JOHN MORRIS v. PEDRO TORRES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN MORRIS,

Plaintiff-Appellant,

v.

PEDRO TORRES, SERGIO E.

MINAYA-JEREZ and FIRST

KEYSTONE RISK RETENTION GROUP,

INC.,

Defendants-Respondents.

________________________________________________________________

June 27, 2014

Submitted January 22, 2014 Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. DC-11486-12.

Law Offices of David J. Khawam, LLC, attorneys for appellant (David J. Khawam, on the briefs).

Law Offices of David A. Avedissian, LLC, attorneys for respondent (Richard E. Green, on the brief).

PER CURIAM

Plaintiff appeals from a judgment entered in the Special Civil Part that dismissed his complaint against defendants Pedro Torres and Sergio E. Minaya-Jerez for property damage to his automobile and against defendant First Keystone Risk Retention Group, Inc. (First Keystone) for bad faith denial of an insurance claim. We affirm.

The allegations in the complaint can be summarized as follows: On April 9, 2012, Austin Mordecia was driving plaintiff's vehicle when it was struck by a taxi owned by Minaya-Jerez and operated by Torres. Torres admitted striking plaintiff's vehicle but stated the accident was caused by a black Chevrolet Impala vehicle pulling into his lane. Plaintiff filed a claim for property damage with First Keystone, Minaya-Jerez's automobile insurance carrier. First Keystone denied the claim on the ground that the accident was proximately caused by the unknown driver of the black Chevrolet Impala.

Plaintiff was not present when the accident occurred. When the matter proceeded to trial, he did not call any witnesses to the accident. To prove liability, he attempted to introduce a police report regarding the accident, which included the following description of the accident prepared by the investigating officer:

[Austin] was traveling on Mt. Ephraim Ave. when [Torres] crossed over into her lane and crashed into the front of her vehicle. Causing major Damage to the front of her vehicle and side.

[Torres] Stated he was traveling on Mt. Ephraim Ave. when a black chevy impala pulled out of the pantry one parking lot causing him to swerve into [Austin's] lane of travel causing a head on collision. . . . I went and reviewed the pantry one camera system and did see the black impala cut off [Torres] causing the accident.

Upon objection, plaintiff's counsel argued that the police report was admissible based upon two exceptions to the hearsay rule, as an official business record, and as an admission by an adverse party. The trial court ruled that the police report was inadmissible.

Plaintiff proceeded to present testimony regarding the damages he incurred as a result of the accident. He offered no testimony or other evidence regarding his bad faith claim against First Keystone. At the close of the evidence, the trial court dismissed the complaint, citing the absence of evidence to support plaintiff's claims.

On appeal, plaintiff argues that the police report should have been admitted into evidence because it was both a public record and contained Torres's admission against interest. We disagree.

We grant substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) certif. denied, 163 N.J. 79 (2000). As a general rule, the trial court's ruling will not be disturbed "unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); Bd. of Educ., supra, 409 N.J. Super. at 430.

Plaintiff was competent to provide testimony that his automobile was damaged. However, since he was not present at the accident site, he lacked the necessary personal knowledge to establish liability for the accident. The question presented by this appeal is whether the trial court's decision to exclude the police report and the hearsay statements it contained that plaintiff presented to prove defendants' liability constituted a clear abuse of discretion.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). "Hearsay is not admissible except as provided by these rules or by other law." N.J.R.E. 802.

N.J.R.E. 803(c)(8) authorizes the admission of "public records"1 that fall within the following definitions:

(A) a statement contained in a writing made by a public official of an act done by the official or an act, condition, or event observed by the official if it was within the scope of the official's duty either to perform the act reported or to observe the act, condition, or event reported and to make the written statement, or

(B) statistical findings of a public official based upon a report of or an investigation of acts, conditions, or events, if it was within the scope of the official's duty to make such statistical findings, unless the sources of information or other circumstances indicate that such statistical findings are not trustworthy.

[Emphasis added.]

It is evident that the police report does not contain any statistical findings and, therefore, it is clearly not admissible under N.J.R.E. 803(c)(8)(B).

The exception contained in N.J.R.E. 803(c)(8)(A) applies only to statements regarding acts, conditions or events done or observed by the official. Therefore, the exception does not apply to the statement attributed to Torres. The only part of the report that could fall within this exception was the statement by the officer that his observation of the surveillance tape revealed that the accident was caused by the phantom driver of the Chevrolet Impala.

The other exception urged by plaintiff is N.J.R.E. 803(b), which applies to a "party's own statement" that is "offered against" him. However, plaintiff had to satisfy a threshold requirement to authenticate the statement in the police report as one made by Torres before it could be admitted under this exception. State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999). He presented no evidence to do so.

We therefore conclude that the trial court's decision to exclude the police report was not a clear abuse of discretion.

Affirmed.

1 Admission of these statements is subject to N.J.R.E. 807, which is not applicable here.