ROCCO MONTESANO v. MOUNTAIN CREEK RESORT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0106-08T20106-08T2

ROCCO MONTESANO,

Plaintiff-Appellant,

v.

MOUNTAIN CREEK RESORT,

JOHN HADDAD, DEREK

SEMANEK, MATTHEW APOLLO,

and ANTHONY COVELLO,

Defendants,

and

PATRICK ENRIGHT,

Defendant-Respondent.

____________________________

 

Argued May 27, 2009 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-989-05.

Kenneth S. Javerbaum argued the cause for appellant (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Javerbaum, on the brief).

Steven J. Batta argued the cause for respondent (Dwyer Connell & Lisbona, attorneys; Mr. Batta, on the brief).

PER CURIAM

Plaintiff Rocco Montesano filed a personal injury action against Patrick Enright, Mountain Creek Resort and several other defendants, for injuries he sustained during an encounter with Enright at the resort. A jury found Enright not liable for injuries to plaintiff's knee and shoulder, and further found plaintiff and Enright each fifty percent liable for plaintiff's injury to his eye; the jury awarded plaintiff $500 for Enright's intentional acts and $10,000 for Enright's negligent acts, which was reduced to $5000 pursuant to the jury's liability finding. On August 11, 2008, the trial judge entered judgment on the verdict plus interest in the amount of $6051.02. Plaintiff now appeals from that judgment, raising three claims of trial error. For the reasons that follow, we reverse and remand for a new trial on liability.

The pertinent trial evidence may be summarized as follows. On January 14, 2002, plaintiff, a retired police officer, went to Mountain Creek Resort along with his son, daughter-in-law and two grandchildren for a day of skiing. As plaintiff rode the gondola to the crest of the mountain, he heard coarse and vulgar language, as well as racial epithets, coming from "six to eight young men in the gondola" directly beneath his. Plaintiff described the cursing as continuous and stated that it appeared to be directed at a group of four men in a gondola at the foot of the hill. Plaintiff's seven-year-old grandsons were in the gondola immediately below the young men.

When plaintiff's gondola arrived at the top of the mountain, he waited until the young men emerged from their gondola and then approached them. Specifically, plaintiff approached one young man, later identified as Enright, because "he [wa]s the one that was very obvious to [him,] was the loudest, spoke the filthiest and appeared to be the most boisterous."

Plaintiff described what happened next:

Q When Mr. Enright came out where were your skis?

A In my hands.

Q How were you holding your skis?

A I would tend to believe I would hold skis with my right hand and possibly my poles were in my left hand.

Q And when Mr. Enright got out . . . were you the one to speak to him first?

A I was.

Q And what did you say to him?

A It's pretty close to a quote, . . . I said listen, guys, why don't you curtail your language. I have my grandchildren just below you and my daughter-in-law with me. You know, just take it easy, curtail your language -- I believe those were the words -- and if you don't I'm going to report you to management.

Q Did you ever curse at Mr. Enright or anybody else at that time?

A The purpose of me stopping Mr. Enright was to stop the cursing, not to initiate more cursing. My grandchildren were getting off the gondola.

Q When you said that to Mr. Enright what, if anything, did he say or do?

A He quickly . . . escalated to a point which I could not believe. Mr. Enright in one swoop spit directly in my face, punched me in the chest, and at the same time said I'm going to kill you, you m[o]therfucker.

Q What did you do as result of that?

A I was taken back. I just could not believe it. I could not believe that . . . I'm on the slope with my children and . . . I'm in a confrontation with someone for no apparent reason.

Q Aside from spitting in your face and aside from saying what you just described him as saying, did he make any physical contact where any part of his body came in contact with any part of your body?

A His fist in my chest, first physical contact. Well, his spit on my face, first contact, his fist to my chest, second contact, the third contact was in striking me with his snowboard over my left eye.

Q How did he strike you with the snowboard over your left eye?

A He took the snowboard and hit me like that.

Q Had you made any efforts or gestures to in any way make contact or strike him when he struck you with the snowboard?

A I was taken [a]back. I was totally surprised, and given my police experience, . . . it causes me a great deal of problem that I was not more prepared for what had happened to me.

Plaintiff's son attempted to come to his aid, and plaintiff described what happened at that point:

Q When your son came to your assistance . . . [w]hat happened to . . . Mr. Enright and the other group of people in the gondola?

A Well, it was like two separate incidents. It escalated something unbelievable, and as some of the people then had left the group that was attacking me and tackled my son. They had him on the ground. I was able to move down approximately 20-25 feet from where I was and trying to come to my son's help . . . . During that period of time I was being followed by Mr. Enright, cursing, attempting to continue his assault, calling me names, and somewhere along the line I fell, or was tackled, to the ground. I tend to believe that I fell at that time. That's what brought me to the ground, meaning my boots must have gotten caught, whatever, but I fell and stayed on the ground.

Q Were you bleeding from any part of your body?

A As soon as I got hit with the first snowboard blood was just gushing from . . . my eye.

Q Did there come a time when the group of snowboarders dispersed?

A After what I believe was 10 minutes of this ongoing . . . disaster for me, I think some of the group[] actually saw what had happened to me and began to disperse. The only person who was left was Mr. Enright, who continued to curse. It was [at] this time that my son pleaded with the lift attendant to not let him get away, . . . and he in some way said it's not his job, so my son pleaded with him at least [to] grab his pass, and he refused to do that. So my son approached him to grab it -- because he was putting his snowboard on -- to grab his pass, and Mr. Enright attempted to strike him. And my son punched him in the chest and knocked him on his back --

Q Did Mr. Enright --

A -- and like the coward he was he just ran then.

Q Did Mr. Enright eventually leave the scene?

A He escaped, yes.

The ski patrol brought plaintiff to the first aid room in a toboggan. Thereafter, plaintiff's son drove him to the hospital. Plaintiff stated that he was "bleeding badly from [his] eye[,]" and had pain in his right leg.

At the hospital, plaintiff received "14 or 16 sutures to [his] eyelid." X-rays were taken of his knee and he received pain medication. At plaintiff's request, staff called his orthopedist, and then discharged him with crutches. Plaintiff stated that he "kn[e]w there was damage to [his] knee[,]" because he was a runner and had "never had a problem with [his] knees."

Plaintiff testified that his orthopedist, Dr. D'Agostini, ordered an MRI and then performed surgery on his right knee on March 1, 2002. Plaintiff described his current condition as "painful" and stated that he was no longer "able to take a comfortable stride" or to go running as he had before.

Patrick Enright testified to a markedly different version of the incident, asserting that plaintiff had aggressively approached him and his companions as they alit from their gondola. Enright "put [his] hand up . . . to [plaintiff's] face and pushed him back because [he] felt threatened." Plaintiff then "picked up his skis like a baseball bat and started swinging them at [him]." Plaintiff hit Enright on his arm; Enright then "back[ed] down the hill" and "tackled [plaintiff] to stop him from swinging the skis a[t] [him]."

Enright stated that he "broke away[,]" and plaintiff grabbed him "from behind by the hood of [his] snowboard jacket." At the same time, plaintiff's son engaged in a scuffle with one of Enright's companions, Anthony Covello, and plaintiff went towards them. Enright thought plaintiff intended to hit Covello with a snowboard, so he struck plaintiff in the eye with his fist. Plaintiff "just kind of sat down."

Enright testified that he had a season pass to the resort and that if he were to "get into any kind of trouble[,]" a hole would be punched in his pass; anyone who had three holes punched would have his/her pass revoked. The following colloquy occurred on this point, during direct examination:

Q Okay. And as of the day you had this pass had you had any punches on your pass?

A No.

Q Did you have any incident in the past while you were at the [resort] where they disciplined you or said . . . you're doing something you couldn't do?

A No, just for snowboarding where I shouldn't have been.

Q I'm sorry?

A Just for going out of bounds, things like that.

Q. What do you mean going out of bounds?

A Just riding my snowboard on jumps that may not have been open and things like that, but nothing that warranted them punching the pass.

During cross-examination, the following exchange occurred between plaintiff's counsel and Enright:

Q Had you yourself prior to this in Mountain Creek ever been involved in a situation where you attacked someone with a ski pole?

A No.

Q You had never read a report of somebody who claims that you attacked them with a ski pole while you were waiting in line to board the gondola?

A No.

Q You were never with your family when that happened?

A No.

Q That had never happened.

A No, not at all.

The defense rested after Enright's testimony. Plaintiff thereupon proffered a rebuttal witness, Michael Keller, whose name and proposed testimony had previously been provided to the defense. Plaintiff had a statement from Keller that

describe[d] an incident that had taken place a year and a half or two earlier involving Mr. Enright and included in the statement aside from the facts of how Mr. Enright was proactive, and picking a fight, and abusive, et cetera, Mr. Keller indicate[d] that he was ejected and not allowed to ski that day from Mountain Creek.

Counsel argued that Keller's testimony would go "directly to the credibility of Mr. Enright" and was, therefore, admissible under N.J.R.E. 607, "as extrinsic evidence to contradict the testimony that he had never before been disciplined."

The trial judge excluded Keller as a rebuttal witness, stating that Enright's testimony

had to do with the season pass and the . . . holes punched on it only and I suppose you can interpret words however you think but then . . . rebuttal testimony simply doesn't fall from that very not even ambiguous statement. I think it's directed directly to the questioner's question, namely the season pass.

Counsel then jointly engaged in redacting plaintiff's hospital records prior to submitting them in evidence. Plaintiff's counsel proffered the emergency room records and the records of plaintiff's surgery into evidence. The trial judge, however, declined to admit into evidence Dr. D'Agostini's operative report for plaintiff from March 1, 2002, regarding the surgery performed on his right knee. The judge ruled:

[T]he observation is entirely dependent on a complex diagnosis. And that's the basis of my ruling. I . . . understand your position, but I don't agree with you because one can describe a complex diagnosis in terms of what they're doing, or procedure, . . . but it is dependent on the . . . diagnosis.

During his summation, plaintiff's counsel made the following statement, which brought an immediate objection from the defense:

There's been some suggestion, Dr. D['A]g[o]stini wasn't brought into the courtroom. Well, the fact is there was no need to bring Dr. D['A]g[o]stini in because you're going to have the hospital records. There is no doubt and there is little reason for a doctor when you know that [plaintiff], and you'll see it in the hospital records, tore his ACL, it had to be repaired, he described the surgery to you he underwent, he described the physical therapy he underwent . . . .

At a sidebar at the conclusion of summations, the trial judge ruled on the objection raised by defense counsel as follows:

Well, number one, [plaintiff] told us his understanding is what he had so he could comment on that. What you said was -- you talked about the hospital records and you'll see it in there, that [plaintiff] had a torn ACL. The purpose of the exercise was to keep that diagnosis out but that [plaintiff] can testify as to his understanding of this condition. So I think it does require some . . . instruction[].

. . . .

I allowed the page to stay in there but not for the purposes of diagnosis which is what you used it for in your remarks.

. . . .

And I don't think you properly should have done that.

The judge thereupon instructed the jury as follows:

[Plaintiff's counsel] made a remark as part of his closing that you will see from the hospital records that there was a torn ACL. . . . [T]hat's something in the knee I take it.

[Plaintiff] testified as to what his condition was, and what he thought his problem [was], and what happened to him, and what he [was] treated for, and what the consequences of that were, and we'll certainly let that stand.

But since there was no doctor produced I will not permit any information regarding diagnosis or prognosis of the operative procedure to come in through the hospital records. There's not a live person here to question or cross-examine. So you shouldn't consider what is in the hospital records as constituting a diagnosis or prognosis, but you may certainly consider the testimony of [plaintiff] as far as his injuries and the consequences of that are concerned.

The court thereupon charged the jury. The following day, the jury rendered its verdict, finding that (1) Enright committed an assault; (2) Enright's assault was a proximate cause of plaintiff's eye injury; (3) Enright's assault was not a proximate cause of plaintiff's injuries to his knee or shoulder; and (4) plaintiff was fifty percent liable for his eye injury.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE TRIAL JUDGE ERRED IN REFUSING TO ADMIT REBUTTAL EVIDENCE OFFERED TO BOTH CONTRADICT SPECIFIC AND CRITICAL TESTIMONY OF THE DEFENDANT ELICITED ON DIRECT EXAMINATION AND REINFORCED ON CROSS-EXAMINATION THAT WAS CRITICAL TO THE CREDIBILITY OF THE DEFENDANT AND POTENTIALLY RELEVANT WITH RESPECT TO HIS ROLE IN INITIATING THE ASSAULT

POINT II

THE TRIAL COURT ERRED IN DENYING ADMISSIBILITY OF THE OPERATIVE REPORT OF THE SURGERY PERFORMED ON PLAINTIFF

POINT III

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GIVING THE JURY A CURATIVE INSTRUCTION TO DISREGARD REFERENCE BY PLAINTIFF'S COUNSEL IN SUMMATION TO THE "TORN ACL" WHEN SAID LANGUAGE WAS CONTAINED WITHIN THE PORTION OF THE HOSPITAL RECORD ADMITTED INTO EVIDENCE

Having reviewed the record in light of these contentions, we conclude that plaintiff's arguments regarding the admissibility of the operative report of his surgery and the judge's instruction to the jury following counsel's summation are without merit. We concur, however, with plaintiff's first argument, namely that the trial judge erred in refusing to allow plaintiff's rebuttal witness to testify; therefore we reverse that ruling and remand for a new trial as to liability only.

Regarding the hospital records issues, we concur with the trial judge's determination that plaintiff's operative report was inadmissible in the absence of testimony by his surgeon, Dr. D'Agostini. That report contained the following diagnosis: "Tear, anterior cruciate ligament, medial meniscus, and mild arthritis, right knee." The two-page description of the surgical procedure contains numerous medical terms. Having reviewed that report, we are satisfied that the trial judge properly found that it "describe[d] a complex diagnosis" and a "procedure . . . [that] is dependent on the . . . diagnosis."

Plaintiff argues that the operative report "is not an expression of opinion but is a business record with a recitation of facts that is admissible pursuant to N.J.R.E. 803(c)(6)." We disagree. This report "involved a complex diagnosis involving [a] critical issue in dispute, as opposed to an uncontested diagnosis or insignificant issue." Nowacki v. Community Med. Center, 279 N.J. Super. 276, 284 (App. Div.), certif. denied, 141 N.J. 95 (1995). This report did not "represent . . . a straightforward description of the procedure that was performed by the [s]urgeon," as plaintiff contends. This is precisely the type of record we found inadmissible in Nowacki, where we held that "medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question." Id. at 282-83.

Without Dr. D'Agostini present in court, defendant was "deprived of [the] opportunity" to question him about other possible causes of the injury to plaintiff's ACL and meniscus; nor could defendant cross-examine Dr. D'Agostini regarding the appropriateness of the surgery performed and plaintiff's prognosis for pain and recuperation thereafter.

The trial judge permitted plaintiff to testify as to his own subjective assessment of what occurred, including his submission to an MRI and the fact that he underwent surgery on his right knee. Beyond that, however, plaintiff was precluded from informing the jury of his specific medical diagnoses and actual surgical procedures without producing Dr. D'Agostini to address those issues. "'[A] jury should not be allowed to speculate without the aid of expert testimony in an area where laypersons could not be expected to have sufficient knowledge or experience.'" Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997) (quoting Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 702 (1996-97)).

We turn next to plaintiff's argument that the trial judge gave an improper instruction to the jury following his counsel's summation. As noted, counsel told the jury that they would "see it in the hospital records, [that plaintiff] tore his ACL, [and] it had to be repaired . . . ." We concur with the trial judge's determination that those comments went far beyond the entries in the redacted medical records admitted into evidence, upon which plaintiff relied.

On one page in those records, the word "plan" is followed by the handwritten notation: "ACL recon . . . meniscus[.]" During the discussion between the judge and counsel regarding the redaction of plaintiff's records, the trial judge expressly permitted those notations to be in evidence, finding that they represented "a plan for treatment."

Under the circumstances, we disagree with plaintiff's contention that "counsel referenced an item that was in evidence and not redacted . . . ." This point does not warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Finally, we address the issue regarding plaintiff's rebuttal witness. Plaintiff proffered Keller's statement describing an incident in which Enright had assaulted and harassed him, "cursing and yelling vulgarities[,]" "picking a fight[,]" "ski[ing] into [him] and . . . crossing the tips of [his] skis [to] try to get [him] into a fight." As a result of this incident, Keller stated, Enright "was ejected and not allowed to ski that day."

As noted, Enright testified to two different issues regarding his conduct at Mountain Creek. First, Enright stated that he never engaged in any type of conduct that led to his season pass being punched. Later, on cross-examination, Enright denied "be[ing] involved in a situation where [he] attacked someone with a ski pole[.]"

In excluding plaintiff's rebuttal witness, the trial judge referred only to Enright's testimony regarding his season pass. He did not address Enright's denial of being involved in an attack with a ski pole.

Plaintiff had no basis on which to anticipate the need for Keller's testimony until after Enright's cross-examination. "Rebuttal evidence is permissible when necessary because of new subjects introduced on direct or cross-examination of defense witnesses." State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 486 (2000). We are satisfied that Enright's denial of the prior incident constituted a "new subject[]" which rebuttal evidence should have been permitted to address. Particularly where, as here, credibility was a critical issue, Keller's testimony may well have influenced the jury's assessment of the evidence.

We conclude, therefore, that plaintiff is entitled to a new trial as to liability, at which he shall be permitted to present the testimony of Keller before the jury. We limit this new trial to liability only as we have found that plaintiff's issues relating to damages do not merit reversal.

Reversed and remanded for proceedings in conformance with this opinion.

 

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August 13, 2009