On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-251-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Plaintiff Tara Novembre (Tara) suffered personal injuries when a young spectator landed on her head, neck and shoulder at a New Jersey Nets game. She alleged her injury was proximately caused by negligent supervision of the spectator by the New Jersey Sports and Exposition Authority (Authority), which operates the arena, and Snyder High School (Snyder), whose employees had chaperoned a group of its students to the game, including, plaintiffs alleged, the young spectator. The jury returned a verdict of no cause on plaintiff's claim, as well as the per quod claim of her husband, Aniello Novembre (Aniello). The jury found both defendants were negligent, but plaintiffs had failed to prove that defendants' negligence proximately caused Tara's injuries.
Plaintiffs appeal, arguing that the trial court erred in
(1) excluding a hearsay statement that someone had pushed the spectator onto Tara; and (2) instructing the jury that it needed to determine how Tara was injured in order to determine the issue of proximate cause. We affirm.
On January 11, 2005, Tara attended a New Jersey Nets basketball game at the New Jersey Sports & Exposition Authority facility accompanied by her husband, her sister-in-law and three friends. They were seated in the seventh row of Section 238, located in the arena's top corner.
Tara, Aniello, and other witnesses testified that seated behind them was a group of unruly, and ill-behaved teenagers, whom they alleged were Snyder students. When Tara and her companions arrived, they found the teenagers in their seats. When they asked them to move to their own seats, the teenagers stepped on the seat cushions to reach the next row up, rather than walk into the aisle.
Tara stated the young spectators were "out of control." Tara also testified the students used vulgar language and made sexually explicit remarks about the players. There was "an excessive amount of running up and down the aisle." She testified a female usher had to ask students to stop sitting in the aisle, directly to the left of Tara's group and one step up. Aside from that usher's intervention, Tara and other witnesses alleged that the usher posted closest to their seats - a middle-aged man - did not make any efforts to control or quiet the young spectators.
Other members of Tara's group testified that the students were loud, obscene and rowdy. One testified that students stood on their seats at least three different times, once when t-shirts were lofted into the stands and another time when the school's name was announced. They constantly used inflated noisemakers, distributed by the arena, banging them together and sometimes dropping them into the row in front of them. Witnesses testified that throughout the game, they saw teenagers standing, pushing, shoving, nudging, bumping and throwing things at each other; at times, they kicked the seats in front of them where Tara's group sat; and no one seemed to be supervising the teens.
Plaintiffs also introduced evidence that Authority policy required ushers to affirmatively respond to fan misbehavior, such as sitting or standing in aisles or on seats, obscene language, boisterousness, and other conduct threatening public safety. The middle-aged usher testified that he tolerated a certain amount of pushing, horseplay, and hitting with inflatable sticks by young spectators, but would intervene when "they were being pushed too much and they probably would hurt each other."
Plaintiffs also presented evidence that tended to demonstrate that at least the young spectators seated directly behind Tara were part of a student group from Snyder, although numerous high school groups attended the game. The high school's principal at the time testified that each Snyder chaperone was responsible for supervising and controlling the behavior of ten students. Snyder had maintained a file of the participants in the field trip, but it could not be located and produced for the litigation.
The jury also heard evidence that tended to undermine the claim that the spectators behind plaintiffs were unruly and outof-control. Tara and one of her friends admitted that no one in their group complained to security, a chaperone, or to an usher posted near their seats, nor did they request to be relocated despite the teenagers' allegedly extreme conduct. Although Tara's sister-in-law explained that she was concerned that a complaint would escalate matters, she also admitted that she did not feel, before the incident, there was a need to report the conduct; everyone was just having a good time and she did not foresee anyone getting hurt.
Another witness testified that although the behavior was the worst he had seen in the ten to fifteen Nets games he had attended, he did not think any nudging or dropped clappers was intentional, a "big deal," or something that warranted intervention. A different member of Tara's group recalled that the teenagers would jump up and down and bump into each other when a player scored. Defense counsel also highlighted witnesses' inconsistent statements, eliciting, for example, that Tara's friend claimed at trial that she saw students pushing and shoving as she arrived and throwing things, but failed to assert that in her deposition.
An Authority witness explained that public announcements at the game encouraged spectators to seek assistance in case of fan misbehavior, complaining spectators are often relocated to more comfortable seats if available, and there were almost 7000 empty seats the night Tara was injured. A Snyder witness testified that the school's tickets were awarded to Snyder's honor roll and achievement roll students, and purposely withheld from students with records of behavioral problems. An Authority employee and an expert testified that in the steep, upper sections, fans often fall, trip or misstep in the absence of crowd misconduct.
With about four to six minutes left in the game, a teenage girl who had been seated behind Tara fell on top of her, landing on the left side of her head, neck and shoulder. The girl's body landed sideways, also striking Tara's friend and her sister-in-law, who sat to her right and left. Two of Tara's companions helped the teenage girl up. After returning to her row of seats, the teenager, who was crying and upset, asked Tara if she was alright, and said she was sorry.
Tara and her husband both testified at a pre-trial hearing pursuant to N.J.R.E. 104 that they then heard a statement by a young male nearby. Tara testified that after the spectator landed on her, she heard a young man behind her to her left say, in a "very concerned and sincere" tone, "Why did you push her?" Tara testified that she heard no response to the statement.
Aniello, who was four seats over from his wife, testified that he heard the same question in a "concerned" tone. He looked at the young spectators behind Tara and observed that the girl who landed on his wife was crying, and a girl next to her was trying to calm her. He testified that the same girl tapped the young man in response to his accusatory question, characterizing it as "some sort of retaliation . . . sort of a shot at the male." Neither Tara nor her husband could identify the young man who asked, "Why did you push her," nor could they verify that the young man actually observed the young spectator as she landed on ...