KAREN SILVEY v. THOMAS ZIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6568-03T56568-03T5

KAREN SILVEY,

Plaintiff-Appellant,

v.

THOMAS ZIS,

Defendant-Respondent.

________________________________

 

Submitted: October 11, 2005 - Decided:

Before Judges Axelrad and Levy.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-1171-02.

Mahoney & Baker, attorneys for appellant (Evan A. Baker, on the brief).

Mauro, Savo, Camerino & Grant, attorneys for respondent (Frederick H. Allen, III, on the brief).

PER CURIAM

In this personal injury action, plaintiff Karen Silvey challenges several rulings by the trial court following a jury verdict finding defendant negligent, but that his negligence was not the proximate cause of her injuries. On appeal, plaintiff argues the trial court committed reversible error in admitting a record from a physical rehabilitation facility she had consulted regarding her knee because it was inadmissible hearsay. She also asserts the trial judge committed error in charging the jury on comparative negligence and aggravation of the injury. Lastly, plaintiff asserts error in the denial of her motion for a new trial, claiming the jury verdict was against the weight of the evidence. We are not persuaded by any of these arguments and affirm.

On the evening of August 5, 2000, both parties attended a Carlos Santana concert at the PNC Arts Center. According to plaintiff, defendant Thomas Zis screamed at her while she searched for a seat on the lawn, complaining that she was blocking his view of the stage. She claimed he continued to be verbally abusive towards her and her companions throughout the evening. Plaintiff further claimed defendant grabbed her wrist and shoved her as she was walking past him up an incline to the bathroom, forcing all of her weight back on her left leg and causing her to twist her left leg and knee in an attempt to stabilize herself.

Defendant testified that plaintiff and her party squeezed their chairs into an area on the lawn about six to eight feet in front of where he and his sixteen-year-old stepson were sitting on a blanket. Defendant claimed he did not scream at plaintiff, but merely informed her that some people had been sitting there, to which she replied, "not anymore." Plaintiff was loud and jumped around and danced on the lawn, blocking his view of the performers. She ignored his numerous requests to sit down. Defendant's version was that plaintiff deliberately came stomping by him, attempting to tread on his blanket, at which point he grabbed it out of the way. He claimed plaintiff did not even fall at that time. Defendant denied grabbing, shoving or pushing the plaintiff in any way.

Plaintiff remained at the concert until the end and then drove herself and her companions home. Plaintiff testified she "just kind of took it easy" the next day and did not go on a planned bicycle ride. That evening she had an x-ray taken at the emergency room, and thereafter had four months of physical therapy treatment for her knee. Plaintiff's orthopedic surgeon, who did not evaluate her until May 2001, nine months after the incident, and performed arthroscopic surgery in May 2002, diagnosed a chondral flap lesion (cartilage injury) to the tibial surface of the knee. The physician opined causation, describing plaintiff's injury as "a twisting weight-bearing injury."

Defendant contended plaintiff went bike riding the following day and that act exacerbated the problem with her knee. Defendant's orthopedic surgeon, who examined plaintiff in January 2003, testified the arthroscopy was minor and plaintiff had full range of motion with minor complaints of knee swelling with increased activity.

The trial court denied plaintiff's in limine motion to exclude a statement in a November 7, 2000 medical record from Kessler Physical Therapy and Rehabilitation attributing to plaintiff the statement that she was "Assaulted @ concert (08-05-00) (pushed). Next day, while cycling, pain [left] knee worsened. . ." This record was used to cross-examine plaintiff's orthopedic surgeon who conceded, if she had gone cycling the next day, "she certainly could have exacerbated her injury -- her problem."

The court rejected plaintiff's argument that the cause of her symptoms should have been excised as inadmissible hearsay, and was irrelevant and confusing to the jury because defendant's expert did not contend her injury was caused or aggravated by something other than the PNC incident. The court found the statement admissible as a statement offered against a party under N.J.R.E. 803(b), a business record under N.J.R.E. 803(c)(6), and a statement made for the purpose of diagnosis or medical treatment under N.J.R.E. 803(c)(4). As to the latter hearsay exception, Judge Derman reasoned:

I think that a patient often discloses to his or her physician how they believe an injury may have been caused or exacerbated, hoping or believing that that would assist in any diagnosis or treatment. So that is going to stay in.

This challenged evidentiary ruling is discretionary. The trial court is granted broad discretion in determining the relevance or admissibility of evidence. "As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). See also Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); State v. Marrero, 148 N.J. 469, 483 (1997). "Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off [sic] the mark that a manifest denial of justice resulted.'" Verdicchio, supra, 179 N.J. at 34 (citations omitted).

We discern no abuse of discretion. The statement in the Kessler report was relevant as it supported the defense's theory that plaintiff aggravated her knee while cycling the day after the PNC incident, an activity that she denied. Although defendant's expert did not testify that the injury may have been aggravated by cycling, plaintiff's expert did. Moreover, plaintiff would have expected her disclosure to the medical professionals of the type of movement that irritated her knee to be helpful to her diagnosis and treatment. These same reasons justifying admission of the Kessler report support the jury charge on aggravation of injury.

Nor was there error in submitting defendant's comparative negligence defense to the jury or in the instruction given by the trial court. Contributory negligence, now comparative negligence, is ordinarily an issue for the factfinder, and only in the clearest case does the question become one of law for the court. Battaglia v. Norton, 16 N.J. 171, 179 (1954); Cowan v. Doering, 215 N.J. Super. 484, 492 (App. Div. 1987), aff'd, 111 N.J. 451 (1988). Contrary to plaintiff's assertion, the basis for the comparative negligence charge was not that plaintiff's conduct justified the alleged shove that resulted in her injury, but that the jury could find plaintiff's conduct contributed to the injuries. The record amply supported the trial judge's ruling:

I think it is a jury question. I think the jury has to sort out whom to believe and exactly what happened. And even taking a little from both sides, I think you can conjure up a scenario just as [defense counsel] did where they were both a little bit negligent.

. . . .

So maybe she didn't choose the right path to go. So I'm not saying she's negligent because they engaged in words or she went on his blanket defiantly. I'm saying if you accept the defendant's version, she stomped on the blanket and maybe that caused her to lose her balance. And nothing that the defendant did caused her to lose her balance. That's the way I see it.

Furthermore, even if the jury determined that defendant's negligence was based on intentional conduct, comparative negligence would have still been applicable for consideration. Blazovic v. Andrich, 124 N.J. 90, 106-07 (1991).

The verdict was not the result of clear error or mistake by the jury, nor was there a clear and convincing miscarriage of justice under the law. R. 4:49-1(a); Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). The trial court instructed the jury clearly, concisely and correctly as to the law. There was sufficient evidence to support the verdict that defendant was negligent but that his negligence did not proximately cause plaintiff's injuries.

Affirmed.

 

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A-6568-03T5

October 25, 2005