April 17, 2008
TONIA YANSOMAH, PLAINTIFF-APPELLANT,
MICHAEL GLITA, 4 ORANGE, LLC, AND MRM MANAGEMENT, LLC, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8329-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 31, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Plaintiff filed a complaint that alleged she fell and suffered injuries in a building owned by defendant due to a faulty metal nosing on a stair. Defendant successfully moved for summary judgment on the ground that it lacked knowledge of the allegedly defective property condition. We agree plaintiff's opposition did not generate a genuine dispute when plaintiff merely relied upon her deposition testimony as to what someone else told her about defendant's knowledge of the property. We nevertheless vacate the summary judgment and remand for further proceedings in order to permit plaintiff an attempt to dispel the ambiguity surrounding the admissibility of her hearsay testimony.
The facts are simple. On September 14, 2005, plaintiff arrived at defendant's building in Orange at the suggestion of a friend, George Jones, who advised her that an apartment in the building had become available. She claims that she rang the doorbell, and George, who was a tenant, let her in. Allegedly, as plaintiff descended the stairs to Jones's apartment, she caught her foot on the third step from the top and fell, fracturing her ankle. Plaintiff claims that while sitting on the floor in extreme pain, she looked back up the stairs and saw the metal nosing piece on the stair sticking up "like half an inch." Her suit is based upon this alleged defect in the condition of the stairs.
The parties exchanged answers to interrogatories. Plaintiff was also deposed. Defendant then moved for summary judgment, arguing it had no actual or constructive knowledge of the alleged condition of the property and relying upon Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 52 (App. Div.), aff'd o.b., 63 N.J. 577 (1973).*fn1
Plaintiff did not file an affidavit or certification in response. Rather, she relied only on her following deposition testimony:
Q: Okay. After the accident, did Mr. Jones say anything about the steps?
A: Yes, sir.
Q: All right. Tell me what he said.
A: He said specifically "I keep -- we keep telling them to fix this God damn step," or something like that, you know.
Q: So words to the effect that he had told somebody that they should have the steps fixed?
A: Exactly. Yes, sir. . . . .
Q: Okay. And describe what you saw when you say it was -- it was sticking up some way.
A: I -- when I fell, I was sitting on the cement and I turned like this to look at the step and I saw the metal that tripped me and I say, "George, the metal is up, that's what tripped me to fall." And he said "I told them the metal was up. Somebody is going to get hurt on it one day."
If plaintiff's testimony as to what George told her about the allegedly defective step was admissible, then there is no doubt that it was sufficient to generate a question of fact that would have precluded summary judgment; that testimony, if admissible, would have sufficed to demonstrate that defendant had knowledge of the property's condition. On the other hand, if plaintiff's testimony about what George allegedly said is inadmissible then there would be no evidence of defendant's alleged knowledge of the property's condition, and defendant would have been entitled to summary judgment in light of the holding in Dwyer, supra, 123 N.J. Super. at 52. Accordingly, because only admissible evidence may defeat summary judgment, see R. 1:6-6; Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488-89 (App. Div. 2003); Sellers v. Schonfeld, 270 N.J. Super. 424, 427-29 (App. Div. 1993), our focus must be aimed toward the admissibility of plaintiff's testimony about what George told her.
Recognizing that her testimony on this point constitutes hearsay, plaintiff argues that George's statement to her constituted an "excited utterance" because it was "[a] statement relating to a startling event or condition made while the declarant [i.e., George] was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). Whether a hearsay statement constitutes an excited utterance turns on the circumstances existing when it was made and how soon after the "startling event." As observed in State v. Long, 173 N.J. 138, 158 (2002) (quoting 2 McCormick on Evidence § 272, at 204-05 (5th ed. 1999)), "[t]he rationale for the excited utterance exception lies in the notion that 'excitement suspends the declarant's powers of reflection and fabrication,' consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable." As a result, an inordinate passage of time since the "startling event" can remove the stress that the event generated and provide the declarant with the "opportunity to deliberate or fabricate." See In re C.A., 146 N.J. 71, 98-99 (1996).
The time interval that may prove fatal to the statement's admissibility is not something that may be judged by a stopwatch. Depending on the circumstances, the passage of twenty minutes may be too long to justify the claim that a statement was made under the stress of excitement, State v. Williams, 106 N.J. Super. 170, 173 (App. Div.), certif. denied, 55 N.J. 78 (1969), cert. denied, 397 U.S. 1057, 90 S.Ct. 1405, 25 L.Ed. 2d 675 (1970), while it has been held that a six-hour delay in a statement by a five-year old, who witnessed his brother's murder six hours earlier, "was truly spontaneous and made solely under stress of nervous excitement," State v. Bass, 221 N.J. Super. 466, 482-83 (App. Div. 1987), certif. denied, 110 N.J. 186 (1988). Compare State v. Long, supra, 173 N.J. at 158-59, and cases cited therein. Thus, among other things, the lapse of time between the "startling event" and the alleged "excited utterance" becomes highly relevant in determining whether the statement may be admitted, but that passage of time must also be weighed in light of its surrounding circumstances. Here, plaintiff's testimony failed to provide sufficient information about the length of time between her fall and George's statement, nor did it otherwise necessarily suggest whether George was speaking under "the stress of excitement."
Undaunted by the questions surrounding the statement's admissibility, plaintiff relies upon the Brill standard in arguing that she is entitled to the benefit of the doubt about whether George was speaking under the stress of excitement. In other words, she contends that if the court is not certain about the testimony's admissibility then summary judgment must be denied. We disagree. To defeat summary judgment, plaintiff was obligated to submit material that was admissible. See Claypotch, supra, 360 N.J. Super. at 488-89; Sellers, supra, 270 N.J. Super. at 427-29. Consequently, it was insufficient for plaintiff to merely cite a hearsay statement surrounded by ambiguous or uncertain circumstances and argue that any doubt about the statement's admissibility should be resolved in her favor. As the opponent of a motion for summary judgment, plaintiff was obligated to lay a foundation for the admission of this hearsay statement. See Pressler, Current N.J. Court Rules, comment 4:46-2[2.2] on R. 4:46-2 (2008) (observing that a motion for summary judgment may not "be defeated by a response which is not fairly based on disclosed sources of information").
In this particular instance, plaintiff was required to provide information by way of certification or affidavit that would indicate in greater detail the circumstances under which George made this alleged statement. In arguing that a foundation existed for the statement's admission, plaintiff asserts that her deposition testimony could be interpreted as suggesting that George's statement was uttered immediately after her fall. She bases this argument on her testimony that George made the statement "[a]fter the accident," and on other portions of her testimony that arguably reveal that George was following her down the steps at the time she fell. This interpretation is plausible, but not persuasive. We hold that plaintiff, in this circumstance, was obligated to provide more than ambiguity. It was within her power to provide a certification or affidavit that would explain those circumstances necessary to create a foundation for the statement's admission. See generally State v. Long, supra, 173 N.J. at 158-60. This would include, at least, sworn information as to how long after her fall George made the statement, whether there was any conversation between the fall and the statement, and whether George was under the "stress of excitement" and had no opportunity to deliberate or fabricate. In failing to provide a factual foundation for the admission of this hearsay statement, plaintiff failed to present sufficient information to defeat summary judgment.*fn2
Notwithstanding our determination that plaintiff's opposition was insufficient to defeat summary judgment, we nevertheless vacate the order under review and remand for additional proceedings. Rather than rely on his own interpretation of the testimony and the circumstances surrounding George's alleged statement,*fn3 and rather than permit plaintiff to take advantage of an ambiguity of her own making, the trial judge should have adjourned the motion and provided plaintiff with the opportunity to resolve the ambiguity.
We recognize that an adjournment of the motion would have delayed its disposition. We are also mindful that our court rules favor the expeditious resolution of matters through the summary judgment process. However, the fair and efficient administration of justice is not served when summary judgment is prematurely or mistakenly granted. To avoid the undue expenditure of time and monetary expense in the pursuit of unnecessary appeals, a trial judge should liberally employ the court's "comprehensive power to continue the motion" in order to permit further steps to be taken "to remove doubts as to whether there are disputed questions of material facts." Templeton v. Borough of Glen Rock, 11 N.J. Super. 1, 4 (App. Div. 1950). In many cases, as then Judge (later Justice) Jacobs said for this court in Templeton, doubts about the propriety of summary judgment could be dispelled through additional depositions or discovery. Ibid. In this case, the issue upon which summary judgment turned could have been further illuminated by an additional affidavit or certification from plaintiff -- another circumstance in which the court's authority to adjourn a motion and request supplementation would have been appropriately exercised. See Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 8, 17 (App. Div. 1989); West Point Island Civic Ass'n v. Twp. Comm. of Dover, 93 N.J. Super. 206, 211 (App. Div. 1966), certif. denied, 48 N.J. 576 (1967).
For these reasons, we vacate the order of summary judgment under review and remand for further proceedings during which plaintiff should be required to provide amplification on the point upon which we have focused. Defendants should also be given an opportunity to respond to any supplemental papers that plaintiff may file. We leave to the trial judge the scheduling of these events. We do not retain jurisdiction.