August 13, 2009
JOSEPH P. CUSUMANO, JR. AND JOANNE CUSUMANO, PLAINTIFFS-APPELLANTS,
THE UNITED STATES OVER THIRTY BASEBALL LEAGUE, ROBERT "BOB" DELEHANT, CHARLES M. HENGARTNER, THE MIDDLETOWN INDIANS, AND THE MONMOUTH WHITESOCKS, DEFENDANTS, AND GORDON BARTOLOMEI, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1501-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 23, 2009
Before Judges Carchman, R. B. Coleman and Sabatino.
Plaintiff Joseph P. Cusumano, Jr. and Joanne Cusumano*fn1 appeal from a May 1, 2006 order of the Law Division granting partial summary judgment and dismissing his complaint against defendant the United States Over Thirty Baseball League (the League). The matter thereafter proceeded to a jury trial resulting in a verdict in favor of the remaining defendants Gordon Bartolomei and the Monmouth Whitesocks (Whitesocks). Plaintiffs appeal from that verdict as well specifically challenging an evidence ruling made by the trial judge excluding a photograph from consideration by the jury. We affirm.
These are the relevant facts. Plaintiff joined the League and played for the Staten Island Cardinals baseball team (Cardinals). The League only requires its members to sign a registration form and pay $75, which plaintiff did. On June 23, 2002, the Cardinals played an away game at the Middletown North High School Varsity Field (varsity field) against the Whitesocks, another team in the League. The League scheduled this game and assigned varsity field as the venue. During the game, plaintiff suffered an injury while baserunning.
Prior to the games on June 23, 2002, the Whitesocks' coach, defendant Bartolomei, brought "throw down" bases to the field for use in the game. A "throw down" base is "a regular baseball base that's flat on both sides, probably about two inches thick," "off-white" in color and "square" in shape. Bartolomei claimed he did not personally place the "throw down" bases in the field of play; he assumed other members of the team did this. Bartolomei also noted that varsity field was not either team's "home field," that they did not have a permit to use the varsity field and that the League had assigned the two teams to play there on that date. The permit for the field was actually given by the Township of Middletown Department of Parks and Recreation to defendant Charles Hengartner, the coach of another team in the League, the Middletown Indians ("Indians").
With regard to the placement of bases on the field, Hengartner stated:
Q: Do you have any responsibilities as the manager with regard to setting up the field for play?
A: Yeah, I -- I guess it's -- I guess it's unwritten -- I've never read it, but generally as the -- if it's your home field you bring the bases, unless they're there already. You know, some fields they affix the bases, and the [sic] pin them to the bottom somehow. I bring some of the equipment -- you know, like catcher's equipment. Sometimes the catcher brings it himself, but -
Q: With regard to this particular field do you bring those fixed bases?
A: Yes, sir.
Q: And for how many years have you been using fixed bases on this field?
A: Like I said before, probably seven, or eight, something like that. It could even be longer.
Q: And it's the home team that puts the bases down?
The varsity field uses a "fixed base" system which Hengartner described as:
this hollow square post [that] fits over the solid post that runs down beneath the surface. It has a smooth round top. This fits over that smooth round top, then goes -- you know, goes about, I guess, two or three inches in which this hollow post fits over the solid post so the base can't turn --Hengartner further described the "solid post" and its relationship with the field level.
Q: Okay. Onto that metal post. Do you know how close up from down below to the ground surface the metal post comes? Is it flush?
A: On that particular field?
Q: Yes, is it flush?
A: Well, I -- I have to say that -- that I can't remember a time when we didn't have to dig, at least, an inch, or two to find it.
Mainly because when it rains the water runs across the field, brings the silt from foul territory to fair territory, and kind of covers up -- kind of covers up the post.
And this, pretty much, occurs on -- on all three of the bases.
Q: Okay. And -- and so, if you're going to use the base someone would have to dig it out?
A: That's correct.
Q: How far down would you have to dig out?
A: As I said, you know, at least an inch -- as a matter of fact many times my players -- and I would get annoyed with them. They would say, we can't find it. We can't find it. I'd say, it's there. Just keep looking. Keep digging. Keep looking, Your [sic] Honor. So -- and, you know, eventually we always find it.
Hengartner also claimed that the League purchased the bases for this fixed base system for the Indians to use on the varsity field, but they were not used for the June 23, 2002 game between the Whitesocks and the Cardinals.
Prior to the game, the umpires discussed the use of the throw down bags in their pre-game conference. The use of "throw down" bags in the League was common, and Bartolomei acknowledged this discussion during trial.
Also, with regard to the bases. And it's determined at the beginning of the game that the bases are throw-down bags, which are often used in our league, and the managers have to go back after that is discussed to say that there's rules involving throw-down bags, and the players have to be notified.
Plaintiff alleges that his manager never informed him about the use of "throw down" bases.
During the game between the Cardinals and Whitesocks, plaintiff stepped up to the plate and hit a ball past the third baseman towards the leftfield corner. Anticipating that he had an extra-base hit, plaintiff ran full speed towards first base with no intent to stop at first but to run to second or third base. As he was running:
I was trying to go to second base, and when I -- when my right foot hit the base, I hit it on the side to -- to try to get around the base, and the base moved, and I felt --I felt something very foreign that should not be there with my foot. It was a very hard object. It was something that I knew should not be there.
So, it -- it caused me to lose my balance, and I tried to catch my balance with my left foot, and since I was sort of turning, I awkwardly tried to catch my balance with my left foot. My left foot twisted. I heard a snap, and my -- my foot sort of bent up towards -- all the way up towards my calf, or -- or my shin bone I should say.
So just out of common, natural instinct, I looked to see what my foot hit -
I definitely stumbled. I -- I don't know if I caught my balance with my hands. I -- I don't know. I stumbled. I mean, my foot snapped.
Oh, I mean, I knew -- I knew I broke my foot. I mean, I knew immediately I broke my foot.
Because I -- I heard it snapped [sic].
I mean it was very, very obvious. It snapped all the way back into a position it should not go.
Plaintiff could not walk off the field on his own. When he looked at what he had stepped on, he saw a "steel pole [l]ike a pipe, or a pole just sitting there . . ." exposed above the ground. Plaintiff explained that when he hit the base, "the base moved simultaneously with [him] coming in contact with the base, and [his] foot hit this pole of height." Plaintiff believes the pipe was "probably level with the ground" and "flush with the top." At trial, plaintiff explained that he was not told prior to the game that there were iron spikes under first, second or third base. Plaintiff was helped off the field and play resumed. Plaintiff was then helped to his car, and because he had hurt his left foot, he was still able to drive himself to St. Vincent's Hospital on Staten Island.
Plaintiff suffered a severe injury which required him to have four surgical procedures, attend over a hundred visits to physical therapy, consult a pain management specialist and see a psychiatrist.
Plaintiff brought an action against the League, the League president Robert "Bob" Delehant, Hengartner, the Indians and various John Does, which would later include the Whitesocks. In his complaint, plaintiff alleged that defendants negligently maintained the varsity field so as to cause plaintiff's injuries.
The League moved for summary judgment, which was granted. In his opinion granting the motion, Judge Waldman said:
Plaintiffs argue that the field was a specially built field that required the use of specially made bases. Plaintiffs state that the League was responsible for assigning the teams to that particular field and had knowledge that that field required special bases, as it had purchased them years earlier.
This court finds that the League did not have a duty to ensure that its teams had the proper equipment for the field. The teams, not the League were responsible for setting up the field. The League had no presence at the games and was not in control of the field at the games. Rather, the field was in control of the teams that set it up.
Judge Waldman denied plaintiffs motion for reconsideration, stating:
This Court finds that the analysis used in determining whether a duty existed in the present case was essentially the same one used in Olivo [v. Owens-Illinois, Inc., 186 N.J. 394 (2006)]. This Court addressed the foreseeability and fairness factors and found that the League did not have a duty to the plaintiff in this specific matter.
Although the plaintiff asserted that the League had knowledge that this particular field required special bases, this is based on the fact that the League authorized a purchase of specialized bases for the coach of the home team for that particular field years earlier. The league did not control the playability of the fields, which were set up by the teams that played the field.
This court considered the relationship of the parties, the nature of the risk, i.e. foreseeability and severity, and the impact of the imposition of the duty on public policy in determining that the League had no duty to the plaintiff in this instance.
Because Olivo does not substantially change the analysis that the court already underwent, this court DENIES the plaintiff's motion for reconsideration.
The case proceeded to trial against Bartolomei and the Whitesocks. At trial, plaintiff presented videotape testimony of a "sports expert," Dr. Leonard K. Lucenko, Ph.D, where he opined:
Well, I concluded, first, that the Defendants failed to provide a baseball field that was safe from any dangerous conditions. They failed to properly maintain the field so as to discover the hazardous conditions that were present. They failed to maintain proper management of the field to discover dangerous conditions and to take proper steps to eliminate them. They failed to warn the players, including Mr. Cusumano, of the hazardous condition of the use of the throw-down bases during competitive play and they negligently permitted [them] to use throw-down bases for the game which are not appropriate for competitive games or the situation as it was at the Middletown North high school field.
And then finally my -- my conclusions are that the injury sustained by Mr. Cusumano on June 23, 2002 were [sic] the direct result of the negligent commissions and omissions of the Defendants.
Defendants presented their own sports expert, Mr. Joseph Locascio, who believed plaintiff's interrogatories and deposition testimony conflicted. Locascio said "[i]n one he says he hit the base and it came off and he hit the pipe. In the other one he says it was simultaneous. I have difficulty understanding how that could happen."
An issue also came up during Locascio's testimony about the admission of a photo, marked as P-33, for identification. The photo depicted a baseline and a base pipe sticking out of the dirt. Plaintiffs' counsel sought to move the photo into evidence to attack Locascio's credibility. Defendants' argued that there was a lack of proper foundation for this photo to be submitted into evidence. Judge O'Brien, the trial judge, denied the request to admit P-33 into evidence.
The jury returned a verdict of no cause of action, the judge denied a motion for a new trial and this appeal followed.
On appeal, plaintiff raises two issues and asserts that the judge erred in granting partial summary judgment to the League and that the judge erred in refusing to admit P-33 into evidence.
We address each issue.
Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
R. 4:46-2(c). The court must determine ""whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A. 189 N.J. 436, 445-446 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986))). See also Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). "At this stage of the proceedings, the competent evidential materials must be viewed in the light most favorable to plaintiff, the non-moving party, and [he] is entitled to the benefit of all favorable inferences in support of [his] claim." Bagnana v. Wolfinger, 385 N.J. Super. 1, 8 (App. Div. 2006) (citing R. 4:46-2(c); Brill, supra, 142 N.J. at 540). See also In re Estate of Sasson, 387 N.J. Super. 459, 462-63 (App. Div.), certif. denied, 189 N.J. 103 (2006).
"We apply the same standard of review that governs trial courts when reviewing summary judgment orders." EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp., supra, 142 N.J. at 445-46). We review the lower court's decision de novo. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.) (citing Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 196 N.J. 85 (2008). If then there is no genuine issue of material fact, we must determine "whether the trial court correctly interpreted the law." Massachi v. AHL Services, Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential, supra, 307 N.J. Super. at 167), certif. denied, 195 N.J. 419 (2008).
As we have noted, the motion judge found that the League owed no "duty to ensure that its teams had the proper equipment for the field." He explained: "The teams, not the League were responsible for setting up the field. The League had no presence at the games and was not in control of the field at the games. Rather, the field was in control of the teams that set it up." While plaintiff argues that the use of the "throw down" bases "gives rise to a foreseeable danger," that alone does not address the issue of responsibility for the safety of the bases, the field or the conditions of play.
Critical to the analysis is the role of the League. The judge concluded that the League's role was limited. It enrolled participants, scheduled games and provided baseballs. The League did supply the bases for a particular field, and the teams playing determined the type of bases used. The League did not control the fields or assume responsibility for the inning to inning operation of the games or facilities.
We acknowledge that "[f]oreseeability is significant in the assessment of a duty of care to another; moreover, it has a dual role in the analysis of tort responsibility." Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 402 (2006). Foreseeability is generally a determinant of both defendant's duty of care and whether a breach of that duty is the proximate cause of the injury. Ibid. (quoting Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502-03 (1997)). See also C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 58 (App. Div. 2006) (stating "[g]enerally, our jurisprudence recognizes "foreseeability as a determinant of a [defendant's] duty of care . . . [as well] as a determinant of whether a breach of duty is a proximate cause of an ultimate injury."") (quoting Olivo, supra, 186 N.J. at 402 (quoting Clohesy, supra, 149 N.J. at 502-03)). "Because the focus here is on the determination of a duty, foreseeability of harm weighs in that analysis as "a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate."" Olivo, supra, 186 N.J. at 402-03 (quoting Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572-73 (1996) (quoting Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194 (1994))). "Once the ability to foresee harm to a particular individual has been established, however, considerations of fairness and policy govern whether the imposition of a duty is warranted." Id. at 403 (citing Carter Lincoln-Mercury, supra, 135 N.J. at 194-95).
Foreseeability in the context of a duty analysis must assess "the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty. . . .'" Clohesy, supra, 149 N.J. at 503 (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1977)). "Once the foreseeability of an injured party is established," Carvalho, supra, 143 N.J. at 573 (citations omitted), the determination of whether imposing a duty is fair involves "'weighing, and balancing several factors--the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the propose solution.'" Ibid. (quoting Hopkins, supra, 132 N.J. at 439). [Olivo, supra, 186 N.J. at 403-04.]
Our Supreme Court has stated that "[n]o better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists." Acuna v. Turkish, 192 N.J. 399, 414 (2007) (quoting Prosser & Keeton on Torts: Lawyers Edition § 53, at 359), (W. Page Keeton ed., 5th ed. 1984)), certif. denied, ___ U.S. ___, 129 S.Ct. 44, 172 L.Ed. 2d 22 (2008). This decision of whether the League owed plaintiff a duty here was for the court to decide as a matter of law. Acuna, 192 N.J. at 413-14 (citing Clohesy, supra, 149 N.J. at 502).
As we have noted, the judge found that the League had no duty because the teams alone controlled the setup of the fields. He concluded that the League itself has no presence at the fields during games. Despite this, plaintiff asserts that "the League had actual knowledge of the existence of a fixed base system at the [varsity field], since the League had authorized Charles Hengartner to purchase the proper bases for use at this field and the League had actually paid for those bases."
Critical factors in the analysis are "the relationship of the parties, the nature of the risk, and the public interest in the proposed solution" to determine if a duty exists. Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 529 (1988) (quoting Kelly v. Gwinnell, 96 N.J. 538, 544 (1984) (quoting Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583 (1962))).
The relationship between the parties here is one of membership. The League did not provide written rules or procedures with regard to how the teams or players should set up a field. In fact, the umpires and team managers were the ones who discussed ground rules, and the teams themselves set up the field prior to the game, not the League. The League president, defendant Delehant, did not attend the game when plaintiff injured himself and had never visited the field. The League itself does not own the varsity field nor does it own any other fields. The League does not supply any equipment, other than baseballs. "The equipment is up to the team." The home team has the responsibility to arrange use of the field.
We conclude that the League had no duty to plaintiff regarding the condition of the field. The purchase of special bases for this field does not impose a duty on the League to ensure that for any particular game, these bases were used. Nothing in the record suggests that anyone other than the teams involved was responsible for the condition of the field for a particular game. We conclude that the judge did not err in granting summary judgment dismissing plaintiffs' complaint against the League.
We reach the same result regarding the admissibility of the challenged photograph. Before addressing the merits of plaintiff' claim, we note a critical factor regarding the photograph. The photograph was available and utilized by plaintiff to cross-examine defendant's expert. The issue presented here is whether that same photograph could be admitted into evidence as plaintiff's exhibit.
"Trial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under the abuse of discretion standard." State v. Buda, 195 N.J. 278, 294 (2008) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). See also Brenman v. Demello, 191 N.J. 18, 31 (2007) (stating the standard of review of the admissibility of evidence is "the palpable abuse of discretion standard").
Plaintiff argues that the photograph of a baseline and a pipe should have been admitted for the purpose of undermining the credibility of defendant's expert, Locascio. Plaintiff asserts that this photograph would impact on credibility because Locascio did not personally inspect the field, and the photograph shows the danger posed by the pipe. Judge O'Brien denied the request to admit P-33 into evidence because of a lack of proper foundation for the photograph.
Plaintiff relies on N.J.R.E. 607 in support of his argument that he should be allowed to submit the photograph into evidence for the purpose of undermining the credibility of Locascio. N.J.R.E. 607 provides:
Except as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility, except that the party calling a witness may not neutralize the witness' testimony by a prior contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) or the judge finds that the party calling the witness was surprised. A prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence. [(Emphasis added).]
However, the photograph itself must be authenticated before it can be submitted as evidence at trial. N.J.R.E. 901 provides:
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.
The procedural hurdle of authenticating a photograph is not a high one. "Generally, to justify admissibility of a photograph, it must accurately represent the conditions existing at the time of the happening of the incident in question." Saldana v. Michael Weinig, Inc., 337 N.J. Super. 35, 46 (App. Div. 2001) (citing N.J.R.E. 901; Garafola v. Rosecliff Realty Co., 24 N.J. Super. 28, 42 (App. Div. 1952)). Further, "[t]he authentication of a photograph requires verification by a qualified individual, one who has made personal observations, thereby establishing that the conditions reproduced existed at the time of the [incident]." Id. at 46-47. "The admissibility of any relevant photograph rests on whether the photograph fairly and accurately depicts what it purports to represent, an evidentiary decision that properly lies in the trial court's discretion." Brenman, supra, 191 N.J. at 21. See also State v. Polito, 146 N.J. Super. 552, 558 (App. Div. 1977) (stating that "[b]efore ruling on the admissibility of photographs, it is incumbent upon the court to determine whether they accurately depict the subject at a time relevant to the issues involved in the litigation"), certif. denied, 76 N.J. 243 (1978).
Here, after defendant made a timely objection to plaintiff's motion, both sides were heard on the issue of admissibility.
Q: Is it fair to say that this shows the top of the spike pretty close to the surface of the ground?
A: Pretty close to the top of the spike?
MR. NEWELL: Judge, this witness has testified. I'm going to move this into evidence at this time. It goes to credibility and attacks his basis for his opinions, based concisely for what he just said. I'm not offering it for any other purpose, other than the credibility, reliability and accuracy of his testimony.
THE COURT: Mr. DeMarco?
MR. DE MARCO: Objection, Your Honor.
THE COURT: Let me hear it at sidebar. (Sidebar)
THE COURT: Go ahead.
MR. DE MARCO: There's absolutely no foundation with respect to when the photograph was taken, what it depicts and, in fact, the witness said he didn't know if it was first or third base.
He mentioned his rendition of whether it was recessed or not recessed. That doesn't challenge his credibility. It challenges his observation. That's the same as Mr. Newell's picture saying, you know, it's an inch versus six inches down in the ground.
This is misleading, as much as Mr. Newell's pictures are misleading. These are clearly taken after -- after the season is over. The U.S. Over 30 Baseball League doesn't play on that type of a field.
THE COURT: I don't when [sic] this photo was taken. Nobody has testified to it. All I know is that here -- unless he took it at some point.
MR. DE MARCO: Absolutely. That's all we know.
THE COURT: That foundation alone is his way of knowing, no -- he doesn't [sic] anything about where it came from, other than -
MR. NEWELL: I understand that. I'm not offering it for the truth of the matter asserted. I'm offering it because he looked at this and referred to it in his report, and he just said it appears to be at ground level. That undermines his entire opinion. It goes to credibility. It should be admissible. The credibility of this witness -
MR. DEMARCO: Once again, Judge -
MR. NEWELL: And you can limit the instruction, Judge
MR. DEMARCO: Once again, Judge -
MR. NEWELL: This does not comport with what he's been telling us. It does not comport with the -
MR. DEMARCO: It comports with what was in existence, based on the testimony of the individuals on the day. This is an after -
THE COURT: I don't know where this photo is taken. Who knows what it is? It shows a picture of a spike in the ground with a baseline. I don't know who took it, except for I think it's Mr. DeMarco, so I'm asking when it was taken. So I can't say anything right away. I think it's misleading because there's evidently a depression there, from my view. There's the difference from the top, going into the bag. It goes down. That's clear to me. It also is clear to me that this is where the foot steps on, on the right hand side of the photo here, next to the left, goes down. I don't know how far that is. But you're not going out with it. Thanks.
Plaintiff did not establish what the picture depicted, where it was taken, or when it was taken. As the trial judge noted, "[w]ho knows what it is?" Plaintiff failed to lay a proper foundation for the admission of P-33 under N.J.R.E. 901.
Furthermore, the argument that plaintiff was going to use the photograph to challenge the credibility of Locascio is unavailing. Plaintiff's claim that they were going to offer it because Locascio had concluded that "the iron pipe was not a hazard and that the accident could not have occurred as described by [plaintiff]," but while examining the photo from the witness stand, Locascio said the spike appeared to be at ground level. The photo was available for cross-examination; it was not authenticated to be presented as a plaintiff's exhibit.