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Richard Ludwiczak v. Showboat Atlantic City Operating Company

June 3, 2011

RICHARD LUDWICZAK, PLAINTIFF-APPELLANT,
v.
SHOWBOAT ATLANTIC CITY OPERATING COMPANY, LLC D/B/A SHOWBOAT CASINO HOTEL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2823-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 9, 2011

Before Judges Lisa and Alvarez.

Plaintiff, Richard Ludwiczak, appeals from Judge Kathryn A. Brock's May 21, 2010 order dismissing his personal injury complaint. The order was entered after the jury was selected and after a hearing pursuant to N.J.R.E. 104(a), but before testimony was presented to the jury. Plaintiff's proposed expert testified at the hearing. The judge ruled that his proposed testimony would be barred because his opinion was a net opinion. The judge further ruled that without an expert, plaintiff could not prove its case. Accordingly, the dismissal order was entered. Plaintiff argues that the judge erred in making these rulings. We disagree with plaintiff and affirm.

On April 6, 2008, plaintiff went to defendant's casino, the Showboat, in Atlantic City. He was transported there by a bus operated by Academy Bus Company,*fn1 which plaintiff boarded at the Cheesequake Rest Area of the Garden State Parkway, near plaintiff's home in Linden. Plaintiff was then eighty-three years old. He parked his car at the rest area and paid $33 for a round-trip bus ticket. It was his intention to return to the rest area after his activities at the casino.

The last bus returning to Cheesequake was scheduled to leave the Showboat at 8:40 p.m. Plaintiff went to the bus depot area at the casino about two hours before the departure time, intending to board that bus. He went outside to the curb to form the beginning of a line. He sat on a fixture near the spot where people would eventually board the bus. As time passed, other intended bus passengers arrived and the line formed behind plaintiff. Based upon varied estimates, fifteen to thirty people were waiting for the bus to arrive.

Before the bus arrived, a man, whose identity was never ascertained, cut in front of plaintiff. Plaintiff confronted the man by standing up and telling him to go to the back of the line. The two argued, after which the man pushed plaintiff to the ground and fled the scene. The entire confrontation lasted less than two minutes. Plaintiff contended he was injured as a result of this incident, and he brought this action against defendant seeking damages for the injuries.

Security Officer Davis Guzman responded to the scene within three minutes. He found plaintiff in a crowd of people, obtained a description of the assailant, and notified the Showboat's security force. Guzman asked plaintiff whether he wanted to call the police, but plaintiff declined. Plaintiff also refused medical treatment. Plaintiff got on the bus and returned home.

In his deposition testimony, Guzman explained that he patrolled the area encompassing the bus depot approximately six to eight times during his eight-hour shift. He had been a bike patrol guard for approximately one-and-one-half years. Before that, he was an indoor casino guard for Showboat, and prior to that, he worked for Resorts Hotel and Casino. He had not received specific training to be a bike patrol guard (other than instruction on the use of a defibrillator). He had received a manual, but did not read it in its entirety.

The Showboat normally had two guards on bike patrol at any given time. It was also Showboat's practice to summon the police when an assault occurred. As we have stated, the police were not summoned in this case because plaintiff did not want them called. According to Guzman, he had responded to about ten to twenty incidents occurring at the bus depot over the course of his employment at Showboat. However, the record does not reveal the nature of the incidents.

Plaintiff produced no evidence of the occurrence of any similar altercations occurring at defendant's bus depot. Defendant had not received any complaints about anyone matching the assailant's description.

Melvin Gray, the Academy bus driver who transported plaintiff from the Showboat to the rest area that evening, testified at his deposition that when he arrived at the depot, there were approximately fifteen people in line, and another five seated inside who intended to board the bus. Gray did not deem the terminal overcrowded because the capacity of the bus was sufficient to accommodate all of those waiting to board it.

Plaintiff retained the services of Sergeant Andrew Pisani, a former Union City police officer, as his proposed expert in security and crowd control. This was Pisani's first case as an expert witness. He reviewed the discovery materials and relied on his own experience to produce a report. The essence of his opinion was that "plaintiff's injuries would have been avoided with proper measures of crowd control and procedures for orderly loading and unloading of the buses at the depot. Further, proper training and adequate patrols would have avoided the plaintiff's injuries." At the Rule 104 hearing, Pisani described his qualifications. He explained that he had thirty years of experience as a police officer and that he had taught at various police academies. He said he had been responsible for crowd control activities and taught methods for crowd control. ...


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