MARIE E. EDMOND v. JAMES BROSIUS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6244-06T36244-06T3

MARIE E. EDMOND, Administrator of

the ESTATE OF BRIAN JEAN-JOSEPH,

deceased, and MARIE E. EDMOND,

individually,

Plaintiff-Appellant,

v.

JAMES BROSIUS, JAMES E. BROSIUS,

MICHELE A. BROSIUS, and JAMIE

MATSON,

Defendants,

and

SUNSET LAKE COMMUNITY CLUB, INC.,

TOM KERN, JIM O'CONNELL, CINDY WELSH,

GABE HALPERN, and JOHN FEDORS, JR.,

Defendants-Respondents.

_______________________________________________

 

Argued January 26, 2009 - Decided

Before Judges Lisa, Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2102-03.

Milagros C. Alvarez argued the cause for appellant (Lord & Kobrin, attorneys; Ms. Alvarez, on the brief).

D. Scott Conchar argued the cause for respondents (Law Offices of William E. Staehle, attorneys; Mr. Conchar, of counsel and on the brief; Erica B. Sherman, on the brief).

PER CURIAM

Plaintiff, Marie E. Edmond, individually and as the administrator of the estate of her deceased son, Brian Jean-Joseph (Jean-Joseph), appeals from the no cause verdict following a jury trial where plaintiff alleged Jean-Joseph's drowning was caused by the negligence of defendants, Sunset Lake Community Club, Inc. (the Club), and Tom Kern, Jim O'Connell, Cindy Welsh, Gabe Halpern, and John Fedors, Jr. (collectively, defendants). On appeal, plaintiff claims the trial court erred when it: (1) admitted testimony from two of Jean-Joseph's friends related to his complaints of severe headaches and blackouts in the months leading up to his death; (2) precluded testimony related to the lake's condition on rebuttal, but allowed testimony from defendants' expert, Gary Anderson (Anderson) who plaintiff claimed was unqualified; (3) barred expert testimony on national standards for signs; and (4) failed to instruct the jury "about the Bridgewater statute and consider whether a fence was required under the Code." Finally, plaintiff claims she was entitled to a mistrial based upon the trial court's apparent bias. We reject plaintiff's arguments and affirm.

The evidence presented to the jury was as follows. At the time of his death, Jean-Joseph was twenty-three years old. On June 23, 2002, he was invited to attend a party at the home of the parents of James Brosius (Brosius), by another friend, David Vreeland (Vreeland). The party was being held to celebrate the twenty-first birthday of a mutual friend, Cindy Sockwell (Sockwell).

The Brosius' home was located on Hickory Drive across from Sunset Lake, a thirteen-acre, man-made, private lake created in 1932. The private lake was owned and maintained by the Sunset Lake Association (Association) in Bridgewater. In addition to the lake, the Association's facilities include a beach area, along with approximately 200 feet of shoreline filled with "artificial" sand, a floating dock, a clubhouse, a playground, and a picnic area. The designated beach area was fenced off, with a "roped off swimming area" and a lifeguard booth. Members were permitted to bring ten guests to the lake at one time with no advance notice to the Association. Brosius' parents were members of the Association.

Jean-Joseph and Vreeland arrived at the Brosius home around 11:00 p.m. Vreeland stayed at the house playing video games, while Jean-Joseph walked down to the lake. It was Jean-Joseph's first visit to Sunset Lake. Twenty minutes earlier, a group from the party had also gone down to the lake, but they did not go to the designated beach area. Instead, they went to a dock on the lake known as "Hickory Dock," which was located at the end of Hickory Drive and approximately 225 feet from the Brosius home. The dock was approximately 100 yards across the lake from the bathing beach. The surface of the dock was approximately five feet above the surface of the water. No ladders provided entry from the dock into the water.

A few members of the group, Jamie Matson (Matson), Lauren Jacwich (Jacwich), and Britta Finkelmeyer (Finkelmeyer), took off their clothes and went into the water, while Sockwell and Andrew Lynch (Lynch) remained on the dock. There was a party at the clubhouse across the lake near the beach, and a band was playing. The only lights on the lake came from the "ambient light" of houses across the lake and the moon. The weather was warm and clear and there was "a pretty full moon."

Matson testified that Jean-Joseph came down to the dock, took off his clothes and got into the water. Matson had never met Jean-Joseph before. Matson, Finkelmeyer and Jacwich were already in the water when Jean-Joseph got in the lake. The lake was about four feet deep by the dock but too deep to touch the bottom where Matson was swimming five to seven feet away from the dock. Jean-Joseph swam past Matson, Finkelmeyer and Jacwich until he was about fifteen to twenty feet away from the dock.

Matson was in the water, facing the dock and talking to her friends, and Jean-Joseph was behind her. After they had all been in the water for five or six minutes, Matson "heard some splashing and turned around and there wasn't anything." She could not remember what made her turn, but "it was vocal" and it was "abnormal." At that point, the "water had gone still" and "[Sockwell] and [Lynch] were standing up and pointing and saying where's [Jean-Joseph]." Matson swam over to a spot where Lynch, who was still on the dock, was pointing. She felt along the bottom of the lake with her hands and feet. She never saw Jean-Joseph resurface and she saw no flailing.

Matson described the lake bottom as "mud muck" that was "slippery" and "pretty squishy" with "chunks of leaves or sticks at the bottom." When asked if there were "branches," Matson replied, "[N]ot really branches so much as little sharp kind of or just little chunks of wood or whatever."

Sockwell, who was on the dock with Lynch, testified that she saw Jean-Joseph "splashing a lot" when he first entered the water, but "thought he was just kind of horsing around" because "he was talking to everybody and hanging out." She saw his "silhouette in the waves. . . . It was just kinda going up and down." She described his actions as "just bobbing up and down in the water. And he wasn't flailing or splashing . . . ." She explained that Jean-Joseph "was just kinda floating by himself" when "we heard him say, help. . . . [H]e wasn't yelling it. He just said, help." She and Lynch "jumped up" because they "didn't know if he was joking . . . or what was going on." They began "screaming" his name, and the group "started looking along the shoreline to see if maybe he was hiding under something or playing a joke." They were "all yelling for him" and "looking under canoes."

Lynch testified that he was on the dock and Jean-Joseph "was treading water" to his left. He recalled "the only unusual thing that happened was that we heard a sound, I cannot say what he said. Um, it could have just been him diving underwater. That was kind of our impression. But we all heard something that would draw our attention to where he was." He testified further that "[o]nce we heard the noise, we heard the noise and he was gone. That was it." Lynch stated that they waited a few seconds but Jean-Joseph "was not there at that point." Then he and Sockwell both "jumped up and started looking for [Jean-Joseph]." Lynch told the girls in the water "to stop moving so I can survey the motion in the water[,]" but "the water was very, very still. . . . No motion. No one." After "maybe two minutes[,]" they "realized it wasn't a joke . . . ." Because Lynch had previously injured his leg, he could not jump into the water.

As Matson searched for Jean-Joseph, Sockwell ran back to the house where she found Brosius and Vreeland. She told them: "[Jean-Joseph] went under, we can't find [Jean-Joseph] . . . ." Brosius grabbed a portable phone and two flashlights, and he and Vreeland went down to the lake. When they arrived, Matson was still in the water looking for Jean-Joseph. Sockwell stood on the dock directing Matson to where she had last seen Jean-Joseph. No one else was in the water.

Brosius testified that he called Jean-Joseph's name "several times," saying, "Brian, this isn't funny. . . . I'm gonna call the police . . . if you don't respond . . . ." But in "less than a minute," Brosius walked back towards his house so the cordless phone would work and he called 911. Brosius told the police his friend was missing. He explained where he and his friends were located and told police that they believed Jean-Joseph had drowned.

Police and emergency services arrived and divers began to search the lake. Jean-Joseph's body was recovered from the bottom of the lake the next morning. It was found approximately 50 or 60 feet from the dock, lying in 12 or 13 feet of water. The investigator who recovered the body from the bottom described the lake bottom as "pretty barren." He found Jean-Joseph's body lying on its back on the bottom by a log, but there was no vegetation "in the immediate area of the body" and no indication the body was caught in any algae or other plant life. The water temperature was 77 degrees at the time the body was recovered.

The Association's president, Thomas Kern, testified that swimming was "not allowed" at Hickory Dock. A sign at the dock said "Private Property Members Only," but there were no "No Swimming" signs near the dock. A sign at the beach area said, "Swim At Your Own Risk." The lake had been drained completely and dredged in 1993, and it was partially dredged every two years by a machine that would scoop out leaves and other debris. He indicated that use of the facilities was prohibited after 10:00 p.m.

During Brosius' testimony, however, he testified that he and his friends often went to the lake after 10:00 p.m. and he was unaware of any rules that forbade swimming. Matson also testified that she previously swam with friends off Hickory Dock between thirty-five and forty times, including two or three times at night. She too was unaware whether swimming was allowed in that area.

Plaintiff testified that Jean-Joseph was very healthy and never missed a day of school from kindergarten through college. He was very athletic and participated in tennis, basketball and track during high school at Seton Hall Prep, where he won numerous medals. He learned to swim when he was three or four years old. Growing up, he swam regularly in pools and the ocean. Plaintiff said she was unable to recall him suffering from any blackouts. She testified that Jean-Joseph had been a pre-med student at the University of Michigan for two years but left college three years before his death. At the time of his death, he was working part-time at an electronics store and part-time at a supermarket.

Plaintiff's medical examiner expert, Dr. Louis Roh, testified that Jean-Joseph's autopsy report showed that he was "perfectly healthy" with no "significant abnormal finding or disease." He concluded that Jean-Joseph had endured five to ten minutes of pain and suffering before dying. He described for the jury the typical phases that a person experiences when he or she drowns, including a "panic struggle" when they "[t]ry to reach the surface of the water" until exhausted.

Plaintiff presented Elise Dann as an expert in the field of architecture and landscape architecture. Dann concluded that Jean-Joseph's death was caused by (1) the absence of life saving equipment in the form of a ring buoy, (2) the absence of warning signs that prohibited swimming, and (3) the failure of members of the Sunset Lake Association to enforce rules regarding use of the lake facilities after 10:00 p.m. She testified that the lake "is a specially exempt facility, it's a private recreational bathing place and according to the New Jersey Administrative Code, specially exempt facilities shall be exempt from mandatory compliance with the first aid personnel and life guard provisions . . . ." She testified, however, that the lake was not exempt from "emergency equipment requirements." According to Dann, because no rule prohibited swimming at the dock and because swimming occurred there "openly," Hickory Dock was an "appurtenance" to the bathing beach across the lake. As such, it was required, under the New Jersey Administrative Code, to have a ring buoy. Dann said that a "ring buoy with a 60' long rope would definitely have been helpful because there were people on the dock at the time that [Jean-Joseph] was calling for help and splashing and bobbing up and down who could have tossed that ring buoy the 15' or 20'." In her opinion, the Association's failure to provide a ring buoy "deprived . . . Jean-Joseph of the opportunity to be rescued with a flotation device[,]" and "creat[ed] a dangerous condition that was the cause of . . . Jean-Joseph's drowning death."

Finally, Dann opined that "the failure of the Sunset Association to provide effective warnings as required by the New Jersey Administrative Code and Recognized Standards" for signage "created a dangerous condition that was the cause of [Jean-Joseph's] death." She referenced the American National Standard for Environment and Facility Safety Signs as requiring that "known hazards . . . should be eliminated whenever possible[,]" and if they cannot be eliminated, then "a visual hazards alerting message should be provided" with "a little pictogram" for drowning. In her opinion, the Association should have posted a sign at Hickory Dock that said, "Danger No Swimming, Drowning Hazard," because the area was not maintained and "nobody knew it wasn't a safe place at least in terms of the fact that everyone was swimming there." She explained:

The absence of warnings regarding no swimming were a cause because if the members were aware that no swimming was permitted, if they were aware that it was considered dangerous, if Brian Jean-Joseph had been alerted that no swimming was permitted and that it was dangerous, then he would not have gotten in the water and this incident would not have occurred.

And then with regard to enforcing the rules regarding the use of lake facilities, that could have been accomplished by any number of ways, such as through their newsletter they could have at least stated, they have explained further no swimming after ten p.m. and they could have enforced it . . . .

Dann also said that the Association could have employed a "minimum wage security guard" to enforce the prohibition against using the facilities after 10:00 p.m.

Defendants' engineering expert, Anderson, testified that the lake complied with all the applicable codes and regulations for a specially exempt facility under the New Jersey Administrative Code. Anderson disagreed with Dann's conclusion that Hickory Dock was an appurtenance to the beach area. In his opinion, the lack of "No Swimming" signs at Hickory Dock "[did] not automatically make it a designated area" for swimming and an appurtenance. He described appurtenances as such things as the fencing, buoys, the lifeguard stand and "anything that's part of the bathing beach." He testified that the Code did not require lifeguards, lifesaving equipment, or signage outside the designated bathing beach area.

Vreeland testified that he had met Jean-Joseph while working at "Game Stop" eighteen or nineteen months previously, and they had become close friends. He and Jean-Joseph saw or spoke to each other "[a]lmost daily[,]" and Jean-Joseph slept at Vreeland's home "some nights."

Vreeland spoke to the police about one week after the drowning and was told that the results of the toxicology reports were negative. The police asked Vreeland whether he knew of anything else that may have caused Jean-Joseph to pass out, at which point he mentioned that Jean-Joseph used to get severe headaches and maybe that was a possibility "[be]cause he told me he could feel them coming."

Vreeland testified that Jean-Joseph once told him that "he actually had ones where he would blackout [sic] when . . . they got that bad." Vreeland stated that he never personally witnessed Jean-Joseph experiencing a blackout but had witnessed Jean-Joseph having severe headaches. He explained that when Jean-Joseph had these headaches, "[h]e couldn't seem to focus and he seemed almost a little out of it." Jean-Joseph never told him specifically what caused the onset of his headaches.

Vreeland told the jury that Jean-Joseph had complained to him about headaches "a handful of times"; however, during the six weeks before he drowned, "he mentioned them more frequently and that's when I said 'you should see a doctor because you're blacking out from having headaches.'" Vreeland was unaware whether Jean-Joseph ever saw a doctor about his headaches. In response to a question whether Jean-Joseph had complained to him about any physical problems on the day of the party, he answered "No."

Earl Bryan testified that Jean-Joseph was a "good friend" whom he had known for about a year and one-half to two years before his death. They worked together, saw each other five or six times a week, and for about three weeks in the spring preceding his death, Jean-Joseph stayed with him. Jean-Joseph complained to him about migraine headaches and told him that on three or four occasions, he had blacked out because of migraine headaches. Jean-Joseph never discussed with him what triggered the headaches or blackouts and he indicated that he never personally witnessed Jean-Joseph having a blackout. He stated that Jean-Joseph told him that he would be standing and would black out, "meaning he'd fall on the ground and . . . he'd -- he would get back up after the fact that he fainted or lost consciousness[.]" He indicated that Jean-Joseph told him about the headaches and blackouts between two and six months before his death.

On rebuttal, plaintiff called Maxwell Hormilla, who described Jean-Joseph as his best friend. He told the jury that he and Jean-Joseph had been friends for ten years and that he had never known Jean-Joseph to have severe headaches or experience blackouts. Additionally, Jean-Joseph's father, Ludovic Jean-Joseph, testified that his son had complained of headaches during his senior year in high school. He took him to the hospital where doctors performed a CAT scan. Jean-Joseph received no further medical treatment and never complained of headaches or blackout to him afterwards.

I.

After conducting hearings outside of the presence of the jury, the court made a series of evidentiary rulings, which are now the subject of appeal. N.J.R.E. 104 (Rule 104 or 104). In one such hearing, the court initially ruled that testimony concerning Jean-Joseph's complaints about headaches and blackouts would be excluded because the incidents about which the witnesses would testify were either isolated or not based upon personal knowledge. Following another 104 hearing, the trial court found that Vreeland's proposed testimony that he had witnessed Jean-Joseph having severe headaches and that Jean-Joseph told him about having blackouts went beyond Jean-Joseph's complaints of headaches but included telling Vreeland about the blackouts, which the court found was "significant." Citing N.J.R.E. 804(b)(6), the court concluded that Jean-Joseph's statements to Vreeland were trustworthy, made in good faith, based upon personal knowledge, and Jean-Joseph was unavailable.

Once the trial court permitted this testimony, it reversed its earlier ruling and permitted other witnesses to testify about Jean-Joseph's complaints of headaches. The court then permitted plaintiff to present rebuttal witnesses who testified that plaintiff had not, during the months leading up to his death, complained of severe headaches.

The trial court also prohibited plaintiff from introducing the testimony of a volunteer from the Martinsville Rescue Squad, James Scott (Scott), who was one of the first responders. Scott testified during a Rule 104 hearing that upon his arrival to the scene, the group of three or four young adults present appeared "scared" and in "shock." They provided very little information until about one-half hour after his arrival. At that point, one of the females stated that before Jean-Joseph drowned, she saw him struggling, bobbing up and down and waving his arms. The trial court ruled that the statement was inadmissible because the declarant was unknown, the statement was made in response to a question, and there was a thirty-minute delay between the time the questioning commenced and when the response was given.

Additionally, the court barred Scott's testimony that neither he nor any of the other first responders believed that it was safe to enter the water. Plaintiff argued that this testimony was probative of the "environment" and "condition" of the lake and the "rescue effort." In precluding this testimony, the trial court stated that plaintiff was "essentially trying to make [Scott] an expert witness on the lake not being safe at ten o'clock at night." The court also prohibited Scott from explaining why he did not jump into the lake, concluding that this testimony was irrelevant because Jean-Joseph "was already dead at that point in time." The court did, however, permit Scott to describe the "physical condition of the lake" as he observed it upon his arrival at the scene.

Further, the trial court also precluded plaintiff from proffering the testimony of James Doggett (Doggett), the Association's former president, about the condition of the water. The day following Jean-Joseph's drowning, Doggett had been quoted in a newspaper article as stating that the water near Hickory Dock, where Jean-Joseph had drowned, was "dangerous for swimmers because the lake bottom is covered with branches and leaves that fall from trees lining the shore." II.

We begin our analysis by iterating the well-settled principle that a trial court's evidentiary rulings to admit or exclude evidence during trial are committed to the court's sound discretion. Alves v. Rosenberg, 400 N.J. Super. 553, 562 (App. Div. 2008). On appeal, such rulings will be reversed only if the court abused its discretion. Ibid. We find no such abuse with respect to any of the rulings under review on appeal.

A. The Hearsay Statements Regarding Jean-Joseph's Headaches and Blackouts

N.J.R.E. 802 bars the admission at trial of out-of-court statements proffered for the truth of the matter contained in the statement unless admissible pursuant to an authorized exception to the Rules of Evidence or other law. Here, the trial court found the testimony of Jean-Joseph's friends regarding his complaints of headaches and blackouts admissible under N.J.R.E. 804(b)(6), which provides that "in a civil proceeding, a statement made by a person unavailable as a witness because of death" is admissible "if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy." For evidence to be admissible under this rule, a trial court must find: (1) the declarant is dead, (2) the statement was made in good faith, (3) the statement was "made upon the declarant's own personal knowledge," and (4) that there is "a probability from the circumstances that the statement is trustworthy." DeVito v. Sheeran, 165 N.J. 167, 194 (2000) (citing Ayala v. Lincoln, 147 N.J. Super. 304, 307 (App. Div. 1977)). The trustworthiness of the statements attributed to Jean-Joseph is pertinent here.

The trustworthiness of a statement may be established by consideration of "'the flavor of the surrounding circumstances.'" Id. at 195 (quoting Beckwith v. Bethlehem Steel Corp., 185 N.J. Super. 50, 63 (Law Div. 1982)); Jastremski v. General Motors Corp., 109 N.J. Super. 31, 37 (App. Div. 1970). In examining trustworthiness, the trial court should consider the following factors: "whether the statement was made under oath; the duration of time between the event and the statement; whether the declarant had firsthand knowledge; and the credibility of the declarant." DeVito, supra, 165 N.J. at 195-96 (citing 2 McCormick on Evidence 324 (5th ed. 1999)).

The good faith and trustworthiness of the statements attributed to Jean-Joseph are apparent from their circumstances. He made the statements to close friends who had assisted him when he was incapacitated by the effects of the headaches. At the time he made the statements, he was providing a first-hand account of his own physical condition and, in several instances, while he was still ill. The reliability of his statements was corroborated by the witnesses' ability to view his conduct, demeanor and appearance at the time of the episodes. None of the witnesses who observed these episodes were parties in the lawsuit and there was no evidence that the testimony was being proffered for any ulterior motive of the witnesses. Although the witnesses could not give exact dates when Jean-Joseph made the complaints or when they observed his condition at the time he complained, there was no dispute that the statements were made within the eighteen-month period that preceded the drowning. Thus, the statements were also proximate. Under these circumstances, the trial court did not abuse its discretion in finding that the statements were made in good faith and were trustworthy.

Further, we are not persuaded that the statements should have been excluded, as plaintiff argues, because defendants' answers to interrogatories did not disclose defendants' intention to proffer this evidence. Although plaintiff is correct that the statements the witnesses attributed to Jean-Joseph were not disclosed in answers to interrogatories, evidence of Jean-Joseph's illness and potential connection to the drowning was apparent long before trial, having been proffered by Brosius and Vreeland during their deposition testimony. Vreeland was deposed in September 2006 and mentioned Jean-Joseph's complaints about headaches as a reason for his sudden drowning, while Brosius was deposed two months before trial commenced. Moreover, in response to the interrogatory inquiring about what defendants believed caused or contributed to Jean-Joseph's death, defendants stated that it was his actions or inactions that caused or contributed to his death. Finally, the court permitted plaintiff to present testimony from others to rebut the claim that Jean-Joseph complained of headaches and blackouts. Consequently, we do not find that plaintiff was prejudiced by defendants' failure to identify the statements attributed to Jean-Joseph which they intended to introduce through the proffered witnesses.

Likewise, the fact that there was no evidence presented that Jean-Joseph complained of headaches during the day or evening leading up to his death did not minimize the relevancy of the proffered evidence. The thrust of the testimony was that the headaches and blackouts came upon Jean-Joseph unexpectedly and that he was unaware of any precipitating event.

B. The Purported Excited Utterance From The Unidentified Female Swimmer

Plaintiff contends the trial court erred in concluding that the statement attributed to the unidentified female swimmer who recalled seeing Jean-Joseph "bobbing" up and down in the water just before he disappeared was inadmissible. Plaintiff contends the statement met the criteria for admissibility as an excited utterance under N.J.R.E. 803(c)(2), which permits the admission into evidence of "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." The court declined to admit the evidence, finding that the declarant was unknown, there was a one-half hour lapse in time between the time Scott first commenced his questioning and the time of the witness' later explanation, and the statement was given specifically in response to a question.

The fact that Scott could not pinpoint which of the females at the scene made the statement is not necessarily a bar to the admissibility of the statement. See State v. Reese, 288 N.J. Super. 133, 137 (App. Div. 1996). In Reese, we rejected defendant's claim that the fact that the officer's report of what witnesses told him was summarized and did not specifically identify what was said by each witness, required the barring of statements as excited utterances.

Similarly, we do agree that a lapse in time of one-half hour or the fact that the statement was made during questioning is outcome determinative to the admissibility of the statement. A lapse in time, or the fact that a statement was given in response to a question, are merely factors a trial court must consider in order to determine whether the requirements for admissibility of statements as excited utterances have been met. Truchan v. Sayreville Bar and Restaurant, Inc., 323 N.J. Super. 40, 50 (App. Div. 1999) (noting that "the fact that a statement is made in response to a question does not render the statement inadmissible if the declarant is still in a state of excitement caused by the event") (citing State v. Simmons, 52 N.J. 538, 542 (1968), cert. denied, 395 U.S. 924, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969)); see also State v. Conigliaro, 356 N.J. Super. 54, 63 (App. Div. 2002) (observing "the fact that the statement was made 'in response to an inquiry' does not negate its spontaneity" (quoting Simmons, supra, 52 N.J. at 542)).

Nonetheless, even assuming the trial court mistakenly exercised its discretion in excluding this testimony, there was sufficient evidence before the jury, through the testimony of Matson and Sockwell, from which the jury could reasonably conclude that Jean-Joseph was "bobbing" up and down at some point before drowning. Matson testified that she and her friends had been in the water approximately five or six minutes when she "heard some splashing and turned around and there wasn't anything." Sockwell testified that she saw Jean-Joseph's silhouette in the waves "kinda going up and down." Consequently, plaintiff was not prejudiced by the exclusion of Scott's testimony on this issue.

C. Scott's Testimony Concerning the Condition of the Lake

Plaintiff argued that Scott's testimony that he and the other first responders did not believe it was safe to go into the water was a present sense impression under N.J.R.E. 803(c)(1), which permits the admission of "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition without opportunity to deliberate or fabricate." The court did not preclude Scott from describing the conditions as he observed them at the time he arrived at the scene. Scott's opinion that the lake was dangerous was properly excluded. There was no evidence that he had personal knowledge of the lake's condition. Moreover, the jury heard Matson's testimony as to the condition of the lake as she felt along its bottom with her hands and feet while searching for Jean-Joseph. Additionally, the rescue diver, Ronald Rinaldi (Rinaldi), described the bottom of the lake in the area where Jean-Joseph was found the next morning. The testimony from these two witnesses was certainly more probative of the lake's condition than Scott's testimony.

D. Exclusion of Doggett's Rebuttal Testimony

The court ruled that Doggett's testimony was not proper rebuttal evidence because he was not offered as a witness to respond to any new evidence or allegation raised by the defense during the presentation of its case. "Rebuttal evidence is permissible when necessary because of new subjects introduced on direct or cross-examination of defense witnesses." State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 486 (2000) (citing State v. Provoid, 110 N.J. Super. 547, 557 (App. Div. 1970)). Rebuttal testimony may be admitted where it is neither cumulative nor repetitive, and it contradicts evidence presented for the first time in the opposing party's case. D.G. ex rel. J.G. v. North Plainfield Bd. of Educ., 400 N.J. Super. 1, 22-23 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008). For example, a witness that has not been included on a party's witness list may be permitted to testify to rebut a party's claim that another witness's testimony was fabricated. Kranz v. Tiger, 390 N.J. Super. 135, 152-53 (App. Div.), certif. denied, 192 N.J. 294 (2007).

In this case, Doggett's testimony regarding the condition of the lake in the area near the dock would have been irrelevant and cumulative. There was no evidence as to the last time Doggett had been near Hickory Dock. Moreover, plaintiff's witnesses, Matson and Rinaldi, who were actually in the lake, were certainly in a better position to provide testimony concerning its condition. Further, the jury also heard testimony from plaintiff's expert, who opined that the lake was dangerous.

Finally, although plaintiff claims defendants violated discovery rules by not providing Doggett's name during discovery, plaintiff does not dispute that Doggett had been contacted on her behalf months before the trial. Consequently, he could have been included as a witness on plaintiff's witness list.

E. Defendant's Engineering Expert

Plaintiff argues the court abused its discretion when it permitted the testimony of Gary Anderson, defendants' engineering expert, because he was unqualified. Specifically, plaintiff contends that Anderson's expertise was limited to traffic conditions and that he had no familiarity with the applicable administrative codes, which he reviewed for the first time when he authored his expert report.

When plaintiff objected to Anderson's qualifications, the court conducted a Rule 104 hearing, during which Anderson disclosed that he held a bachelor's degree in civil engineering from the Steven's Institute of Technology and was a licensed professional engineer and building inspector with a sub-specialty in traffic engineering. He testified that he was employed by "an accident reconstruction and trucking engineering firm." Although he worked on "numerous cases" involving the determination of whether buildings complied with relevant codes, he acknowledged that providing an expert report in connection with Jean-Joseph's death was his first drowning case. He additionally admitted that he read the section of the regulations governing lakes in New Jersey for the first time when he prepared for this case. The court found that Anderson met the threshold requirements to be qualified as an expert and that plaintiff's objections went "to the weight the [j]ury can give his testimony as opposed to his qualifications." We agree.

III.

Plaintiff also contends that she is entitled to a new trial because the court erred when it denied her request that the jury be instructed on (1) "industry standards regarding signage," (2) an attractive nuisance, and (3) the Bridgewater Code governing pools. We disagree.

A. Industry Standards Regarding Signage

At the jury charge conference, plaintiff argued that the jury should be instructed on "the universal standard of signage" and that the jury could find defendants had failed to "adhere to that national standard." Defendants argued that the charge was inapplicable because no industry was involved here. The court found that the charge was "designed for a situation where there are not [sic] administrative regulations." The judge found the issue in each of the cases cited by plaintiff, Adams v. Atlantic City Electric Co., 120 N.J.L. 357 (E. & A. 1938); Buccafusco v. Pub. Serv. & Gas Co., 49 N.J. Super. 385 (App. Div.), certif. denied, 27 N.J. 74 (1958), was whether compliance with industry standards was sufficient to preclude a finding of negligence, which was not at issue here.

On appeal, plaintiff argues that the jury should have been instructed on the charge set forth in Model Jury Charge (Civil), 5.33, "Standards of Construction, Custom and Usage in Industry or Trade." That charge, now designated as 5.10H, states:

Some evidence has been produced in this case as to the standard of construction in the industry. Such evidence may be considered by you in determining whether the defendant's negligence has been established. If you find that the defendant did not comply with that standard, you may find the defendant to have been negligent. However, the general custom of the industry, although evidential as to what is the reasonable standard in such industry, does not conclusively establish the care the defendant was required to exercise in the performance of its operations. Compliance with an industry standard is not necessarily conclusive as to the issue of negligence, and does not, of itself, absolve the defendant from liability. The defendant must still exercise reasonable care under all the circumstances, and if you find that the prevailing practices in the industry do not comply with that standard, the defendant may be found negligent by you notwithstanding compliance with the custom or standard of the industry.

[Model Jury Charge (Civil), 5.10H, "Standards of Construction, Custom and Usage in Industry and Trade" (emphasis added).]

Plaintiff cites the source cases for the model charge as support for her contention that it should have been given here. She argues that the "question of signage" was a fact issue for the jury, which was "undercut" by the court's allowance of Dann's testimony regarding the signage while refusing to provide the charge.

As defendants correctly urged before the trial court, this case involves no construction, trade, or "industry." Further, to the extent the "industry" of private lake clubs was at issue, plaintiff's expert, Dann, provided no evidence of the practices followed by other such facilities. Nor did she identify any specific standard to which defendants failed to adhere. Her testimony merely cited general practices for signs at any type of location.

B. Attractive Nuisance

Next, plaintiff argued that an attractive nuisance instruction was warranted because the "Association knew that young adults were members of the Association. The fact that they knew this would actually attract their attention and the fact that they knew that they were swimming there; all those factors together combined for this to be an attractive nuisance." Additionally, plaintiff argued that the instruction was appropriate based upon Dann's expert opinion that the failure to post adequate warnings and signs and to provide a life buoy and fencing "created an attractive nuisance to young adults." Defendants objected, contending that the charge was "applicable to infant plaintiffs." The court agreed and denied the request.

The doctrine of attractive nuisance is applicable to "children." Restatement (Second) of Torts: Condition and Use Of Land 339. Under certain conditions, it subjects a landowner to liability for physical harm that befalls a child whose trespass was "caused by an artificial condition upon the land." Ibid. Those conditions include, among others, that "the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it." Restatement (Second) of Torts: Condition and Use Of Land 339(c). The doctrine applies "the infant-trespasser" exception to the general principle that a landowner owes "slight" duty to a trespasser. McColley by McColley v. Edison Corp. Ctr., 303 N.J. Super. 420, 426-27 (App. Div. 1997). It is predicated, in part, on the recognition that parents cannot always be with their children. Strang v. S. Jersey Broadcasting Co., 9 N.J. 38, 45-46 (1952).

New Jersey does not have a "per se rule that a child above a certain age should be deemed to be aware of the risk." Vega by Muniz v. Piedilato, 154 N.J. 496, 504 (1998). There can be no doubt, however, that Jean-Joseph, who was twenty-three at the time of his death, was not a child. He was therefore entirely capable of assessing the risks of his situation. There was no evidence that he suffered from any cognitive disability. The fact that was living at home shortly before his death, had not completed college, and worked two part-time jobs did not render him a child to be afforded the protection of this doctrine.

C. Bridgewater Code

In plaintiff's brief, she contends Dann "testified that the Bridgewater Code, Chapter 195 mandates that a fence enclose the lake." Dann never testified as such, because she was precluded from doing so.

In Dann's report, she expressed the opinion that the lake was a swimming pool within the meaning of the Bridgewater Code, requiring the fencing and enclosure of swimming pools, and that had the Association complied with this requirement, the swimmers could not have entered without jumping the fence. Consequently, she concluded that the absence of a fence created a dangerous condition. In finding this evidence inadmissible, the court found that the lake was not a pool as a matter of law. Bridgewater's Code defines a "swimming pool" as:

An outdoor tank or receptacle built of concrete, plastic or other material, designed for swimming, usually of a rectangular or circled shape. In addition to its common dictionary definition and usage, it shall include any and all existing or future man-made ponds which can be filled with water or which are filled with water to a depth of 18 inches or more.

[Bridgewater Municipal Code, 195-1(B).]

While there is no dispute that the lake exceeds eighteen inches in depth, there is also no dispute that the Bridgewater Municipal Code generally distinguishes between a pond and a lake. For example, the "Park Regulations" section of the Code differentiates "lakes" from "ponds" in its prohibition against waste disposal in "any fountain, drain, pond, lake, stream or any other body of water in any park." Bridgewater Municipal Code, 151-3(B)(6)(a). Moreover, Webster's Dictionary describes a "pond" in part as "a body of water usu[ally] smaller than a lake." Webster's New Collegiate Dictionary 886 (1979). In comparison, a "lake" is "a considerable inland body of standing water." Id. at p. 638. Thus, the trial court correctly precluded Dann's testimony that Sunset Lake was a swimming pool under the Code and should have been fenced completely.

IV.

Plaintiff's final argument that the court erred when it denied her motion for a mistrial based on the court's conduct towards plaintiff's trial counsel is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

Plaintiff's counsel sought an order declaring a mistrial before opening statements. The previous day the court determined that plaintiff's expert would not be allowed to testify that the entire lake was a swimming pool or a designated bathing beach within the meaning of the New Jersey Administrative Code.

The next day, defendants moved for dismissal based on the court's prior ruling, arguing that without the expert testimony, plaintiff would not be able to "establish a duty that my client breached . . . ." In response, plaintiff argued that the expert testimony was unnecessary and she should be allowed to proceed with her case under common law negligence principles. The proceedings ended for the day before the court reached that issue. Before the trial court decided the dismissal motion, it heard the parties' arguments regarding whether plaintiff's case could proceed under common law principles.

When the court announced that it was "prepared to rule" on that issue, plaintiff's counsel interrupted to move for a mistrial. She contended that the trial court's "conduct . . . has been irrational, arbitrary, capricious, personal and biased" and the pretrial decisions "unfair and biased depriving [plaintiff] of her legal rights." She proceeded to enumerate several events that allegedly supported that argument. It is unnecessary to recount them here, because the court ruled in plaintiff's favor and denied defendants' motion for dismissal. It found "that liability can be premised either due to a breach of the Administrative Code of [sic] breach of the Common Law duty to the decedent." Plaintiff's counsel raised no further argument that the judge should recuse herself and declare a mistrial.

In her appellate brief, plaintiff simply reiterates these pretrial events and argues: "Clearly, this set a bad tone for the trial where fairness and justice is paramount." She cites no events during the trial and provides no further basis for her claims. Plaintiff provides no legal basis for her contention that she is entitled to a new trial because the judge denied her motion for a mistrial.

Plaintiff's counsel clearly inserted her motion just prior to the judge's decision in anticipation of a negative ruling that would dismiss her complaint. Here, she in fact won her argument and the judge allowed the case to proceed.

 
Affirmed.

Plaintiff settled with James Brosius, James E. Brosius, and Michele A. Brosius after jury selection.

By order dated April 27, 2007, summary judgment was granted in favor of Jamie Matson.

While leave was granted to James Brosius, James E. Brosius, Michele A. Brosius, and Jamie Matson, by order dated February 17, 2006, to file a third-party complaint against Sunset Lake Community Club, Inc., Tom Kern, Jim O'Connell, Cindy Welsh, Gabe Halpern, and John Fedors, Jr., a third-party complaint is not part of the record on appeal.

Incorrectly pled as Sunset Lake Community Association, Sunset Lake Association and/or Sunset Lake Clubhouse.

By Consent Order dated May 11, 2006, any claims asserted against Tom Kern, Jim O'Connell, Cindy Welsh, Gabe Halpern and John Fedors, Jr. are "limited to their capacity as officers and/or trustees of the Sunset Lake Community Club, Inc." . . . and "any allegations of personal liability or claims for personal liability against these defendants" are barred.

Throughout this opinion, any reference to plaintiff refers to Marie Edmond. Decedent is referred to as "Jean-Joseph," and in doing so, we intend no disrespect but do so only for ease of reference.

Our reference to "Brosius" refers to the son of James E. and Michele A. Brosius.

Jacwich is spelled various ways throughout the transcripts.

Also spelled Breta in the record.

As a private lake, Sunset Lake is a "specially exempt facility" under N.J.A.C. 8:26-1.3.

(continued)

(continued)

35

A-6244-06T3

June 8, 2009