TERRY JOHNSON v. PORT AUTHORITY TRANS-HUDSON CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TERRY JOHNSON,

Plaintiff-Appellant,

v.

PORT AUTHORITY TRANS-HUDSON

CORPORATION, THE PORT

AUTHORITY OF NY & NJ,

Defendants-Respondents.

________________________________________

October 22, 2014

Submitted September 30, 2014 Decided

Before Judges Yannotti and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5490-10.

Law Offices of Rosemarie Arnold, attorneys for appellant (Francesca Aiello-Nicholas, on the brief).

Margaret M. Taylor Finucane, attorneys for respondents (Melissa L. Banks, on the brief).

PER CURIAM

Plaintiff Terry Johnson appeals from an order entered by the Law Division on July 25, 2013, which denied her motion for judgment notwithstanding the verdict or, alternatively, for a new trial. We affirm.

On October 8, 2010, plaintiff filed a complaint against The Port Authority of New York and New Jersey (the "PANYNJ"), alleging that on November 8, 2009, she sustained personal injuries while attempting to exit a Port Authority Trans Hudson ("PATH") train. Plaintiff alleged that defendant operated the train in a negligent and careless manner. Thereafter, plaintiff filed an amended complaint adding the Port Authority Trans Hudson Corporation as a defendant.

Plaintiff was deposed on December 12, 2011. She testified that each day she would take a bus or PATH train to her job at a law firm in New York City. On November 8, 2009, at approximately 6:00 p.m., plaintiff took the PATH train from New York City to Jersey City, intending to exit the train at the Exchange Place station.

Plaintiff testified that, as she was stepping off the train, the doors closed on the right and left sides of her body. She fell and the doors of the train opened. Plaintiff said part of her body was on the ground of the platform and the doors closed again on her legs. The doors opened again. Plaintiff pulled her legs from inside the train and then another passenger assisted her.

Plaintiff said she suffered pain in her knee, outer thigh and hips as a result of the incident. She claimed that a PATH employee watched her fall but did nothing to help. Plaintiff said the worker approached her after she fell and asked if she had been injured. Plaintiff told the PATH employee, "I'll be fine." After the fall, plaintiff boarded a train at Exchange Place and traveled to Hoboken. The following day, plaintiff sought medical attention.

On November 11, 2009, plaintiff submitted an electronic feedback form on defendants' Internet website. Plaintiff stated that she had fallen on the platform because the conductor had closed the train's doors upon her. On November 18, 2009, plaintiff called PATH and spoke with an individual, who told her a conductor would not have closed the doors if the conductor observed someone walking.

On December 23, 2009, plaintiff's attorney filed a notice of claim with defendants on plaintiff's behalf, which indicated that plaintiff was seeking damages for her medical bills, pain and suffering and lost wages. On February 23, 2010, plaintiff sent a letter to defendants, stating that they should preserve any video surveillance or security recordings of the incident that was in their possession.

After plaintiff filed her complaint in the trial court, her attorney propounded interrogatories on defendants. She asked whether defendants possessed any photos, videotapes, moving pictures or surveillance reports of the plaintiff. In response, defendants stated that no such items had been identified at that time, but they would be provided if identified. Defendants also were asked to provide photos, videotapes, audio tapes or other forms of electronic recordings of the incident. Defendants responded by stating that none existed.

The matter was scheduled for trial in June 2013. Plaintiff filed a motion with the trial court seeking an adverse inference instruction, claiming that defendants had destroyed video evidence of the incident. In response to that motion, defendants submitted a certification from Danny Ng, the Senior Claims Representative for the PANYNJ.

Ng stated that he received plaintiff's notice of claim on January 5, 2010, and investigated the claim. He noted that plaintiff had not filed an accident report, and the trainmaster's log did not indicate there had been a door malfunction or an accident at Exchange Place on the date in question.

Ng stated that, at the time of the alleged incident, video footage of the PATH system was maintained for about twenty seven days, after which it was "automatically overwritten." Ng said that on March 2, 2010, he received a letter from plaintiff's counsel asking the PANYNJ to retain all video surveillance or security tapes in anticipation of litigation. He stated, "There was no suggestion in the letter that plaintiff had spoken to PATH operations, and believed that video footage existed based on this conversation, or any other conversation."

Defendants also submitted a certification from John Sisak, a PATH Transportation Operations Analyst. Sisak stated that his responsibilities include the investigation of accidents or unusual incidents involving PATH trains. He noted that PATH has a customer service hotline which allows customers to make complaints or raise concerns regarding PATH train services.

Sisak stated that on November 18, 2009, he received a call from a PATH patron about an alleged incident at Exchange Place that took place on November 8, 2009. Sisak said the patron indicated that while she was exiting the train, the doors closed on her prematurely, causing her to fall and sustain injuries.

Sisak noted that the PATH system had over 400 cameras which monitor the stations, platforms, offices and other spaces. Numerous cameras film PATH's 24-hour operations continuously. At the time of the alleged incident, PATH maintained the video footage of the system for about twenty seven or twenty eight days. Footage that has not been overwritten can be accessed and downloaded onto one of two "password-protected" computers.

Sisak said that, after he spoke with the patron about the incident, he found the appropriate footage and downloaded it to the computer hard drive. He said

The footage depicted the patron unsafely dart from her seat well after other patrons had already exited the train, and after the timeframe for safe exit of the train had elapsed. The video footage also clearly showed the patron stumble and fall prior to reaching the doors, and that she fell with most of her body still inside the train. The doors did not close on the patron a second time. I observed another patron standing inside the train help her up, and she left the platform without further incident.

Sisak stated that, based on his observations, he believed there was no wrongdoing on the part of the PATH conductor. He said the conductor had acted "very capably" because the conductor had opened the train's doors immediately upon detecting the obstruction in the doors. He showed the video footage to his supervisor, Kevin Lejda, PATH's Assistant Superintendent.

Sisak noted that the patron had not asked him for information about filing an accident report, or indicate that she intended to file a notice of claim. He said, absent a specific request, the video footage is not forwarded to the claims department. He also stated that he is not authorized to forward video footage to anyone without specific authorization. He took no further action regarding the incident.

Sisak additionally stated that, in late 2009 or early 2010, the computer hard drive which contained the video footage in question "crashed." The hard drive "has since been removed from the PATH offices." Sisak said that, in December 2011, he was informed that plaintiff had brought suit with regard to the November 8, 2009 incident. He determined that plaintiff was the person who brought the incident to his attention on November 18, 2009.

In addition, defendants provided a certification from Lejda, who stated that he is responsible for the safe and efficient movement of the 450,000 daily PATH passengers. Lejda manages about 500 unionized and supervisory personnel. He noted that, in November 2009, he was shown the video footage of the incident. He determined that the PATH conductor had handled the matter appropriately, since the conductor had reopened the doors immediately upon detecting an obstruction to the doors of the train.

The trial judge heard oral argument from counsel on the motion and placed his decision on the record. The judge said defendants were on notice that probable litigation could result from plaintiff's alleged fall; however, there had been no willful or negligent destruction of the video recording when defendants' server or hard drive crashed. There was "no evidence that the destruction of the tape was designed to disrupt" plaintiff's case. The judge concluded that an adverse inference should not be provided.

The judge then considered whether the parties should be permitted to present testimony as to what the video showed. Plaintiff's counsel had noted in her argument that plaintiff's sister, Angela Johnson, and another witness, Gary Johnson, had seen the tape and it showed that the accident occurred in the manner described by plaintiff. The judge ruled that, because the tape was lost, no witness would be permitted to testify as to what they had seen when watching the tape.

The trial followed. On June 18, 2003, the jury returned a verdict of no cause of action for defendants. Thereafter, plaintiff filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. Plaintiff's counsel argued that the judge erred by denying her motion for an adverse inference on spoliation and in not permitting Angela Johnson and Gary Johnson to testify with regard to the video.

Counsel also argued that sufficient evidence had been presented on negligence, proximate cause and damages to support a verdict for plaintiff. Plaintiff's counsel noted that no witness had rebutted plaintiff's testimony as to what happened as plaintiff attempted to exit the train on November 8, 2009.

The judge placed his decision on the record. The judge reaffirmed his ruling that an adverse inference was not warranted because there had not been any willful or negligent destruction of the video tape. The judge also stated that he believed the ruling barring any testimony about the lost tape was correct because it would have allowed the witnesses to testify as to something no one could see. In addition, the judge determined that the jury's verdict was not against the weight of the evidence. The judge entered an order dated July 25, 2013, denying the motions. This appeal followed.

Plaintiff argues that the trial judge erred by denying her motion for an adverse inference. We do not agree.

"Spoliation typically refers to the destruction or concealment of evidence by one party to impede the ability of another party to litigate a case." Jerista v. Murray, 185 N.J. 175, 201 (2005) (citing Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001)). "In civil litigation, depending on the circumstances, spoliation of evidence can result in a separate tort action for fraudulent concealment, discovery sanctions, or an adverse trial inference against the party that caused the loss of evidence." Id. at 201-02 (citing Rosenblit, supra, 166 N.J. at 401-06).

"The spoliation inference permits the jury to infer that the evidence destroyed or concealed would not have been favorable to the spoliator." Id. at 202 (citing Rosenblit, supra, 166 N.J. at 401-02). It "serves the purpose 'of evening the playing field where evidence has been hidden or destroyed." Ibid. (quoting Rosenblit, supra, 166 N.J. at 401). The instruction should be provided if a party establishes that the other party "improperly caused the loss of the evidence." Davis v. Barkaszi, 424 N.J. Super. 129, 148 (App. Div. 2012) (citing Cockerline v. Menendez, 411 N.J. Super. 596, 621 (App. Div. 2010), certif. denied, 201 N.J. 499 (2010)).

Here, the trial judge correctly determined that the adverse inference on spoliation should not be given. The judge determined that plaintiff had not shown that defendants improperly caused the loss of the evidence. The judge noted that PATH had been on notice of plaintiff's alleged accident and was aware that litigation probably would result.

The judge pointed out that the surveillance video of the incident had been downloaded to a hard drive. However, as Sisak explained, the hard drive "crashed" and the recording could not be retrieved. Therefore, plaintiff failed to show that defendants "reckless[ly] caused the loss or destruction of relevant evidence[.]" Jerista, supra, 185 N.J. at 203. Thus, the judge correctly found that an adverse inference on spoliation was not warranted.

Plaintiff also argues that the judge erred by refusing to permit her to present testimony from Angela Johnson and Gary Johnson concerning the lost video.

We note that in her deposition, plaintiff testified that Angela Johnson, who is plaintiff's sister, was working for a security company at the time of the incident, and the PANYNJ was one of its clients. According to plaintiff, her sister had access to the video tape and viewed it. Plaintiff testified

Q. And what did she say she observed on the video?

A. She said she sees me falling and them trying to close the door as I was still down, and then complained.

Q. And then complained?

A. Yes, about how they do this all the time.

Q. Okay. What did she mean by they?

A. The conductors.

Plaintiff said her sister told her that Gary Johnson, who is not related to plaintiff or her sister, had also viewed the video. However, plaintiff did not testify that she spoke with Gary Johnson about his observations. Angela Johnson and Gary Johnson were never deposed. In addition, plaintiff never presented affidavits or certifications from these individuals setting forth the facts to which they would have testified, if permitted.

The trial judge relied upon Davis as support for his ruling that neither party could present testimony about what they had observed on the lost videotape. In Davis, the plaintiff alleged that the defendant tavern negligently served alcohol to a patron while visibly intoxicated, after which the patron injured the plaintiff in an auto accident. Davis, supra, 424 N.J. Super. at 135. The tavern's bar area was monitored with a surveillance system, which automatically recorded over footage each week. Id. at 137. The system did not have the capability of recording to discs or tapes. Ibid.

The owner of the bar learned of the accident before the system recorded over the footage of the night of the accident. Id. at 137-38. The owner had looked at the recording but did not see anything that differed from the bartender's account of the events at issue, and saw no reason to retain the footage. Ibid. The trial judge did not permit the owner to testify as to what he saw on the surveillance recording or explain why he failed to preserve the footage. Ibid. The judge gave the jury the adverse inference charge on spoliation. Ibid.

We held that the trial court erred by giving the jury the adverse inference instruction because plaintiff never established that the tavern had improperly destroyed the evidence. Id. at 148. We noted that the jury had been permitted to draw the adverse inference regarding spoliation and the owner was not permitted to testify that the recording did not show that the patron was served while visibly intoxicated. Id. at 149.

We stated that we understood that the judge was reluctant to allow the tavern to benefit from the failure to preserve the footage by offering "unrebuttable testimony as to its content." Ibid. We noted, however, that, under the circumstances, "the more prudent course would be not to charge spoliation and disallow any reference to the video surveillance." Ibid.

Thus, Davis indicates that when evidence is lost but not improperly destroyed, it might be prudent to decline to charge spoliation and preclude the parties from testifying about the surveillance footage. Davis does not, however, hold that there should be no reference to lost evidence where, as in this case, both sides presumably have the opportunity to testify as to what that evidence showed.

We therefore conclude that the trial court erred by refusing to allow the parties to present testimony concerning the lost video footage. However, plaintiff has not shown that the error warrants reversal of the judgment and a remand for a new trial. Plaintiff has not furnished this court with the transcripts of the trial, as required by Rule 2:5-3(b) (transcript must include "the entire proceedings in the court" from which the appeal is taken).

We also do not know what Angela Johnson and Gary Johnson would have said if they had been called as witnesses. While plaintiff maintains they would have supported her version of the incident, there is nothing in the record, aside from plaintiff's testimony about what her sister told her about the video, to support that contention.

In arguing in support of her motion for judgment notwithstanding the verdict or for a new trial, plaintiff's counsel stated that plaintiff's version of the incident was essentially unrebutted at trial. The jury apparently determined that plaintiff had not presented sufficient evidence to support her claim. However, based on the record before us, we cannot say the jury would have reached a different result if plaintiff had been permitted to present testimony from Angela Johnson and Gary Johnson concerning the lost video. Therefore, we conclude that plaintiff has not shown that the trial court's decision barring these witnesses from testifying was reversible error.

Plaintiff further argues that the trial judge erred by denying her motion for judgment notwithstanding the verdict or for a new trial. Plaintiff contends that she established her cause of action against defendants. She claims her evidence was essentially unrebutted. She also contends the jury's finding that defendants were not negligent was clearly a miscarriage of justice.

However, as we noted previously, plaintiff has not provided this court with a copy of the trial transcripts. We cannot entertain plaintiff's argument that the verdict was against the weight of the evidence where, as here, she has failed to provide us with the portions of the record that are essential to consideration of her argument. See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (noting that an appellate court may refuse to consider argument where appellant failed to furnish the trial transcripts and final order pertaining to that argument).

Affirmed.