On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-989-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Yannotti and LeWinn.
Plaintiff Rocco Montesano filed a personal injury action against Patrick Enright, Mountain Creek Resort and several other defendants, for injuries he sustained during an encounter with Enright at the resort. A jury found Enright not liable for injuries to plaintiff's knee and shoulder, and further found plaintiff and Enright each fifty percent liable for plaintiff's injury to his eye; the jury awarded plaintiff $500 for Enright's intentional acts and $10,000 for Enright's negligent acts, which was reduced to $5000 pursuant to the jury's liability finding.
On August 11, 2008, the trial judge entered judgment on the verdict plus interest in the amount of $6051.02. Plaintiff now appeals from that judgment, raising three claims of trial error.
For the reasons that follow, we reverse and remand for a new trial on liability.
The pertinent trial evidence may be summarized as follows.
On January 14, 2002, plaintiff, a retired police officer, went to Mountain Creek Resort along with his son, daughter-in-law and two grandchildren for a day of skiing. As plaintiff rode the gondola to the crest of the mountain, he heard coarse and vulgar language, as well as racial epithets, coming from "six to eight young men in the gondola" directly beneath his. Plaintiff described the cursing as continuous and stated that it appeared to be directed at a group of four men in a gondola at the foot of the hill. Plaintiff's seven-year-old grandsons were in the gondola immediately below the young men.
When plaintiff's gondola arrived at the top of the mountain, he waited until the young men emerged from their gondola and then approached them. Specifically, plaintiff approached one young man, later identified as Enright, because "he [wa]s the one that was very obvious to [him,] was the loudest, spoke the filthiest and appeared to be the most boisterous."
Plaintiff described what happened next:
Q: When Mr. Enright came out where were your skis?
Q: How were you holding your skis?
A: I would tend to believe I would hold skis with my right hand and possibly my poles were in my left hand.
Q: And when Mr. Enright got out . . . were you the one to speak to him first?
Q: And what did you say to him?
A: It's pretty close to a quote, . . . I said listen, guys, why don't you curtail your language. I have my grandchildren just below you and my daughter-in-law with me. You know, just take it easy, curtail your language -- I believe those were the words -- and if you don't I'm going to report you to management.
Q: Did you ever curse at Mr. Enright or anybody else at that time?
A: The purpose of me stopping Mr. Enright was to stop the cursing, not to initiate more cursing. My grandchildren were getting off the gondola.
Q: When you said that to Mr. Enright what, if anything, did he say or do?
A: He quickly . . . escalated to a point which I could not believe. Mr. Enright in one swoop spit directly in my face, punched me in the chest, and at the same time said I'm going to kill you, you m[o]therfucker.
Q: What did you do as result of that?
A: I was taken back. I just could not believe it. I could not believe that . . . I'm on the slope with my children and . . . I'm in a confrontation with someone for no apparent reason.
Q: Aside from spitting in your face and aside from saying what you just described him as saying, did he make any physical contact where any part of his body came in contact with any part of your body?
A: His fist in my chest, first physical contact. Well, his spit on my face, first contact, his fist to my chest, second contact, the third contact was in striking me with his snowboard over my left eye.
Q: How did he strike you with the snowboard over your left eye?
A: He took the snowboard and hit me like that.
Q: Had you made any efforts or gestures to in any way make contact or strike him when he struck you with the snowboard?
A: I was taken [a]back. I was totally surprised, and given my police experience, . . . it causes me a great deal of problem that I was not more ...