July 16, 2010
LINDA DEGENHARDT AND STACEY BRODERICK, CO-EXECUTRICES OF THE ESTATE OF THOMAS J. ROGERS, DECEASED, PLAINTIFFS-RESPONDENTS,
FILIPP KIRKOROV A/K/A PHILIP KIRKOROV A/K/A FILIPP KIRKOVOV A/K/A PHILIP KIRKOVOV, DEFENDANT-APPELLANT, AND TRUMP TAJ MAHAL CASINO RESORT, TRUMP HOTEL PROMOTIONS, EUPHORIA ENTERTAINMENT, DEFENDANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 19, 2010
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 thirteenth and decisive juror." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). The sole focus should be "to correct clear error or mistake by the jury." Ibid.
Pursuant to Rule 4:49-1(a), "[a] new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge." A motion for a new trial should be granted where the trial judge concludes, giving "due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law."
Ibid. We defer to the trial court as to "intangibles" not transmitted by the record, such as witness credibility and demeanor, as well as the "feel of the case." Carrino v. Novotny, 78 N.J. 355, 360 n.2 (1979). We otherwise make an independent determination of whether a "miscarriage of justice has occurred." Ibid.; Baxter, supra, 74 N.J. at 598. See also
The trial judge essentially granted the new trial because he believed that Rogers was not conducting himself in any negligent fashion. The judge could not conceive how the jury reached the conclusion that Rogers' negligence was greater than Kirkorov's.
Although reasonable minds may disagree, this decision of the jury is not, however, a "'miscarriage of justice.'" See Jastram ex rel. Jastram v. Kruse, 197 N.J. 216, 230 (2008). Kirkorov testified that he did not purposely push Rogers, but rather that he came into contact with an obstacle in his path that he brushed away. Kirkorov also said that his path of travel is reviewed with security staff prior to the performance to ensure that they do not block the aisles. Kirkorov explained during his testimony that a predetermined path is necessary because his vision is impaired by the lighting during his performance and the focus of his attention is his audience.
This testimony could readily lead a jury to conclude that Kirkorov did not intentionally shove Rogers. They could reasonably find that Rogers' witnesses were only interpreting their observations, in other words, speculating, while Kirkorov was testifying directly about his own conduct. Rogers, after all, was a security officer whose sole responsibility was to keep order in the aisle to which he was assigned, which would of necessity include being conscious of Kirkorov's whereabouts. Examined from this perspective, the jury could rationally have found Rogers' conduct to be more negligent than Kirkorov's because Rogers was supposed to be paying close attention to what was occurring in the theater, including Kirkorov's whereabouts, and was not doing so. Simply because a judge disagrees as to how a jury should interpret facts presented to them does not mean a "'miscarriage of justice'" has occurred. See ibid. (citation omitted).
There was support in the record for the jury's verdict that plaintiff was somewhat more at fault than defendant. McKeever actually testified that it was important for a security officer to have "situational awareness" at events; in other words, that Rogers should have been aware of Kirkorov's location, as well as that of the fans, as the performer wended his way through the crowd. That testimony further supports the notion that it was not unreasonable for the jury to have concluded that through a lack of "situational awareness," Rogers stepped away from his designated spot and moved directly into Kirkorov's path of travel. In any event, the jury's verdict was not a "'miscarriage of justice.'" See ibid. (citation omitted). It is for this reason that we reverse.
Furthermore, the trial judge said that he did not think that Rogers had any particular responsibility to be especially observant in order to protect himself because there were no obvious dangers such as "pyrotechnics" or wild animals. As we said in Bates v. Valley Fair Enterprises, Inc., 86 N.J. Super. 1, 7-8 (App. Div. 1964), "some degree of" attention was required of Rogers. Any plaintiff is expected to make "observations as [are] reasonably called for by the circumstances." The extent of attention that must be paid is a jury question. Ibid. Rogers had some responsibility to preserve his own well-being, which he failed to meet. By overturning the verdict, the trial judge unquestionably made himself a thirteenth juror based on his disagreement with the jury's conclusion as to the degree of attention required of Rogers. Accordingly, his grant of a new trial cannot be permitted to stand.
Reversed as to the grant of a new trial; the jury verdict is reinstated.