January 17, 2008
ARIEL LARDIERE, AN INFANT, BY AND THROUGH HER GUARDIAN AD LITEM, JOHN PIRO AND JOHN PIRO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
GENEVIEVE PIRO, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4109-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Parker, R. B. Coleman and Lyons.
Plaintiffs Ariel Lardiere, an infant, by and through her guardian ad litem, John Piro, and John Piro, individually, appeal from a final judgment of no cause for liability entered on March 8, 2007, following a jury verdict.*fn1 Plaintiff also appeals from an order entered by the trial court on March 30, 2007, denying plaintiff's application for a new trial. We affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On January 22, 2005, defendant Genevieve Piro was taking care of her great-grandchildren at the home of her grandson and his wife. Plaintiff's mother, defendant's grandson's wife, was in the home, but due to recent surgery was resting. Defendant's grandson, plaintiff's father, was also at home. At dinner time, defendant began making the family dinner, which included pasta. Plaintiff's father went outside to look at his snow plow equipment. One of the three great-grandchildren was in her upstairs room. Defendant had brought the youngest great-grandchild into her mother's bedroom for feeding, while plaintiff was left in the living room to watch television.
Defendant took the pot of boiling pasta off the stove to strain the pasta in the sink. As defendant was doing so, she spilled water from the pot onto plaintiff, causing severe burns and scarring. Plaintiff's father testified that defendant told him she had left infant plaintiff in the living room while she went to tend to the pasta, and that after she removed the pot from the stove, she turned around and realized that plaintiff was right next to her. She immediately stopped, causing the boiling water to splash out of the pot onto plaintiff.
In defendant's deposition, which was read to the jury, she stated that,
I went to the pot, took the pot of water, boiling water, and dumped it into the sink, and heard a scream. [Ariel] didn't stay where she was. She came into the kitchen, never heard her, didn't see her, because it's a horseshoe counter, and I took it from the stove and stepped a couple of steps to the sink. Poured the 8 oz. boiling water, and all I heard was a scream. She was stuck in the corner. She got into the corner of the counter that goes around.
When asked what defendant said happened at the time of the accident, plaintiff's mother said during her testimony that "[defendant] said she didn't see Ariel, that she stopped short, got startled, and the water came out of the pot, and the macaroni, and went on the baby."
The family immediately called for medical assistance and the child and the family were soon treated thereafter at the hospital.
On September 16, 2005, plaintiff filed her complaint against defendant alleging personal injury. Plaintiff alleged that defendant negligently spilled the boiling water on her, causing severe burns and scarring.
On the morning of trial, plaintiff's counsel presented the court with an in limine motion. Counsel argued that all testimony regarding a notation in the hospital records concerning plaintiff's mother's statement of how the accident happened should be barred, as should the testimony of the medical personnel in the emergency room regarding the diagnosis of plaintiff. The trial court denied the application with respect to the testimony of emergency medical room personnel. With respect to the first request, the court made it clear that if plaintiff were to have plaintiff's mother testify, that plaintiff's mother's statement made in the emergency room as to how the accident happened could be used by defendant in cross-examination. The court stated, however, if [plaintiff does not] call the mother and [defendant] puts her on the stand, then I have a different take on this. Because if he puts her on the stand, he's bound by her testimony and the only exception to the rule as I understand it, is if he claims surprise.
At the trial, plaintiff's father testified on behalf of plaintiff. Plaintiff's counsel read certain portions of defendant's deposition into the record, and medical testimony was also introduced.
Defendant called plaintiff's mother as her only witness. The pertinent portion of her testimony is as follows:
Defense Counsel: Q: You don't know. Did my client tell you what happened at any time after the accident?
Plaintiff's Mother: A: Yes.
Defense Counsel: Q: What did she tell you?
Plaintiff's Mother: A: She said that she didn't see Ariel, and that she stopped short, she got startled, and the water came out of the pot, and the macaroni, and went on the baby.
Defense Counsel: Q: Did she at any time tell you that the child ran into her?
Plaintiff's Mother: A: No.
Plaintiff's Counsel: Q: Objection, your Honor.
The Court: I'll allow that answer. Go ahead.
At the conclusion of this testimony, plaintiff moved for a mistrial based upon the question asked of plaintiff's mother, which plaintiff argued was impermissible, given the trial court's earlier in limine ruling. The trial court denied plaintiff's motion stating that a curative instruction to the jury would be sufficient, and that defense counsel did not cross-examine plaintiff's mother and was, therefore, bound by her answer.
In fact, the judge did give a curative instruction to the jury. The court stated, there was a question, it was the last, basically the last series of questions during the day yesterday, to the child's mother, to the effect [defense counsel] asked her, did my client, meaning the defendant, tell you that the little girl ran into her. And the mother said, no. And I just want to let you know that, because there was an objection made, that my remark to counsel at that point was, that question having been asked, that answer having been given by the child's mother, the defense is bound by that answer.
Following the close of testimony, summations, and the jury charge, the jury returned an unanimous verdict of no cause for action, and the court entered judgment in favor of defendant. On March 2, 2007, plaintiff filed a motion for a new trial.
Plaintiff argued that there were certain trial errors regarding the introduction of evidence, and that the verdict was against the weight of the evidence and clearly and convincingly appeared to have been a miscarriage of justice under the law. Prior to the motion being heard, plaintiff's counsel delivered to the trial judge's chambers a letter from plaintiff's mother who recounted a meeting outside the courthouse with the judge's law clerk. Plaintiff's mother, in her letter to plaintiff's counsel, stated that the judge's law clerk said "the judge and I spoke regarding the case. We don't feel the jury's going to have a problem with the negligence part, but we are just not sure how high a figure they'll come up for you."
In a memorandum to the judge from the law clerk, he stated "I stated something to the effect of, 'In my opinion, for what it's worth, I think you'll hit for something, it's just a matter of how much.'" The law clerk denied that he stated at any time what the judge's feelings were about the case. Plaintiff's counsel, while having brought this situation to the court's attention at the motion for a new trial, stated he was not in a position to argue the issue of this conversation to the court. On May 30, 2007, the court denied plaintiff's application for a new trial. This appeal ensued.
On appeal, plaintiff presents the following arguments for our consideration:
THE DEFENSE'S CROSS-EXAMINATION OF THEIR OWN WITNESS IS REVERSIBLE ERROR AND GROUNDS FOR MISTRIAL.
JUDICIAL LAW CLERK'S CONVERSATION WITH THE LITIGANT'S MOTHER DURING PENDENCY OF TRIAL CONSTITUTES GROUNDS FOR NEW TRIAL.
We will address the points seriatim. Plaintiff argues that a mistrial is warranted because defense counsel, in examining plaintiff's mother as a defense witness, violated the court's in limine order, impermissibly attempted to impeach her pursuant to N.J.R.E. 607, and sought to introduce inadmissible hearsay. Plaintiff argues that the defense questioning of plaintiff's mother was of such a nature "as to have been clearly capable of producing an unjust result." R. 2:10-2.
We begin by reviewing the applicable legal principles as outlined in Battista v. Olson, 213 N.J. Super. 137, 142-43 (App. Div. 1986).
Our case law has recognized that a motion for mistrial is addressed to the sound discretion of the trial court. Wright v. Bernstein, 23 N.J. 284, 296 (1957); Wyatt v. Curry, 77 N.J. Super. 1, 11 (App. Div. 1962). As the Supreme Court of New Jersey has observed, "[t]he exercise of judicial discretion in ruling on a motion for mistrial involves the appraisal by the trial court of the probable effect of the objectionable [occurrence] on a fair trial." Runnacles v. Doddrell, 59 N.J. Super. 363, 367 (App. Div. 1960). However, the trial court must exercise this discretion with great caution. Wright v. Bernstein, supra,
23 N.J. at 296.
It is undesirable that a trial be aborted and that the parties be required to incur the expense attendant upon retrial. By the same token expedition should not be served at the expense of crippling the cause of one party or the other by permitting the intrusion of evidence which will serve to confuse the jury or cause it to reach its verdict by emotion rather than by reason. [Runnacles v. Doddrell, supra, 59 N.J. Super. at 367.]
Because the ruling on a motion for mistrial is discretionary, it will not be disturbed on appeal absent a clear showing that the trial court has abused its discretion. Greenberg v. Stanley, 30 N.J. 485, 503 (1959); Runnacles v. Doddrell, supra, 59 N.J. Super. at 366. Thus, it is only when an error or irregularity patently fails to take into account the substance of a fundamental right of a party and deprives the party of the essence of such right, in a way that is plainly ineradicable either by an instruction or other action by the court subsequent to the motion for the mistrial, [that] a mistrial must be granted as a matter of right. [Wright v. Bernstein, supra, 23 N.J. at 296.]
A denial of a motion for mistrial in such a situation must be deemed a mistaken exercise of judicial discretion and, hence, "harmful error since such action by the court would clearly and unequivocally be a manifest denial of justice under the law." Ibid. (citing Hartpence v. Grouleff, 15 N.J. 545, 549 (1954)). Stated differently, a trial court's first-hand judgment in denying such a motion will not be reversed by a reviewing tribunal on a cold record, . . . unless it so clearly appears from the printed page alone that the happening on which the motion was based was so striking that because of it one of the parties could not thereafter have a fair trial. [Greenberg v. Stanley, supra, 30 N.J. at 503.] [Battista, supra, 213 N.J. Super. 137, 142-43.]
At the outset, we do not find that defense counsel, in questioning plaintiff's mother, violated the trial judge's in limine ruling. The trial judge made it clear, not that defendant could not ask plaintiff's mother any questions about her alleged statement at the hospital, but that if he did, he would be bound by her testimony and could not impeach her with that statement. That is exactly what happened here. The trial judge held the defense counsel to the mother's denial of telling anyone at any time that the child ran into defendant, and the trial judge went further to point that out to the jury.
Secondly, plaintiff argues that there was a violation of N.J.R.E. 607 in that defense counsel was trying to neutralize his witness's testimony with a prior contradictory statement. Again, that did not happen. Defense counsel simply asked if plaintiff's mother had at any time heard defendant say that the child ran into her.
That question was permissible pursuant to N.J.R.E. 806. Defendant's testimony was introduced in plaintiff's case pursuant to N.J.R.E. 803(b). It was permissible hearsay as a statement by a party-opponent. N.J.R.E. 806 provides "[e]vidence of a statement . . . by a declarant, inconsistent with declarant's statement received in evidence, is admissible although declarant had no opportunity to deny or explain it." In this case, the statement sought to be obtained by defense counsel would have been inconsistent with defendant's earlier statement, which was read into the record earlier. Consequently, we find no abuse of discretion in the denial during the trial of the motion for a mistrial as there is no showing that in the first instance it was error and, therefore, not clearly capable of producing an unjust result.
We note, of course, that the decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction is one that is peculiarly within the competence of the trial judge. State v. Winter, 96 N.J. 640, 646-47 (1984). We are satisfied that even if there were error, the curative instruction appropriately prevented a miscarriage of justice.
Plaintiff argues that the judge's law clerk's conversation with plaintiff's mother during pendency of trial constitutes grounds for a new trial. While we strongly condemn the judge's law clerk's violation of the Code of Conduct for Judiciary Employees, we do not find that it warrants a new trial. First of all, the conversation did not adversely affect the trial itself. At worse, it affected plaintiff's family's decision whether or not to settle the action. We note, however, that the family had, throughout this matter, access to competent counsel with whom they should have consulted regarding settlement and this conversation between plaintiff's mother and the law clerk.*fn2
Also telling is the fact that this discussion was not brought to the court's attention until well after the trial concluded. We recently, in an analogous situation, reviewed the actions of a defendant who knew that he had a past acquaintance with a juror and that the juror did not disclose that. Defendant waited though to raise the matter until after a verdict was rendered. There, we followed the federal court in United States v. Breit, 712 F.2d 81, 83 (4th Cir. 1983), which pointed out that "a [d]efendant who remains silent about known juror misconduct -- who, in effect, takes out an insurance policy against an unfavorable verdict -- is toying with the court." State v. Bianco, 391 N.J. Super. 509, 522 (App. Div.), certif. den., 192 N.J. 74 (2007). We, thus, concluded that the trial judge correctly found that defendant waived the right to complain about the juror's omissions during voir dire or about the juror's failure to come forward immediately upon realizing his mistaken voir dire responses, and that the juror's omission had no conceivable prejudicial impact on defendant's right to a fair trial or in the exercise of his preemptory challenges during jury selection. Ibid.
As in Bianco, plaintiff's mother failed to timely raise the improper conversation conducted by the judge's law clerk and, in effect, attempted to take out "an insurance policy" against an unfavorable verdict. We too, as did the court in Bianco, find such action constitutes a waiver of the right to complain now.
More importantly, we note that plaintiff's mother was not a party to the lawsuit. While she certainly had an interest in protecting her daughter's well-being, neither she nor her husband were the guardian ad litem. Moreover, during the in limine motion, plaintiff's counsel stated to the court in his brief
[i]t is first noted that the mother, Lee Lardiere, is not a party to this action. The Complaint was filed by Ariel Lardiere, Infant, by and through her guardian, John Piro, and John Piro, individually. The mother was never a party. Further, the mother came on the scene of the accident shortly thereafter and witnessed the horrific burns sustained by Ariel, her daughter. The mother is not so much as advancing a Portee claim with this regard. Any possible judgment by verdict to the infant plaintiff will be placed in the joint custody of the County Surrogate and Guardian ad Litem, John Piro. By no stretch of the imagination or letter of the law can the mother be a "party to the action."
This position was advanced in this case so that the court would not permit plaintiff's mother's statement to the emergency room, as to how the accident occurred, from being admitted as permissible hearsay under N.J.R.E. 803(b). The court agreed with that analysis, although it did rule that if plaintiff's mother testified as a fact witness for plaintiff, she could be cross-examined about her statement as a prior inconsistent statement. We accept the obvious fact that, in this case, plaintiff's mother was not a party to the litigation and was not charged with the responsibility of making settlement determinations. We further note that she may be judicially estopped from taking the contrary position at this point in time. See Kimble Int'l v. Northfield Metal Prods. 334 N.J. Super. 596, 606 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001).
Consequently, while we abhor the gross misjudgment of the trial judge's law clerk, we do not find that it warrants a new trial.