September 11, 2007
JOSEPH CAIVANO AND MAUREEN CAIVANO, PLAINTIFFS-APPELLANTS,
SHOWBOAT HOTEL-CASINO,*FN1 DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 10, 2007
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 conclusion. And that conclusion becomes final.
The present appeal followed. Plaintiff claims the trial judge should have declared a mistrial based upon defense counsel's alteration of the surveillance video. Plaintiff also urges as error the trial judge permitting defense counsel to cross-examine him on prior and subsequent injuries he may have suffered to his right hand.
We have considered these contentions in light of the record and applicable principles of law, and we reject them. We affirm substantially for the reasons set forth by Judge Lawrence D. Smith in his well-reasoned oral opinion of May 25, 2006. We add only the following.
A jury verdict is entitled to a presumption of correctness, Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), as a jury's evaluation of factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). The grant of a new trial is appropriate "[o]nly when upon examination the verdict is found to be so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it is the result of mistake, passion, prejudice or partiality[.]" Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.), certif. denied, 45 N.J. 594 (1965).
We conclude that there was sufficient credible evidence in the record to support the jury's conclusion that plaintiff failed to meet his burden, by the preponderance of the evidence, that his injuries were proximately cause by the negligence of defendant. Defendant never disputed the presence of the wet towel on the floor. However, there was no evidence that the towel was placed or dropped at that location by any employee of defendant. Nor was there any evidence as to how long the towel had been on the floor. Additionally, there was no evidence that there had been any complaints about debris on the floor prior to plaintiff's accident.
Likewise, a motion for JNOV pursuant to Rule 4:40-2 must be denied "if, accepting as true all of the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ[.]" Dolson v. Anastasia, 55 N.J. 2, 5 (1969). The question before the court in such a motion is not the "worth, nature or extent (beyond a scintilla) of the evidence, but only . . . its existence, viewed most favorably to the party opposing the motion." Id. at 5-6. Where reasonable minds may differ as to the evidence presented, denial of the motion is warranted. Ibid.
Here, the trial judge properly noted there were factual questions before the jury upon which reasonable minds could differ. The evidence disclosed that the lobby area where plaintiff fell is regularly patrolled by a porter, that porters are prohibited from using paper towels to clean up spills, and they carry a towel in a pouch at all times. The wet paper towel upon which plaintiff fell was white and displayed no signs that patrons had walked over it, despite the fact that it was located in a highly-trafficked public area. Reasonable minds could therefore differ on the question of whether defendant took reasonable measures to ensure the safety of its patrons. As such, the trial judge properly denied plaintiff's motion for JNOV.
Finally, the trial judge specifically found that there was no tampering of the video surveillance tape and explained why the jury viewed it twice. At trial, plaintiff's counsel raised no objection to the quality of the tape introduced, nor did he suggest that it had in any way been altered. Plaintiff's claim of taint is entirely without merit.