CHRISTINA A. LEBITZ, et al. v. BOARD OF EDUCATION TOWN OF PHILLIPSBURG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5243-03T15243-03T1

CHRISTINA A. LEBITZ, a minor,

by her Guardians ad Litem,

BRUCE F. LEBITZ and SANDRA S.

LEBITZ, AND BRUCE F. LEBITZ

and SANDRA S. LEBITZ,

Individually,

Plaintiffs-Appellants/

Cross-Respondents,

v.

BOARD OF EDUCATION OF THE TOWN

OF PHILLIPSBURG, its agents, servants,

or CIVIL ACTION employees,

Defendant-Respondent/

Cross-Appellant,

and

THOMAS LEEPER, JR., a minor,

THOMAS LEEPER, SR., and LEONA LEEPER,

Defendants,

and

RODERICK LEWIS, substitute teacher

of the Board of Education of the Town of Phillipsburg,

and/or RODERICK LEWIS, Individually;

all Individually, Jointly, and/or

Severally,

Defendant-Respondent.

_________________________________________

 

Argued January 11, 2006 - Decided May 9, 2006

Before Judges Weissbard, Winkelstein and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, L-170-02.

Leonard J. Artigilere argued the cause for appellants (McDonnell, Artigilere, attorneys; D. Scott Curzi, on the brief).

Jeffrey L. Shanaberger argued the cause for respondent/cross-appellant (Hill Wallack attorneys; Mr. Shanaberger, of counsel and on the brief).

Leslie A. Parikh argued the cause for respondent Roderick Lewis (Gebhardt & Keifer, attorneys; Robert C. Ward, of counsel and on the brief).

PER CURIAM

Phillipsburg High School student Christina Lebitz sustained injury on May 11, 2001, when a fellow student, Thomas Leeper, Jr., removed a computer mouse ball during his fourth period class, taught by a substitute teacher, Roderick Lewis, then randomly threw it into the crowd of students on the second floor hallway, striking Lebitz in the eye. Lebitz and her parents sued Leeper, his parents, the Board of Education of the Town of Phillipsburg (BOE) and Lewis. The BOE moved for summary judgment, claiming immunity from suit under the Charitable Immunity Act, N.J.S.A. 2A:53A-7. The trial court denied that motion.

Prior to trial Lebitz settled with the Leepers. The jury trial presented her claims against the BOE and Lewis. Lebitz maintained that Lewis negligently supervised the fourth period history classroom, allowing Leeper to remove the mouse ball then hide it and take it from the room. Further, she contended the BOE negligently supervised Lewis, Leeper and the activity of the students in the second floor hallway. The BOE and Lewis countered these allegations, asserting that their negligence, if any, was not the proximate cause of Lebitz's injury. The BOE also presented a claim of immunity for the discretionary allocation of limited personnel resources, as set forth in 2-3d of the Tort Claims Act, N.J.S.A. 59:1-1 to -12-3.

The jury found Lewis was not negligent in supervising the classroom and the BOE was not negligent in supervising Lewis. Although the BOE was found negligent in its supervision of Leeper and the students in the second floor hallway, that negligence was found not to be the proximate cause of Lebitz's eye injury. The jury did not reach the issue of allocation of limited personnel resources. The final judgment of dismissal was entered on April 29, 2004. The trial court denied Lebitz's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

On appeal, Lebitz asserts the trial court erred by: (1) precluding evidence of a student altercation occurring at the high school two days prior to the incident at issue; (2) allowing the defense of allocation of resources to be submitted to the jury; (3) admitting documents submitted shortly before trial; (4) allowing alleged prejudicial and inflammatory comments by defense counsel in opening and closing arguments; (5) inadequately charging the provisions of N.J.S.A. 18A:17-46;

(6) failing to take judicial notice of the Phillipsburg High School State "report card"; (7) interrupting and limiting plaintiffs' summation; (8) providing improper and inadequate supplemental instruction when responding to the jury's inquiry on proximate cause, which resulted in an inconsistent verdict; and (9) denying the motion for a new trial notwithstanding the claim of newly discovered evidence. Plaintiffs assert that the

cumulative effect of the court's errors warrants a new trial.

After carefully reviewing the record, we affirm. In addressing the matters raised on appeal similar issues have been combined.

Lebitz challenges the discretionary evidentiary rulings of the trial judge. These include the following. First, the trial judge precluded the introduction of a prior altercation occurring on school property (the "Stocker incident") (Point I). Second, he allowed defendants' use of documents produced after the close of discovery (Points III and IV). Finally, he declined to take judicial notice and prohibited Lebitz's introduction of the Phillipsburg High School state "report card" (Point VIII).

The Stocker incident involved two male students who engaged in a physical altercation in a school parking lot, two days before Lebitz was injured. That lot was secured by hired security officers, who were reassigned on the day of the altercation. Lebitz contends the presentation of these facts supports the element of forseeability, such that the BOE should have known of the need to supervise the hallway where Lebitz was injured. The trial judge distinguished the factual nature of the Stocker incident from the instant matter ruling the evidence was "unduly prejudicial" and therefore inadmissible.

Next, at the pretrial conference, beyond the discovery end date, defendants presented documents intended for use at trial.

Lebitz argued the permitted use of this untimely evidence was error. Lewis presented the grade sheet for the fourth-period history class recording assignments completed on May 11, 2001, to show he followed the requisite lesson plan for that day. The BOE sought to use photographs depicting the type of computer and mouse ball located in the high school classrooms. The trial court allowed the evidence despite Lebitz's objection that it was misleading.

Lebitz also argues that N.J.R.E 201 permitted the court to take judicial notice of the state "report card" for Phillipsburg High School issued pursuant to N.J.S.A. 18A:7E-3. Nonetheless, the court refused to do so.

Each of these evidentiary decisions is reviewed under the abuse of discretion standard. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Appellate review requires substantial deference to a trial court's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); see also, DeVito v. Sheeran, 165 N.J. 167, 198 (2000).

When determining the relevance and admissibility of evidence, a trial court is granted broad discretion. Green v. N. J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). "[E]ven relevant evidence may be excluded if its probative value is substantially outweighed by undue prejudice." N.J.R.E. 403. 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 v. Ricca, 179 N.J. 1,34 (2004) (internal quotations omitted).

Judge Coyle properly reviewed and weighed the Stocker incident evidence, deciding it had limited probative value and was unduly prejudicial. No abuse occurred. The grade sheet was found to buttress the known testimony of Lewis and other witnesses; it was not new "surprise" evidence. The court also allowed Lebitz to explain to the jury that this evidence was provided shortly before trial and permitted voir dire regarding the circumstances causing the late submittal. No undue prejudice resulted.

The trial judge's even-handed approach in allowing the use of photographic evidence presented by both sides immediately before trial, resulted in a stipulation, which Lebitz can not now challenge. "It has been held that invited error will not be grounds for reversal on appeal, even though it would otherwise be cognizable as plain error affecting substantial rights of the appellant." Brett v. Great Am. Rec., 144 N.J. 479, 508 (1996); Schult v. H. & C. Realty Corp., 53 N.J. Super. 128, 136 (App. Div. 1958), certif. denied, 29 N.J. 279 (1959).
As to the request to take "judicial notice" of the report card, the trial court's decision was bottomed on the determination that the facts were not of general knowledge, Mancuso v. Rothenberg, 67 N.J. Super. 248, 258 (App. Div. 1961), and the request, made in the course of the trial, was out of time.

Our review finds no abuse of discretion by Judge Coyle. His evidentiary decisions were neither erroneous nor wide of the mark and the rulings do not warrant reversal.
Lebitz next suggests insufficient evidence was presented to allow the BOE to submit to the jury the "resource allocation" defense established under the Tort Claims Act by N.J.S.A. 59:2-3d (Point II). Related to this point is her challenge that plaintiffs' application for a new trial should have been granted because evidence rebutting this defense was withheld by the BOE and only discovered by plaintiffs' counsel in an unrelated proceeding after this trial was concluded (Point XIII).

The trial judge found no prejudicial effect by allowing this defense because the evidence had no impact on the final outcome of the case. We agree. The jury never reached the allocation of resources defense. The verdict was based upon the lack of evidence supporting a finding on proximate cause.

Lebitz next takes exception to defense counsels' conduct during the opening statements and summation. She argues the court permitted several improper inflammatory comments (Points V and VI), and then interrupted plaintiffs' closing argument (Point IX).

In the opening statement, Lewis's counsel directed the jurors to put themselves "in Lewis'[s] shoes" on the day of the incident when considering whether he was negligent. During closing, the reference was repeated. These comments were made without objection. The third time the reference was made by defense counsel during summation, it evoked an objection followed by the following extensive curative instruction:

[D]uring the summation yesterday there

was a comment. . . about asking you

to put yourself in Mr. Lewis' shoes.

I don't want you to put yourself in

anybody's shoes. You are in your own

shoes. . . .You are to look at the

evidence without bias, [and] without prejudice. . . . And you are to look

at it from an objective standpoint, not

a subjective standpoint. You are not to

put yourself in anybody's shoes except

your own shoes. So I want you to look at

the evidence from a subjective standpoint,

weigh it, evaluate and you make the call.

Although in the last sentence the judge referenced viewing the evidence from "a subjective standpoint," the clear import of his instruction to the jury was to objectively review and weigh the evidence.

Also, during defense counsel's closing, when addressing Lebitz's allegation of lack of security in the hallway, a reference was made to John Hinckley, who shot President Reagan while he was "perhaps the most secure individual in the world." Plaintiffs' counsel did not object.

Lebitz also cites what she believes was an inappropriate statement on the issue of damages. Defense counsel suggested to the jury that Lebitz was entitled to "what is fair and reasonable under the circumstances based on the evidence as you have heard it. . . . This is designed to be compensation it's not winning the lottery." No objection followed. Instead, Lebitz responded in her closing statement then sought and received a decisive curative instruction.

Lebitz further raises as prejudicial, the BOE's reference in summation to defense experts not called at trial. First, when discussing the expert opinion of Lebitz's treating physician, the BOE acknowledged that he "told it straight. He was straightforward" such that "the [defense] didn't see the need to belabor this case and extend it any further by calling another doctor who was hired by the defense who was essentially going to tell you the exact same thing." The objection was overruled, as the court found the remark fair comment on the witness' credibility.

Similarly, the closing remarks mentioned a defense vocational expert who was not called because there was no dispute between the experts on the subject of the testimony. Lebitz's objection was sustained and a curative instruction given.

Lastly is the assertion that Lebitz's closing remarks were unfairly interrupted. The court reminded each party when the estimated time for closing was exceeded. Specifically, the court noted plaintiffs' closing "was approaching two hours." When the closing continued for another thirty minutes the court called a sidebar. The tense colloquy pitted the judge's need to reserve sufficient time to charge the jury with counsel's desire to lay out Lebitz's case as he deemed appropriate, regardless of the time taken. After the exchange, plaintiffs' summation continued uninterrupted.

The charge was not concluded until the following day during which Lebitz sought and was granted a curative instruction. No additional time was sought to present further summation. Judge Coyle accepted responsibility for "trying to get the summations in and . . . trying to get the charge in and maybe . . . trying to put a ten pound load in a five pound bag." The judge then apologized to plaintiff's counsel and the jury for "trying to get everything done yesterday."

Citing our decisions in Henker v. Preybylowski, 216 N.J. Super. 513, 519 (App. Div. 1987), and Tabor v. O'Grady, 59 N.J. Super. 330, 340 (App. Div.), modified on other gds., 61 N.J. Super. 446 (App. Div. 1960), Lebitz argues that the combined effect of these asserted transgressions entitles her to reversal and a new trial.

We cannot agree with plaintiffs' position for a number of reasons. First, the failure to object during trial prevented the trial judge from providing a remedy, City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004), precluding a claim of error.

Second, when objections were voiced and sustained, the court swiftly and strongly instructed the jury. Any prejudicial or harmful effect of counsel's inappropriate comments was sufficiently eradicated by the immediate admonitory instructions to the jury by Judge Coyle. Brandimarte v. Green, 37 N.J. 557, 563 (1962); City of Linden, supra, 370 N.J. Super. at 398. "The jury is deemed capable of following a curative instruction to ignore prejudicial matter." Williams v. James, 113 N.J. 619, 632 (1989).

Third, any jury determination of damages was rendered moot because Lebitz settled with the Leepers and the jury found the negligence of the other defendants was not the proximate cause of Lebitz's injury.

The trial judge properly and fully addressed each of these instances in the course of the trial. No one statement rises to the level of reversible error as found in Henker, supra, where the plaintiffs' attorney used the defendant's attorney as a target of repeated invectives, 216 N.J. Super. at 518, or Tabor, supra, where counsel for the plaintiffs accused his adversary, among other things, of playing "a game of checkers to save a few dollars for his client's pocketbook." 59 N.J. Super. at 340-41. Additionally, we are satisfied that even when viewed cumulatively, defense counsel's comments did not deny Lebitz a fair trial.
The final group of arguments center on the jury charges (Points VII, X to XIV). In his charge to the jury, Judge Coyle incorporated the provisions of N.J.S.A. 18A:17-46. He did not provide a verbatim recitation of the statute. Lebitz did not object, thus precluding appellate relief unless she establishes that the error produced an unjust result. R. 2:10-2. We are not persuaded that any injustice resulted from the broader charge recited by the trial judge.

During deliberations the jury inquired about the issue of proximate cause. Its note stated: "Judge Coyle, we have questions regarding the intent and exact meaning of proximate cause as written in the charge. Specifically, pages 20 through 23."

In response to this inquiry, Lebitz sought the recitation of a supplemental charge, that is, Model Charge 7.11. The trial court declined to issue supplemental charges, citing Lebitz's failure to request the use of that charge during the charge conference.

Judge Coyle later addressed the jury stating:

So let me go over the [Model 7.10] charge

with you, then I want you to go back and

deliberate and then if you still have a

problem if you could be more specific,

if you could focus on a paragraph or a

line, and then I will try to explain that

paragraph or that sentence or whatever

to you. . . .

After rereading the charge, the judge again instructed the panel to focus on the language of the charge, a copy of which had been provided. He said, "I ask you to try to make a decision based upon the language in 20 to 23. If you can't and you need further clarification, please let me know, but be more specific. . ." The jury was then requested to return to the deliberation room and decide if a further question need be framed for review. The jury did not return.

The argument presented states that the court erred in merely re-reading the proximate cause charge to the jury after it requested clarification. The alleged failure to properly charge the jury then resulted in what is characterized as an "inconsistent verdict."

In our view, the judge did everything possible to answer the jury's question as submitted. It is apparent that the judge's review of the initial charge focused the jury sufficiently that no further specific inquiry was necessary. We disagree with plaintiffs' contention that the verdict is so "inconsistent and irreconcilable" to be "fatally defective" and therefore set aside. See Mercedes-Benz Credit Corp. v. Lotito, 328 N.J. Super. 491, 508 (App. Div.) (quoting Brendel v. Pub. Serv. Elec. & Gas Co., 28 N.J. Super. 500, 507 (App. Div. 1953)), certif. denied, 165 N.J. 137 (2000).

A jury's verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977); Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). The jury's finding demonstrated no inability to comprehend the issues presented and definitively determined the parties' rights and liabilities. Zuidema v. Pedicano, 373 N.J. Super. 135, 148 (App. Div. 2004). Moreover, the jury was free to reasonably conclude that even if the BOE negligently supervised the students on the second floor hallway, this failure was not the primary cause of Lebitz's injury because Leeper would have acted regardless of a teacher's presence. Factual and expert testimony supported this position, which was accepted by the jury and therefore will not be disturbed.

The BOE's defensive cross appeal, arguing the trial court erred in denying its motion for summary judgment under the Charitable Immunity Act, N.J.S.A. 2A:53a-7, is moot.

Affirmed.

 

Throughout, plaintiffs are collectively referred to as Lebitz.

The jury also fixed compensatory damages of $1,079,603, despite the fact that the issue was rendered moot by the prior settlement with the Leepers and the verdict.

(continued)

(continued)

2

May 9, 2006