January 17, 2012
TARA NOVEMBRE AND ANIELLO NOVEMBRE, PLAINTIFFS-APPELLANTS,
SNYDER HIGH SCHOOL, NEW JERSEY SPORTS & EXPOSITION AUTHORITY, DEFENDANTS-RESPONDENTS, AND NEW JERSEY NETS, DEFENDANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 13, 2011
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 Tara, or what immediately preceded her tumble. As discussed below, the court barred witnesses from recounting before the jury the unidentified male's question.
In her trial testimony, Tara testified that although she felt extreme pain after the incident, neither she nor her companions sought immediate assistance, nor was any offered by an usher or chaperone. Tara massaged her neck, and hoped the pain would go away.
Tara's sister-in-law testified that after Tara was struck, one of the students asked Aniello if Tara was okay. He replied, "No, you guys hurt her." A student replied, "So, she said she was sorry." At that point, some other comments were made, but Aniello turned around and stopped talking to the students.
Tara's friend recalled that when Aniello called down the row to ask if his wife was okay, "a kid behind him . . . said something to him like sit down and shut up or something." Tara's friend testified that she felt intimidated. Another member of Tara's group recalled that one of the students repeated, "She's all right;" Aniello turned around and responded that she was hurt; and a teenage male "basically said, you know, mind your business and it got a little heated there as far as a verbal altercation."
After the game ended, Tara waited for the section to empty, to avoid jostling with other spectators. A member of her group spoke to the usher, who directed them to another location where they were met by security staff. Tara wrote in an incident report, that "[w]hile watching game, a patron behind me fell on my upper back/head. No supervision by young kids behind me. It was a young female." Notably, she did not expressly say that the patron was pushed. Tara was eventually taken by ambulance to Hackensack Medical Center.
On January 10, 2007, Tara and her husband filed suit against the Authority and Snyder. The case was tried in January 2010 before Judge Joseph S. Conte. The jury unanimously found the Authority and Snyder were negligent, but neither defendant's negligence caused Tara's injuries.
Defendants had moved in limine to bar the out-of-court accusatory question of the young male. The court initially granted the motion after briefing and oral argument, but then granted plaintiffs' request for a hearing under N.J.R.E. 104, which the court conducted after openings (which avoided mention of the contested statement) and the first witness. After the testimonial hearing, the judge again granted the motion, setting forth his reasons orally. The issue was revisited in a motion for a new trial, which the court denied in a written opinion in March 2010.
Citing State v. Reese, 288 N.J. Super. 133, 137 (App. Div. 1996), the court acknowledged "the fact that the declarant that made the statement cannot be identified is not necessarily a bar to the admissibility of the statement." The court nonetheless held that "where the identity of the hearsay declarant is unknown, the courts hold that the party seeking to introduce the excited utterance carries a heavy burden to prove the requisite indicia of reliability" because it is "more difficult to establish personal observation and spontaneity where the declarant is unknown." The court held it did "not find the substance of the statement contains words revealing that the unknown declarant personally observed the event or that the statement was made while the declarant was under the stress of excitement caused by the event or condition." Accordingly, the court held it did not err in excluding the statement at trial.
The court also resolved conflicting requests to charge relating to proximate cause. Snyder's counsel requested a jury instruction requiring plaintiffs to "establish not only how the incident actually took place, but also that closer supervision was called for and would have avoided the incident which ultimately occurred." Snyder's counsel argued that even if the jury found negligence, it conceivably could find a lack of proximate cause, noting "[t]here is testimony in the record that it was steep up there, she could have slipped, a myriad of reasons. You have to have the nexus."
Plaintiffs' counsel argued that plaintiffs did not need to prove "this girl fell from a standing position on a seat, whether she was pushed by somebody else. We just have to convince the jury that more probably than not she fell because of the unsupervised horseplay." He asked the court to instruct the jury it was plaintiffs' burden to "establish that more probably than not" the teenage girl "fell as a consequence of horseplay," but not "exactly how it happened."
The court decided to instruct the jury that it needed to decide "how the incident . . . too[k] place." (emphasis added). The transcript of the charge as delivered omits the word "how" over which counsel disagreed: "Where a party claims that someone should have supervised so as to avoid an incident involving another, the Plaintiff must establish, not only the incident took place, but also that closer supervision called for and would have avoided the incident which ultimately occurred." Yet, plaintiffs argue, and defendants do not dispute, that this was an error in transcription. Even if the transcript is accurate and the court inadvertently omitted the word, the court distributed a written copy of its prepared instructions, which apparently included the word "how." Also, as discussed below, in ruling on the motion for a new trial, the court assumed that it used the word.
In the balance of the charge on proximate cause, the court instructed:
In order for the plaintiff to prevail against Snyder High School they must first establish that the individual who fell on Ms. Novembre was a Snyder High School student. They must then establish that Snyder High School was negligent and that the student's fall was a result of that negligence.
Thus, even if you find that it was Snyder High School's student who fell on the plaintiff, the fact alone is not sufficient in and of itself to impose liability on Snyder High School. The plaintiff must also establish by competent evidence that the incident resulted from Snyder High School's negligence and not due to another unrelated cause or for no other reason at all.
In order for plaintiff to prevail against the Sports and Exposition Authority, they must establish not only that the Authority was responsible for the fall as a result of its employees' negligence, but that the fall in question was a result of the negligence of the Authority's representative. In short, simply because an accident occurred in the arena, is not sufficient basis upon which to impose liability on the Authority. The plaintiffs must establish competent evidence that the incident resulted from that negligence and not due to another unrelated cause or for no reason at all.
After charging the jury that it could draw an adverse inference against Snyder based on its non-production of its field trip file, the court returned to the issue of causation. The court further instructed:
If you find that either New Jersey Sports and Exposition Authority and/or Snyder High School were negligent, you must find that the negligence was a proximate cause of the incident and of Tara Novembre's injuries, or you can find that either or both defendants responsible for Tara's injury. It is the duty of Ms. Novembre to establish by a preponderance of the evidence that the negligence of either or both defendants was a proximate cause of the incident and the injuries allegedly to have resulted from the negligence.
The basic question for you to resolve is whether Tara Novembre's injury is so connected with the negligent acts or inactions of either or both the defendants, that you decide it is reasonable in accordance with the instructions that I will now give you that either or both should be held wholly or partially responsible for the injury.
Proximate cause. [B]y proximate cause I refer to a cause that in an actual and continuous sequence produces the accident and resulting in injury, and without which the resulting accident or injury would not have occurred. A person who is negligent is held responsible for any accident or injury that results in the ordinary course of events from their negligence.
This means that you must first find that the resulting accident or injury to Tara Novembre, would not have occurred but for the negligent conduct of either or both defendants. Second, you must find that the defendants' negligent conduct was a substantial factor in bringing about the resulting accident. By substantial I mean the cause is not remote, trivial, or inconsequential.
If you find that the negligence of either or both defendants was the cause of the accident, that such negligence was a substantial factor in bringing about the injury, then you should find the defendant's negligence was a proximate cause of Ms. Novembre's injury.
Plaintiffs renewed their argument after the verdict that the court's charge was erroneous, which warranted a new trial. The court addressed this issue as well in its March 2010 written decision. The court reasoned:
Plaintiffs' burden required more than just establishing by the preponderance of the evidence that the misbehavior and horseplay of the individuals sitting behind Plaintiffs caused or contributed to the accident. . . . Plaintiffs had to demonstrate not only how the incident took place but also how Defendants' negligence was a substantial factor in producing Plaintiffs' harm.
On appeal, plaintiffs renew their arguments that the court erred in excluding the young man's accusatory question, and in instructing the jury that it was required to determine "how the incident took place." We reject both arguments for the reasons set forth in Judge Conte's cogent written opinion. We add the following comments.
Hearsay is an out-of-court "statement . . . offered in evidence to prove the truth of the matter asserted," N.J.R.E. 801(c), and "statement" is defined as "an oral or written assertion or . . . nonverbal conduct of a person if it is intended by him as an assertion." N.J.R.E. 801(a). Although the out-of-court statement here was phrased as a question, both parties agree that the sentence constituted hearsay. It contained the implicit assertion that someone - the "you" in the question - had pushed the spectator who landed on Tara (along with the explicit inquiry as to why). Plaintiffs offered the statement for the truth of the matter asserted, that is, that the accused person had in fact pushed the spectator.
The statement was inadmissible, unless the proponent established an exception to the hearsay rule. N.J.R.E. 802. The proponent of hearsay bears the burden of persuasion that the out-of-court statement satisfies the elements of an exception to the general rule of inadmissibility. See State v. Miller, 170 N.J. 417, 426 (2002); State v. James, 346 N.J. Super. 441, 457 (App. Div.), certif. denied, 174 N.J. 193 (2002). We review the trial court's evidentiary decision under an abuse of discretion standard. State v. Buda, 195 N.J. 278, 294 (2008).
Plaintiffs sought to introduce the statement under the "excited utterance" exception to the hearsay rule, N.J.R.E. 803(c)(2). An "excited utterance" is a statement " relating to a startling event or condition  made while the declarant was under the stress of excitement caused by the event or condition and  without opportunity to deliberate or fabricate." Ibid. The Rule contemplates a "spontaneous declaration" made while under the influence of the "exciting influence." Buda, supra, 195 N.J. at 296 (internal quotations omitted).
The Supreme Court in State v. Branch, 182 N.J. 338, 364-65 (2005), emphasized the importance of establishing that the declarant did not have an opportunity to deliberate or fabricate. Relevant factors in determining whether there was such an opportunity include: "the shock effect" of the startling event on the declarant; "the time elapsed between that event and her [or his] statement"; "the continuing influence of the excitement" caused by the startling event; "the circumstances surrounding the taking of the statement, and whether the statement was in response to questions." Id. at 367.
Although not expressly stated in the Rule, actual perception of the startling event is implicitly required. United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998); Miller v. Keating, 754 F.2d 507, 511 (3d Cir. 1985); Weinstein's Federal Evidence, § 803.04 (2011). "Observation is . . . mandated by the requirement that the declarant's excitement be 'caused' by the event or condition." Ibid. Perception may be proved by direct or circumstantial evidence. Ibid.
However, the perception requirement may be problematic when the out-of-court declarant is unidentified or anonymous, and there is only circumstantial evidence that he or she actually perceived the startling event. "[C]oncern about the statement's reliability, particularly in the case of [an] unidentified bystander when the danger of fabrication is great, may lead a court to reject a statement on the ground of lack of perception." Ibid. Consequently, "'circumstantial evidence of the declarant's personal perception must not be so scanty as to forfeit the 'guarantees of trustworthiness' which form the hallmark of all exceptions to the hearsay rule.'" Mitchell, supra, 145 F.3d at 576 (quoting Miller, supra, 754 F.2d at 511).*fn1
In Miller, supra, 754 F.2d at 511, the Court of Appeals reversed the trial court's admission of a statement by an unidentified declarant that "the bastard tried to cut in" causing a motor vehicle accident, because there was insufficient evidence that the declarant actually perceived the driver "cut in." "The declarant might have been drawing a conclusion on the basis of what he saw as he approached the scene of the accident.
He might have been hypothesizing or repeating what someone else had said." Ibid.
Applying these principles, we find no basis to upset Judge Conte's decision to exclude the out-of-court statement. Even assuming a young man stated, "Why did you push her?", the court was not compelled to find based on the evidence presented at the Rule 104 hearing that the young man actually observed the addressee in his statement push the female spectator onto Tara. The speaker could have observed the female spectator after she landed on Tara. Perhaps, he only surmised without personal knowledge that she had been pushed; and then asked, "Why did you push her?" His lack of perception placed the statement outside the scope of the exception, and rendered him not competent to assert that the spectator was pushed. N.J.R.E. 602.
The record also supported the court's finding that plaintiffs had failed to show that the young man was in the sway of the excitement of the moment. The witnesses at the Rule 104 hearing alleged that the young man asked his question in a "concerned, sincere" tone, not in an angry, loud, or agitated tone that would reflect he was "under the stress of excitement." N.J.R.E. 803(c)(2). See State v. Belliard, 415 N.J. Super. 51, 88 (App. Div. 2010) (affirming trial court's refusal to admit statement as excited utterance where record reflected that declarant appeared "concerned and confused," as opposed to "under the stress of excitement"), certif. denied, 205 N.J. 81 (2011).
We also find unavailing plaintiffs' argument that the trial court's order is at odds with the Supreme Court's decision in Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369 (2010), and our decision in State v. Reese, 288 N.J. Super. 133 (App. Div. 1996). Estate of Hanges, supra, did not address the excited utterance exception, but instead addressed the admissibility of "[t]rustworthy statements by deceased declarants" under N.J.R.E. 804(b)(6). Id. at 378. In Reese supra, we found no error in the admission of a police officer's general summary, without direct quotation, of three crime witnesses' excited utterances. We noted the general rule that the substance of the actual words spoken will suffice. Id. at 137. We did not address an objection like the one here, that the proofs failed to establish that the unidentified out-of-court declarant actually perceived the startling event.
Thus, we discern no basis to upset the trial court's determination that plaintiffs failed to prove by a preponderance of the evidence that the unidentified young man actually perceived someone push the spectator, that he spoke while under the stress of excitement, and he did not have an opportunity to deliberate or fabricate.
With regard to our review of the trial court's jury instructions, our scope of review is well-settled. The charge must correctly state the applicable law and instruct the jury how to apply the law to the facts. Finderne Mgt. Co. v. Barrett, 402 N.J. Super. 546, 576 (App. Div. 2008), certif. denied, 199 N.J. 542 (2009). "In construing a jury charge, a reviewing court must consider the charge as a whole to determine whether the charge was correct." Toto v. Sheriff's Officer Rolando Ensuar, 196 N.J. 134, 144 (2008). "A party is not entitled to have a jury charged in words of his own choosing. If the charge adequately covers the matter requested, there is no error." Mohr v. B.F. Goodrich Rubber Co., 147 N.J. Super. 279, 283 (App. Div.), certif. denied, 74 N.J. 281 (1977).
It is fundamental that a personal injury plaintiff must prove that the defendant's conduct constituted a "cause-in-fact" of his or her injuries. Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 322 (App. Div.), certif. denied, 146 N.J. 569 (1996). The mere possibility that a defendant's negligence caused injury is not enough. Davidson v. Slater, 189 N.J. 166, 185 (2007). The plaintiff may not prevail "'when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced. . . .'" Ibid. (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 41, at 269 (5th ed. 1984)); Restatement (Second) of Torts, § 433B(1), comment on subsection (1) (1965). See also Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 74 (3d Cir. 1996) (plaintiff "may not rely on the mere happening of the accident as prima facie proof of causation in fact"); Kulas v. Public Serv. Elec. & Gas Co., 41 N.J. 311, 318 (1964) (stating that plaintiff must present evidence that "would support a reasonable inference, as distinguished from mere speculation, that defendant's negligence in any way contributed to the cause" of the incident); LaPlace v. Briere, 404 N.J. Super. 585, 603 (App. Div.) (notwithstanding presumed negligence of bailee of horse that died, summary judgment properly granted where plaintiff failed to show that the negligence was a proximate cause of the death), certif. denied, 199 N.J. 133 (2009).
In Fedorczyk, supra, the plaintiff was injured from a slip and fall in a bathtub on a cruise ship. The court affirmed an order granting the defendant summary judgment, notwithstanding that the plaintiff offered evidence that the non-slip abrasive strips on the tub's floor were negligently spaced, so a person could situate his or her feet between the strips and slip.
However, the plaintiff did not present proof that she actually stood between the strips, or other proof as to how she fell. There existed a possibility that the plaintiff fell for other reasons; she had just come from swimming and sunbathing at the pool, and had covered her body with sun screen. Although a plaintiff may prove causation by circumstantial evidence, the plaintiff had not established causation was more probable than not. Id. at 75. Similarly, in LaPlace, supra, the plaintiff was unable to demonstrate why the horse died. The plaintiff had failed to obtain a necropsy upon the horse. He consequently presented no expert proofs on the cause of death, and whether the horse died of an underlying medical condition, or from the negligent exercise of the horse. Summary judgment in favor of the defendant was affirmed.
Applying these principles, we reject plaintiffs' argument that the court erred in its instructions. Plaintiffs argue that the court's instructions required plaintiffs to prove more than causation, and required them to prove in precise detail the mechanics of how the teenager was propelled over the seat and onto Tara. We disagree.
The single mention that plaintiffs had to prove "how the incident took place," was incorporated in a lengthy charge, which we quoted extensively above, about the general requirement to prove causation. Reading the instructions as a whole, the court simply required the jury to make sufficient findings about the mechanism of the fall so that it could avoid speculation and determine whether defendant's negligence was the cause. The jury was instructed to find whether the fall resulted from a defendant's negligence "and not due to another unrelated cause or for no other reason at all."
There were certainly plausible reasons why the teenager landed on Tara independent of defendant's negligence. Just as the cruise-ship-passenger in Fedorczyk, supra, may have slipped because of wet, sun-screen-covered feet, and just as the horse in LaPlace, supra, may have died of an underlying condition, the teenage girl behind Tara may simply have slipped on a wet floor, or lost her balance in a steep space - something that could have happened regardless of negligent supervision. It was plaintiffs' burden to exclude such possibilities and persuade the jury that the fall was caused by a defendant's negligence. In order to assess whether plaintiffs had met that burden, the jury could not avoid determining how the fall occurred. For that reason, we find no error in the jury instructions.