On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-9368-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sapp-Peterson.
Plaintiff Joseph Caivano appeals pro se from the May 5, 2006 order entering judgment dismissing plaintiff's complaint against defendant Showboat Hotel & Casino (Showboat) as a result of a jury verdict of no cause in favor of defendant. We affirm.
On June 5, 2002, plaintiff was a patron at Showboat. While walking in one of the lobby areas, he slipped and fell over a wet paper towel. Plaintiff filed a complaint against defendant, alleging that as a result of defendant's negligence, plaintiff sustained permanent injuries to his right hand and wrist. During discovery, defense counsel produced a surveillance tape that depicted plaintiff's accident. At some point, plaintiff's counsel inquired as to whether defendant had another tape of better quality. Defense counsel complied with the request and produced another tape at trial.
Trial commenced on April 10, 2006. The second tape produced by defendant was introduced and twice played before the jury. Also during the trial the court permitted defense counsel to elicit testimony from plaintiff related to prior injuries. On April 12, 2006, the jury unanimously reached a verdict of no cause in favor of defendant.
Plaintiff moved for a new trial or, alternatively, judgment notwithstanding the verdict (JNOV). Plaintiff claimed that the trial judge should have granted his motion for JNOV and, sua sponte, should have declared a mistrial because defense counsel altered the surveillance tape that depicted his slip and fall. Since defendant did not dispute that it owed a duty to maintain the premises in a reasonably safe condition and also did not dispute the presence of the wet towel on the floor, the trial judge found that the question before the jury was "how long that paper towel had been there, and it was [plaintiff's] burden to show it had been there for a sufficient length of time for the Showboat Casino to be aware of its presence, so as to be able to remove the paper towel."
The judge concluded that there was no evidence that a casino employee had dropped the paper towel and that the jury apparently was not persuaded by plaintiff's evidence that the "paper towel had been there for a sufficient period of time to result in what we call constructive notice."
With respect to plaintiff's claim of alteration of the surveillance tape, the judge found,
And so far as the two tapes are concerned, there's nothing more that's shown in the tape that you have, than the tape that was presented in court. Mr. Malkin did review the tape that was shown in court. It was a clearer tape. It was provided to him. And he indicated to me in chambers that it was a clearer tape. So there's no question about the decision to provide the jury with that tape.
The suggestion that the Casino could have produced more video tapes is really speculative on your part.
The jury had all of the evidence. They had the benefit of an excellent argument by Mr. Malkin. And obviously, they decided that they were unable to conclude from the evidence that the video -- that the paper towel had existed for a sufficient length of time, that the Showboat Casino should have become aware of its presence.
I am not an additional juror. If I had a different view of the case, it would make no difference. There was adequate basis for the jury to draw its ...