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Appellate Division Affirms Defense Verdict in Department Store Assault Case

Mar 30, 2012 - Recent Verdicts by

By: Alexander Krasnitsky, Esquire

(Trenton, NJ, March 30, 2012) Following an oral argument before the Appellate Division of the New Jersey Superior Court, the Appellate Court affirmed on all grounds a defense verdict obtained by MSZLM for its client following a two-week jury trial in Middlesex County, NJ..

In the case, LeSage v. J. C. Penney Company, Inc., plaintiff claimed that while driving to a coin show, he stopped at a J. C. Penney store located in a mall, to use the store’s restroom. Plaintiff further claimed that while in the restroom, he was assaulted causing him to sustain brain injury and slip into a month-long coma. Plaintiff further claimed that the assault was part of a robbery.  Prior to trial, the Plaintiff’s settlement demand was approximately $750,000.

Pre-trial discovery disclosed that the responding police officers initially classified the case as assault and robbery, in part, because the plaintiff was found on a bathroom floor, in a pool of blood, with trauma to the head, and without a wallet or any identification. Subsequent investigation, located the plaintiff’s car in the mall parking lot, in which the plaintiff’s wallet was also located underneath the driver’s seat. No signs of struggle, existence of blood splatter, nor an assailant were ever identified by the police. Plaintiff subsequently claimed that as a coin collector and frequent visitor of coin shows he typically left his wallet in his car, choosing to carry only cash necessary to purchase coins. He claimed that a roll of $400 was stolen from him during the alleged robbery.

Discovery raised questions about the plaintiff’s declarations relating to the location of the coin show, the indirect route plaintiff choose to take the coin show, the reason and manner for plaintiff’s stop at the mall. Additional discovery identified a syncope episode suffered by the plaintiff six months prior to the subject incident, which also occurred as the plaintiff was using a restroom.

At trial, we challenged plaintiff’s credibility regarding the events leading up to the alleged incident, as well as his credibility in failing to disclose the prior syncope episode. We also challenged plaintiff’s claims of negligent security by the store, presenting evidence that the defendant store had in place sufficient manned and video surveillance security, as well as security policies and procedures. Finally, we challenged the extent of the affect of plaintiff’s injuries on his daily living activities. Trial testimony was offered, by medical, economic and security experts.

A jury of eight returned a defense verdict in favor of our client.

The plaintiff appealed the trial verdict on several grounds. First, plaintiff argued that the Trial Court erred in barring plaintiff’s treating neurosurgeon and neurologist from testifying that his injuries were consistent with, and were specifically caused by, an assault. Second, plaintiff argued that the Trial Court erred by permitting testimony concerning a prior medical episode in which plaintiff fainted, thereby inviting the jury to speculate that his injuries on the date in question may have been caused by the same medical condition. Third, plaintiff argued that the Trial Court erred in failing to instruct the jury that in the absence of evidence to the contrary, deference is given to the findings of administrative agencies and thus the Victims of Crime Compensation Board’s finding that plaintiff was a victim of a violent crime was therefore a fact established at the time of trial, or in the alternative, a rebuttable presumption. Finally, plaintiff argued that a new trial is required because the jury verdict rendered in favor of the defendant is against the weight of the evidence and to permit the verdict to stand would be a miscarriage of justice under the law.

Following oral argument by MSZLM attorney Alexander Krasnitsky before the New Jersey Superior Court’s Appellate Division, the Appeals Court issued a written opinion upholding the Trial Court on all issues and affirming the defense verdict obtained in favor of MSZLM’s client.

Submitted by Alexander Krasnitsky 12/20/12

Edited by SNC 12/20/12