GAIL OWENS VS. PORT AUTHORITY TRANS-HUDSON CORPORATION (L-1792-15, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5314-16T3
GAIL OWENS,
Plaintiff-Appellant,
v.
PORT AUTHORITY TRANS-HUDSON
CORPORATION,
Defendant-Respondent.
_____________________________
Submitted August 1, 2018 – Decided August 8, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
1792-15.
Myers Lafferty Law Offices, PC, attorneys for
appellant (Patrick J. Finn, on the brief).
Port Authority Law Department, attorneys for
respondent (Lauren T. Grodentzik, of counsel
and on the brief).
PER CURIAM
Plaintiff Gail Owens appeals from the July 20, 2017 order
entering judgment in favor of defendant Port Authority Trans-
Hudson Corporation (PATH) following a jury trial. Plaintiff
contends the trial judge improperly admitted a video that depicted
the incident in which she was injured, and that defense counsel
made an improper comment during summation. After a review of
these contentions in light of the record and applicable principles
of law, we affirm.
While working as a conductor for PATH, plaintiff alleges she
injured her right shoulder when she was opening a door between
train cars. During discovery, defendant produced a surveillance
video that showed plaintiff standing at the train door, opening
it, and stepping through to the motorman's cab. Plaintiff contends
this footage does not show the actual moment of her injury. She
says she was injured on her first attempt to open the door, stating
the door was jammed and as she tried to pull it open, she felt a
pop in her shoulder. The door opened freely when she tried it a
second time.
Plaintiff presented a motion in limine prior to trial to
exclude the video surveillance as it did not show the entire
incident and it had not been authenticated.1 During the trial,
defense counsel played the video for plaintiff and she agreed the
1
Plaintiff advises that the motion was denied. Defendants claim
there was no ruling on the exclusion of the video. Instead, the
trial judge held the video would be admitted into evidence if it
was properly authenticated. The rulings were not on the record
and there is no transcript for our review.
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footage showed her standing in front of and then opening the cab
door without incident on the specific date and time of her injury.
Plaintiff's counsel objected to the video being shown to the
jury, arguing that plaintiff could not authenticate the video
herself. Counsel stated authentication had to come from the person
who took the footage off the whole stream and edited it. He
reiterated that the footage did not show the entire incident. The
judge overruled the objection, stating that plaintiff could
authenticate the video and he permitted the jury to view it.
After the video was shown to the jury,2 plaintiff testified
it did not show her "fighting with the door." Plaintiff's counsel
continued to argue the footage was edited and a PATH representative
was needed to authenticate it. As a result, the judge ordered
defendant to produce a knowledgeable representative the following
day to discuss the video. However, when the PATH witness appeared,
plaintiff's counsel stated: "I don't want to -- I don't need to
cross-examine this . . . witness on the video. . . . I'm fine with
the way the video came in at this point. So, I don't need any
further witness on it."
During trial, plaintiff testified that nine months prior to
her work injury, she had been involved in a motor vehicle accident
2
A juror requested the court replay the video, which was done.
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in which she injured her right shoulder and received some medical
treatment. During closing arguments, defense counsel made the
following comments:
And so, ladies and gentlemen, you saw a
video of the incident I'm not going to
describe -- you saw it for yourself. I'm not
going to describe to you what happened in --
in the video and what you saw -- but I just
ask that you consider three seconds. Three
seconds opening a door, now Ms. Owens says she
cannot work as a PATH conductor. Three
seconds opening a door, or a high speed motor
vehicle accident traveling 55 miles an hour.
There was no objection to the comment.
The jury returned a verdict in favor of defendant. A motion
for Judgment Notwithstanding the Verdict was denied and an Order
for Judgment was entered on July 20, 2017.
On appeal, plaintiff argues the trial judge abused his
discretion in permitting the jury to view the videotape
surveillance, and defense counsel distorted the evidence in her
closing remarks. We disagree.
"When a trial court admits or excludes evidence, its
determination is 'entitled to deference absent a showing of an
abuse of discretion, i.e., [that] there has been a clear error of
judgment.'" Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)
(quoting State v. Brown, 170 N.J. 138, 147 (2001)) (alteration in
original). "Thus, we will reverse an evidentiary ruling only if
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it 'was so wide off the mark that a manifest denial of justice
resulted.'" Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J.
480, 492 (1999)); see also State v. Marrero, 148 N.J. 469, 484
(2016); State v. Carter, 91 N.J. 86, 106 (1982).
Although plaintiff's counsel initially objected to the
admission of the videotape, he later withdrew the objection despite
the judge having requested defense counsel produce a witness with
knowledge of the production of the tape. When that representative
appeared in court, plaintiff's counsel advised that he did not
"need to cross-examine this . . . witness on the video." He
continued, stating he was "fine with the way the video came in."
We are satisfied there was no abuse of discretion in the
admission of the tape as plaintiff has not demonstrated a "manifest
denial of justice." Plaintiff described the date, and time of the
accident and the number of the car she was attempting to enter.
The video – containing a car number, date and time stamp – was
played for plaintiff only, at which time she corroborated it
depicted her opening the train door at the specific date and time.
She, therefore, authenticated the videotape. N.J.R.E. 801(c);
State v. Wilson, 135 N.J. 4, 14 (holding a witness must identify
the person, place or things shown in a videotape for
authentication).
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Plaintiff has failed to present any proofs that the videotape
was edited. Her counsel did not depose any witnesses during
discovery to establish this argument. Nor was plaintiff herself
asked any specific questions about the incident footage. To the
contrary, she identified herself as the person shown in the video.
It was not error to admit the tape.
We also can perceive no plain error in defense counsel's
fleeting comment during summations. See R. 2:10-2. The comments
were based upon the evidence shown in the video and testimony
presented by plaintiff, as counsel questioned the causality of
plaintiff's shoulder injury. Without an objection, it is presumed
the comment was not prejudicial. Jackowitz v. Lang, 408 N.J.
Super. 495, 505 (App. Div. 1994). The isolated comment is
insufficient to warrant a new trial. See ibid.
Affirmed.
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