BRIAN LESAGE v. JC PENNEY COMPANY INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3154-08T2

BRIAN LESAGE and DONNA LESAGE,

Plaintiffs-Appellants,

v.

JC PENNEY COMPANY, INC.,

JC PENNEY CORPORATION, INC.,

GENERAL GROWTH PROPERTIES, INC.

D/B/A WOODBRIDGE CENTER MALL,

WOODBRIDGE CENTER, LLC,

Defendants-Respondents.

__________________________________

March 30, 2012

 

Argued November 10, 2011 - Decided

 

Before Judges Axelrad, Sapp-Peterson and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6421-05.

 

David M. Kupfer argued the cause for appellants (Carroll McNulty & Kull, LLC, attorneys; Mr. Kupfer and Shaun I. Blick, on the briefs).

 

Alexander Krasnitsky argued the cause for respondent JC Penney Company, Inc. and JC Penney Corporation, Inc. (Mintzer Sarowitz Zeris Ledva & Meyers, LLP, attorneys; Lawrence S. Sarowitz and Mr. Krasnitsky, on the brief).

 

 

John R. Parker argued the cause for respondent General Growth Properties, Inc. d/b/a Woodbridge Center Mall, Woodbridge Center, LLC (John R. Parker, LLC, attorneys; Mr. Parker, on the brief).

PER CURIAM

In this premises liability action, plaintiffs Brian and Donna LeSage (Brian and Donna,1 respectively) appeal from a judgment after a jury trial of no cause of action in favor of defendants JC Penney Company, Inc. and JC Penney Corporation, Inc. (collectively, JC Penney). Plaintiffs also appeal from the court's pre-trial order granting summary judgment to defendant Woodbridge Center, LLC (Woodbridge LLC), the owner of the Woodbridge Center Mall (the Mall). Brian suffered head injuries that he claimed resulted from an assault while in the restroom of the JC Penney store at the Mall on September 14, 2003. The jury specifically found JC Penney was not negligent, and did not reach questions of causation and damages.

Plaintiffs seek reversal and a new trial, arguing principally the court erred in evidentiary rulings: (1) limiting medical experts' testimony that Brian's injuries were
more consistent with an assault than other causes; (2) permitting testimony that Brian had previously fainted while urinating; and (3) declining to give preclusive effect to the determination of the Victims of Crime Compensation Board (VCCB) that Brian was a violent crime victim. They also argue the claim against Woodbridge LLC should not have been dismissed because Woodbridge LLC owed a duty to provide security within the JC Penney store.

We discern no abuse of discretion in the evidentiary rulings of Judge Phillip L. Paley, and, in any event, the rulings were not capable of producing an unjust result, since the jury found no negligence. Also, the court, by Judge Edward Ryan, properly granted Woodbridge LLC's pre-trial summary judgment motion on the grounds that it owed no duty to secure the restroom in the premises JC Penney owned. Therefore, we affirm.

I.

A.

At the jury trial in March 2008, Brian testified that he stopped at the Mall shortly after it opened at 11:00 a.m. on Sunday, September 14, 2003, in order to use a men's room. He was on his way from his home in Berkeley Heights to Burlington, to attend a coin show. As the drive would be long, he stopped to urinate. He explained that, for various reasons, he avoided using restrooms of diners, fast food establishments, or highway rest areas. The defense raised questions about the plausibility of Brian's reasons for stopping at the JC Penney store, in part by highlighting that it was not on the most direct route from him home to the coin show, he parked far from the store entrance in a virtually empty lot, he passed other places where he could stop, and he initially said the coin show was in Lincroft.

JC Penney's surveillance video recorded him entering the store at around 11 a.m., walking down an aisle at a fast pace, and then into a hallway near the store's men's room. At around 11:20 a.m., he was discovered on his knees on the men's room floor. He had suffered traumatic injuries to the skull. He was conscious but incoherent, and later lapsed into a coma that lasted two weeks. Brian testified that he recalled being pushed or feeling something touch his back before the injury, but he recalled little else. The defense suggested that Brian may well have confused the touching with that of persons assisting him after the incident.

Plaintiffs attempted to prove that someone assaulted Brian, and that JC Penney negligently provided security in the men's room, which negligence was a proximate cause of Brian's injuries. Brian did not see anyone in the men's room and there were no other witnesses. Consequently, plaintiffs relied on circumstantial evidence and the testimony of two of Brian's treating physicians, Dr. Edward Von Der Schmidt, III, a neurosurgeon and Dr. Emmanuel Hriso, a neuropsychiatrist.

The circumstantial evidence included Brian's testimony that he left his wallet under his car seat, but had $400 cash in his pocket when he entered the men's room, none of which was recovered after he was found injured on the floor. The defense raised questions about the plausibility of that claim. Plaintiffs also suggested the police did not adequately investigate the possibility that a crime was committed against Brian, while the defense elicited evidence of the extensiveness of the investigation.

The physicians opined in depositions entered into evidence that Brian's injuries resulted from trauma to the head, followed by a fall to the floor, which caused additional injuries. They testified Brian's head injuries were more extensive than those typically caused solely by a fall after fainting.

Brian's treating physicians were asked to address the possibility that Brian's injuries resulted from fainting because three months before the incident at JC Penney, Brian had fainted while urinating at his home, according to his personal physician, Dr. Thomas Jackson. Brian testified he had been working outside in the heat for a prolonged period of time without eating or drinking. Brian was fifty-eight years old at the time, and suffered from high blood pressure, which had been controlled with medication. His personal physician, who examined him shortly after the episode at home, testified that the fainting resulted from low blood pressure. Dehydration lowered Brian's blood pressure, and the act of urinating stimulated the vagus nerve to lower blood pressure even more.

The court had denied plaintiffs' pre-trial motion to exclude evidence of the fainting episode. Plaintiffs argued that absent expert medical testimony, which JC Penney had not obtained, there was insufficient basis to suggest to the jury that the condition that caused the June 2003 fainting caused plaintiff to faint again in September and suffer injuries from the fall. JC Penney argued evidence of the fainting episode was relevant to discredit plaintiffs. They denied the episode in depositions, notwithstanding evidence that Brian told a treating physician about the episode shortly after it happened; Donna mentioned it to police investigating the September 2003 incident; and plaintiffs' son also mentioned the incident to police. The court ruled the prior evidence was admissible for that purpose. After that ruling, plaintiffs chose to elicit proof of the fainting episode in their direct case.2

In response to a motion in limine by JC Penney, the court also excised portions of Dr. Von Der Schmidt's and Dr. Hriso's testimony regarding whether Brian was assaulted, although the excisions were less extensive than requested. Dr. Von Der Schmidt testified that as a brain surgeon at the Level I trauma center at Robert Wood Johnson University Hospital in New Brunswick, he saw 100 to 200 cases a year involving brain injury or brain hemorrhage, and a large number of his cases involved traumatic brain injury. He stated he regularly treated cases of persons who fell down stairs, were injured in car accidents, suffered gun shot wounds to the head, or who were otherwise assaulted, including two Rutgers students who were hit with baseball bats. He performed close to 2000 brain surgeries in his career. Dr. Hriso testified that he was a psychiatrist specializing in neuropsychiatry. He testified about the behavioral effects of traumatic brain injury.

The court reasoned that the physicians could opine that Brian suffered a trauma before his fall, but not whether it was caused by an assault. Consequently, the court ordered excised the phrase "consistent with an assault" from Dr. Von Der Schmidt's deposition testimony. Nonetheless, the court permitted the doctor to opine that before suffering injuries from a fall, Brian suffered a trauma to the head like that inflicted when hit with a baseball bat. In the following testimony, the excised phrase appears in all upper case letters, and underlined:

I would state to a reasonable degree of medical probability . . . as neurosurgeon at a Level I trauma center, going on 18 years, that this is not consistent with just a situation which somebody just collapsed to the floor to the floor of a bathroom or so and simply just hit his head. Okay. This is more consistent to me with what I've taken care of over the years where somebody has this kind of extensive injuries, is much more consistent with a component of trauma to the skull and then obviously at some point in time ending up on the floor.

 

. . . [I]t's more consistent, in my opinion, based on the scalp lacerations, the skull fractures, the blood in and around, on top and on the sides of the brain, increased pressure, the worsening progression of pressure from where it was at one level to a life-threatening level that required procedures, that this is more consistent with a head injury, CONSISTENT WITH AN ASSAULT and he certainly could have, and I would say probably, was struck, then struck his head, then also fell backwards and hit his head.

 

So, it's a complex issue and I would say, to a reason[able] degree of medical probability, it wasn't from just a simple fall such as from syncope or fainting.

. . . .

 

All of this is consistent with more trauma to the brain and it's certainly consistent with what I've seen with people who have even been hit in the head with a baseball bat.

 

[Emphasis added.]

The court also excised the statement, "So, again, I think it's more consistent with a component of assault. . ." but the court did not bar Dr. Von Der Schmidt from rejecting another expert's view that the evidence of assault was inconclusive:

Q. I would direct your attention to the conclusion stated . . . in Dr. Gushue's opinion, "The available information is insufficient to allow for a determination as to whether Mr. LeSage's injuries were the result of an assault or a fall."

 

A. Well, again, I think that there's a real limiting premise here. If he's going to hold this to whether it's due to an assault or a fall, then he's discounting and certainly not including the obvious, which is an assault and a fall.3

 

Dr. Von Der Schmidt also opined that persons who suffer head injuries from fainting are more likely to remain unconscious after the fall. But Brian was on his hands and knees, which was "more consistent with almost somebody who appeared to be punch drunk."

With respect to Dr. Hriso, the court instructed the jury not to treat as evidential a question that presumed Brian's injury was caused by an assault. Judge Paley instructed the jury:

[N]one of the doctors, in my view, can have expertise in determining what caused the multiple trauma or what caused the number of blows.

 

The doctors can testify that there were more than one . . . blow, but the problem that I have is what caused the more than one blow. And we've tried to be careful to limit the testimony of the doctors to their actual observations of the physical injuries sustained by Mr. LeSage[.]

 

The jury then heard both the question, "Why in your opinion, are Brian's injuries a result of an assault and not some other cause such as a fall?" and Dr. Hriso's answer:

[T]he question is . . . how do we differentiate the nature of his injuries are from a fall versus being assaulted. I mean it's clearly the fact that multiple areas of the brain were affected here. You know, he said bitemporal lobe contusions and bruises. He's got two types of fractures, a basal skull fracture as well as a right temporal bone fracture. He has bifrontal lobe hemorrhages. He's got subarachnoid hemorrhage.

 

Usually with a fall you would not expect so many areas of the brain to be affected.

 

This seems to be a little more than just a fall where usually with a fall maybe one area of the brain could be affected, perhaps a second area, but not that many.

 

The court also barred a defense expert, Dr. Siegal, a radiologist, from testifying that one cannot determine the cause of Brian's skull fracture, other than it was caused by a single direct blow to the right side of the head. The court stated:

The fracture was caused by trauma. Everybody agrees with that. The question is, what caused the trauma. . . . And you [defense counsel] want the doctor to say that it was caused by something other than an assault by a fall. If I won't permit the plaintiffs' doctor to opine that it was consistent with an assault, why can I permit your doctor to opine that it was inconsistent with assault?

In light of the court's ruling, the defense did not call the expert.

Evidence regarding whether JC Penney negligently provided security involved testimony from competing security experts, as well as testimony from JC Penney's security staff, and Woodbridge Township police witnesses who described the security measures in place the day of the incident. Plaintiffs elicited testimony that JC Penney's security force was primarily concerned with preventing and responding to shoplifting and theft of store merchandise, as opposed to potential crimes against persons. The store's senior loss prevention manager, Thomas Borodynko, testified that the store maintained about thirty-six surveillance cameras, most of which could tilt, pan and zoom, which were monitored by security staff.

Although there were prior instances of shoplifting and property theft in the store, several defense witnesses testified they could not recall an incident involving violent crime within the store. These witnesses included Borodynko, another loss prevention officer with twenty-seven years' experience at the store, an assistant manager with eighteen years experience at the store, and a Woodbridge Township police officer who responded to the scene.

JC Penney's own loss prevention officers patrolled the store interior. Sales personnel were also trained to detect and report suspicious behavior. The Mall's own private security force patrolled the Mall's common areas and parking lots. After an audit in the mid-1990s, and to combat a public perception that the Mall was unsafe, the security force was doubled, physical improvements were made to parking area lighting, and a police-type vehicle was purchased for exterior patrols. Roughly twenty to twenty-five Mall security officers were generally on duty during a shift. Uniformed Woodbridge Township police also regularly patrolled the parking lot and occasionally patrolled the interior of the Mall. The Mall also hired off-duty township police officers.

Roughly ten Mall security officers were on duty at 11 a.m. the day Brian was injured, as the Mall was first opening for business. Two JC Penney loss prevention officers were also on duty in the store. Seventy other JC Penney employees were present.

The men's room Brian used was located in the center of the store's first floor, roughly fifteen feet from the selling floor, and near a hair salon within the store that opened before the rest of the store did. The men's room was not located in a secluded area or off a back corridor. One of the surveillance cameras had the capacity to show someone on the way to the restroom where Brian was injured. But on the day of the incident, the particular camera was focused on the aisle that led from the men's department to the hair salon and restrooms, in order to spot someone who might have attempted to enter the store from the hair salon before the store opened. On the other hand, a loss prevention officer was stationed near the fine jewelry department, roughly thirty feet from the hallway that led to the men's room Brian used. The door to the men's room and the interior were not surveilled out of respect for individuals' personal privacy. No JC Penney employee saw a possible assailant enter the men's room.

Plaintiff's security expert opined that it was reasonably foreseeable that an assault and theft would occur in JC Penney's restroom. He testified that JC Penney acted unreasonably by not doing more to deter potential assault in the men's room. He stated that restrooms posed particular hazards because they are secluded from view of potential witnesses, and users are vulnerable to attack. He opined that lighting should have been brighter in the hallway leading to the JC Penney men's room. The use of a closed doorway as opposed to a open doorway, increased risk. He urged that better camera and human surveillance should have been in place, or the men's room should have been locked during slow traffic times of day.

The expert reviewed records of over sixty robberies and a similar number of assaults at the Mall in a ten year period. He also noted one pre-2003 incident in the parking lot that involved an abduction and homicide. However, he could not state how many of the assaults involved attacks on security personnel attempting to arrest a shoplifter; nor was he able to say how many involved stranger-on-stranger assaults, as opposed to domestic violence and other assaults by persons who knew each other. He also conceded that in his review of over ten years of crime statistics, he found no report of an assault in a restroom of either the JC Penney store or the Mall.

A Woodbridge Township detective with twenty-nine years experience in the township testified that he could recall no instance, in his experience, of a violent crime committed in the restroom of the Mall or JC Penney. A Mall employee testified that there were roughly ten million visitors a year at the Mall.

Defendant's security expert stated JC Penney exercised reasonable care in providing security, and opined that its program was well-conceived, well-staffed, and well-executed. He stated that most of the robberies and assaults he reviewed in the three-year period preceding the incident were between people who knew each other and not stranger-to-stranger.

The court denied plaintiffs' pre-trial motion for an order giving preclusive effect to the VCCB's determination that defendant was a crime victim, and entitled to benefits. The court also declined to treat the VCCB's determination as a basis for establishing a rebuttable presumption that Brian was a crime victim. However, the court did permit plaintiffs to introduce testimony that the VCCB determined Brian was a violent crime victim entitled to compensation.

 

 

B.

The verdict sheet asked the jurors to decide first, whether JC Penney was negligent; second, whether the negligence was a proximate cause of injury; and third, damages. The court instructed the jury to reach the second question only if it answered the first in the affirmative. Defense counsel had argued that the verdict sheet should have asked the jurors first to decide whether Brian was assaulted, but plaintiffs objected and the court followed plaintiffs' recommendation.

Shortly after deliberations began, the jury posed the following question: "In considering JC Penney's responsibility, is it relevant whether we determine the incident to have been an assault or an accident? If so, how?" After conferring with counsel, the court again rejected defense counsel's position that the jury should, as a threshold matter, determine whether an assault occurred. The court noted to counsel, "The only claim of negligence here relates to the failure of JC Penney to act reasonably to protect Mr. LeSage from an assault." The court noted to counsel there was no claim, for example, of negligently creating a slippery floor. Judge Paley ultimately answered the jury's question by stating:

It is relevant to determine whether JC Penney's conduct . . . was negligent and whether that negligence was a proximate cause of injury of Mr. LeSage.

 

In other words, . . . has it been proved that JC Penney failed to act in a reasonably prudent manner to protect members of the public, such as Mr. LeSage from injury? In this case, the only claim of negligence relates to the failure of JC Penney to act reasonably to protect Mr. LeSage from an assault.

 

If JC Penney acted reasonably in that regard, it is not negligent. You must determine the reasonableness of the conduct of JC Penney. Even if JC Penney is found to be negligent, you have to decide whether or not that negligence proximately caused the injury to Mr. LeSage.

 

You have to frame the questions in terms of whether the proofs show negligence by a preponderance of the evidence and whether that negligence was a proximate cause of harm to Mr. LeSage.

 

The parties having consented to allow the two alternate jurors to deliberate, the jury reached a unanimous 8-0 verdict after deliberating for about an hour and a half, finding that JC Penney was not negligent. The jury therefore did not decide whether negligence was a proximate cause of injury, or what damages would compensate plaintiffs.

C.

We turn now to the pre-trial motion. At the close of discovery, the court had granted Woodbridge LLC's motion for summary judgment by order entered in November 2007. The mall's manager certified Woodbridge LLC "did not own, operate, control or maintain the bathroom in question" on the date of the incident, and JC Penney provided its own security. Consequently, Woodbridge LLC had no obligation "to provide security for the JC Penney store or the bathroom . . . ." Instead, Woodbridge LLC provided security for "common areas of the mall, such as the parking lot and interior shopping corridors." The mall's security director certified Woodbridge LLC "never" had responsibility for the JC Penney bathrooms, and Woodbridge's security obligation was for the common areas, which did not include the JC Penney store.

Plaintiffs argued that a factual issue regarding Woodbridge LLC's duty to secure the JC Penney men's room was created by the agreement that defined the relationship between JC Penney, which owned the building in which its store was located, and Woodbridge LLC, which owned the parking lot and adjoining mall. The "Construction, Operation and Reciprocal Easement Agreement" (COREA) between the two parties expressly obliged Woodbridge LLC to police "with uniformed personnel" "all Common Area on the Shopping Center Tract."4 The agreement defined "Common Area" to include "public restrooms," which plaintiffs argued included the JC Penney men's room. "Common Area" is defined as:

[A]ll those portions of the Shopping Center Tract which . . . are available to all occupants thereof and their customers and other invitees including, but not limited to Parking Areas, driveways, delivery passages, Truck Facilities (except those Truck Facilities serving exclusively the A&S, Ohrbach, Stern, Hahne building, the Penney Building [or either of them] or any Sixth Department Store Building), access and egress roads, walkways, aisles, stairways, malls, the Enclosed Mall (as hereinafter defined), community halls, landscaped and planting areas, bus stops, and public restrooms, fire corridors (if any), retaining walls and grade separations outside the perimeter curb lines of any Building . . ., but not including entrance and exit aprons serving the Penney Additional Building exclusively or the A&S Additional Building exclusively or the Sixth Department Store Additional Building (if any) exclusively.

 

[Emphasis added.]

 

In response, the mall manager further certified the term "public restrooms" did not include bathrooms inside the JC Penney store or any other tenant's store. Rather, it referred to restrooms next to the mall management offices near the main mall corridor, "which are open to anyone in the mall." Woodbridge LLC viewed a store's interior bathrooms to be "private property of the anchors and tenants who presumably make them open not to the public, but to their invitees and employees." She further certified Woodbridge LLC secured the restrooms near the mall offices, and JC Penney never asked Woodbridge LLC to provide security for JC Penney's interior restrooms.

Judge Edward Ryan found there was no genuine issue regarding the fact that Woodbridge LLC did not have a duty to provide security for JC Penney's interior men's room. He held that Woodbridge LLC did have a duty to provide security and surveillance in the common areas of the mall, including parking lots, and mall corridors leading to the store entrances. However, discovery was complete and plaintiffs could point to no evidence that Woodbridge LLC breached its duty with respect to those areas external to the JC Penney store. He found "not a scintilla of evidence that indicates anything about suspicious characters or suspicious . . . events occurring" in the common area of the mall, that would support a claim that Woodbridge LLC breached its duty of care.

On appeal, plaintiffs raise the following points:

POINT I

 

THE TRIAL COURT ERRED IN BARRING PLAINTIFF'S TREATING NEUROSURGEON AND NEUROLOGIST FROM TESTIFYING THAT HIS INJURIES WERE CONSISTENT WITH, AND CAUSED BY, AN ASSAULT.

 

POINT II

 

THE TRIAL COURT ERRED BY PERMITTING TESTIMONY CONCERNING A PRIOR MEDICAL EPISODE IN WHICH BRIAN LESAGE FAINTED, THEREBY INVITING THE JURY TO SPECULATE THAT HIS INJURIES ON THE DATE IN QUESTION MAY HAVE BEEN CAUSED BY THE SAME MEDICAL CONDITION.

 

a. In the absence of expert medical opinion testimony relating Mr. LeSage's prior medical episode to the cause of Mr. LeSage's injuries on the date in question, evidence of the prior episode was irrelevant and highly prejudicial and should have been excluded.

 

b. Any testimony regarding an incident in which Mr. LeSage fainted on a prior occasion is hearsay, which does not fall within an exception, and should have been inadmissible at trial.

 

POINT III

 

WOODBRIDGE CENTER OWED A CONTRACTUAL AND COMMON LAW DUTY TO PROVIDE SECURITY WITHIN THE JC PENNEY STORE, THEREFORE THE MOTIONS JUDGE ERRED IN GRANTING SUMMARY JUDGMENT TO WOODBRIDGE CENTER.

 

POINT IV

 

THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, DEFERENCE IS GIVEN TO THE FINDINGS OF ADMINISTRATIVE AGENCIES AND THE VICTIMS OF CRIME COMPENSATION BOARD'S FINDING THAT BRIAN LESAGE WAS A VICTIM OF A VIOLENT CRIME WAS THEREFORE A FACT ESTABLISHED AT THE TIME OF TRIAL, OR IN THE ALTERNATIVE, A REBUTTABLE PRESUMPTION.

 

a. The VCCB finding that Brian LeSage was the victim of a violent crime must be afforded substantial deference by the court.

 

b. In the alternative, even if the VCCB's finding that a crime occurred was not deemed a fact established by the trial court, the jury should have been instructed that Plaintiff's were to be afforded a legal presumption as to the VCCB's findings absent any evidence to the contrary.

 

POINT V

 

A NEW TRIAL IS REQUIRED BECAUSE THE JURY VERDICT RENDERED IN FAVOR OF JC PENNEY IS AGAINST THE WEIGHT OF THE EVIDENCE AND TO PERMIT THE VERDICT TO STAND WOULD BE A MISCARRIAGE OF JUSTICE UNDER THE LAW.

 

A. JC Penney presented no properly admissible evidence at trial to rebut Brian LeSage's claim that he was the victim of an assault and that JC Penney was negligent.

 

II.

A.

We turn first to plaintiffs' points on appeal challenging the judgment in JC Penney's favor. We review the trial court's evidentiary decisions under an abuse of discretion standard. State v. Buda, 195 N.J. 278, 294 (2008). "Considerable latitude is afforded a trial court in determining whether to admit evidence. . . . " State v. Feaster, 156 N.J.1, 82 (1998). The trial court exercises discretion in determining "[t]he necessity for, or propriety of, the admission of expert testimony and the competence of such testimony[.]" State v. Zola, 112 N.J.384, 414 (1988). Consequently, we will disturb an evidentiary ruling only if there has been a "clear error in judgment" or a ruling "so wide of the mark that a manifest denial of justice resulted." Feaster, supra, 156 N.J.at 82 (citations omitted).

Judge Paley did not abuse his discretion in excluding expert testimony that Brian's traumatic injuries were consistent with assault, or in permitting defendant to elicit testimony regarding Brian's previous fainting episode for credibility purposes. We also discern no error in the court's denial of preclusive effect to the VCCB's award of violent crime victim's benefits. Moreover, these evidentiary rulings were incapable of producing an unjust result, R. 2:10-2, because they addressed the cause of Brian's injuries, but the jury did not reach the issue of causation, as it found JC Penney did not breach its duty of care.

The proponent of an expert opinion bears the burden of proving: "(1) the intended testimony . . . concern[s] a subject matter that is beyond the ken of the average juror; (2) the field testified to . . . [is] at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness . . . [has] sufficient expertise to offer the intended testimony." Hisenaj v. Kuehner, 194 N.J. 6, 15 (2008). A medical expert must provide the "why and wherefore" of his or her opinion regarding the cause of an injury. Id. at 24. See N.J.R.E. 703 (setting forth required basis for expert opinion).

Dr. Von Der Schmidt's experience included treatment of persons who suffered traumatic brain injury from assaults, as well as accidents. However, no testimony was elicited from the doctor to describe how he might distinguish between a person who was intentionally, instead of accidentally, injured. He did not provide a basis, grounded in his experience, training or medical science, for distinguishing, within a reasonable degree of medical probability, between a person who fell down a flight of stairs and one who was pushed, or between a person who was intentionally assaulted with a baseball bat, and a person who was accidentally struck after walking too close to a player swinging in the on-deck circle. Therefore, the court was within its discretion (1) to allow Dr. Von Der Schmidt to opine that before Brian suffered injury from falling to the floor, he suffered traumatic injury to the skull, "consistent with . . . [being] hit in the head with a baseball bat," but (2) to bar him from opining that the injury was "consistent with an assault."

Likewise, we discern no error in the court's limitation on Dr. Hriso's testimony. Although the record reflects Dr. Hriso's qualifications and experience treating the behavioral impacts of traumatic brain injury, it does not demonstrate a basis for his distinguishing between someone who suffered multiple traumatic blows to the head by accident and one who suffered them as a result of another's intentional conduct.

We also discern no error in Judge Paley's decision to permit defendant to elicit that Brian and his wife denied the fainting episode. We agree expert testimony was required to establish that the medical condition that produced the prior fainting episode also caused Brian to fall and suffer his injuries in the JC Penney men's room. See Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 672 (App. Div. 1993) (evidence of prior condition admissible regarding medical causation only if it is logically related, which generally requires reliance on expert medical opinion). However, defendant did not seek to introduce the proof for that purpose. Rather, defendant sought to introduce it to impeach plaintiffs' credibility. Dr. Jackson testified that Brian reported to him that he had fainted while urinating. Donna reported the same episode to a police officer. Yet, both plaintiffs denied the fainting in their depositions. The statements that Brian had indeed fainted were admissible as prior inconsistent statements. N.J.R.E. 607.

Ultimately, the court did not instruct the jury that evidence of the prior fainting was admitted for that limited purpose. However, plaintiffs did not request that instruction. Rather, they introduced affirmative proof of the prior fainting on their direct case through Brian's testimony.

We also discern no error in the court's decision declining to grant issue preclusive effect to the VCCB's decision to award Brian benefits. Simply put, settled principles of collateral estoppel did not bar defendant's right to litigate the issue of whether Brian was a victim of an assault. Collateral estoppel bars relitigation of issues actually determined in a prior action generally between the same parties. N.J. Div. of Youth and Family Servs. v. R.D., 207 N.J.88, 114 (2011).

Our courts apply a five-factor test to determine if issue preclusion is appropriate:

For the doctrine of collateral estoppel to apply to foreclose the relitigation of an issue, the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

 

[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006) (citation omitted).]

In Olivieri, supra, unemployment compensation proceedings were not entitled to preclusive effect because the "paucity of the record" inhibited "meaningful review" and there was no evidence witnesses were sworn or cross-examined. 186 N.J. at 524-25.

Here, granting preclusive effect to the VCCB determination would have been inappropriate because: (1) the issue whether Brian was assaulted was not "actually litigated" because there apparently was no hearing and we have no record of the basis of the Board's determination; and (2) JC Penney was not a party to the VCCB proceeding.

For the same reasons that the VCCB's determination was not entitled to preclusive effect, the court correctly declined to instruct the jury that it should presume the validity of the Board's determination. "Courts are generally reluctant to create presumptions." Bank of New York v. Raftogianis, 418 N.J. Super. 323, 361 (Ch. Div. 2010). It would have been unfair and inequitable to limit JC Penney's ability to fully litigate a factual issue by creating a presumption based on the VCCB's uncontested determination in a proceeding in which defendant did not participate. Cf. Shim v. Rutgers, 191 N.J. 374, 386 (2007) (stating that a presumption is a "mandatory inference that discharges the burden of producing evidence to a fact (the presumed fact) when another fact (the basic fact) has been established," which "has the effect of compelling a particular conclusion in the absence of contrary evidence.")

Finally, the trial court's evidentiary rulings regarding causation which encompass its rulings on the admissibility of the expert opinion, the evidence of Brian's past fainting, and the impact of the VCCB determination were not capable of producing an unjust result. R. 2:10-2. The jury responded in defendant's favor on the threshold issue of negligence. In short, the jury found that JC Penney had complied with a reasonable standard of care in securing and protecting users of its restrooms from harm by assault. Thus, regardless of whether Brian was assaulted, JC Penney was not liable.

Where the issue of negligence and causation are distinct and separable, a finding of no negligence will render harmless an error pertaining to causation. See Campo v. Tama, 133 N.J. 123 (1993) (arguably erroneous instructions regarding risk of future harm from failure to promptly diagnose cancer in remission at time of trial was harmless, where jury, in response to specific interrogatories, found no negligent failure to diagnose); Tindal v. Smith, 299 N.J. Super. 123, 137 (App. Div. 1997)(erroneous instruction on proximate cause did not warrant new trial where jury found no negligence or deviation and the issues of negligence and causation were distinct and separable). Similarly, a finding of no negligence by the defendant may render harmless a trial court error regarding contributory negligence or damages. See Goldstone v. Tuers, 189 N.J. Super. 167, 171 (App. Div. 1983) (in auto-pedestrian personal injury action, court's failure to give requested charge regarding the infant-plaintiff's duty of care as pedestrian was harmless because jury, in response to interrogatory, found the defendant not negligent); Zensen v. D'Elia, 94 N.J. Super. 164, 168 (App. Div. 1967) (finding of no negligence rendered "moot" the appellant's argument that court erroneously admitted testimony related to settlement and release that was relevant only to the issue of damages).

In this case, the jury expressly asked during deliberations whether it needed to decide the causation issue, that is, whether Brian was assaulted or injured accidentally, in order to decide the issue of negligence. The court advised the jury that it did not. The relevant standard of care as the court defined it addressed securing the restrooms against the possibility of assault. The court directed the jury to determine as a threshold matter whether JC Penney acted reasonably. Thus, the issues of negligence and causation were sufficiently discrete that the alleged evidentiary errors regarding causation could not have produced an unjust result.

We shall not address the merits of plaintiffs' argument that the jury verdict was against the weight of the evidence, as defendants did not seek a new trial based on the weight of the evidence pursuant to Rule 4:49-1. See R. 2:10-1 ("[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court."). The rule recognizes that the trial judge, who observed the witnesses' demeanor and developed a feel for the case, is best situated to consider the sufficiency of the evidence. See Dolson v. Anastasia, 55 N.J. 2, 7 (1969).

B.

Finally, we turn to plaintiffs' appeal from the order granting summary judgment to Woodbridge LLC. We review the trial court's grant of summary judgment de novo. Lapidoth v. Telcordia Tech., Inc., 420 N.J. Super. 411, 417 (App. Div. 2011). We find no error.

The crux of plaintiffs' argument is that there was at least a genuine issue of material fact regarding whether "public restrooms," which Woodbridge LLC was obliged to police, included the men's room located inside the JC Penney store. Plaintiffs argue they are third-party beneficiaries of that contract. However, plaintiffs misinterpret the agreement between JC Penney and Woodbridge LLC.

First, we review the applicable principles of contract law. "The determination of whether a contract term is clear or ambiguous is a pure question of law requiring plenary review." In re Teamsters Indus. Emp. Welfare Fund, 989 F.2d 132, 135 (3d Cir. 1993). The "polestar" of contract construction is "the intention of the parties . . . as revealed by the language used, taken as an entirety. . . ." Atl. N. Airlines v. Schwimmer, 12 N.J. 293, 301 (1953). See also Jacobs v. Great Pac. Century Corp., 104 N.J. 580, 582 (1986). "[I]n the quest for the intention, the situation of the parties, the attendant circumstances, and the objects they were striving to attain are necessarily to be regarded." Atl. N. Airlines, supra, 12 N.J. at 301.

To discover the intention of the parties, and to determine whether a contract is ambiguous, courts may consider extrinsic evidence offered in support of conflicting interpretations. Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 268-69 (2006). "Evidence of the circumstances is always admissible in aid of the interpretation of an integrated agreement, even where the contract is free from ambiguity, not for the purpose of changing the writing, but to secure light by which its actual significance may be measured." Newark Publishers' Ass'n v. Newark Typographical Union, 22 N.J. 419, 427 (1956). "There is no requirement that an agreement be ambiguous before evidence of a course of dealing can be shown[.]" Restatement (Second) of Contracts, 223 comment b (1979).

Extrinsic evidence may include the conduct of the parties that reflects their understanding of the contract's meaning. In re Teamsters Inds. Emp. Welfare Fund, supra, 989 F.2d at 135. Subsequent dealings of the parties under the contract may also be considered to illuminate the parties' understanding. Restatement (Second) of Contracts 202(4) (1979). In order to satisfy the parties' probable intent, the court must also consider the contract as whole, and avoid interpreting one provision in isolation from others pertaining to the same subject. Newark Publishers' Ass'n, supra, 22 N.J. at 426. While resolution of ambiguity is a fact issue, Michaels v. Brookchester, Inc., 26 N.J. 379, 388 (1958), a plenary hearing is not required, if, after considering all relevant materials, a genuine issue of fact does not remain. In re Teamsters Indus. Emp. Welfare Fund, supra, 989 F.2d at 137.

Applying these principles, we conclude the trial court did not err. First, when read in context, the term "public restrooms" does not refer to interior spaces of the JC Penney store. Many of the other specific areas or sites included within "Common Area" are patently those found outside the JC Penney store, such as parking areas, access roads, community rooms, and malls. Moreover, areas specifically dedicated to a particular store are expressly excluded, such as "Truck Facilities serving exclusively . . . the Penney Building," as well as "entrance and exit aprons serving the Penney Building exclusively." This evidences an intent to exclude areas wholly within the JC Penney store, such as its interior restrooms.

Second, even assuming there is any ambiguity in the term "public restrooms," the parties interpreted their agreement to exclude JC Penney's interior restrooms from the Common Area that Woodbridge LLC was obliged to police. The certifications of Woodbridge LLC's mall manager and security director, which confirmed that Woodbridge LLC never provided security in JC Penney's interior restrooms and JC Penney never sought it, were undisputed. "The parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning." Restatement (Second) of Contracts 202(4), comment g (1979). In sum, Woodbridge LLC had no duty under the contract to police a men's room located wholly within JC Penney's store.

Nor did Woodbridge LLC breach its undisputed duty to police the areas exterior to the JC Penney store. As Judge Ryan correctly observed, there was no evidence in the motion record to support a claim that Woodbridge LLC security could have, with the exercise of reasonable care, detected and detained a person who was intent on committing an assault, before he or she entered JC Penney's store.

Plaintiffs' remaining arguments lack sufficient merit to address in this written opinion. R. 2:11-3(e)(1)(E).

A

ffirmed.

1 We mean no disrespect to plaintiffs, but refer to them by their first names for convenience.

2 In the charge conference, plaintiffs did not request a specific limiting instruction, and in its charge, the court, without objection, did not instruct the jury that the evidence of the June 2003 fainting episode was admitted solely on the issue of credibility.

3 The court also ordered other excisions, but neither party provided us with the transcript pages containing them. Therefore, we cannot address whether such testimony was erroneously excluded. See Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002) (appellant obliged to provide the court with parts of record essential to proper consideration of issues).

4 The appendix includes only excerpts of the agreement and omits the section defining "Shopping Center Tract."