Opinion
DOCKET NO. A-5894-13T3
10-30-2015
GEICO a/s/o JONAH CAVE, Plaintiff-Respondent, v. FIVE STAR PARKING, Defendant-Appellant. GEICO a/s/o CHONITA FLOYD, Plaintiff-Respondent, v. FIVE STAR PARKING, Defendant-Appellant.
Craig A. Borgen, attorney for appellant. Law Offices of John Kennedy, attorneys for respondents (Justin S. Black, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5501-12. Craig A. Borgen, attorney for appellant. Law Offices of John Kennedy, attorneys for respondents (Justin S. Black, on the brief). PER CURIAM
Defendant, Five Star Parking, appeals from a July 25, 2014 judgment confirming a jury verdict in favor of plaintiff, GEICO, as subrogee for its insureds Jonah Cave and Chonita Floyd, whose vehicles were stolen while parked in the valet lot at Newark Liberty International Airport (NLI lot), operated and managed by defendant. On appeal, defendant argues the trial judge erroneously denied its motion to bar plaintiff's expert and admitted hearsay documentary evidence. Alternatively, defendant maintains plaintiff's trial evidence was insufficient to prove liability. We affirm.
Floyd and Cave's vehicles were insured through policies issued by plaintiff. Pursuant to the terms of the respective policies, plaintiff paid Floyd and Cave the claimed net loss and proceeded as subrogee against defendant for the amount remitted to its insureds.
The Law Division, upon defendant's motion, consolidated the separately filed complaints under a single docket number. These facts are taken from the trial record.
Following brief opening statements, plaintiff's case was presented without live testimony and consisted of three documents and excerpts from the deposition testimony of defendant's valet manager, Jerry Miller. Without objection, plaintiff presented the claim incident report prepared on behalf of defendant regarding Floyd's stolen 2008 Land Rover, which had been parked at the P-4 valet station at defendant's NLI lot. The claim incident report specifically stated Floyd provided her car keys to a valet and she did not park her car. The top of the report contains a notation "Case #10-139 Officer Schelhorn #2189." The parties agreed the notation referenced the investigation by the Port Authority of New York and New Jersey Police (PAP), which provides security for all parking lots at NLI. Defendant stipulated to the document's admission.
Plaintiff next offered two letters authored by Lieutenant Kevin Murphy, presented on the PAP letterhead. The first, dated February 4, 2010, was addressed to "Carl Warren and Company Claim Management" and referenced "C.C.R. 10-139." The letter confirmed the PAP responded on January 4, 2010, to a call regarding a stolen Land Rover after defendant's employee discovered the vehicle missing "from the P-4 Valet lot" at NLI "and there was broken glass present in the area [where] the vehicle was parked." The second letter, dated January 10, 2010, was written by Lieutenant Murphy to Cave. Using almost identical language as the first, this letter stated the PAP responded on January 4, 2010 to a call regarding a stolen Audi Q7, after defendant's employee discovered the vehicle missing "from the P-4 Valet lot" at NLI "and there was broken glass present in the area [where] the vehicle was parked." This letter contained the reference "C.C.R. 10-140," which the judge found was "obviously sequential to C.C.R. 10-139, the other car."
The record does not contain the letter from Lieutenant Murphy to Warren, rather it is a letter from Murphy to Floyd; otherwise, the substantive information of its contents is identical to the exhibit described by the judge during trial.
Like the Floyd letter, the document in the record does not match the description set forth by the judge on the record as it does not contain the reference to the claim management company.
The judge found the two letters reliable. He concluded they were business records and granted plaintiff's request for their admission into evidence.
Plaintiff also read portions of Miller's deposition transcript. These brief statements addressed the discovery of Cave's and Floyd's missing vehicles during defendant's nightly inventory and his observation of broken glass found at each vehicle's parking spot. Miller explained only "our people" have access to the inside valet lots where the vehicles were parked.
Defendant contested liability, maintaining it took all reasonable steps in parking the cars, but the vehicles were stolen by "savvy criminals," which represented an intervening cause. Miller testified on defendant's behalf, stating defendant just runs the parking operation and its function does not include security, which is left to the PAP, who patrol the lots. Also, all security cameras are installed and monitored by the PAP. He asserted these were the only two vehicles ever stolen during the twenty years he worked at the NLI valet lot.
Miller related the valet parking process, where a customer's keys were kept, how they were accessed by defendant's valets, as well as the inventory process used each evening to verify vehicles located in the valet lots. On January 4, 2010, shift supervisor Brenda Harris was conducting inventory and first found the vehicles missing. Miller contacted the PAP. Defendant did not dispute vehicles owned by Cave and Floyd were stolen on the same day from the P-4 interior lot. Also, on cross-examination, Miller confirmed the PAP cannot access the P-4 valet lot unless an attendant provides access.
Defendant introduced exhibits, mostly photographs depicting aspects of its security system, and stipulated plaintiff's damages totaled $86,242, based on the market value of the vehicles. This stipulation was drawn following the trial judge's denial of defendant's motion to bar plaintiff's expert from testifying as to value.
Defendant moved for a directed verdict at the close of evidence. Defendant asserted plaintiff failed to show the vehicles were parked with defendant's valet service. The trial judge denied the motion, concluding plaintiff's evidence was sufficient to establish the cars were in a valet lot, which established defendant's duty of care and triggered a presumption of negligence, thus shifting the burden to defendant to prove it was not negligent.
After deliberation, the jury found defendant failed to rebut the presumption of negligence and awarded plaintiff the stipulated value of the vehicles and related costs. The corresponding order for judgment was entered on July 25, 2014.
On appeal, defendant challenges evidential rulings made by the trial judge. First, defendant contends the judge erred in denying its motion in limine to bar plaintiff's expert. In doing so, the judge found "there would [be] sufficient foundation for [plaintiff's expert] to establish a . . . category loss value of the vehicle[s]." Thereafter, defendant stipulated to the amount of damages. Second, defendant challenges the admission of the letters authored by Lieutenant Murphy of the PAP. We are unpersuaded.
An evidentiary decision should not be overturned "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted." Brenman v. Demello, 191 N.J. 18, 31 (2007) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). See also State v. Feaster, 156 N.J. 1, 82 (1998).
At trial, plaintiff did not introduce its expert's testimony once defendant voluntarily stipulated to the amount of damages. See N.J.R.E. 101(a)(4) ("If there is no bona fide dispute between the parties as to a relevant fact, the judge may permit that fact to be established by stipulation or binding admission."). "[S]tipulations permit parties in a civil case to agree on relevant facts, thereby narrowing the area of dispute requiring the production of evidence and promoting the efficient administration of justice." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).
By stipulating the amount of loss, plaintiff was relieved of the need to prove the damage element of its case. Essentially, both sides waived the issue. "As a general rule, the parties are held to their stipulations and the consequences thereof . . . ." In re Robinovitz, 102 N.J. 57, 61 (1986) (citing Negrotti v. Negrotti, 98 N.J. 428, 432 (1985)). Defendant cannot collaterally challenge the admissibility of the expert's proffered testimony, once defendant stipulated to the substance of the testimony by accepting the proffered values.
Defendant next attacks the admission of Lieutenant Murphy's letters as inadmissible hearsay. Defendant argues the judge erroneously concluded they satisfied the business record exception because no evidence showed they were written in the regular course and scope of Lieutenant Murphy's duties.
The business records hearsay exception, established under N.J.R.E. 803(c)(6), provides:
A statement contained in a writing . . . made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, . . . [is not excluded by the hearsay rule]."The purpose of the business records exception is to broaden the area of admissibility of relevant evidence where there is necessity and sufficient guarantee of trustworthiness." Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 219 (App. Div. 1996) (internal quotation marks and citation omitted). Accordingly, to be admissible as a business record
[f]irst, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation must justify allowing it into evidence.If a record meets these requirements, testimony from a custodian of records or other qualified witness is not required as a condition for admission. See Biunno, Weissbard, and Zegas, Current New Jersey Rules of Evidence, cmt. 1 on N.J.R.E. 803(c)(6) (2015).
[State v. Sweet, 195 N.J. 357, 370 (2008) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).]
The challenge presented here is whether plaintiff's proofs establish the letters were prepared by Lieutenant Murphy in the regular course of business for the PAP. See Manata v. Pereira, 436 N.J. Super. 330, 346-47 (App. Div. 2014) ("Without an officer's testimony, it is unclear whether the report was prepared in accordance with regular practice including governing guidelines."). The record is muddled because references to the letters' contents, as recited by the judge and parties at trial, do not match the documents contained in defendant's appendix. Moreover, although the judge found the letters reliable, he failed to expressly articulate his factual findings supporting his ultimate conclusion these documents met the business record exception. See R. 1:7-4(a) (requiring judges to make factual findings supporting all motion conclusions).
At trial, defendant conceded the letter regarding Floyd's loss was addressed to defendant's claims agent and also did not refute Cave's letter contained, as the judge found, a reference number to an underlying PAP investigation. Yet, Lieutenant Murphy's role and the reason for authoring the letters is not clear. Without "an evidential record that addresses all relevant factors[,]" Matulewicz, supra, 101 N.J. at 31, there is no way of discerning whether the two letters were written in the regular course of business or in accordance with the regular practice of the PAP. Manata, supra, 436 N.J. Super. at 346-47. Admissibility probably required a PAP official familiar with the department's regular practices "who could state that the report was a record made in the regular course of the officer's duties and was made at or near the time of the event . . . [to] establish the report's admissibility." Dalton v. Barone, 310 N.J. Super. 375, 378 (App. Div. 1998).
Although we agree admission of Lieutenant Murphy's letter was not properly grounded on the business record exception, we conclude this error was harmless. The two letters discuss the PAP response to defendant's call after finding two vehicles, which had been parked in the P-4 valet lot, missing. The claim incident report -- plaintiff's first exhibit, admitted without objection -- contains sufficiently similar information as to Floyd's vehicle, making Lieutenant Murphy's letter cumulative. Regarding the letter confirming Cave's stolen vehicle, defendant never disputed the car was stolen. Miller corroborated defendant's shift supervisor's determination the Audi was missing after being parked in an interior valet lot: an area where Miller insisted only "[his] people" have access. Miller called the PAP and he noticed broken glass at the site where the vehicle had been parked. Thus, the information in Lieutenant Murphy's letter was presented to the jury through Miller's trial and recited deposition testimony. Accordingly, any error in admission of the letter was harmless. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . .").
Finally, we reject as unavailing defendant's argument the judge erred in denying its motion for directed verdict. Our review is guided by "the same standard that governs the trial courts[,]" found in Rule 4:40-1. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). We accept as true all evidence presented by plaintiff, along with the legitimate inferences drawn from those facts, to determine whether the proofs were sufficient to sustain a judgment in plaintiff's favor. Monaco v. Hartz Mountain Corp., 178 N.J. 401, 413 (2004). "[T]he judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).
Plaintiff's cause of action is grounded on the duty of "the operator of an enclosed garage . . . to exercise reasonable care to protect the parked cars and those items one would expect reasonably to find within them." McGlynn v. Parking Auth. of Newark, 86 N.J. 551, 561 (1981). The scope of a garage owner-operator's duty is circumscribed by the degree of possession and control exercised over the vehicle. "The care due to one who parks and locks his own car differs from the care due to another who entrusts his car and keys to an attendant ('valet parking')." Ibid. A determination of "whether an operator has discharged its duty of reasonable care must be determined on a case-by-case basis after an evaluation of all the relevant circumstances." Ibid.
The Supreme Court in McGlynn adopted factors to consider when analyzing the scope of this duty:
In parking lot and garage cases, the relevant indicia of possession and control include whether the lot is enclosed, whether a claim ticket is issued, whether the claim ticket identifies the car or merely indicates time and date of entry, whether the parking is by an attendant or the automobile operator and whether the operator retains the keys.
[Id. at 558.]
Once facts establishing the garage owner-operator's duty are proffered by a plaintiff, a presumption of negligence arises that a defendant must rebut. Id. at 560. "We conclude that a presumption of negligence arises from damage to a car parked in an enclosed garage. . . . The presumption shifts the burden of going forward to the garage operator to show that it was not negligent or that its negligence did not cause the damage." Id. at 562.
Here, plaintiff was required to establish the parking area was an enclosed space and the vehicles were in the possession and under the control of defendant. If shown, these facts prompt defendant's duty of reasonable care. Here, evidence supports a finding and reasonable inference that the vehicles were stolen while in the possession and control of defendant. Miller's deposition testimony alone established customers were given a ticket and the cars in question should have been in defendant's "inventory" of vehicles parked in the P-4 valet lot, an interior lot accessible only by defendant's employees. Thus, defendant must rebut the presumption it was negligent.
Moreover, Miller's trial testimony confirmed defendant's possession and control. He stated these facts. Cave and Floyd had their bar-coded tickets when they arrived to reclaim their parked cars. He acknowledged the ticket, given to customers by defendant's valets, recorded each vehicle's description, mileage, license plate numbers, and the driver's first and last name. When she performed her nightly inventory, Harris could not locate the vehicles in the spots designated and where the vehicles were the night before. Only defendant's employees could access the P-4 lot, and even the PAP needed a valet attendant to accompany a patrol officer to inspect the lot.
Although the claim incident report expressly states Floyd surrendered her keys and car to defendant's valet employees, the totality of the evidence supports Cave too valeted his Audi. Further, the existence of broken glass circumstantially supports the vehicles were stolen from defendant's valet lot. Taken together, these facts implicate Floyd and Cave's cars were lost while in defendant's exclusive possession and control, firmly establishing the presumption of negligence.
Accepting as true all evidence presented by plaintiff and the legitimate inferences drawn therefrom, Monaco, supra, 178 N.J. at 413, without "concern[] [for] the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion[,]" Dolson, supra, 55 N.J. at 5-6, plaintiff presented more than sufficient evidence to defeat defendant's motion for directed verdict.
Defendant's theory of the case was its measures were sufficient to discharge its reasonable duty of care. Defendant asserted the PAP was responsible to provide security and the cause of the theft was not known. Arguing this theory to the jury, defendant hoped to defeat any presumption of negligence. The jury's verdict shows it rejected this position.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION