HILLARY AIGES v. JANE LEVIN FUCCILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HILLARY AIGES,

Plaintiff-Appellant,

v.

JANE LEVIN FUCCILLO and

WILLIAM FUCCILLO,

Defendants-Respondents.

________________________________

October 14, 2014

Argued August 26, 2014 Decided

Before Judges Hayden and Leone.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2768-10.

Evan D. Baker argued the cause for appellant (Law Offices of Rosemarie Arnold, attorneys; Mr. Baker, of counsel and on the briefs).

Jose B. Moreira argued the cause for respondents (Jose P. Moreira, P.C., attorneys; Mr. Moreira, on the brief).

PER CURIAM

Plaintiff Hillary Aiges alleged she was bitten by a dog belonging to defendants Jane Levin Fuccillo and William Fuccillo. The jury found the dog bit her, but that she had been negligent. Because a nurse's opinion was improperly admitted, we vacate and remand.

I.

The parties have not supplied the court with transcripts of the entire trial, preventing us from relating all the evidence. In essence, plaintiff asserts that while dog-sitting in her home on December 8, 2009, she was bitten by defendants' dog as she was attempting to pick up a napkin off of the floor.

In ruling on summary judgment motions, the Law Division held plaintiff acted as an independent contractor, and thus could not assert absolute liability under N.J.S.A. 4:19-16 unless she could prove defendants knew, or should have known, the dog was vicious. Plaintiff appealed, and we held her part-time dog-sitting was not sufficiently commercial to prevent her from asserting absolute liability. Aiges v. Fuccillo, No. A-1273-11 (App. Div. Dec. 21, 2012). However, we noted that dog owners can assert a defense of contributory negligence when a "'plaintiff knew the dog had a propensity to bite either because of the dog's known viciousness or because of the plaintiff's deliberate acts intended to incite the animal.'" Pingaro v. Rossi, 322 N.J. Super. 494, 504-05 (App. Div. 1999). We remanded the matter for trial.

At trial, defendants presented the following testimony from a nurse at the hospital emergency department where plaintiff went five days after the dog bite. One of the nurse's duties was to prepare an animal bite report for the Board of Health. In the report, the nurse must record information about the "exposed person," the animal, and the biting incident, and then make "a classification of the bite, whether it was a provoked attack, a vicious attack, a sic[k] attack or a playful attack." After speaking with plaintiff, the nurse classified this particular bite as "provoked." Underneath the classification check box, the nurse recorded what plaintiff told her about the circumstances of the bite: "Patient was pulling toy out of dog's mouth." Plaintiff did not object to this testimony.

The jury found plaintiff proved defendants' dog bit her. However, the jury also found defendants proved that "plaintiff's deliberate acts intended to incite the animal by removing the toy from the dog's mouth caused the injury." The jury attributed 75% of the negligence to plaintiff, and 25% to defendants. As a result, the trial judge dismissed plaintiff's complaint with prejudice and entered a judgment of no cause in favor of defendants on June 21, 2013.

Plaintiff fileda motionfor a new trial, which was heard by a different judge. At the hearing, plaintiff argued the nurse's classification of the bite as "provoked" was an inadmissible lay opinion. The judge ruled the nurse's testimony was properly admitted, and denied plaintiff's motion for a new trial in an order dated August 16, 2013. Plaintiff appeals that order and the judgment.

II.

"[T]he decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). "We review the trial court's evidentiary ruling under a deferential standard; it should be upheld absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012) (quotation marks omitted). We must hew to that standard of review.

Plaintiff asserts the nurse's testimony about the circumstances of the bite was inadmissible hearsay. Plaintiff also contends that the nurse's classification of the bite was a lay opinion that did not meet the standards of N.J.R.E. 701. We address those contentions in turn.

A.

The nurse testified as follows. In every animal bite case, she was required by the Board of Health to fill out an animal bite report and fax the report to the Board. In recording the circumstances of the bite, "you put down what the patient tells you." She wrote accurately what plaintiff told her, namely that plaintiff was pulling a toy out of the dog's mouth.

Plaintiff's out-of-court statements to the nurse are hearsay under N.J.R.E. 801(c), and must be excluded under the hearsay rule unless they fall within an exception. N.J.R.E. 802.

Defendants argue that plaintiff's statements to the nurse fell within the exception for statements for purposes of medical diagnosis or treatment. N.J.R.E. 803(c)(4). We need not reach that argument, because another hearsay exception is more clearly applicable. Under N.J.R.E. 803(b)(1), the hearsay rule did not preclude defendants from offering plaintiff's own statements to the nurse because they fell within the exception for statements by a party-opponent. See Dalton v. Barone, 310 N.J. Super. 375, 378 (App. Div. 1998) (a party's statement in a report is an admission falling within N.J.R.E. 803(b)(1)). In this situation, "'the party who has made the out-of-court statement cannot complain of his inability to confront and cross-examine the declarant, since [she] is the declarant.'" One Step Up, Ltd. v. Sam Logistic, Inc., 419 N.J. Super. 500, 508 (App. Div. 2011).

Having concluded that plaintiff's statements to the nurse fell within a hearsay exception, we must consider whether the nurse's relating of those statements is also hearsay falling within an exception. N.J.R.E. 805; Estate of Hanges, supra, 202 N.J. at 375 n.1. The nurse testified that, at the time of her June 6, 2013 testimony, she had no recollection of plaintiff or her December 13, 2009 visit to the emergency room. The nurse had been an emergency room nurse at the hospital for twenty-nine years, saw about 1400 patients in a year, and could not even estimate the number of animal bite cases she had seen. The nurse conceded "her sole recollection of everything that transpired is based on this [report], as opposed to any type of personal knowledge or memory of [her] interview with" plaintiff. The nurse's testimony thus relied entirely on her out-of-court statement in the report, which is hearsay. N.J.R.E. 801(c).

In denying a new trial, the judge found that, despite the nurse's inability to independently remember plaintiff, the nurse was able to identify her notation in the report. "A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection" can fall within the hearsay exception in N.J.R.E. 803(c)(5). Here, the nurse's notation in the report was made when plaintiff's statement "actually occurred or was fresh in the memory of the witness," was made by the nurse "for the purpose of recording [plaintiff's] statement," and the notation "concerns a matter of which the witness had knowledge when it was made." Ibid. Nothing about "the circumstances indicate[s] that the statement is not trustworthy." Ibid. Thus, the recorded statement "may be read into evidence but shall not be introduced as an exhibit." Ibid. Here, the nurse related what her report stated, but the report was merely marked for identification. We conclude that the nurse's recorded recollection of the circumstances of the bite related by plaintifffell withinN.J.R.E. 803(c)(5),and wasproperly admitted.1

B.

Plaintiff's primary contention is that the nurse's testimony that she classified the bite as "provoked" was an inadmissible lay opinion. It is undisputed that plaintiff did not tell the nurse that the bite was "provoked." Rather, the nurse testified that it was her job to classify the dog bite, and that she classified this particular bite as provoked, based on plaintiff's statement that she was pulling a toy out of the dog's mouth. It is also undisputed that the nurse was not offered as an expert witness under N.J.R.E. 702.

Under N.J.R.E. 701, "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." The term "perception" means "the acquisition of knowledge through one's senses." Id., 1991 Supreme Court Committee Comment. Here, the nurse was not present when plaintiff was bitten, and thus could not base her opinion on her "sense of touch, taste, sight, smell or hearing." State v. McLean, 205 N.J. 438, 457 (2011).

The Supreme Court has also made clear that, "unlike expert opinions, lay opinion testimony is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay." Id. at 460 (contrasting N.J.R.E. 703). Thus, in Neno v. Clinton, 167 N.J. 573 (2001), the Court held that, even though a police officer, based on his visual observations, can offer a lay opinion about an accident, id. at 583, he may not offer an opinion "based primarily on the statements of eyewitnesses," id. at 585, that are inadmissible hearsay, id. at 581. "Any other conclusion would allow an officer to subvert the prohibition against hearsay and pass along the essence of those hearsay statements to the jury even when the officer is not permitted to testify to the substance of the witness's statements under the hearsay rule." Id. at 585. "A lay witness's opinion cannot rely on the inadequate support of inadmissible hearsay without the benefit of an exception." Id. at 585.

Here, plaintiff's statement to the nurse is admissible hearsay which falls within an exception. However, the nurse's lay opinion, while based on admissible hearsay, ultimately opined on a physical event (the bite of the dog) that she had not perceived with her senses. We do not read McLean or Neno as authorizing such lay opinions. See McLean, supra, 205 N.J. at 459 ("The Rule does not permit a witness to offer a lay opinion on a matter 'not within [the witness's] direct ken[.]'"); Neno, supra, 167 N.J. at 583 (reaffirming that "'the officer was not permitted to base his conclusion on what others had told him'"). Indeed, Neno based its ruling in part on the requirement that lay witnesses must have "personal knowledge," N.J.R.E. 602, noting that "'[a] person who has no knowledge of a fact except what another has told him [or her] does not, of course, satisfy the present requirement of knowledge from observation.'" Neno, supra, 167 N.J. at 585 (quoting McCormick on Evidence 10 (5th ed. 1999)).

Moreover, the Supreme Court recently held inadmissible an officer's lay opinion because "the officer's opinion stemmed entirely from the victim's description" and not from the personal knowledge and perceptions of the officer. State v. Lazo, 209 N.J. 9, 22, 24 (2012). The Court reached that result even though the officer's testimony had not "led to the admission of prejudicial hearsay testimony." Id. at 21; see id. at 31-32 (Wefing, J., dissenting).

Accordingly, we hold that the nurse's testimony classifying the dog's bite as "provoked" was not admissible as lay opinion testimony because it was based on plaintiff's statement rather than perceptions by the nurse of the bite itself.

III.

We would normally proceed to consider whether the erroneous admission of the nurse's classification of the bite was reversible error under Rule 2:10-2. However, we are prevented from making that determination because the only portion of the trial record that has been supplied to us is the testimony of the nurse. We therefore vacate the judgment and remand to the trial court to determine, in light of all the evidence at trial, whether the error was "of such a nature as to have been clearly capable of producing an unjust result." Ibid.; see R. 1:7-5. We offer the following to assist the trial court.

The transcript of the nurse's testimony shows no objection to the nurse's lay opinion. Plaintiff's brief asserts that she requested a hearing under N.J.R.E. 104 before the nurse testified, but with the limited transcript available to us we cannot evaluate that assertion. On remand, plaintiff shall present the trial court with the full transcript of the trial. Unless plaintiff timely made her "objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2).2 "Under that standard, [plaintiff] has the burden of proving that the error was clear and obvious and that it affected [her] substantial rights." State v. Morton, 155 N.J. 383, 421 (1998).

In evaluating whether plaintiff meets her burden to show plain error, the trial court should consider all the evidence before the jury, including the nurse's admissible testimony that plaintiff said she was pulling a toy out of the dog's mouth, as well as the court's instructions to the jury. If plaintiff fails to meet her burden, the judgment shall be reinstated.

If plaintiff meets her burden to show plain error, a new trial on liability shall be ordered. Plaintiff asserts her reported statement that she was pulling a toy out of the dog's mouth is insufficient as a matter of law to present the issue of contributory or comparative negligence to the jury. We disagree.

Vacated and remanded. We do not retain jurisdiction.

1 In denying a new trial, the judge also noted that the report was prepared as part of the normal course of business at the hospital. N.J.R.E. 803(c)(6) permits the admission of records of regularly conducted activity. However, in the single trial transcript provided to us, there is no indication that the animal bite report was itself admitted into evidence. Thus, we need not address N.J.R.E. 803(c)(6).

2 Plaintiff's "'belated effort to raise that issue on motion for a new trial does not entitle [her] to avoid the plain error standard of review.'" State v. Patterson, 435 N.J. Super. 498, 509 (App. Div. 2014).