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Brian Lesage and Donna Lesage v. Jc Penney Company

March 30, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6421-05.

Per curiam.


Argued November 10, 2011 -

Before Judges Axelrad, Sapp-Peterson and Ostrer.

In this premises liability action, plaintiffs Brian and Donna LeSage (Brian and Donna,*fn1 respectively) appeal from a judgment after a jury trial of no cause of action in favor of defendants JC Penney Company, Inc. and JC Penney Corporation, Inc. (collectively, JC Penney). Plaintiffs also appeal from the court's pre-trial order granting summary judgment to defendant Woodbridge Center, LLC (Woodbridge LLC), the owner of the Woodbridge Center Mall (the Mall). Brian suffered head injuries that he claimed resulted from an assault while in the restroom of the JC Penney store at the Mall on September 14, 2003. The jury specifically found JC Penney was not negligent, and did not reach questions of causation and damages.

Plaintiffs seek reversal and a new trial, arguing principally the court erred in evidentiary rulings: (1) limiting medical experts' testimony that Brian's injuries were more consistent with an assault than other causes; (2) permitting testimony that Brian had previously fainted while urinating; and (3) declining to give preclusive effect to the determination of the Victims of Crime Compensation Board (VCCB) that Brian was a violent crime victim. They also argue the claim against Woodbridge LLC should not have been dismissed because Woodbridge LLC owed a duty to provide security within the JC Penney store.

We discern no abuse of discretion in the evidentiary rulings of Judge Phillip L. Paley, and, in any event, the rulings were not capable of producing an unjust result, since the jury found no negligence. Also, the court, by Judge Edward Ryan, properly granted Woodbridge LLC's pre-trial summary judgment motion on the grounds that it owed no duty to secure the restroom in the premises JC Penney owned. Therefore, we affirm.



At the jury trial in March 2008, Brian testified that he stopped at the Mall shortly after it opened at 11:00 a.m. on Sunday, September 14, 2003, in order to use a men's room. He was on his way from his home in Berkeley Heights to Burlington, to attend a coin show. As the drive would be long, he stopped to urinate. He explained that, for various reasons, he avoided using restrooms of diners, fast food establishments, or highway rest areas. The defense raised questions about the plausibility of Brian's reasons for stopping at the JC Penney store, in part by highlighting that it was not on the most direct route from him home to the coin show, he parked far from the store entrance in a virtually empty lot, he passed other places where he could stop, and he initially said the coin show was in Lincroft.

JC Penney's surveillance video recorded him entering the store at around 11 a.m., walking down an aisle at a fast pace, and then into a hallway near the store's men's room. At around 11:20 a.m., he was discovered on his knees on the men's room floor. He had suffered traumatic injuries to the skull. He was conscious but incoherent, and later lapsed into a coma that lasted two weeks. Brian testified that he recalled being pushed or feeling something touch his back before the injury, but he recalled little else. The defense suggested that Brian may well have confused the touching with that of persons assisting him after the incident.

Plaintiffs attempted to prove that someone assaulted Brian, and that JC Penney negligently provided security in the men's room, which negligence was a proximate cause of Brian's injuries. Brian did not see anyone in the men's room and there were no other witnesses. Consequently, plaintiffs relied on circumstantial evidence and the testimony of two of Brian's treating physicians, Dr. Edward Von Der Schmidt, III, a neurosurgeon and Dr. Emmanuel Hriso, a neuropsychiatrist.

The circumstantial evidence included Brian's testimony that he left his wallet under his car seat, but had $400 cash in his pocket when he entered the men's room, none of which was recovered after he was found injured on the floor. The defense raised questions about the plausibility of that claim. Plaintiffs also suggested the police did not adequately investigate the possibility that a crime was committed against Brian, while the defense elicited evidence of the extensiveness of the investigation.

The physicians opined in depositions entered into evidence that Brian's injuries resulted from trauma to the head, followed by a fall to the floor, which caused additional injuries. They testified Brian's head injuries were more extensive than those typically caused solely by a fall after fainting.

Brian's treating physicians were asked to address the possibility that Brian's injuries resulted from fainting because three months before the incident at JC Penney, Brian had fainted while urinating at his home, according to his personal physician, Dr. Thomas Jackson. Brian testified he had been working outside in the heat for a prolonged period of time without eating or drinking. Brian was fifty-eight years old at the time, and suffered from high blood pressure, which had been controlled with medication. His personal physician, who examined him shortly after the episode at home, testified that the fainting resulted from low blood pressure. Dehydration lowered Brian's blood pressure, and the act of urinating stimulated the vagus nerve to lower blood pressure even more.

The court had denied plaintiffs' pre-trial motion to exclude evidence of the fainting episode. Plaintiffs argued that absent expert medical testimony, which JC Penney had not obtained, there was insufficient basis to suggest to the jury that the condition that caused the June 2003 fainting caused plaintiff to faint again in September and suffer injuries from the fall. JC Penney argued evidence of the fainting episode was relevant to discredit plaintiffs. They denied the episode in depositions, notwithstanding evidence that Brian told a treating physician about the episode shortly after it happened; Donna mentioned it to police investigating the September 2003 incident; and plaintiffs' son also mentioned the incident to police. The court ruled the prior evidence was admissible for that purpose. After that ruling, plaintiffs chose to elicit proof of the fainting episode in their direct case.*fn2

In response to a motion in limine by JC Penney, the court also excised portions of Dr. Von Der Schmidt's and Dr. Hriso's testimony regarding whether Brian was assaulted, although the excisions were less extensive than requested. Dr. Von Der Schmidt testified that as a brain surgeon at the Level I trauma center at Robert Wood Johnson University Hospital in New Brunswick, he saw 100 to 200 cases a year involving brain injury or brain hemorrhage, and a large number of his cases involved traumatic brain injury. He stated he regularly treated cases of persons who fell down stairs, were injured in car accidents, suffered gun shot wounds to the head, or who were otherwise assaulted, including two Rutgers students who were hit with baseball bats. He performed close to 2000 brain surgeries in his career. Dr. Hriso testified that he was a psychiatrist specializing in neuropsychiatry. He testified about the behavioral effects of traumatic brain injury.

The court reasoned that the physicians could opine that Brian suffered a trauma before his fall, but not whether it was caused by an assault. Consequently, the court ordered excised the phrase "consistent with an assault" from Dr. Von Der Schmidt's deposition testimony. Nonetheless, the court permitted the doctor to opine that before suffering injuries from a fall, Brian suffered a trauma to the head like that inflicted when hit with a baseball bat. In the following testimony, the excised phrase appears in all upper case letters, and underlined:

I would state to a reasonable degree of medical probability . . . as neurosurgeon at a Level I trauma center, going on 18 years, that this is not consistent with just a situation which somebody just collapsed to the floor to the floor of a bathroom or so and simply just hit his head. Okay. This is more consistent to me with what I've taken care of over the years where somebody has this kind of extensive injuries, is much more consistent with a component of trauma to the skull and then obviously at some point in time ending up on the floor. [I]t's more consistent, in my opinion, based on the scalp lacerations, the skull fractures, the blood in and around, on top and on the sides of the brain, increased pressure, the worsening progression of pressure from where it was at one level to a life-threatening level that required procedures, that this is more consistent with a head injury, CONSISTENT WITH AN ASSAULT and he certainly could have, and I would say probably, was struck, then struck his head, then also fell backwards and hit his head.

So, it's a complex issue and I would say, to a reason[able] degree of medical probability, it wasn't from just a simple fall such as from syncope or fainting.

All of this is consistent with more trauma to the brain and it's certainly consistent with what I've seen with people who have even been hit in the head with a baseball bat. [Emphasis added.]

The court also excised the statement, "So, again, I think it's more consistent with a component of assault. . ." but the court did not bar Dr. Von Der Schmidt from rejecting another expert's view that the evidence of assault was inconclusive:

Q. I would direct your attention to the conclusion stated . . . in Dr. Gushue's opinion, "The available information is insufficient to allow for a determination as to whether Mr. LeSage's injuries were the result of an assault or a fall."

A. Well, again, I think that there's a real limiting premise here. If he's going to hold this to whether it's due to an assault or a fall, then he's discounting and certainly not including the obvious, which is an assault and a fall.*fn3

Dr. Von Der Schmidt also opined that persons who suffer head injuries from fainting are more likely to remain unconscious after the fall. But Brian was on his hands and knees, which was "more consistent with almost somebody who appeared to be punch drunk."

With respect to Dr. Hriso, the court instructed the jury not to treat as evidential a question that presumed Brian's injury was caused by an assault. Judge Paley instructed the jury:

[N]one of the doctors, in my view, can have expertise in determining what caused the multiple trauma or what caused the number of blows.

The doctors can testify that there were more than one . . . blow, but the problem that I have is what caused the more than one blow. And we've tried to be careful to limit the testimony of the doctors to their actual observations of the physical injuries sustained by Mr. LeSage[.]

The jury then heard both the question, "Why in your opinion, are Brian's injuries a result of an assault and not some other cause such as a fall?" and Dr. Hriso's answer:

[T]he question is . . . how do we differentiate the nature of his injuries are from a fall versus being assaulted. I mean it's clearly the fact that multiple areas of the brain were affected here. You know, he said bitemporal lobe contusions and bruises. He's got two types of fractures, a basal skull fracture as well as a right ...

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