On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2213-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
Defendant Philipp Kirkorov*fn1 appeals from the grant of a new trial to plaintiff, the Estate of Thomas J. Rogers,*fn2 ordered on October 20, 2009. For the reasons that follow, we reverse the order for a new trial and reinstate the jury's verdict.
Rogers, who was seventy years old, was employed on April 17, 2004, as a part-time security guard for Strike Force Protective Services (Strike Force), a security company employed by Atlantic City casinos for special events. Rogers was assigned to a concert being given by Kirkorov, who is a Russian musical entertainer. During a segment of the concert, Kirkorov left the stage and strolled through the aisles while singing in close proximity to his fans, who were fairly ardent in their response. While Rogers was standing in an aisle, attempting to prevent the audience from crowding the performer, Kirkorov pushed Rogers out of the way. Kirkorov testified at trial that he could not see because of the lighting and that he had no awareness of the nature of the object blocking the aisle.
All the security guards had been instructed to stay out of Kirkorov's way and been given a rough idea of the path he would travel through the crowd. Rogers testified in depositions that he was told by his supervisor, Edward McKeever, and Strike Force's administrator, Frank Britt, to keep fans from rushing Kirkorov when he came down off the stage. Rogers hit his head on the concrete floor when he fell and lost consciousness. He sustained injuries to his leg, back, and hands, and claimed that, as a result, he suffered from chronic pain that severely restricted his lifestyle and prevented him from working. On March 18, 2009, prior to trial, Rogers died of a stroke after open heart surgery.
McKeever, the regional vice president of Strike Force and the event manager for the concert, testified that both Taj Mahal security and members of defendant's entourage instructed them to "maintain clear aisles," to ensure that guests remained in their seats, and to assist patrons who needed to access restrooms or concessions. Rogers was assigned to a specific area of the concert hall and was mainly responsible for keeping the aisle clear in that location. He wore the Strike Force uniform consisting of black shoes, black pants, and a bright yellow polo shirt with the words "event security" stenciled in large black letters.
McKeever testified that he was fairly sure that Kirkorov did not have a handheld microphone when the incident occurred but was wearing an earpiece microphone instead. Britt believed Kirkorov intentionally pushed Rogers because Kirkorov was not otherwise moving his hands around. Luanne Chilcote, a crowd control specialist employed by the Taj, testified that Kirkorov was holding a microphone in his hand when he came off the stage. She also commented that the push appeared to be deliberate.
McKeever said that after Rogers fell, Kirkorov began to laugh and did not attempt to help him. McKeever and Britt agreed that when the incident occurred, Rogers was located in his assigned area and was carrying out his precise duties. The lighting was lowered during this segment of the performance, and a spotlight was trained on Kirkorov. When deposed, Rogers said that at the time of the push he was not even aware of the identity of the person who shoved him. He also stated that he was only aware that Kirkorov had come down off the stage and into the crowd because of the reaction of the fans.
McKeever testified that it was apparent that Rogers had been seriously injured and that Kirkorov's bodyguards were generally uncooperative as the Strike Force employees attempted to assist Rogers. McKeever also stated he was denied access to Kirkorov or any member of the tour when he attempted to speak to them about the incident.
Kirkorov testified that when he was making his way down the aisle, he suddenly came into contact with someone or something, and instinctively pushed the object out of the way because he was concerned for his safety. He claimed his visibility was limited due to the lighting and that he had no idea the shove was to a person. He stated that he did not see Rogers, did not see him fall, and in fact was unaware that anything untoward had occurred until after the concert ended.
The jury returned its verdict on September 10, 2009, finding that Kirkorov did not commit assault and battery, and finding Rogers fifty-one percent negligent and Kirkorov forty-nine percent negligent, resulting in the complaint being dismissed with prejudice on September 17, 2009. Thereafter, Rogers filed a motion for a new trial, contending that the verdict issued against the weight of the evidence. After oral argument on October 9, 2009, the trial judge determined that because Kirkorov was merely "an entertainer who was strolling off the stage," Rogers did not have any obligation to be "keenly aware of [any] dangerous condition." He therefore concluded that under those circumstances the evidence was insufficient for the jury to assess Rogers' negligence at fifty-one percent. As the judge expressed it, "I don't know what they based it on. I can't determine from the record what they based it on." As a result, he granted Rogers' application for a new trial.
The initial judgment of a factfinder is given considerable respect and should not be discarded "except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)). When engaging in such a review, "the judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a ...