DONNA GATENS, et al. v. NEW LIFE STYLE REALTY, LLC AND PATRICIA PAXIA

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5138-04T55138-04T5

DONNA and THOMAS GATENS,

Plaintiffs-Appellants,

v.

NEW LIFE STYLE REALTY, LLC

AND PATRICIA PAXIA,

Defendants-Respondents.

____________________________________________________________

 

Submitted January 31, 2006 - Decided August 23, 2006

Before Judges Lefelt, R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Middlesex County, Law Division, L-5367-03.

Donna Gatens, appellant pro se.

Salvatore A. Alessi, attorney for respondent Patricia Paxia.

PER CURIAM

Plaintiffs, Donna Gatens and Thomas Gatens, appeal pro se from a judgment based on a jury verdict which found no cause for action against defendant, Patricia Paxia. Donna Gatens sustained a severe fracture of her ankle as she exited the back door of the Paxia residence. Plaintiffs raise the following points as error: (1) that plaintiffs were denied a fair trial based on defense counsel's statements during summation that plaintiffs' experts were not credible; (2) that the court improperly edited videotaped testimony of defendants' engineering expert; (3) that the jury was not charged on the law pertaining to distraction; (4) that the court erred in allowing two certificates of occupancy (CO) to be admitted into evidence; (5) that the jury was improperly charged on plaintiffs' burden of proof; (6) that permitting defendant to testify that her husband had died prior to trial was prejudicial error; and (7) that the trial court erred by not allowing plaintiffs' engineering expert to testify about the BOCA Code.

We find merit in plaintiffs' challenge to the admission of the certificates of occupancy into evidence without appropriate limitation or explanation of the proper use of such evidence. Because we believe admission of that evidence, without qualification or limitation, had the potential to mislead the jury, we reverse and remand for a new trial. We also agree with plaintiffs that the charge to the jury should have included the discussion of distraction requested by plaintiffs, though we hasten to add that this omission alone would not have warranted a remand for a new trial. Plaintiffs' remaining assertions of error concern rulings on evidentiary matters as to which we find the trial court acted within its broad range of discretion.

The facts are not complicated and are not in substantial dispute. On April 26, 2003, plaintiff Donna Gatens, acting in her capacity as Principal Right of Way Negotiator for the New Jersey Department of Transportation, visited the home owned by defendant Patricia Paxia and her husband, now deceased. Accompanied by a real estate agent and defendant, plaintiff inspected the home to determine its suitability for relocation of another family. As plaintiff was preparing to leave, she realized that she had not inspected the backyard and turned to do so. Defendant led plaintiff to the back door, stepped down onto the step or stoop and held the door open for plaintiff. Plaintiff followed, but when she stepped down, she fell and sustained a compound fracture of her left ankle. Defendant called an ambulance, which transported plaintiff to a nearby medical facility where her ankle was set. Three days later, plaintiff underwent surgery at a facility closer to her home.

In her description, which was read, in part, at trial, Paxia testified that her dog was jumping in its pen as plaintiff stepped out to inspect the backyard, and that she believed plaintiff was looking at the dog as she exited the house. Plaintiff testified that she did not recall defendant's dog. As a consequence of Paxia's testimony, plaintiff requested that the court give the charge on distraction, that is, that a person's attention may be distracted so that he or she would not realize or would forget the location or existence of a hazard or would fail to protect herself against such a hazard. The court denied that request, noting that "the only evidence . . . that can in any way be molded into some form of distraction is by the defendant talking about . . . [her] rottweiler . . . . There was absolutely no indication by the plaintiff in her testimony that she was in any way distracted by it." We find the trial court's view of the evidence was unduly narrow. It is not necessary that the evidence of distraction emanate from plaintiff if, as here, there was other evidence from which the jurors might draw legitimate inferences.

We must consider the charge as a whole to determine whether it adequately conveyed the law and did not mislead or confuse the jury. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Gaikwad, 349 N.J. Super. 62, 75 (App. Div. 2002). Indeed, an appellate court should "uphold even erroneous jury instructions when those instructions are incapable of producing an unjust result or prejudicing substantial rights." Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997) (quoting Fisch v. Bellshot, 135 N.J. 374, 392 (1994)). Although the decision not to charge distraction was not, in our view, capable of producing an unjust result or prejudicing substantial rights, we conclude, nevertheless, that sufficient evidence was submitted for the jury to have considered the issue.

Plaintiffs argue the failure of the trial court to charge the jury on distraction was so prejudicial that this court must remand for a new trial. Because we have concluded that a new trial is warranted on a different ground, we deem it appropriate to note that under the circumstances presented in the first trial, the requested charge on distraction should have been given. Defendant Paxia testified that plaintiff Donna Gatens was not looking where she was stepping but instead was looking straight out at the Rottweiler jumping in its pen. The pertinent question is whether there was sufficient evidence for the jury to consider the issue of distraction. We are not persuaded by the authorities from other jurisdictions presented by plaintiff. We are satisfied that the record contains sufficient evidence for the jury to consider whether plaintiff knew of an unsafe or defective condition but was distracted to such an extent that she would not realize or would forget the location or existence of the hazard or fail to protect herself against it.

During summation, defense counsel questioned plaintiffs' failure to have called the treating physician to testify at trial. He suggested to the jury that the two medical experts called by plaintiff (a) had not treated plaintiff; (b) had examined her long after the accident; and (c) only met with her for relatively short periods of time. He emphasized to the jurors that "it's important for you to understand why [the experts] were here and I submit respectively they were here as opposed to [the treating physician] and you should take that into consideration."

Plaintiffs' counsel addressed those contentions in his own summation. He suggested to the jury that defense counsel's statements tended to indicate that plaintiffs' counsel was "making things up, trying to put one over on [the jury] . . . ." He explained that because the treating physician had spent so much time with plaintiffs that he "got to be a little on the friendly side with [Mr. and Mrs. Gatens]." He was concerned that the treating physician's "testimony [might be] belittled for that reason." Counsel told the jury he, therefore, thought it "best to have someone totally disassociated with [Mrs. Gaten] examine her, review the records, someone that's very qualified, somebody that doesn't know her, and give an opinion."

That exchange of perspectives by counsel for the parties and our more general review of the record confirms -- contrary to plaintiffs' argument on appeal -- that the comments by defense counsel did not deprive plaintiffs of a fair trial. Rather, defense counsel merely challenged the credibility of plaintiffs' expert witnesses based on their lack of involvement with plaintiffs as compared to the "superior" experience of the treating physician. Plaintiffs' counsel did not object to the statements made in the defense summation. See R. 1:7-2. Rather, he seized the opportunity to explain to the jury his trial strategy and his reasons for relying upon examining physicians in lieu of the treating physician. Under such circumstances, we discern no error, much less plain error that might warrant relief. R. 2:10-2.

On the other hand, we are convinced by plaintiffs' next argument, that the court's admission of the certificates of occupancy into evidence, without explaining the use to which that evidence could be put, had the capacity to bring about an unjust result or to prejudice substantial rights of the plaintiffs. Sons of Thunder, supra, 148 N.J. at 418. "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." Benevenga v. DiGregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000) (quoting State v. Morton, 155 N.J. 383, 453 (1998)). According such deference, we are nevertheless moved to reverse and remand on this issue. In his opening statement, counsel for defendants expressed clearly his impression of the significance of the certificates of occupancy. He stated:

Now, there's . . . April 16, . . . 2003 when the accident happened. April 29th, 2003 the building inspector of Long Branch knew the house, came and checked the house, and certified and gave Joseph and Patricia Paxia a CO certifying that . . . the building everything was in conformance, and everything was fine. And, again, we have experience of many years with regard to nothing ever occurring.

Similarly, in his summation, counsel referred to the certificates of occupancy as indicators of the reasonable belief by the Paxias, and inferentially by the jurors, that there was no problem. He stated:

Not only for the fact that she raised two boys and had these parties and all that, but then she had these -- take this into deliberation -- the COs. One's dated November 26th, '02 because they were trying to sell the house -- November 26th, '02 and the other one April 29th, '03. These were -- 29th, '03 is thirteen days after the accident.

This is by a building inspector whose charged job is to make sure things are done correctly. Do building inspectors make mistakes? Absolutely. . . . Start adding it up, the ten years, the usage. Mrs. Paxia would have no understanding that there was any problem. We have a certified building inspector from the town saying, look, there's no problem. What's he saying? He says in the forms, the property is in the City of Long Branch and it's approved for occupancy.

Counsel for plaintiffs objected to the admission of the certificates of occupancy, arguing that they do not show that the back steps were inspected, that they merely show that a certificate of occupancy was issued. Continuing with this objection, counsel pointed out that the proper procedure is for the party relying upon a certificate of occupancy to bring in the witness and have him testify as to what he did or did not do. However, because plaintiffs stipulated the authenticity of the certificates of occupancy, they were admitted into evidence. The court reasoned that "weight will be whatever the jury deems." Plaintiffs now argue, as they did at trial, that "the certificates of occupancy imply that a qualified professional examined the premises and found no dangerous conditions." We agree with plaintiffs that the certificates were shrouded with an undeserved cloak of authority.

The documents constituted hearsay evidence -- opinions and conclusions of the Long Branch building inspector. Under our rules, hearsay evidence is not admissible unless it falls under one of the many exceptions. N.J.R.E. 802. The certificates of occupancy appear, at first blush, to fall under the exception for public records or findings, which provides for proper admission of:

a statement contained in a writing made by a public official of an act done by the official or . . . condition . . . observed by the official if it was within the scope of the official's duty . . . to observe the . . . condition . . . and to make the written statement[.]

[N.J.R.E. 803(c)(8).]

However, this exception only provides for the admission of an act and observations by the official, not conclusions. Phillips v. Erie L. R. Co., 107 N.J. Super. 590, 599-600 (App. Div. 1969), certif. denied, 55 N.J. 444 (1970) (discussing former R. 63(15)). In Phillips, this court found the Board of Public Utility examiner's report of factual conclusions as to the hazardous condition of a railroad crossing, as well as the agency's order for corrective action did not fall under this hearsay exception and were improperly admitted. Id. at 600-01. The court explained that review of the history of the rule demonstrated "the outright desertion of the principle of admissibility of all investigatory findings or conclusions and a reversion to the limitation to statistical findings[.]" Id. at 598 (emphasis in original).

If considered a record of regularly conducted activity, N.J.R.E. 803(c)(6), opinions may be properly admitted, so long as the source of the information is reliable. N.J.R.E. 803(c)(6) provides for admission of:

opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

[(Emphasis added).]

"[T]he source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." State v. Matulewicz, 101 N.J. 27, 29 (1985) (discussing former R. 63(13)). Similarly, where expert opinion is included in an admissible hearsay document, to admit the expert opinion, the court must review "the circumstances involved in rendering the opinion," to determine if they "tend to establish its trustworthiness." N.J.R.E. 808.

In Matulewicz, the Supreme Court reversed a trial court's order admitting into evidence a state police chemist's laboratory report that identified a controlled dangerous substance as marijuana. Matulewicz, supra, 101 N.J. at 32. The Court reasoned that although the declarant's status as a public official gave rise to indicia of trustworthiness, because the factual record was "devoid of evidence that would elucidate the 'method and circumstances' involved in the preparation of the forensic chemist's laboratory report," the Court could not determine the reliability of the conclusions. Id. at 30-31.

Here, Paxia testified the building inspector "had a notepad with a pen and I guess other instruments that is [sic] needed I guess from, you know . . . I don't know exactly what they looked for. I guess they looked for anything that's not -- that's damaged or just not suitable." Such conjectures are an inadequate and untrustworthy basis for the admission of the certificates of occupancy into evidence.

Although the certificates of occupancy were not admitted as expert opinions, they did present to the jury the conclusions of a Long Branch building inspector that the house conformed to the various applicable codes. Yet the record is "devoid of evidence that would elucidate the 'method and circumstances' involved in the preparation" of the certificates of occupancy. Matulewicz, supra, 101 N.J. at 31-32. The evidence was sufficiently prejudicial to constitute harmful error, and the admission, without proper foundation was "clearly capable of producing an unjust result." R. 2:10-2. Accordingly, we reverse and remand for retrial.

Plaintiffs remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We merely add these brief comments.

Plaintiffs contended that it was error for the court to allow evidence that defendant's husband, Joseph Paxia, had died between the date of the incident and the date of the trial. That evidence was relevant to the procedural status of the case since Joseph had been a named party in the case. While it may not have been necessary for that information to be disclosed to the jury, the disclosure did not have capacity of causing undue prejudice and defendant did not exploit the fact of the husband's death for purposes of engendering sympathy.

Similarly, plaintiffs contended that the videotaped testimony of defendants' expert was improperly edited. The issue of the sufficiency of editing may be revisited on remand, however, the present record on this appeal provides no basis for this court to disturb the trial court's exercise of discretion in the editing of the videotape. R. 4:14-9(e). Any decisions related to material to be excluded must be made in consideration of the proofs anticipated on the trial on remand.

Finally, plaintiffs argued the jury was improperly charged on plaintiffs' burden of proof and that they should not have been required to prove the step or stoop at issue was dangerous if they had proved it was defective. We merely observe that a defect that was not hazardous or unsafe would be irrelevant. Consequently, it was not improper for the court to require that plaintiffs demonstrate that any established defect also posed a danger.

Reversed and remanded for further proceedings consistent with this opinion.

 

Defendant New Life Style Realty, LLC (New Life Style) has not participated in this appeal and the statements of procedural history presented by the participating parties do not discuss the status of any claims asserted by plaintiff or any other party against New Life Style. New Life Style did not participate in the trial and our independent review of the record discloses only that when excerpts from the deposition testimony of the realtor, Malaika Walker of New Life Style, was read into the record, it was noted that she, more accurately, New Life Style, was a party when the deposition was given but has since been dismissed.

The use of the singular "plaintiff" refers to Donna Gatens.

Curiously, plaintiff Donna Gatens argued that this evidence was relevant on the issue of comparative negligence, whereas defendant Paxia argued it had no relevance since plaintiff Donna Gatens, herself, did not testify that she noticed the dog or that she was distracted by it.

(continued)

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14

A-5138-04T5

 

August 23, 2006


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