CHARLOTTE BRENNAN, et al. v. NATIONWIDE TRAILOR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6859-03T16859-03T1

CHARLOTTE BRENNAN and

EUGENE BRENNAN, husband

and wife,

Plaintiffs-Appellants,

v.

NATIONWIDE TRAILOR, a/k/a

NATIONWIDE SALES, d/b/a

COLONIAL ESTATES,

Defendants-Respondents,

and

G. HELMER CONSTRUCTION COMPANY,

GEORGE HELMER, JR. and

CONTINENTAL COMMUNITIES, LLC,

Defendants.

_______________________________________

 
 

Argued February 15, 2006 - Decided March 10, 2006

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6012-01.

David S. Rochman argued the cause for appellants.

Francis T. McDevitt argued the cause for respondents (Naulty, Scaricamazza & McDevitt, attorneys; Mr. McDevitt and Philip J. Degnan, on the brief).

PER CURIAM

On February 18, 2000, plaintiff Charlotte Brennan fell into an open septic tank in the mobile home park in which her mobile home was located. Plaintiff was taken to the emergency room of the hospital, where she was x-rayed and released. As a result of this accident, plaintiff suffered rib fractures and a micro-fracture or non-displaced fracture of her left lateral tibia plateau above her left knee.

A few days after the accident, plaintiff went to an orthopedic surgeon, who gave her a "sleeve" to wear on her leg during the day and also recommended she temporarily use a walker to prevent undue stress on the leg. Plaintiff's injuries did not require a cast or surgery.

A month later, plaintiff went to a second orthopedic surgeon, who performed a physical examination of plaintiff and concluded:

[S]he had persistent arthralgia, which means joint pain in the left knee at the patella-femoral joint and the femoral-tibia joint. . . . [S]he had a resolving sprain in the left ankle, and . . . she had healing fracture of the ribs on the left side and a chronic lumbar . . . strain.

On May 6, 2000, plaintiff fell down in her kitchen, as a result of which she broke her hip. This injury required hip replacement surgery as well as a second surgery necessitated by complications arising from the first surgery. Plaintiff also had to undergo extensive physical therapy after both surgeries.

Plaintiff brought this personal injury action against defendant Nationwide d/b/a Colonial Estates, which owned and maintained the mobile home park in which plaintiff fell into the open septic tank. Defendant admitted responsibility for the February 18, 2000 accident, and the case was tried on damages only.

The primary factual issue at trial was whether plaintiff's fall in her kitchen on May 6, 2000, was caused by the injuries she suffered in the February 18, 2000 accident, and therefore whether plaintiff's damages for the first accident included the broken hip she suffered in that second accident.

Plaintiff testified that her fall in the kitchen occurred because her legs simply buckled. Plaintiff's medical expert concluded that plaintiff's "unsteady gait" resulting from the leg injuries she suffered in the February 18, 2000 accident caused her legs to buckle in the second accident.

However, defendant presented testimony by the triage nurse at the hospital where plaintiff was admitted after the second accident, who stated that her notes indicated plaintiff told her she had "tripped." In addition, defendant read a portion of the deposition of plaintiff's husband, who also stated that plaintiff told him the second accident occurred when she "tripped" in the kitchen and "fell over in between [a] chair and the floor." In addition, defendant presented the testimony of an orthopedic expert, Dr. Robert Gerson, that the report of plaintiff's treating physician, who examined plaintiff three days before her second accident, did not indicate she was experiencing any instability in her left knee. Defendant's expert concluded that plaintiff's May 6, 2000 accident "was a separate, independent event that had no . . . causal relationship to the February 18, 2000 incident."

Based on this evidence, the jury awarded $25,000 in damages. Plaintiff moved for a new trial. The trial court denied the motion.

On appeal from the denial of her motion for new trial, plaintiff presents the following arguments:

I. REMAND FOR A NEW TRIAL IS APPROPRIATE AS PREJUDICIAL, REVERSIBLE ERRORS WERE MADE.

A. THE COURT ERRED BY REFUSING TO BAR THE INTRODUCTION OF ANY FACTUAL STATEMENTS WITH RESPECT TO CAUSATION CONTAINED IN THE MEDICAL REPORTS OF MAY, 2000 AS THE REFERENCED STATEMENTS ARE INADMISSIBLE HEARSAY NOT UTILIZED TO ADVANCE A MEDICAL DIAGNOSIS AND ARE NOT ADMISSIBLE WITHIN ANY OTHER HEARSAY EXCEPTION.

B. THE COURT ERRED BY PERMITTING WENDY RADCLIFFE TO TESTIFY AT TRIAL AS SHE HAD NO INDEPENDENT RECOLLECTION OF ANY RELEVANT KNOWLEDGE OR FACT EVEN AFTER REVIEWING DOCUMENTS THAT SHE SCRIPTED.

C. THE COURT ERRED BY PERMITTING THE TRIAL TESTIMONY ELICITED BY SHARON DOSTMANN, ESQUIRE, AS THE ATTORNEY DOES NOT REPRESENT A PARTY APPEARING AT TRIAL.

D. THE COURT ERRED BY STRIKING THE MAJORITY OF THE PLAINTIFF'S VOIR DIRE QUESTIONS AND BY FAILING TO AWARD ADDITIONAL PEREMPTORY CHALLENGES BASED UPON THE JURY'S RESPONSES TO THE PERMITTED VOIR DIRE.

E. THE COURT ERRED BY PERMITTING THE DEFENDANT TO ELICIT DIRECT TESTIMONY OF EUGENE BRENNAN.

F. THE COURT ERRED BY PERMITTING THE INTRODUCTION OF AN IRRELEVANT, NON-AUTHENTICATED, PREJUDICIAL, NON-PROBATIVE DOCUMENT AND TESTIMONY REGARDING SAID DOCUMENT.

G. THE COURT ERRED BY PERMITTING DR. RONALD GERSON TO ADOPT AND TESTIFY TO COMPLEX MEDICAL DIAGNOSES RENDERED BY OTHER INDIVIDUALS FOR WHICH HE DID NOT HAVE ADEQUATE PERSONAL KNOWLEDGE.

H. THE COURT ERRED BY ISSUING INAPPROPRIATE COMMENTS DURING THE CHARGING OF THE JURY.

II. IN THE ALTERNATIVE, AN ORDER INCREASING THE AWARD OF DAMAGES TO THE PLAINTIFF MUST BE ENTERED AS THE CURRENT AWARD OF $25,000.00 IS UNREASONABLE GIVEN THE PLAINTIFF'S UNDISPUTED INJURIES AS A RESULT OF HER FALL.

We conclude that plaintiff's arguments are clearly without merit and affirm the denial of her motion for new trial and the judgment memorializing the jury verdict. R. 2:11-3(e)(1)(C), (E). The only arguments that require any discussion are the ones presented under Points I(A) and (B) of plaintiff's brief.

The triage nurse's note regarding what plaintiff said to her about the cause of her second accident was double hearsay; that is, the nurse's written out-of-court notation recording what plaintiff said to her out-of-court in the hospital. Plaintiff's own out-of-court statement was admissible under the party-opponent exception to the rule against hearsay. N.J.R.E. 803(b)(1). The triage nurse's written recordation of that statement was admissible under the recorded recollection exception to the rule against hearsay. N.J.R.E. 803(c)(5); see Johnson v. Malnati, 110 N.J. Super. 277, 280 (App. Div. 1970). The triage nurse's testimony provided the required foundation under this hearsay exception for admission of her contemporaneous notes of what plaintiff said to her. See State v. Bindhammer, 44 N.J. 372, 385-86 (1965); Dalton v. Barone, 310 N.J. Super. 375, 378 (App. Div. 1998); Kazanjian v. Atlas Novelty Co., 34 N.J. Super. 362, 372 (App. Div. 1955).

The cases relied upon by plaintiff all involved situations where the party seeking to introduce an out-of-court statement regarding the cause of an accident was the declarant. See, e.g., Cestero v. Ferrara, 57 N.J. 497, 501 (1971); Palmisano v. Pear, 306 N.J. Super. 395, 400-01 (App. Div. 1997); Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92-93 (App. Div. 1991). Therefore, the party-opponent exception to the rule against hearsay did not apply in those cases.

Because plaintiff's statements to the triage nurse were admissible under N.J.R.E. 803(b)(1), there is no need to consider whether they also would have been admissible under N.J.R.E. 803(c)(4) or N.J.R.E. 803(c)(25).

 
Affirmed.

Plaintiff's complaint also named other defendants who were dismissed from the action before trial.

Counsel have advised us that the trial court denied this motion without issuing any opinion.

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A-6859-03T1

March 10, 2006