RICHARD LUDWICZAK v. SHOWBOAT ATLANTIC CITY OPERATING COMPANY, LLC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5189-09T1

RICHARD LUDWICZAK,

Plaintiff-Appellant,

v.

SHOWBOAT ATLANTIC CITY OPERATING

COMPANY, LLC d/b/a SHOWBOAT

CASINO HOTEL,

Defendant-Respondent.

________________________________________________________________

June 3, 2011

Argued May 9, 2011 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2823-08.

Christopher F. Struben argued the cause for appellant (Michael A. Percario, attorney; Roger J. Ermola, II, on the brief).

Christopher C. Mauro argued the cause for respondent (Camacho Mauro Mulholland, LLP, attorneys; Reena Shah, on the brief).

PER CURIAM

Plaintiff, Richard Ludwiczak, appeals from Judge Kathryn A. Brock's May 21, 2010 order dismissing his personal injury complaint. The order was entered after the jury was selected and after a hearing pursuant to N.J.R.E. 104(a), but before testimony was presented to the jury. Plaintiff's proposed expert testified at the hearing. The judge ruled that his proposed testimony would be barred because his opinion was a net opinion. The judge further ruled that without an expert, plaintiff could not prove its case. Accordingly, the dismissal order was entered. Plaintiff argues that the judge erred in making these rulings. We disagree with plaintiff and affirm.

On April 6, 2008, plaintiff went to defendant's casino, the Showboat, in Atlantic City. He was transported there by a bus operated by Academy Bus Company,1 which plaintiff boarded at the Cheesequake Rest Area of the Garden State Parkway, near plaintiff's home in Linden. Plaintiff was then eighty-three years old. He parked his car at the rest area and paid $33 for a round-trip bus ticket. It was his intention to return to the rest area after his activities at the casino.

The last bus returning to Cheesequake was scheduled to leave the Showboat at 8:40 p.m. Plaintiff went to the bus depot area at the casino about two hours before the departure time, intending to board that bus. He went outside to the curb to form the beginning of a line. He sat on a fixture near the spot where people would eventually board the bus. As time passed, other intended bus passengers arrived and the line formed behind plaintiff. Based upon varied estimates, fifteen to thirty people were waiting for the bus to arrive.

Before the bus arrived, a man, whose identity was never ascertained, cut in front of plaintiff. Plaintiff confronted the man by standing up and telling him to go to the back of the line. The two argued, after which the man pushed plaintiff to the ground and fled the scene. The entire confrontation lasted less than two minutes. Plaintiff contended he was injured as a result of this incident, and he brought this action against defendant seeking damages for the injuries.

Security Officer Davis Guzman responded to the scene within three minutes. He found plaintiff in a crowd of people, obtained a description of the assailant, and notified the Showboat's security force. Guzman asked plaintiff whether he wanted to call the police, but plaintiff declined. Plaintiff also refused medical treatment. Plaintiff got on the bus and returned home.

In his deposition testimony, Guzman explained that he patrolled the area encompassing the bus depot approximately six to eight times during his eight-hour shift. He had been a bike patrol guard for approximately one-and-one-half years. Before that, he was an indoor casino guard for Showboat, and prior to that, he worked for Resorts Hotel and Casino. He had not received specific training to be a bike patrol guard (other than instruction on the use of a defibrillator). He had received a manual, but did not read it in its entirety.

The Showboat normally had two guards on bike patrol at any given time. It was also Showboat's practice to summon the police when an assault occurred. As we have stated, the police were not summoned in this case because plaintiff did not want them called. According to Guzman, he had responded to about ten to twenty incidents occurring at the bus depot over the course of his employment at Showboat. However, the record does not reveal the nature of the incidents.

Plaintiff produced no evidence of the occurrence of any similar altercations occurring at defendant's bus depot. Defendant had not received any complaints about anyone matching the assailant's description.

Melvin Gray, the Academy bus driver who transported plaintiff from the Showboat to the rest area that evening, testified at his deposition that when he arrived at the depot, there were approximately fifteen people in line, and another five seated inside who intended to board the bus. Gray did not deem the terminal overcrowded because the capacity of the bus was sufficient to accommodate all of those waiting to board it.

Plaintiff retained the services of Sergeant Andrew Pisani, a former Union City police officer, as his proposed expert in security and crowd control. This was Pisani's first case as an expert witness. He reviewed the discovery materials and relied on his own experience to produce a report. The essence of his opinion was that "plaintiff's injuries would have been avoided with proper measures of crowd control and procedures for orderly loading and unloading of the buses at the depot. Further, proper training and adequate patrols would have avoided the plaintiff's injuries." At the Rule 104 hearing, Pisani described his qualifications. He explained that he had thirty years of experience as a police officer and that he had taught at various police academies. He said he had been responsible for crowd control activities and taught methods for crowd control. His experience included managing crowds at events such as parades and concerts. This included setting up barriers and managing the flow of people in enclosed areas. His testimony at the Rule 104 hearing included this:

The security at the bus depot was not adequate for the transferring of personnel back and forth; where the people arrive, where people depart, the bus area. Since there's only on[]e security guard covering all of the posts that he had to cover, it was -- it's very difficult in order to prevent any possibility of a crime or -- or an injury or anything of that nature, any type of emergency.

Based upon his training and experience, Pisani included the concept of crowd control in his definition of security. He commented that crowd control tactics he learned at the police academy dealt with deployment of personnel, how to disperse a crowd or move it along, and how to spot criminals, such as muggers or pickpockets. In his report, he stated that "[i]t is standard security and crime prevention practice that security personnel must be properly deployed to maintain adequate security." He further stated that "[a]n organized line and methods for loading and unloading are common security measures utilized where people gather to prevent incidents and crimes from occurring." He testified at the Rule 104 hearing that these statements in his report, together with the ultimate conclusions he expressed in his report, were based on his training as a police officer. However, he acknowledged under cross-examination that he had no experience in private security and did not know how the standards that he understood as a police officer would be applied to a private security guard for a commercial enterprise.

Ultimately, Pisani opined that if ropes or barriers were utilized to define the line more clearly, the incident "could possibly have been" avoided.

Pisani was unfamiliar with defendant's physical facilities and with Atlantic City itself. He did not know, for example, how many gates were at the depot, which he had never visited. He did not know the bus schedule or how many patrons were at defendant's casino or how many used the bus depot on a given Sunday night. He was not familiar with the Casino Control Commission's security regulations. He never contacted the Atlantic City Police Department and did not rely on any crime data for Atlantic City generally, or for the area immediately surrounding defendant's casino, as a basis for his opinions. He had no other incident reports from defendant's bus depot and no statistics as to crime levels in Atlantic City or in defendant's specific area. His opinion was based on general observations made in Union City, not Atlantic City. He was not aware of any security procedures or standards of other bus depots in Atlantic City or elsewhere similar to that operated by defendant.

Judge Brock concluded that Pisani could not testify as an expert in this case, because his opinions were not based on any statistics or other information related to the particular location or defendant's operation, and because he was unable to demonstrate that according to his own training and experience in police work, the erection of stanchions and barrier ropes would lead to better behavior by those in line. The judge noted that Pisani's experience dealt with defusing situations in which people are upset or hostile. Those situations were not similar to what occurred here. The judge ultimately concluded that Pisani failed to provide a sufficient basis for his opinions and that they were basically his personal opinions. Accordingly, she ordered that the net opinion rule precluded Pisani from testifying at trial.

Plaintiff then made an alternative argument. He urged that he could present his case without an expert because the foreseeability of this incident, and defendant's negligence in failing to prevent it, were within the common knowledge of the average juror. Plaintiff argued that jurors could, based upon their common experience, understand that a lack of security and the absence of a method for loading and unloading passengers in an organized manner created a scenario in which an assault was reasonably foreseeable.

The judge rejected plaintiff's argument. She found that there was no evidence that would lead to foreseeability of harm caused by inadequate security in an incident such as this, in which an unidentified third party criminally attacked an individual waiting in line for a bus. The record contained little evidence about the size, shape, and design of the facility, and there was no evidence about crime levels in the neighborhood, reports of any similar incidents, or the like. The judge concluded that plaintiff could not make out a claim without an expert. Accordingly, she ordered dismissal. This appeal followed.

We first address the judge's order barring Pisani's testimony under the net opinion rule. The decision to allow an expert to testify is within the trial court's discretion, and will be overturned on appeal only if the court's decision amounts to a mistaken exercise of that discretion. See Riley v. Keenan, 406 N.J. Super. 281, 295 (App. Div.), certif. denied, 200 N.J. 207 (2009). N.J.R.E. 703 requires that an expert's opinion must be based upon "facts or data . . . perceived by or made known to the expert at or before the hearing."

"The net opinion rule is a prohibition against speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998). "Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities." Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990).

N.J.R.E. 703 requires an expert "to give the why and wherefore" of his or her opinion rather than a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). Therefore, experts "must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable." Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). Particularly, they must relate their conclusions to generally accepted, objective standards of practice, and "not merely to standards personal to the witness." Fernandez v. Baruch, 52 N.J. 127, 131 (1968). An expert's conclusion is inadmissible as a net opinion when it is a bare conclusion unsupported by factual evidence. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); see also Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (noting that "'[t]he weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated'") (citation omitted).

Pisani based his opinion on his experience as a police officer. He did not identify a generally accepted, objective standard of practice from which defendant deviated. For example, Pisani merely gave his opinion, based on his police experience, that the risk of crimes at bus depots is high because they are high traffic areas. He said crimes at such locations are foreseeable. However, he cited no statistical data, prior history of such incidents at defendant's depot or other similar locations in Atlantic City, crime statistics, or any other information to support his opinion. Pisani's opinion regarding crowd control was equally deficient. His contention that an organized line and loading method are common security measures to be used where people gather in order to prevent the occurrence of crimes was nothing more than a broad statement, unsupported by any objective standard of practice or other data to support the opinion.

We find no mistaken exercise of discretion in Judge Brock's decision to bar Pisani's testimony. She correctly concluded that Pisani did not identify the "why and wherefore" of his opinion.

We now turn to plaintiff's common knowledge argument. Plaintiff argues that "defendant had no organized method for people to line up for the bus, creating the likelihood that a skirmish would result from the resulting chaos." Plaintiff further contends that, because waiting in line is an exercise commonly understood to promote order, an expert is not needed to assist the jury in determining whether the lack of an organized line was a proximate cause of plaintiff's injuries. We do not find this argument persuasive.

The need for expert testimony in a tort action depends on "'whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment'" about a party's conduct. Scully v. Fitzgerald, 179 N.J. 114, 127 (2004) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982)). Its purpose is to "assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. Accordingly, jurors should have the assistance of experts when required to determine issues necessitating specialized knowledge. Jobes v. Evangelista, 369 N.J. Super. 384, 399 (App. Div.), certif. denied, 180 N.J. 457 (2004). However, "when the subject can be understood by jurors utilizing common judgment and experience," it is not necessary. Campbell v. Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002).

Negligent security actions focus on the issue of foreseeability. Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 504 05 (1997); Butler, supra, 89 N.J. at 276. "[B]usiness owners and landlords have a duty to protect patrons and tenants from foreseeable criminal acts of third parties occurring on their premises." Id. at 504 (citing Butler, supra, 89 N.J. at 280). Foreseeability should be evaluated according to the totality of the circumstances, and take into consideration a history of criminal activity at the location of the incident giving rise to the claim. Butler, supra, 89 N.J. at 274-76.

Plaintiff claims that, because jurors are familiar with the act of standing in line, and with the stress of catching the last bus home, they do not require an expert to understand the danger posed by unattended groups of people waiting for a bus. Such a presentation would invite jury speculation. Absent an expert, there would be no proof that defendant's security staffing level at the time of the incident violated industry norms or regulatory requirements. Further, there would be no competent evidence to establish that such crimes should have been reasonably anticipated, that defendant's actions were unreasonable, or that any different actions could have prevented the assault from happening.

Plaintiff also contends that defendant's maintenance of its bus depot created a dangerous condition in which patron-on-patron assaults were foreseeable. He urges us to extend to the facts in this case the mode of operation doctrine. Citing Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003), plaintiff argues that "[a] business owner has a duty to provide a safe environment for its invitees." We do not dispute that general proposition, but we agree with defendant that plaintiff's argument is premised on cases wholly distinguishable from this case. We reject the proposition that a rational jury, without expert opinion, could find that this incident was foreseeable by virtue of defendant's mode of operation.

Generally, "[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation." Ibid. Because owners are liable for conditions about which they had actual or constructive knowledge, they must proactively discover and eliminate dangerous conditions on their premises. Ibid. Constructive knowledge exists when a condition is present for such a period of time that it should have been discovered by the owner. Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964).

Plaintiff claims negligence should be inferred in this case because defendant's bus depot was maintained in such a state that its very nature created a reasonable likelihood of a dangerous incident. See Nisivoccia, supra, 175 N.J. at 563 64. In such cases, a defendant bears the burden of demonstrating that it did "all that a reasonably prudent man [or woman] would do in light of the risk of injury his [or her] operation entailed." Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966).

However, Nisivoccia, Bozza, and Wollerman, involve slip-and-fall fact patterns in self-serve areas of grocery stores and cafeterias. Factually, there is a wide difference between cases in which a plaintiff is injured by an actual condition of the physical premises, and a case like this one, in which a third party voluntarily injures a plaintiff while on the defendant's premises. In Ricci v. American Airlines, 226 N.J. Super. 377 (App. Div.), certif. denied, 113 N.J. 639 (1988), we dealt with a similar, but still distinguishable, fact pattern. The airline seated a non-smoker in the smoking section of a plane, next to a man who smoked a great deal, and an altercation ensued. Id. at 380. Relying on Wollerman, we found that the airline should have foreseen trouble between the two passengers:

We think that a reasonable jury could conclude that [the airline] should have foreseen a flareup between a militant nonsmoker and an intransigent smoker in the situation it created and that it should have taken appropriate safeguards to prevent it. This is particularly true in light of the fact that [the airline] knew or should have known that overbooking, switched seats and the separation of parties, in themselves, are anxiety producing situations which could well have exacerbated ordinary tensions.

[Id. at 383.]

Defendant's actions here did not mirror those of American Airlines. In that case, flight attendants were alerted to the non-smoker's displeasure at being seated in the smoking section and did nothing about it. Id. at 379-80. However, in this case plaintiff did not alert defendant of any concerns before the incident occurred. Plaintiff's analogy between American Airlines creating the situation described above, and defendant purportedly creating the incident of April 6, 2008 is not persuasive. Showboat was not on actual or constructive notice of an impending problem.

Finally, plaintiff argues that defendant assumed the heightened duty of a common carrier by virtue of operating a bus depot, and that under that heightened duty, should have foreseen an incident such as this. We decline to consider this argument because plaintiff did not raise it in the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

1 Academy Bus Company was initially a defendant in the case, but plaintiff voluntarily dismissed his claim against that party.