversible error.
"[A] court has both the authority and responsibility to oversee the conduct of litigation so that the claims of the parties are adjudicated comprehensively and efficiently on the merits with due regard to their legal rights and equitable interests." Sparwick Contracting, Inc. v. Tomasco Corp., 335 N.J. Super. 73, 79 (App. Div. 2000). More specifically, N.J.R.E. 611(a) states:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth [and] (2) avoid needless consumption of time . . . .
Here, the videotape had been repeatedly shown to the jury, and Luisi had been given ample opportunity to provide comments on its content. It was clearly within the judge's discretion at this stage to require that counsel frame appropriately focused questions to elicit any additional testimony of relevance to Luisi's cause of action. Further, we discern no error in the court's refusal to permit Luisi to determine for the jury what was relevant to its analysis of the evidence. Bosze v. Metropolitan Life Ins. Co., 1 N.J. 5, 10 (1948); Hall v. St. Joseph's Hosp., 343 N.J. Super. 88, 107 (App. Div. 2001), certif. denied, 171 N.J. 336 (2002). It was within the court's province to determine relevance, not Luisi's. Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982).
Luisi argues, second, that she is entitled to a new trial because no record was made of a colloquy between the court and the attorneys, in the presence of the jury, as to how to pause the videotape, if it sought to do so during its deliberations. The absence of a record, Luisi contends, deprives us of the ability to determine if the exchange had any prejudicial capacity. As a consequence, a new trial is required.
We disagree. We note that, during its deliberations, the jury viewed the videotape twice in its entirety. We have been presented with nothing to suggest that it was in some fashion precluded from requesting that the videotape be paused, as it often was during the course of trial, or that the unrecorded comments of counsel and the court somehow conveyed the impression to the jury that it could only view the videotape in its entirety. Moreover, if Luisi thought that something of consequence had been omitted from the trial record, procedures exist to cure the defect. See R. 2:5-5. In the absence of a motion to settle the record or even the proffer of prejudicial evidence, we discern no basis for a determination that a miscarriage of justice under the law occurred that would warrant a new trial. R. 4:49-1.