BRIAN RICE v. TOWN TAVERN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BRIAN RICE,

Plaintiff-Appellant,

v.

TOWN TAVERN and TERESA A.

DAVIDSON,

Defendants-Respondents.

_______________________________

January 17, 2017

Argued October 13, 2016 - Decided

Before Judges Lihotz, O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0868-12.

Gary F. Piserchia argued the cause for appellant (Flynn & Associates, attorneys; Mr. Piserchia, of counsel; Stacy L. Moore, Jr., on the brief).

Emery J. Mishky argued the cause for respondent Town Tavern (Margolis Edelstein, attorneys; Mr. Mishky, of counsel; Victoria J. Adornetto, on the brief).

Erin P. Campbell argued the cause for respondent Teresa A. Davidson (Raymond, Coleman, Heinold, Norman, LLP, attorneys, join in the brief of respondent Town Tavern).

PER CURIAM

Plaintiff Brian Rice appeals from various evidentiary rulings, issued in the course of a jury trial, during which plaintiff sought compensation for personal injuries. Trial ended in a defense verdict in favor of defendants Theresa A. Davidson and Town Tavern. Plaintiff also appeals from the denial of his post-verdict motion for a new trial. Following our review, we affirm.

These facts are found in the trial record, which includes fact and expert testimony, as well as documentary and video evidence. Plaintiff alleged Town Tavern's and Davidson's negligence proximately caused his disabling injuries, which he suffered in an encounter with Davidson, an avowed chronic alcoholic, while police removed her from the premises.

On February 28, 2010, plaintiff, while on duty as an officer with the Waterford Township Police Department (WTPD), responded to a radio call to assist in the removal of a drunk patron. He and a fellow Officer, Joseph Keskes, went to Town Tavern. A third officer from the Berlin Township Police Department, who was not called at trial, also responded. The police arrived on scene at approximately 2:30 a.m. Plaintiff entered Town Tavern and asked the bartender whether she wanted to execute a complaint. She replied, no, and stated she only wanted Davidson removed because of her condition. Plaintiff's fellow officers were explaining to Davidson she needed to leave the premises and they would take her home. Davidson testified she was drunk when she arrived at Town Tavern, continued to drink heavily, used crystal methamphetamine, and became "blacked out" and "smashed." Although the testifying witnesses' accounts differ, it is undisputed plaintiff and the other officers used force to place Davidson into custody and remove her.

Plaintiff stated he approached Davidson, noting she "smelled like a brewery," was incoherent, disheveled, unresponsive to questions, "wobbly on her feet," and "hugging a big screen TV," repeating she did not want to leave. When Davidson continued to resist efforts to escort her from the premises, Officer Keskes placed her under arrest for "not listening and disorderly" and attempted to grab her hands to handcuff her. Plaintiff explained Davidson continued to struggle.

So I leaned in to grab her legs, to prevent her from kicking, and that's when she lifted her legs up and started kicking, and kicked me in the chest, kicked me in the head, and I finally got my arms around her her legs. And we didn't wrestle her to the floor. We fell to the floor[] because she was thrashing her legs and doing everything she could to prevent us from being able to restrain her.

After he, Officer Keskes, and Davidson fell to the floor, Davidson "continued to kick relentlessly." Ultimately, she was handcuffed, placed into custody and transported to the WTPD, where she was evaluated by paramedics, processed, and later released.

As a result of the altercation, plaintiff suffered a "red mark on the side of [his] head," which he described as a lump and developed a headache. At police headquarters, plaintiff completed a standard "use of force form," specifically noting he was not injured while apprehending Davidson.

Later that morning, plaintiff experienced muscle tightness and pain in his neck and back. He reported for work that evening after taking "two 800 milligrams of Motrin." However, after three hours, he went home because of the pain.

Plaintiff consulted his family physician the next day, who prescribed a pain reliever, Dilaudid. Later, his employer instructed him to go to Virtua Hospital. Approximately four weeks after the incident, plaintiff was examined by an orthopedic surgeon designated by WTPD's worker's compensation carrier. Plaintiff detailed his course of treatment, explaining he was never cleared to return to work.

Plaintiff also discussed his involvement in a February 8, 2012 car accident. While walking across Route 70, he was struck by a car, suffering a broken leg and a torn anterior cruciate ligament and meniscus. Plaintiff acknowledged his neck and back problems were aggravated by the car accident, but urged the primary injury was his leg.

At the time of trial, plaintiff described a myriad of symptoms he experienced daily and noted he continued a course of medication for pain, to assist his sleeping, to provide muscle relaxation, and diminish anxiety and depression. Finally, he described he experienced changes in his lifestyle and daily living since the altercation at Town Tavern.

Officer Keskes corroborated plaintiff's testimony regarding Davidson's arrest. He observed Davidson kick plaintiff in the head during the altercation, and his police report cited she kicked plaintiff "several times." Plaintiff did not agree with this characterization, however, and insisted he only was kicked once in the head and once in the chest.

Plaintiff also provided expert medical testimony in the form of a video deposition of Dr. Arthur Becan, a board certified orthopedist. Dr. Becan examined plaintiff in 2011, for purposes of determining whether he was eligible for a state disability pension. Dr. Becan noted plaintiff had an extensive history of herniated discs,1 which were aggravated by the incident at Town Tavern, leading to his total disability.2

Defendant also offered expert testimony. Roy Friedenthal, M.D., a board certified orthopedist, discussed his examination of plaintiff, along with a review of plaintiff's medical records. His review of an MRI scan, taken a few weeks after the incident, supported his opinion plaintiff did not suffer permanent injury as a result of the incident at Town Tavern.

Testimonial evidence from Town Tavern's owner, John D. Prokapus, prominently triggers plaintiff's arguments on appeal. On the night of the incident, Prokapus was at home when he received a voicemail at approximately 2:30 a.m., telling him there was an incident taking place at Town Tavern. He immediately turned on his laptop and viewed a live video stream from security cameras located inside and outside Town Tavern. Prokapus watched the events in real time, beginning right before police officers arrived until they successfully removed Davidson from the premises.

Town Tavern was equipped with "a ten camera surveillance system for inside and outside the premises that operates twenty-four hours per day." The cameras feed to a computer hard drive, recording everything that occurs. Seven camera units are inside the tavern, including cameras mounted in each corner of the rectangular building. The feed from all cameras is displayed on one monitor in the tavern and on Prokapus' laptop. The videos are retained for approximately one and one-half to two months, then reused.

One camera video, from camera six, was requested by and submitted to the WTPD in connection with the charges against Davidson. That video was retained and played for the jury. The remaining videos were recorded over and unavailable.

The video included the date, February 28, 2010, and the time, 2:36 a.m., which does not include audio. The video shows police arriving, going from left to right apparently toward Davidson, and later subduing her. The video shows the police leave the frame and seconds later, plaintiff and another officer are shown falling to the floor with Davidson, as they attempt to place her in custody. Plaintiff's arms are wrapped around Davidson's legs as Davidson's movements suggest "thrashing." No kicking contact is depicted between Davidson and plaintiff's head or chest on this video.

Prior to Prokapus' proposed testimony, plaintiff objected, arguing because Prokapus watched events from his home on his laptop, his testimony was excludable hearsay. The trial court overruled plaintiff's objection. The judge reasoned Prokapus viewed the incident in real time and permissibly could relate what he observed.

Prokapus explained when he received the call from the tavern employee of a problem, he hit the space bar on his laptop, which he kept next to his bed, and "all camera angles came up instantly . . . all at once." Prokapus testified he watched the entire incident from the time he was called until the police left. This included events prior to the police officers' arrival. At trial, Prokapus was asked to draw objects located in the tavern and depict the position of police and Davidson as he observed them, when the available video did not capture the events.

Prokapus stated when plaintiff approached Davidson, "she didn't do a thing. She never touched him; never implicated [sic] she was going to do anything. She didn't do one thing." He insisted Davidson did not kick any officer because they had her "penned in" and "took her to the ground in a second or two." He also refuted the claim Davidson was hugging a big screen television, stating there is nothing to grab onto because of the television's size. In his view, police "manhandled" Davidson, as they carried her out the front door head first, "her head smashing into the door and, physically, open[ing] the door with her body."

Tammy Ritchie, Town Tavern's bartender, working on the evening of the incident, testified she did not see Davidson kick plaintiff. She believed the officers used "excessive force" while placing Davidson into custody.

Following deliberations, the jury answered only questions one and two on the verdict sheet. In an 8-0 vote, the jury found Davidson was negligent (question one) and in a 6-2 vote, found Davidson's actions were not the proximate cause of plaintiff's injuries. The jury was not required to consider the ensuing questions directed to Town Tavern's negligence, proximate cause or damages.

Plaintiff moved for a new trial, asserting the verdict was illogical and against the weight of the evidence. He argued improper testimony by defense witnesses and alleged coaching by Town Tavern's counsel created an unjust result, requiring a new trial. The trial judge denied the motion. Plaintiff filed this appeal.

Essentially, plaintiff argues the judge erred in denying his motion for a new trial. More specifically, he cites erroneous evidentiary rulings and an abuse of discretion in denying his request for an instruction to a witness.

Jury verdicts are "cloaked with 'a presumption of correctness.'" Cuevas v. Wentworth Grp., 226 N.J. 480, 501 (2016) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977)). Our standard of review of decisions on motions for a new trial mirrors that guiding the trial judge: we must discern whether a "miscarriage of justice under the law" is clearly and convincingly shown. Risko v. Thompson Muller Automotive Group, Inc., 206 N.J. 506, 521 (2011).

It is axiomatic that a motion for a new trial should be granted only after having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law. A jury verdict is entitled to considerable deference and should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice. That is, a motion for a new trial should be granted only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court . . . . [A] trial court should not disturb the amount of a verdict unless it constitutes a manifest injustice. Thus, a trial judge is not to substitute his or her judgment for that of the jury merely because he or she would have reached the opposite conclusion.

[Ibid. (citations omitted).]

Plaintiff starts by suggesting physical and testimonial evidence overwhelmingly proved Davidson's actions proximately "caused the altercation, physical contact and substantial injury to plaintiff." Therefore, he contends the jury's finding in response to question two, stating "there was no action by . . . Davidson[,] flies in the face of the overwhelming physical and testimonial evidence." In a later argument he elaborates on this point. Following our review, we reject as lacking merit plaintiff's unsupported, overarching claim the jury's verdict was "bizarre" and that his evidence of proximate cause was unrefuted.

To prevail on a claim of negligence, a plaintiff must establish four elements: (1) that the defendant owed a duty of care; (2) that the defendant breached that duty; (3) actual and proximate causation; and (4) damages. Ordinarily, the plaintiff bears the burden of proving the defendant's negligence and that such negligence was the proximate cause of the plaintiff's injury.

[Fernandes v. DAR Dev. Corp., 222 N.J. 390, 403-04 (2015) (citations omitted).]

"Traditionally, proximate cause has been defined 'as being any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.'" Conklin v. Hannoch Weisman, 145 N.J. 395, 418 (1996) (quoting Fernandez v. Baruch, 96 N.J. Super. 125, 140 (1967), rev d on other grounds, 52 N.J. 127 (1968)).

Plaintiff suggests he proved his debilitating injuries resulted when subduing Davidson, as shown by a bruise on his head. Also, the causal connection between his physical problems and the events was established such that a damage verdict was required. Because the jury entered a no cause verdict, he argues a new trial is warranted. We disagree.

The jury was entitled to consider all evidence. Here, the jury may have easily accepted plaintiff suffered some blow to his head when Davidson refused to submit to arrest. However, sufficient evidence refuted his assertions regarding the interaction between plaintiff and Davidson, including the video retained in police custody along with Ritchie's and Prokapus' testimony, which the jury found credible. Additionally, unrefuted testimony that plaintiff suffered several injuries to his neck and back, before and after this incident, was presented. Dueling experts generally disagreed on the nature and cause of plaintiff's back injuries, leaving to the jury the task of weighing the testimony and determining the credibility of these divergent opinions in light of other evidence. Finally, plaintiff's expert's opinion was challenged on cross-examination regarding his failure to view the video evidence of the incident.

Based upon all evidence of record, we conclude the jury's evaluation of the facts, including the determination of the credibility of testifying lay and expert witnesses, would support its verdict, including the finding Davidson's actions, although negligent, were not the proximate cause of plaintiff's disabling back injury.

Next, plaintiff cites the admission of Prokapus' testimony relating his observations while watching the security camera angle video. On appeal, plaintiff argues the witness testified "from his recollection of a video," which was never produced, making his testimony, depicting events from the camera angles not preserved, inadmissible. At argument before us, plaintiff supported his assertion the testimony was erroneously admitted by citing the best evidence rule, N.J.R.E. 1002. We reject the argument as unfounded and accompanying legal argument as unsupported.

"[A]n evidentiary determination made during trial is entitled to deference and is to be reversed only on a finding of an abuse of discretion." Estate of Hanges v. Metropolitan Property & Cas. Ins. Co., 202 N.J. 369, 374, 383-84 (2010) ("Evidentiary decisions are reviewed under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion."). "The trial court is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Consequently, "a reviewing court should uphold the . . . findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

"A preliminary question in any evidence inquiry is whether the evidence is relevant. All relevant evidence is admissible unless it is forbidden by a specific rule." State v. Wilson, 135 N.J. 4, 13 (1994) (citing N.J.R.E. 402). "[R]elevant evidence has probative value, which is the tendency of the evidence to establish the proposition that it is offered to prove." Ibid. A witness may testify only to the extent of his personal knowledge. N.J.R.E. 602.

Here, plaintiff challenges Prokapus' testimony describing events he personally observed in real time, via multiple camera angles, because only one angle was preserved and presented at trial. Importantly, plaintiff does not challenge the admissibility of the preserved video. We pause to note an important distinction.

Authenticated video recordings, which accurately and faithfully depicted events, such that the event on film displays the actual event that is the subject of testimony, may be introduced into evidence. Wilson, supra, 135 N.J. 4, 16 (1994). As recording technology has advanced, the standards for authentication have become more relaxed. Suanez v. Egeland, 330 N.J. Super. 190, 195 (2000) (citing N.J.R.E. 901). Here, plaintiff does not challenge the authenticity of the video footage presented at trial. Rather, he asserts the trial court should have excluded Prokapus' testimony of his observations of footage not presented at trial.

Contrary to plaintiff's assertion, Prokapus did not offer testimony after watching a recorded surveillance video. Rather, he watched the interaction of police and Davidson as they unfolded, via a live feed displayed on his laptop. Significantly, Prokapus' testimony was based on the events he personally experienced, not a recording. Consequently, we reject the proposition Prokapus' observations, transmitted through a surveillance camera, are different from someone physically present but recording an incident through the lens of a movie camera. Following our review, we cannot conclude the electronic means facilitating Prokapus' observations defeated the admissibility of his testimony. Furthermore, contrary to plaintiff's suggestion, Prokapus' testimony was no more prejudicial than the testimony of the bartender, who was physically present in the tavern. Critically, both were subject to the crucible of cross-examination.

We also reject the inference alluded to during oral argument that absent the videos, which plaintiff maintains were the best evidence, Prokapus could not testify.

Under the "best evidence" provisions stated in N.J.R.E. 1002, an original document is generally required to prove the contents of a writing, subject to certain enumerated exceptions. Ibid. Questions for consideration may arise regarding whether a duplicate copy is "admissible to the same extent as an original" because a genuine question arises as to the authenticity of the original, or circumstances show it would be unfair to admit the duplicate in lieu of the original. N.J.R.E. 1003. Originals are not required if they are lost or destroyed, "unless the proponent lost or destroyed them in bad faith." N.J.R.E. 1004(a). Furthermore, the authenticity of a document is "satisfied by evidence [that is merely] sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901.

Plaintiff offered no challenge to the accuracy of the video surveillance system's performance as explained by Prokapus and nothing refuted Prokapus' testimony he watched the incident as it happened. These facts make the video record irrelevant because it is not the subject of the testimony. The jury was provided footage from one presented camera recording, which they were instructed to independently assess. Admittedly, Prokapus also discussed his view of other cameras, which captured events not depicted in camera six's brief footage. However, Prokapus, as did all other witnesses including plaintiff, testified from his recollection of what he saw, not what the video showed. Importantly, his credibility was subject to cross-examination and the test of consistency with other evidence.

Further, Prokapus' testimony was neither misleading nor confusing, necessitating corroboration to support its admissibility. Prokapus fully explained the surveillance camera system, how it recorded, as well as how he was able to view the events. The jury was not being asked to accept the truth of his description of something intangible, or his interpretation. He, like other witnesses, explained what he saw. This evidence was properly admitted and subject to challenge as all other evidence.

We conclude plaintiff's claims of unjust prejudice and legal error are unfounded and unsupported. The evidential admission was not an abuse of discretion.

The next challenge asserts the trial court erred by declining plaintiff's request to instruct Prokapus not to discuss his testimony with counsel, when his examination was interrupted to accommodate the testimony of another witness, out of order. Plaintiff also cites as error the judge's refusal to order defense counsel to refrain from discussing testimony with Prokapus during a lunch break. The trial judge inquired whether defense counsel consulted with his client about his testimony during the break. Counsel declined to respond, citing attorney client privilege.

Certainly there are preclusions preventing an attorney from dictating a client's trial testimony by telling the witness what to say. The United States Supreme Court in Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594, 102 L. Ed. 2d 624 (1989), has also commented that a criminal defendant does not have "a right" to interrupt his testimony after direct examination but before cross-examination to consult with counsel. Id. at 284, 109 S. Ct. at 601-02, 102 L. Ed. 2d at 635-36. The Court concluded permitting a defendant to confer with counsel in this way could "[grant] the witness an opportunity to regroup and regain a poise and sense of strategy that the unaided witness would not possess," and raised the potential for "coaching" the witness, while the testimony is in progress. Id. at 283, 109 S. Ct. at 601, 102 L. Ed. 2d at 635.

We cannot agree with plaintiff that this holding necessarily prevents all discussions between an attorney and his or her client during recesses. Rather, this court has concluded a trial judge holds "wide discretion" to determine whether to prevent a witness from consulting with his attorney during a break in testimony. Horn v. Village Supermarkets, 260 N.J. Super. 165, 175 (App. Div. 1992). In our view, at issue is the balance between a client's right to engage legal representation and whether demonstrated conduct would interfere with the truth-seeking function of a trial. See Perry, supra, 488 U.S. at 281-82, 109 S. Ct. at 600-01, 102 L. Ed. 2d at 634-35.

In this matter, plaintiff could have challenged Prokapus' credibility by asking whether the witness discussed his testimony during the break. That question standing alone would not violate any recognized privilege. Importantly, plaintiff presents no hint Prokapus altered his testimony following the lunch recess. In fact, plaintiff fails to identify one post-break inconsistency in the witness's testimony, suggesting a need for further examination. In light of the record, which is void of evidence of improper coaching of the witness, we conclude the judge's decision to decline counsel's invitation for admonishment was not an abuse of discretion.

Plaintiff also cites two utterances he asserts tainted the "entirety" of the evidence at trial and mandates reversal. First, he focuses on Ritchie's characterization of police treatment of Davidson as "excessive force," to which plaintiff objected. Second, he isolates Prokapus' statement police "manhandled" Davidson when escorting her from Town Tavern. We are not persuaded reversible error is present.

Following plaintiff's objection to Ritchie's use of the term, the judge conducted a side bar conference. He then issued this curative instruction

Ladies and gentlemen, the witness has indicated it was her opinion that excessive force was used. The witness is entitled as is anybody to their opinions about it. But generally speaking fact witnesses describe what they observe and juries then make conclusions as to whether or not force was appropriate or not. So the witness is entitled to her opinion, I'm entitled to my opinion. The point I make is ultimately you'll determine based upon testimony you find to be credible any opinions that result from that.

This direct, prompt and forceful instruction informing the jury of its obligation to find the facts and weigh witness opinion addressed the objectionable testimony. See State v. Vallejo, 198 N.J. 122, 135 (2009) (stressing the "importance of immediacy and specificity when trial judges provide curative instructions to alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial."). In this instance, we safely presume and trust jurors follow the instructions they are given. McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 599 (App. Div. 2002). We have no basis to abandon this presumption here.

When Prokapus described officers "manhandling" Davidson as she was placed into custody, there was no objection. The failure to interpose a timely objection strongly suggests counsel did not believe the remarks were prejudicial at the time they were uttered. Risko v. Thompson Muller Automotive Group, Inc., 206 N.J. 506, 523 (2011). More importantly, the lack of objection deprived the judge from exercising the opportunity to take curative action, if warranted. Ibid. We interfere only when plain error, "clearly capable of producing an unjust result" is shown. R. 2:10-2.

Plaintiff does not specify how this statement "tainted" the entire proceeding such that a new trial must be granted. Following our review and consideration of Prokapus' testimony as a whole, we reject the contention his use of the descriptive "manhandling," to express his view of how police treated Davidson, rises to plain error.

Affirmed.

1 The jury heard testimony that in 2002, plaintiff was involved in a car accident in which he suffered two herniated discs. Because of his back injuries, plaintiff was discharged from the Army Reserves, where he was then serving as a Military Policeman. In 2007, plaintiff was involved in a car accident, which aggravated his back injuries. Also in 2007, plaintiff injured his back by pulling a muscle while lifting weights, requiring he be taken to the hospital by ambulance.

2 Plaintiff also presented damage experts.