GERARD LOMBARDI v. PAT'S TAVERN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6234-09T1

GERARD LOMBARDI,

Plaintiff-Appellant,

v.

PAT'S TAVERN,

Defendant-Respondent.

__________________________________

December 7, 2011

Submitted November 10, 2011 - Decided

Before Judges Axelrad and Ostrer.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-906-09.

Daggett, Kraemer, Kovach & Gjelsvik, attorneys for appellant (Jennifer L. Kovach and Gary A. Kraemer, on the briefs).

BolanJahnsen Dacey,attorneys for respondent (L. Patrick Dacey, of counsel; Elizabeth A. Wilson, on the brief).

PER CURIAM

Plaintiff Gerard Lombardi appeals from a July 9, 2010 order dismissing on summary judgment his complaint against Pat's Tavern for injuries that he suffered outside the Mount Arlington tavern on April 27, 2007. As there was no cognizable evidence in the record to support a reasonable inference that Pat's Tavern was responsible for plaintiff's injuries, we affirm.

I.

We summarize the facts, viewing them in a light most favorable to plaintiff as the non-moving party. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010) (applying on appeal the same standards for summary judgment governing the trial court under Rule 4:46).

It was undisputed that plaintiff and his girlfriend, Kim Kracke, had gone to Pat's Tavern for drinks late in the evening of Friday, April 27, 2007. At some point that evening, Kracke left the tavern to retrieve her cell phone. When she left, plaintiff was talking to the girlfriend of a bartender, Wally Merring.

The extent of plaintiff's alcohol consumption was disputed. Merring testified in a deposition that plaintiff had four to five mixed drinks of Jack Daniels and cola over the course of an hour. Yet, he did not believe plaintiff was intoxicated. Plaintiff testified in a deposition that he sat at the bar, ate no food, and consumed two or three drinks. He also denied that he was intoxicated. Merring testified that plaintiff left the bar before Kracke returned.

It was undisputed that plaintiff thereafter suffered a head injury. However, the motion record does not disclose the cause. No eyewitness was produced, and plaintiff later could not recall how or why he was injured.

Two days after the incident, Kracke asked police to investigate, reporting that plaintiff may have been assaulted. According to the report of the subsequent investigation, Merring said that just a couple of minutes after plaintiff left the tavern, a patron walked in and told him "there was a guy on the ground outside." The police reported that Merring recounted that plaintiff fell, and did not know why.

In his deposition three years later, Merring offered a different version, stating that plaintiff left the tavern and returned by himself one-and-a-half to two hours later with a serious head injury. Merring testified that when he asked plaintiff what happened to him, plaintiff answered that he did not know. He testified that police misreported his statement and denied that plaintiff acknowledged he fell.

Dave Moran, the tavern's owner, was not present on the night of the incident. He reported to police that his employees had later told him that a patron reported that a man was lying down by the door; the injured man was helped into the bar and said that he fell and wanted to go home; and his girlfriend then came and picked him up.

Kracke told police in a written statement that when she returned to the tavern, an unnamed blonde woman told her that plaintiff had fallen and hurt himself. Other people in the bar also told her that he fell. Kracke also reported that plaintiff was missing about $120 in cash and lottery tickets after the incident.

According to Kracke's statement, plaintiff was unsure himself what had happened and relied on what others told him. She wrote, "I asked him repeatedly what happened and he just says the people at the bar said I fell[.] I guess I tripped[.] That[']s what they told you right?" Kracke sought medical care for plaintiff the day after the injury at St. Clare's Hospital in Dover, but plaintiff was ultimately treated at St. Clare's in Denville. According to the medical records, which were not provided to the trial court, plaintiff apparently reported to hospital personnel that he fell, hit his head, and possibly lost consciousness. Other hospital records reported that he slipped and fell, possibly lost consciousness, and was disoriented after the fall, but they did not attribute the source of that information. On the other hand, Kracke wrote in her statement that plaintiff's doctors agreed that it was unlikely plaintiff received his injuries just from a fall.

According to the police report, plaintiff told police from his hospital bed that he slipped due to the rain and slippery ground, although he later admitted in answers to interrogatories that it was clear and dry that night. He denied that he was missing any money or lottery tickets. In his deposition, plaintiff testified that he had no memory of the incident in question and very little recollection of his time in the hospital.

According to an expert engineer's report obtained by plaintiff, the ramp leading from the exit that plaintiff used presented a hazardous condition, allegedly because it lacked curbs and railings required by the Barrier Free Subcode. See N.J.A.C. 5:23-7.1 to -7.32. Also, the door saddle had a raised edge of 1.5 inches that constituted a tripping hazard.

Plaintiff filed a complaint in March 2009 alleging that Pat's Tavern and various pseudonymously named defendants negligently maintained the premises and failed to provide adequate security, causing plaintiff's injuries. After the parties completed discovery, defendant moved to bar plaintiff's expert and for summary judgment. After argument on July 9, 2010, Judge Hunt Dumont granted the motion for summary judgment.

Judge Dumont concluded that there was insufficient evidence upon which a jury could find that plaintiff was injured as a result of defendant's negligence. After reviewing the record evidence, the judge concluded:

The question is, is there anything here that can go to a jury at this point. Well, it's still unclear as to what happened to the plaintiff. It's as likely that he was assaulted as it is that he fell.

And with respect to the fall down, there's no eyewitness to the fall, there's no indication where he fell, and the case adds up to nothing more than hearsay information from unidentified persons that he fell outside a bar, exact location not known, and we don't know who it is that even provided this information.

. . . [T]here's just plain insufficient evidence to support an issue as to liability of Pat's Tavern.

Plaintiff appeals. He argues that there was sufficient evidence to support his claim and to defeat the motion for summary judgment. He argues that the court erred in disregarding various hearsay statements that were admissible under applicable exceptions. Plaintiff argues that his statements to hospital personnel were admissible under N.J.R.E. 803(c)(4), statements for the purpose of medical diagnosis, and under N.J.R.E. 803(c)(5), past recollection recorded. He also argues that various statements of Kracke, Merring and Moran were admissible as hearsay within hearsay, N.J.R.E. 805, and statements of Merring and Moran were admissible as statements of a party opponent, and an agent of a party opponent. N.J.R.E. 803(b)(1) and 803(b)(4). We disagree and affirm.

II.

We review the trial court's grant of summary judgment de novo applying the standard set forth in Brill, supra, 142 N.J. at 540. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540.

Having reviewed the record in light of that standard, we agree that summary judgment was appropriate. In short, there was insufficient admissible evidence upon which a jury could conclude that plaintiff suffered a fall as a result of negligent maintenance of the exit ramp, or that plaintiff was assaulted as a result of negligent provision of security outside the premises.

Judge Dumont correctly concluded that plaintiff, who had a complete lack of memory of the incident at his deposition in December 2009, had based his claim that he fell on inadmissible hearsay. Plaintiff also proffered no admissible evidence that he was assaulted, or that his injuries were of the sort typically caused by an assault.

Plaintiff may not rely on statements he allegedly made to hospital personnel that he slipped and fell. First, the hospital records were not presented to the trial court, and therefore are not properly before us. See Ins. Co. of N. Am. v. Anthony Amadei Sand & Gravel, 162 N.J. 168, 178 (1999) ("It is well settled that an appellate court's review of a case is confined to the record made in the trial court."); R. 2:5-4(a).

Second, even if we considered the hospital records, plaintiff's statements to hospital personnel are not admissible under N.J.R.E. 803(c)(4), which allows a court to admit hearsay statements made "in good faith for purposes of medical diagnosis or treatment which describe . . . the inception or general character of the cause or external source [of pain or symptoms] . . . to the extent that the statements are reasonably pertinent to diagnosis or treatment." Plaintiff bears the burden of persuasion that his statements fell within the exception. State v. Miller, 170 N.J. 417, 426 (2002). Yet, plaintiff presented no proof that his statements were "reasonably pertinent to diagnosis or treatment." See Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92, (App. Div. 1991) (absent testimony from physicians that the cause of plaintiff's fall was relevant to diagnosis or treatment, statement of causation was inadmissible).

The hospital statements were also not admissible as past recollections recorded. N.J.R.E. 803(c)(5) authorizes the admission into evidence of a statement about which the witness lacks a present recollection if the statement

is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy. . . .

Plaintiff presented insufficient proof that his statement that he fell concerned a fact of which he "had knowledge when it was made." According to his girlfriend and the bartender, plaintiff was unable to say what happened the night of the incident. He told the police detective who visited him in the hospital that he did not know what happened. Plaintiff's statement to hospital personnel may well have been based on what unidentified declarants told him. As such, "the circumstances indicate that the statement is not trustworthy."

Lastly, plaintiff's in-hospital statements were not admissible as res gestae. Our Supreme Court recently recognized that the res gestae doctrine has no continuing vitality in light of the formal Rules of Evidence. State v. Rose, 206 N.J. 141, 146 (2011).

Plaintiff also misconstrues N.J.R.E. 805, in seeking to rely on statements that Kracke, Merring, and Moran provided to police. Even if the police's reporting of what the three individuals said was admissible as a business record, N.J.R.E. 803(c)(6), their statements would only be admissible to prove the truth of the matters asserted therein if the statements themselves fell within a separate hearsay exception. They do not.

Rather, Kracke's, Merring's, and Moran's hearsay statements rested on yet another layer of hearsay. Kracke relied on the hearsay statement of the unnamed blonde woman. Moran, who was not even at the tavern the night of the incident, relied on hearsay statements of one or more employees. Merring relied on the statement of a patron who said plaintiff was already on the ground. Even if Merring told the detective that plaintiff fell, he had no personal knowledge of that fact, and his statement was therefore not competent evidence. See Neno v. Clinton, 167 N.J. 573, 585 (2001) ("'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.'") (quoting McCormick on Evidence, 10 (5th ed. 1999).

Therefore, it is of no moment that Moran's statements may have been statements of a party opponent, N.J.R.E.803(b)(1), and Merring's statements were those of a party's agent. N.J.R.E.803(b)(4). Moran and Merring lacked personal knowledge that plaintiff fell, or how he fell.

In sum, the record lacked admissible evidence to enable a jury to determine that plaintiff's injuries resulted from a fall or an assault. The record also lacked admissible evidence of where plaintiff landed on the ground, and how he got there. While it was undisputed that plaintiff suffered severe head injuries, a jury could only speculate that the allegedly unsafe condition of the ramp was a proximate cause of plaintiff's injuries. There was no evidence that plaintiff was on the ramp when he suffered his injuries, or that the ramp's condition was causally related to the injuries. There was a complete absence of record evidence about the security around the tavern, let alone that defendant failed to satisfy a reasonable standard of care, and that failure was a proximate cause of an assault.

It is fundamental that a personal injury plaintiff must prove that the defendant's conduct constituted a "cause-in-fact" of his or her injuries. Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 322 (App. Div.), certif. denied, 146 N.J. 569 (1996). The mere possibility that a defendant is responsible for a plaintiff's injuries is insufficient to impose liability. Long v. Landy, 35 N.J. 44, 54 (1961). Here, plaintiff offered insufficient proof to warrant presenting the issue to a jury. Brill, supra, 140 N.J. at 536 (summary judgment shall be granted where evidence is so one-sided that movant must prevail as a matter of law).

Affirmed.