NANCY E. ROKOS v. MARINA ASSOCIATES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4981-06T24981-06T2

NANCY E. ROKOS,

Plaintiff-Appellant,

v.

MARINA ASSOCIATES d/b/a

HARRAH'S CASINO HOTEL

ATLANTIC CITY,

Defendant-Respondent.

____________________________________________________________

 

Argued September 29, 2008 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No.

L-0816-04.

Dennis D. Karpf argued the cause for appellant

(Law Offices of Dennis D. Karpf, P.A., attorneys;

Mr. Karpf, on the brief).

Russell L. Lichtenstein argued the cause for

respondent (Cooper Levenson April Niedelman &

Wagenheim, P.A., attorneys; Gerard W. Quinn,

of counsel; Mr. Quinn and Cynthia A. Smith,

on the brief).

PER CURIAM

Plaintiff Nancy Rokos alleged in her complaint that she was assaulted and injured while playing a slot machine at defendant Marina Associates d/b/a Harrah's Casino Hotel Atlantic City (Harrah's) by an unknown man, who was also a patron of defendant's casino. Plaintiff claimed defendant's failure to exercise reasonable care for the safety of its patrons was the proximate cause of her injuries. Plaintiff appeals from an order dismissing her complaint with prejudice based on a jury verdict of no cause of action, and a subsequent order denying her motion for a new trial. We affirm.

Plaintiff and her mother arrived at Harrah's a little after 4:00 p.m., on October 4, 2002. After her mother began playing a slot machine, plaintiff walked to a nearby row of "low-style" slot machines located approximately ten to fifteen feet from a "table games pit." As she was walking, plaintiff noticed a man sitting at a slot machine, who was mumbling loudly to himself and glaring at her as she passed. Plaintiff's impression was that the man had "problems, issues, you know. Maybe he lost money."

Plaintiff stopped at a slot machine that was three seats away from the man, put a one-dollar token into the machine, and she won a five-coin payout. As plaintiff placed her right hand in the coin tray to receive her winnings, she heard the man yelling "you're stealing my money, that's my money, you're stealing my money," and the man attempted to take the coins from plaintiff's hand. Plaintiff testified that she struggled with the man for approximately three minutes. During that time, plaintiff did not call for security or seek assistance from anyone, and no one came to her aid. Plaintiff testified:

So as I have my hand down with the coins in my hand, it's like all of a sudden I see these two arms coming to my hand, and I hear this same voice, this slurred voice, you're stealing my money, that's my money, you're stealing my money, and I'm looking down and this person was grabbing my hand with the coins in it and he starts, you know, bashing my hand on the bottom of the coin tray, you know, and I'm like what -- what's going on, you know.

. . . .

And I'm struggling. I'm trying to wiggle my fingers through, and the more I did it, the stronger his grip got, and then he would do it again and again, and at one point, I said . . . you're crazy, and when I said that to him, it like must have -- in my opinion, it must have enraged him even more, because he had a tighter grip, and then he was like more furious. You know, he's bashing, bashing, bashing, up and down, up and down, and then at one point, you know, I'm trying to wiggle my hand free, and as I'm doing that, it's coming out of the coin tray, and then he takes it and he bangs it down on the edge, lip of the coin tray, and every time he did that, it just like took my breath away. I felt like I could just have collapsed. And then he made my hand go back down, and then he continued to bash again.

. . . .

And so I finally pull my hand free, and I'm looking and I see this -- this man. You know, he's like -- his eyes were glazed, and he's staring into dead space, you know, like not eye contact with anything. You know, I'm looking at him, and he's like, you know, just staring into dead space. . . .

There was no uniformed security, and I said to him, I said I'm going to have you reported, and he's still at the machine, you know, and then my mother was still there, and I told her again, I said move away, get away from him, and -- and he's just standing there glaring at me, you know, and I'm holding my hand. My hand was throbbing and tingly, and it was just getting shooting pains up my arm, and I'm just holding my hand and he's standing there, and he's just glaring.

Plaintiff testified the man eventually returned to his slot machine. As he was "sitting there," he was glaring at her and he said: "I'm going to have you reported for stealing my money." When plaintiff yelled back that she was going to have him reported, the man picked up his cane and began walking toward the casino exit. Plaintiff testified she had "never dealt with a crazy person before," and she was afraid her assailant might return and do her "more harm." Nevertheless, plaintiff and her mother decided to walk to one of the restaurants at the casino to "get a bite to eat" and to "calm each other down."

While plaintiff and her mother were in the restaurant, plaintiff testified that her right hand and arm were throbbing with pain, so she decided to tell security what happened. Based on a credit card receipt, plaintiff stated she left the restaurant at 5:23 p.m., and, shortly thereafter, she told Christine McGrath, a casino security supervisor, that she had been assaulted at a slot machine.

Plaintiff testified she took McGrath to the slot machine where the assault occurred and told her where the man had been sitting. After escorting plaintiff to the casino's medical unit, McGrath contacted the surveillance department to determine whether the assault had been videotaped by the casino's closed circuit television system. Unfortunately, there was no surveillance coverage of the area where the assault had taken place.

At the medical unit, plaintiff was examined by a nurse who noted there was a contusion on plaintiff's right wrist. Plaintiff's right hand was wrapped in an ice pack, and she was given two Tylenol pills. While plaintiff was at the medical unit, she was asked to explain what happened and she provided the following written statement:

Put a one dollar coin in a one dollar D diamond machine. Man three machines over came over yelling that I'm stealing his money. Uneven bars on the line. . . . Five coins came out. He grabbed my right hand with his two hands squeezing my hand and banging it inside coin tray repeatedly yelling I'm stealing his money. Finally, after about three minutes, he stopped. I said to him I'm going to report him. He said he's going to report me for stealing his money. He then walked away toward the escalator area.

When plaintiff left the nurse's station, she was upset, and her mother suggested they "play some slots" before driving home. Plaintiff agreed, and they remained at the casino until plaintiff calmed down.

The man who assaulted plaintiff was never identified or apprehended.

During the trial, plaintiff presented testimony from John Longobardi who was employed by Harrah's as a security supervisor when plaintiff was assaulted on October 4, 2002. Longobardi recalled that prior to October 4, 2002, he had informed his supervisors on more than one occasion that additional security guards were needed on the casino floor. However, on cross-examination, Longobardi admitted that the casino always maintained the security staffing required by the Division of Gaming Enforcement and the Casino Control Commission. In addition, he acknowledged that the overwhelming majority of incidents that security responded to involved requests for medical assistance rather than criminal activity.

David Johnston testified as plaintiff's expert in the field of security management and risk assessment. Johnston stated that criminal activity at Harrah's casino as of October 4, 2002, "certainly was foreseeable." Based on his review of incident reports dating back to January 2000, Johnson testified that crimes occurred at the casino "on a regular basis." According to Johnston, casinos tend to attract criminals and "sneak thieves."

Johnston also testified that Harrah's casino did not adequately protect its patrons on October 4, 2002:

It's my opinion that . . . by not providing a sufficient number of roving guards, by not having any closed circuit television capability over this particular slot machine, that that provided the opportunity for this unknown person over a several minutes period of time to yell at her and finally, to assault her and then to calmly walk away.

Dennis Lamont, a surveillance supervisor at defendant's casino, testified at his deposition that unless someone specifically requested it, the cameras over the area of the slot machines where plaintiff was assaulted would not be watched. He explained that "slot machines protect themselves" and that the only cameras that were constantly taped were those that monitored the gaming tables and money handling areas.

Robert Diessler, defendant's director of surveillance, confirmed that there had been no electronic surveillance of plaintiff's slot machine at the time of the assault. Diessler testified there were 1500 cameras under the control of the surveillance department, about 1100 of which were located on the casino floor. At the time of the assault, there were three operators and one supervisor working in the monitoring room. Although every camera on the casino floor was always available to a surveillance operator, every camera was not always monitored or recorded. The only things that were recorded all of the time were money counting activities, cashier stations, and jackpots over $45,000.

The parties agreed upon the following stipulation, which was read to the jury: "[P]laintiff did not observe the unknown assailant being served any alcoholic beverage or consuming any alcoholic beverage."

During closing arguments, defendant focused on plaintiff's credibility and challenged her assertion that the attack lasted for three minutes. In addition, defendant argued that if the man's behavior was not strange enough to dissuade plaintiff from taking a seat three machines away from him, it was not strange enough to attract the attention of a security guard. Defendant also argued that it was not reasonable to expect security or surveillance to know that an attack was taking place when plaintiff made no effort to signal her distress.

Plaintiff's closing argument emphasized defendant's failure to provide a reasonably safe environment for its patrons: "They [had] the duty to identify and remove all persons on the casino floor who pose a threat to the safety of other patrons. . . . That's their primary responsibility, protection of employees and guests."

The first question on the jury verdict sheet read as follows: "Has plaintiff proven, by a preponderance of the evidence, that Harrah's was negligent for failing to provide a reasonably safe premises for plaintiff on October 4, 2002?" The jury's answer to this question was "no." Based on the jury's verdict, plaintiff's complaint was dismissed with prejudice on April 25, 2007. Plaintiff's motion for a new trial was denied on June 22, 2007.

On appeal, plaintiff presents the following arguments:

POINT I

IT WAS REVERSIBLE ERROR TO ALLOW DEFENDANT TO ARGUE AND THE JURY TO CONSIDER COMPARATIVE NEGLIGENCE OF NANCY ROKOS. ALLOWING THE DEFENDANT TO PERSISTENTLY ARGUE THAT NANCY ROKOS WAS NEGLIGENT AND THEN REFUSING TO CHARGE THE JURY THAT THERE WAS NO COMPARATIVE NEGLIGENCE BY NANCY ROKOS SO TAINTED THE JURY'S CONSIDERATION OF THIS CASE AS TO VITIATE THE VERDICT OF NO CAUSE OF ACTION IN FAVOR OF HARRAH'S.

POINT II

THE TRIAL COURT ERRED IN PERMITTING DEFENDANT TO ARGUE THAT THE INJURIES SUFFERED BY NANCY ROKOS IN THE ATTACK COULD HAVE BEEN REDUCED OR PREVENTED BY HER SEEKING IMMEDIATE MEDICAL ATTENTION OR SECURITY RATHER THAN WAITING ONE HOUR. LIKEWISE, THE DEFENDANT SHOULD HAVE BEEN BARRED FROM ARGUING THAT PLAINTIFF'S POST-ATTACK CONDUCT WAS IN ANY WAY RELEVANT TO HER OBLIGATION TO MITIGATE HER DAMAGES, PREVENT THE ATTACK, OR REDUCE HER INJURIES.

POINT III

THE TRIAL COURT ERRED IN FAILING TO GIVE JURY INSTRUCTION THAT THERE COULD BE NO INTERVENING, SUPERSEDING OR COMPARATIVE NEGLIGENCE BY THE UNKNOWN ATTACKER. THE TRIAL COURT EXACERBATED ITS ERROR BY PERMITTING REPETITIVE EVIDENCE OF SUPERSEDING, INTERVENING OR COMPARATIVE NEGLIGENCE.

POINT IV

THE TRIAL COURT COMMITTED THREE LEVELS OF REVERSIBLE ERROR BY BARRING PLAINTIFF'S LIABILITY EXPERT, DAVID L. JOHNSTON, CPP, FROM OPINION TESTIMONY OR REFERENCE TO THE REGULATORY STANDARD FOR THE CASINO SURVEILLANCE SYSTEM, REFUSAL TO PROVIDE THE JURY WITH A SPECIFIC INSTRUCTION ON THE REGULATORY STANDARD, AND REFUSAL TO ADMIT THE REGULATION ITSELF INTO EVIDENCE, WHICH MISLED THE JURY AND IRREPARABLY TAINTED THE VERDICT OF NO CAUSE OF ACTION.

POINT V

IT WAS ERROR TO ALLOW ROBERT DEISSLER TO TESTIFY AS A STEALTH EXPERT WITNESS. ROBERT DEISSLER WAS ADMITTED AS A LAY WITNESS AND HE WAS NOT AN EYEWITNESS TO THE ATTACK. DEISSLER WAS ABLE TO REPEATEDLY OFFER NET OPINION TESTIMONY ABOUT THE QUALITY OF THE SURVEILLANCE SYSTEM WITH IMPLICIT REFERENCE TO COMPLIANCE WITH REGULATORY STANDARDS ABOUT WHICH PLAINTIFF'S EXPERT WAS BARRED.

We conclude from our review of the record that there was sufficient credible evidence to support the jury verdict, and there was no prejudicial error warranting a new trial. Accordingly, we affirm with the following comments.

In her first point, plaintiff contends that the trial court erred when it refused plaintiff's request to instruct the jury as follows: "I instruct you to accept as a conclusive fact that there can be no comparative or contributory negligence of the Plaintiff Nancy E. Rokos in this case." According to plaintiff, the jury verdict was "tainted" because the jury was not instructed that there was no comparative negligence or contributory negligence. Plaintiff relies on the holdings in Johansen v. Makita U.S.A., Inc., 128 N.J. 86 (1992), and Hofstrom v. Share, 295 N.J. Super. 186 (App. Div. 1996), certif. denied, 148 N.J. 462 (1997).

In Johansen, the plaintiff brought a products liability action against the manufacturer of a miter saw after he suffered injuries allegedly due to the saw's defective design. 128 N.J. at 89. Throughout the trial, the defendant presented evidence of plaintiff's comparative negligence in an effort to show that plaintiff had voluntarily encountered a known risk. Id. at 90-91. At the close of the evidence, the Court struck the defense of comparative negligence, but denied the plaintiff's request for an instruction that directed the jury not to consider evidence of plaintiff's negligence. Id. at 91-92. The jury returned a verdict of no cause of action in favor of defendant. Id. at 93.

The Court held that the "trial court committed plain error in failing to instruct the jury on the limited purpose for which it could consider evidence of plaintiff's negligent operation of the saw." Id. at 102. The Court observed that evidence concerning plaintiff's negligence was relevant to the issue of proximate cause, but not to the issue of whether the saw was defectively designed. Id. at 99-102. It noted that "limiting instructions are necessary to clarify the use of evidence of plaintiff's conduct in cases in which plaintiff's contributory negligence is not in issue but the evidence may be relevant for other purposes." Id. at 100.

In Hofstrom, the plaintiff brought a medical malpractice action alleging the defendants had failed to timely diagnose and treat her appendicitis. 295 N.J. Super. at 188-90. At trial, defendants emphasized plaintiff's negligence in failing to adhere to her doctor's instructions. Id. at 192. The trial court refused defendants' request to issue a comparative fault charge, and also refused plaintiff's request to instruct the jury that her failure to follow the doctor's instructions could not be considered in assessing liability, proximate cause, or damages. Ibid. The court explained that it denied plaintiff's request to charge "'because in my charge to the jury, I'm not giving them any indication at all that they should consider the negligence of plaintiff. It's not in this case.'" Ibid. The jury subsequently returned a verdict in favor of defendants. Id. at 188.

On appeal, this court held that plaintiff Margaret Hofstrom was entitled to a new trial because the jury should have been instructed that her "alleged comparative fault, which was repeatedly stressed by defense counsel, was entirely irrelevant." Id. at 193. We stated: "What occurred here is analogous to the situation where an attorney persists in making unwarranted prejudicial appeals to a jury which taint the verdict. In such circumstances, we have often held that a reversal is in order." Ibid.

In response to the claim by plaintiff Nancy Rokos that any evidence of her negligence was irrelevant, defendant contends that the jury charge correctly addressed all of the relevant legal issues and, when read as a whole, focused the jury's attention solely on defendant's actions or inactions. Alternatively, defendant argues that the trial court's failure to direct the jury to ignore evidence of plaintiff's comparative fault was harmless error because the court erred when it ruled that comparative negligence was not an issue in the case. For the reasons that follow, we concur in defendant's alternative argument.

One of the purposes of the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.3, is to allocate the total recoverable damages "in proportion to the respective faults of the parties causing that loss." Blazovic v. Andrich, 124 N.J. 90, 107 (1991). In Blazovic, plaintiff brought a premises liability action against a restaurant for injuries he suffered as the result of an assault in the restaurant's parking lot. Id. at 93-94. Based on its interpretation of the Comparative Negligence Act, the Court held that the trial court erred in not instructing the jury to determine the relative percentages of fault of the plaintiff, the restaurant, and the assailants. Id. at 112. The Court acknowledged the line of cases in which courts "have precluded defendants from relying on a plaintiff's negligence to offset the defendant's duty, under circumstances in which the defendant's duty encompassed the obligation to prevent the plaintiff's allegedly-inappropriate conduct." Id. at 111. However, the Court held that those cases were inapplicable in the situation presented, where plaintiff's injury was caused by a combination of the intentional tortfeasors' assaultive conduct, the plaintiff's negligence in provoking the assault, and the business owner's failure to provide adequate lighting and security in the parking lot. Id. at 111-12.

The analysis in Martin v. Prime Hospitality Corp., 345 N.J. Super. 278, 280-84 (App. Div. 2001), is also helpful. In Martin, plaintiff sued defendant hotel for failing to provide adequate security after she was allegedly raped by a hotel guest. Ibid. The evidence showed that plaintiff, who was intoxicated and unable to drive home from the hotel bar, appeared to voluntarily accompany the guest to his hotel room. Id. at 281-83. When two men at the bar asked hotel staff to investigate what was going on, the staff refused. Id. at 283. Ultimately, the men called the police, who found plaintiff in the guest's room, bruised and crying. Ibid.

Relying on Blazovic, supra, 124 N.J. at 111, this court held that "when a plaintiff claims injury from an intentional tort caused by negligent security or supervision, the jury must apportion fault between the negligent and intentional tortfeasors." Martin, supra, 345 N.J. Super. at 286. Further, the court stated that "the defendant responsible for security should be precluded from relying on plaintiff's contributory negligence to offset its own responsibility only in circumstances where that defendant's duty encompassed the obligation to prevent the plaintiff's allegedly inappropriate conduct." Id. at 287.

In the present matter, there were two bases upon which plaintiff could be found to be negligent. First, plaintiff knowingly sat near the man who attacked her even though he appeared to be angry and disturbed. Second, plaintiff never called for security or sought assistance from anyone during the struggle, which lasted for approximately three minutes. Under these circumstances, the jury should have been allowed to determine whether plaintiff was comparatively negligent. Therefore, the trial court did not err in rejecting plaintiff's request to instruct the jury that there was "no comparative or contributory negligence" by Nancy Rokos.

In her second point, plaintiff argues that the trial court erred in permitting defendant to argue that the injuries she suffered in the attack "could have been reduced or prevented by her seeking immediate medical attention or security rather than waiting one hour." She contends that her post-attack conduct was not relevant to her obligation to mitigate damages, nor to defendant's duty to prevent the attack. She points out that defendant presented no expert testimony to show either that she acted unreasonably or that more prompt medical attention would have reduced her injuries.

Defendant responds that it never disputed the extent of plaintiff's injuries and never argued that plaintiff provoked the attack or failed to mitigate damages. Harrah's maintains it simply argued plaintiff could not hold the casino liable for failing to identify the assailant when she did not provide it with timely notice of the attack.

We are satisfied these arguments do not require extended discussion. Because the jury found defendant was not negligent, it did not reach the issue of damages. Therefore, any possible error involving the assessment of damages could not have impacted the jury's verdict.

In her third point, plaintiff argues the court erred in failing to inform the jury that there was no "intervening, superseding or comparative negligence" by the unknown assailant and in failing to charge the jury as to the assailant's "causation." She contends that the "short jury deliberations of 17 minutes, underscores the real possibility that no liability was found because [the jury found] the intentional intervening acts of the attacker superseded any preexisting or concurrent negligence of Harrah's."

Plaintiff's claim that the jury was not properly instructed as to causation presents no basis for reversal. The court clearly instructed the jurors to decide the negligence issue first and then go on to causation only if they answered the negligence question in the affirmative. Because the jury never reached the question of proximate cause, any error in the causation charge could not have led to an unjust result. In any event, we are satisfied from our review of the record that the trial court's jury instructions clearly and correctly stated the law. See Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966) ("[T]he court's instructions must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them.").

Plaintiff argues in point four that the court committed multiple errors in its rulings concerning N.J.A.C. 19:45-1.10, a regulation promulgated by the Casino Control Commission to govern the closed circuit television systems used in casinos. Specifically, plaintiff contends that the court erred by precluding plaintiff's security expert from referring to the regulation, refusing to give Special Jury Instruction No. 4, and barring admission of the regulation into evidence. Plaintiff claims the regulation established a standard of care for the surveillance of the casino floor, and defendant's failure to comply with the regulation's minimum requirements was relevant to the issue of defendant's negligence. In our view, each of the trial court's rulings was correct.

Prior to the testimony of David Johnston, defendant moved to bar "any testimony or reference to the Administrative Code." Defendant argued the interpretation of administrative regulations was not within Johnston's area of expertise and that defendant had received no notice, either in Johnston's report or at his deposition, that he intended to address regulatory standards. The court granted defendant's motion, ruling that although Johnston was not strictly confined to the four corners of his report, he could not testify regarding his "interpretations" of the Administrative Code.

Later in the trial, plaintiff sought to admit a copy of N.J.A.C. 19:45-1.10 into evidence. Defendant objected, arguing that plaintiff's proposed interpretation of the regulation was completely unfounded, and that it was not within the province of the jury to interpret the regulation. The trial court agreed, and it denied plaintiff's application.

With respect to Johnston's proposed testimony, the court reasoned that the interpretation of a regulatory provision was a matter for the court rather than an expert witness. Indeed, "[i]t is well-established that '[e]xpert witnesses simply may not render opinions on matters which involve a question of the law.'" Boddy v. Cigna Prop. & Cas. Cos., 334 N.J. Super. 649, 659 (App. Div. 2000) (alteration in original) (quoting Healy v. Fairleigh Dickinson Univ., 287 N.J. Super. 407, 413 (App. Div.), certif. denied, 145 N.J. 372, cert. denied, 519 U.S. 1007, 117 S. Ct. 510, 136 L. Ed. 2d 399 (1996)); see also Perez v. Rent-A-Center, Inc., 375 N.J. Super. 63, 73 (App. Div. 2005) (opinions by law professors regarding nature of rent-to-own contracts "would be inadmissible at a trial based upon the general rule that experts may not render opinions on questions of law"), rev'd on other grounds, 186 N.J. 188 (2006). Thus, Johnston's proffered testimony was not admissible because his opinion regarding the standard of care established by N.J.A.C. 19:45-1.10 necessarily depended on his interpretation of the regulation.

Moreover, in order to offer expert testimony, a witness must have sufficient expertise to be able to express an opinion and to explain the basis of that opinion. N.J.R.E. 702; DeHanes v. Rothman, 158 N.J. 90, 100 (1999); State v. Moore, 122 N.J. 420, 458-59 (1991). Johnston's expertise was in the area of security management and risk assessment; he was not a lawyer nor did he have experience in regulatory affairs. In fact, at his deposition, Johnston stated he had not read New Jersey's casino regulations and he was not aware of any regulation that addressed the number of surveillance cameras or monitors a casino was required to maintain. Thus, even if it would have been appropriate to present an expert opinion as to the meaning of N.J.A.C. 19:45-1.10, Johnston was clearly not qualified to give that opinion.

The court was also correct in refusing to adopt plaintiff's interpretation of the regulation. The version of N.J.A.C. 19:45-1.10 in effect on October 4, 2002, provided, in relevant part:

(a) Each casino licensee shall install in its establishment a closed circuit television (CCTV) system according to specifications herein . . . .

. . . .

(b) The closed circuit television system shall include, but need not be limited to, the following:

1. Light sensitive cameras with zoom, scan, and tilt capabilities to effectively and clandestinely monitor in detail and from various vantage points, the following:

i. The gaming conducted at each gaming table in the casino and casino simulcasting facility and the activities in the casino and casino simulcasting facility pits;

ii. The gaming conducted at the slot machines in the casino. . . .

Plaintiff's proposed interpretation of this regulation, as evinced in her Special Jury Instruction No. 4, was that the casino was required to have continuous, active CCTV monitoring over the slot machines at all times. Her contention was that defendant's allowing the cameras to be turned off or not watched during regular business hours constituted a violation of the regulation.

The plain language of the regulation does not support this interpretation. Although the regulation requires a casino to have a CCTV system to "monitor" the gaming conducted at slot machines, N.J.A.C. 19:45-1.1 does not define the term "monitor." Common definitions of the word "monitor," however, militate against interpreting the term as indicating continuous, uninterrupted viewing. Webster's Third New International Dictionary 1460 (1981), defines "monitor" as "to check," "to test," "to watch, observe or check," and "to keep track of, regulate or control." Thus, the term indicates regular, periodic viewing but not necessarily constant observation. In addition, this interpretation is supported by recent amendments to the regulation that do not require a casino's CCTV system to record transmissions from cameras used to observe slot machine locations. N.J.A.C. 19:45-1.10(d) (2008).

In her final point, plaintiff argues that the court erred in allowing Robert Diessler to give expert opinions without having been qualified as an expert. She charges that Harrah's use of an "undisclosed stealth expert, Robert Diessler, was rewarded by the Trial Court." She asserts that Diessler improperly testified about the quality of the surveillance system and "continually and repeatedly, without curative instruction to the jury, so emphasized compliance with regulatory bodies and regulations so as to taint the verdict." Plaintiff also complains that Diessler recounted hearsay statements of his coworkers and used an improperly admitted surveillance log to bolster his testimony. Finally, she claims that Diessler gave an improper net opinion to undermine Johnston's testimony regarding security protocols.

Diessler is defendant's director of surveillance. He has worked for defendant in that capacity since 2000. Prior to becoming director, he worked as a surveillance shift supervisor at defendant's casino for ten years and as a surveillance officer for four years. He holds a "Key License," which is a supervisory gaming license issued by the State.

Diessler testified as to the staffing and operations of the surveillance department. He described the cameras that were deployed on the casino floor and explained how they were monitored and recorded. At no time during his testimony did Diessler refer to N.J.A.C. 19:45-1.10, or offer an opinion concerning the standard of care that it established.

When defense counsel asked Diessler to identify all parties who have access to the monitoring room, Diessler responded, "surveillance personnel, the Commission [Casino Control Commission], and the Division [Division of Gaming Enforcement]." Plaintiff objected arguing that the witness was "getting into issues that are beyond the facts . . . getting into areas of expertise." Defense counsel argued it was relevant that there were regulators in the monitor room on a regular basis and that he intended to elicit testimony that the surveillance department had never been served with a single regulatory violation. Plaintiff charged that this was "trial by ambush." The court sustained plaintiff's objection and barred Diessler from testifying that the Casino Control Commission had never issued a citation to his department.

Plaintiff cites eighteen "representative examples" of testimony given by Diessler that she claims constitute expert opinions. She also asserts that "[k]nowledge of . . . the nature of the casino environment, the shapes, dimensions and the size of the rooms, the placement of the cameras, their zoom, tilt and focus capabilities, and the like require expert testimony."

The foundation for the admission of lay testimony is personal knowledge. Phillips v. Gelpke, 190 N.J. 580, 589 (2007) (citing N.J.R.E. 602). A witness who has personal knowledge may testify as to the facts that are known to him or her. Neno v. Clinton, 167 N.J. 573, 585 (2001) (citing N.J.R.E. 602); Spencer v. Bristol-Meyers Squibb Co., 156 N.J. 455, 461 (1998) (citing N.J.R.E. 602).

There is no question that Diessler had personal knowledge of the structure and operation of the surveillance department. The fact that expert testimony might have helped the jury to understand the highly technical characteristics of surveillance cameras and monitors did not preclude Diessler from testifying to his personal knowledge of the subject. "[A] witness who has personal knowledge of the matter about which he is asked to testify should not be precluded from testifying merely because another potential witness might be in a better position to testify about that matter." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 602 (2008) (citing Gunter v. Fischer Scientific Am., 193 N.J. Super. 688, 693 (App. Div. 1984)).

Plaintiff also alleges Diessler improperly bolstered his testimony by relying on the department's surveillance log. In essence, she claims Diessler used hearsay in the form of the log and information he learned from other employees to reconstruct the department's response to McGrath's inquiry concerning coverage of the slot machines. The court correctly ruled the surveillance log could be admitted into evidence under the business record exception to the rule against hearsay, N.J.R.E. 803(c)(6). However, even if it was in error, the admission of the log and Diessler's account of how the department processed McGrath's request could not possibly have affected the jury's verdict because McGrath had already testified to this information.

Finally, plaintiff complains Diessler offered an improper net opinion to counter conclusions set forth in Johnston's testimony. This argument also lacks merit.

Diessler was asked by defense counsel: "Would two people standing in front of a slot machine be sufficient for one of your operators to notify anybody?" Before Diessler could respond, plaintiff's counsel objected, arguing that the answer called for an expert opinion. The court asked counsel how it could "be expert testimony when he's the director of surveillance. His obligation is to watch the monitor. . . . He was just doing his job." Plaintiff's counsel then withdrew the objection and Diessler's answer to the question was, "No, sir." As the court observed, this was not expert testimony. Diessler's job was to establish operating protocols for the surveillance department and to supervise the work of the staff members. Two people standing in front of a slot machine would be a common occurrence in a casino. How an operator would react in that situation was within Diessler's personal knowledge.

Affirmed.

 

In this case, no fault can be assessed against the intentional tortfeasor because he was never identified and made a party to the action. See Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399, 406-10 (App. Div.) (holding that unknown assailant may not be considered when apportioning fault between parties in premises liability action), certif. denied, 130 N.J. 598 (1992).

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A-4981-06T2

June 24, 2009