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Sylvia Rubin and Howard Fried, Her Husband,*Fn1 v. the Macerich Company


April 12, 2012


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0653-08.

Per curiam.


Argued January 25, 2012

Before Judges Graves, J. N. Harris and Koblitz.

Plaintiff Sylvia Rubin appeals the July 16, 2010 and July 21, 2010 final orders of no cause of action entered in defendants' favor and the December 3, 2010 order denying her request for a new trial in this personal injury case.*fn2 Rubin suffered a fractured right shoulder after falling at defendant Macy's, Inc. (Macy's) department store located in defendant Freehold Raceway Mall (Mall). The jury returned a unanimous verdict finding that both the Mall and Macy's were negligent in the maintenance of the entrance to Macy's. The jury voted six to one, however, that the Mall's negligence was not a proximate cause of Rubin's injuries, and voted unanimously that Macy's negligence was not a proximate cause of her injuries. At trial, Rubin unsuccessfully sought to introduce evidence of subsequent remedial measures taken by the Mall to rebut testimony that the area where Rubin fell was in the same condition on the day of the fall as depicted in a photo taken after the remedial repair.

The trial judge also barred Rubin from introducing evidence of a prior consistent statement she made at the hospital shortly after the accident. Rubin sought to offer this evidence to refute defendants' allegation that her testimony indicating she fell over the incomplete repair work on the floor outside of Macy's entryway was a fabrication. We agree with Rubin that these evidentiary rulings were an abuse of discretion and had the clear capacity to mislead the jury. We therefore reverse and remand for a new trial on all issues.

On September 3, 2007, seventy-three-year-old Rubin made some purchases at Macy's and then entered the Mall to do a little window shopping. When she finished, Rubin decided to exit the Mall through Macy's because her car was parked in that area. As she entered Macy's, she tripped over something and fell. She testified:

A: I -- actually, I was like floundering. I was flung forward and I tried to catch my balance, but there was nothing -- I tried to see if there was something to hold onto, but there was nothing to grab onto. And I literally fell on my right side, on my right shoulder and my whole thigh, and slid. It's a very slippery floor, the tile or marble or something, you know on the floor.

Q: You didn't slip on the floor initially?

A: No, no. I definitely tripped in -- right outside Macy's in the Mall and fell into Macy's. And I was sliding and I stopped a few feet from the -- that cosmetic counter, which I was very grateful for if my head had hit that, it would been a lot worse.

Q: Now, when you first fell, when you're laying on the floor, did you know what you tripped on?

A: At first, no, but as soon as I turned around, I saw.

Q: All right. When you turned around and you looked back at the pathway that you just came from, what did you see?

A: I saw the floor raised. There was some wood planks right along that line and there was nothing else. I mean, that was -- that was the thing I tripped over.

Q: Right. So, between where you were and that thing sticking up --

A: It was just a smooth floor.

Q: It was a smooth floor. There was nothing to trip on?

A: No, there was nothing there.

Nicholas Miele, the Mall security guard, and John Bruzzese, Macy's operations manager, both came to Rubin's assistance.

Miele indicated that his duties included ensuring that conditions were safe when the Mall opened. He testified that when he arrived at the scene of the accident, he found Rubin eighteen and one-half feet away from the floor repair site,

"laying on the ground pretty much almost flush against the counter inside Macy's." Rubin indicated that she landed approximately fourteen feet from the repair work after sliding on the tile floor. Miele testified that he asked Rubin "[H]ow did this happen?" to which "she said she didn't really know . . . [A]ll she said [was] that she fell inside Macy's and she wasn't sure where she fell." Miele also testified that the wood planks were flush with the tile floor, having been placed inside the space where tiles had been removed.

Rubin sought to admit one page from her hospital record that noted she reported tripping in a construction area, contending it was a prior consistent statement contained in a business record. The Mall objected to the statement as hearsay, arguing there was no issue as to what caused her injury or medical treatment. The proffered record states in pertinent part:

The patient is a 73 year-old female status post injury to her right shoulder approximately 1 hour prior to arrival in the emergency room. The patient reports she was walking into Macy's and they were doing some construction and she tripped on something which was on the floor, falling forward and landing on the right shoulder.

Rubin and Bruzzese (through the portion of his deposition read to the jury) testified that the photographs taken three days after the accident did not accurately depict the scene at the time of the accident. Miele, on the other hand, stated that the photographs admitted into evidence and given to the jury during deliberations depicted the area where Rubin fell as it existed on September 3, 2007:

Q: Okay. And this lower left-hand photo, what [does] that depict?

A: That's the entrance of Macy's. It's right here. And it also shows that they were doing some tile work and they had it cautioned off.

Q: Okay. All right. Now, going to your report for a minute -- before we get to that, all those photos I showed you, are they all an accurate representations of what that area looked like on September 3, 2007?

A: Yes, sir.

Q: Okay. And do those photos show the conditions, the tape, the wood, the layout as they existed when you responded to Ms. Rubin's fall?

A: Yes, sir.

In contrast to Miele's testimony, Bruzzese's deposition

testimony indicated:

Q: Looking at the photos, did they appear the same way as they appear in the way the photos are -

A: At that time, there was planks that were sticking up.

Q: Was there yellow tape there?

A: Yes.

Q: And you say there were planks sticking up, are there planks sticking up - were they sticking up differently than depicted in the photos here?

A: It doesn't look like they are in this picture, no.

Q: It doesn't look like they're sticking up in this picture?

A: No.

Q: To your eye when you looked at it on this date, you could see that there was planks sticking up?

A: Yes.

Q: Can you tell me approximately how far they were sticking up?

A: Two inches.

Q: Okay. Did you do anything to -- was there you could do to put planks lower than they were or did they remain that way? Did you take action?

A: At that moment the area -- we were able to just stand by the area to block it off. We did call the mall who actually came to respond immediately to repair it.

Q: Okay. And did you observe the repairs that the mall made?

A: At that moment, yes.

Q: What did they do?

A: I believe they screwed it down and re-taped it.

Q: Okay. Did you see them screwing it down?

A: Yes.

Q: Was it done at your instruction? Did you ask them to do that or they just came and looked at it? Was there conversation? How did that go?

A: Well, from the conversation with the mall security who responded to the accident, he also called whoever, I guess the facility's person, and they came over and they saw what needed to be repaired so -

Q: All right. And when you say they saw what need to be repaired, what was it exactly?

A: The plank that was sticking out.

Q: Did it appear to be warped, the wood, like it had warped up?

A: Yes.

Rubin's application to admit the evidence of remediation indicated in Bruzzese's deposition was denied by the trial judge pursuant to N.J.R.E. 407. See Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 402 (2005). When denying Rubin's motion for a new trial, the trial judge commented on his prior refusal to allow her to address the issue of Miele's disputed testimony with regard to the photographs, stating:

This issue, in reflecting upon it, is troubling and, certainly, the [c]court should have, in my mind, interceded and I should have given a limiting instruction prior to the testimony of Mr. Miele that indicated that you can indicate that the appearance in the photograph is similar to the time in question, but, if you indicate that it is exactly the same, I'm going to open it up to cross[-]examination as to whether or not anything else happened afterwards.

Nonetheless, the judge determined that the jury was not unfairly prejudiced by Miele's testimony concerning the photographs.

Rubin was taken from the scene directly to the hospital. Her statement in the hospital record may not have fit within the hearsay exception allowing into evidence a patient's statements made to medical professionals for the purpose of treatment.

N.J.R.E. 803 (c)(4); see Palmisano v. Pear, 306 N.J. Super. 395, 400-01 (App. Div. 1997). However, Miele's testimony as to what Rubin said to him at the scene of the accident was introduced by defendants to demonstrate that Rubin's testimony concerning the cause of her fall was a recent fabrication.

Rubin argues that her prior statement should therefore have been admitted under N.J.R.E. 803(a)(2), which describes an exception to inadmissibility of hearsay:

(a) A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:

(2) is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.

See also Neno v. Clinton, 167 N.J. 573, 580-81 (2001).

N.J.R.E. 607 permits the admission of a prior consistent statement to support the credibility of a witness when "rebut[ting] an express or implied charge against the witness of recent fabrication. . . ." Thus, Rubin's prior statement to the hospital should either have been admitted substantively under N.J.R.E. 803(a)(2), or under N.J.R.E. 607 to support Rubin's credibility against a claim of recent fabrication.

The parties agree that the jury's verdict reflected its determination that Rubin did not prove that she tripped because of the floor's condition outside the Macy's entrance.*fn3 A determination of Miele and Rubin's relative credibility was crucial in reaching this result. Miele testified that Rubin told him she did not know how she fell. Rubin testified at trial that she realized she tripped over the floor repairs while lying on the floor immediately after she fell. The hospital record, while slightly less precise, could certainly be viewed by the jury as consistent with Rubin's trial testimony.

The defense raised a question about whether Rubin may have fallen due to improper footwear*fn4 or the packages she was carrying. The jury apparently determined that Rubin did not prove that she tripped over the repair work. Thus, the credibility of Rubin and Miele was crucial with regard to determining the cause of the fall. Miele's testimony that the photographs accurately depicted the position of the wood planks on the floor at the time of the accident enabled the defense to use those photographs to bolster Miele's testimony that the wood planks were not positioned in a dangerous manner. The jury was barred from hearing contrary evidence that the planks were screwed down to the floor after the fall and before the photographs were taken.

Although evidence of remedial measures is generally inadmissible for policy reasons, it may be admitted with a limiting instruction to attack the credibility of a witness.

Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129, 148 (App. Div. 1994) (citing Lavin v. Fauci, 170 N.J. Super. 403, 407 (App. Div. 1979)).

In reviewing a trial judge's evidentiary ruling, a reviewing court "is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)).

"Evidentiary decisions are reviewed under the abuse of discretion standard because . . . the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

"Under Rule 2:10-2, a reviewing court should reverse only if a trial error is clearly capable of producing an unjust result." Campo v. Tama, 133 N.J. 123, 132 (1993). That standard requires the reviewing court to determine "whether an error at issue was so grave that it caused the jury to be misled, confused, or inadequately informed." Boland v. Dolan, 140 N.J. 174, 189-90 (1995). It is not enough for a plaintiff to show that "some legal error exists in the trial record."

Graves v. Church & Dwight Co., Inc., 267 N.J. Super. 445, 471 (App. Div. 1993).

Although the jury found defendants negligent, we are unable to determine to what extent the judge's two erroneous evidentiary rulings enhanced Miele's credibility and undermined that of Rubin. We therefore reverse and remand for a new trial.

Because we reverse and remand for a new trial based on the evidentiary rulings, we also of necessity determine that the trial judge's denial of Rubin's motion for a new trial was a clear and convincing miscarriage of justice. R. 4:49-1(a).

Reversed and remanded for a new trial on all issues. We do not retain jurisdiction.

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