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Tara Novembre was relying on what she said was a comment by someone behind her to another person: “Why did you push her?”
But a judge called the comment hearsay that couldn’t be told to jurors, who ultimately voted that neither the Jersey City high school, which sponsored the outing, nor the New Jersey Sports and Exposition bore any liability for Novembre’s head, neck and shoulder injuries at the Jan. 11, 2005 game in East Rutherford.
The state Appellate Division upheld Conte’s decision to exclude the comment on Tuesday.
Novembre and her husband, sister-in-law and three friends said they found several Jersey City teens in their seats in Section 238, above the corner of one of the baskets.
“When they asked them to move to their own seats, the teenagers stepped on the seat cushions to reach the next row up, rather than walk into the aisle,” the ruling says.
Novembre characterized them as “out of control,” saying that they cursed and made sexually explicit remarks about the players. There was “an excessive amount of running up and down the aisle,” as well as students sitting on the steps, she said. A middle-aged usher standing nearby “did not make any efforts to control or quiet the young spectators,” Novembre and other witnesses testified.
“Witnesses testified that throughout the game, they saw teenagers standing, pushing, shoving, nudging, bumping and throwing things at each other,” the Appellate Division decision says. “[A]t times, they kicked the seats in front of them where [Novembre’s] group sat; and no one seemed to be supervising the teens.”
Authority policy requires ushers to intervene when there’s trouble – but what defines that is up to the individual employee, the suit says.
However, as the appeals judges noted, no one in Novembre’s group complained, nor did they ask to be moved, even though there were an estimated 7,000 empty seats. An authority official said announcements are made encouraging those spectators who feel uncomfortable to consult an usher so they can be moved elsewhere.
With around five minutes left in the game, a teenage girl who was sitting behind Novembre fell on her.
According to court papers: “The girl’s body landed sideways, also striking Tara’s friend and her sister-in-law, who sat to her right and left. Two of Tara’s companions helped the teenage girl up. After returning to her row of seats, the teenager, who was crying and upset, asked Tara if she was [all right], and said she was sorry.”
During a pre-trial hearing, both Novembre and her husband said they heard a young male, in a “very concerned and sincere” tone, ask someone: “Why did you push her?”
There were conflicting accounts of who said what next – but, apparently, neither group was pleased with the outcome.
Novembre later completed an incident report with arena security in which she said there was “no supervision” of the students. Court papers say she was eventually taken by ambulance to Hackensack Medical Center.
She and her husband filed suit against the Authority and Snyder in January 2007.
During a hearing before the trial, Superior Court Judge Joseph S. Conte ruled that Novembre’s lawyers couldn’t introduce the “push” remark as evidence. For one thing, Conte said, no one could produce the man who supposedly made the remark to corroborate it.
And even if they could, the judge said, there wasn’t any way of proving he knew exactly what happened and why.
“The speaker could have observed the female spectator after she landed on [Novembre]. Perhaps, he only surmised without personal knowledge that she had been pushed,” the appeals judges noted.
In the end, the jurors in Hackensack found both the Authority and Snyder negligent. However, they ruled that neither could be held responsible for Novembre’s specific injuries.
The appeals judges agreed on those points, as well as the finding that it couldn’t be proved that “closer supervision was called for and would have avoided the incident which ultimately occurred.”
Novembre and her group had to draw a clear connection to the incident as “a consequence” of “unsupervised horseplay” of someone they could establish was a Snyder High School student, the higher court ruled. They also needed to show that Novembre was injured because of the school’s negligence “and not due to another unrelated cause or for no other reason at all.”
They didn’t do that, the appeals judges ruled, supporting the Bergen County jury’s verdict.
Same goes for the Sports and Exposition Authority, the higher court said.
“The mere possibility that a defendant’s negligence caused injury is not enough,” the judges wrote in their decision. She could have “simply slipped on a wet floor, or lost her balance in a steep space.”
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