                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2002

Nigroni v. Trump Plaza Assoc
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3639




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                                                                              NOT PRECEDENTIAL

                          THE UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT

                                            ___________

                                            No. 01-3639
                                            ___________

                               LOUIS NIGRONI; MARY NIGRONI;
                                   JOSEPH F. LOMBARDO

                                                    v.

                                TRUMP PLAZA ASSOCIATES,
                               d/b/a Trump Plaza Hotel and Casino;
                           MILLAR ELEVATOR SERVICE COMPANY,


                                                 Millar Elevator Service Company,
                                                 Appellant
                                            ___________


                 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                                     (D.C. Civil No. 00-cv-03317)
                            District Judge: The Honorable Stewart Dalzell

                                            ___________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  October 31, 2002
           BEFORE: NYGAARD and WEIS, Circuit Judges and IRENAS,* District Judge.




*        Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
                                       (Filed : November 8, 2002 )

                                              ___________

                                      OPINION OF THE COURT
                                           ___________


NYGAARD, Circuit Judge.

                Appellant Millar Elevator Service Company appeals the District Court’s

order denying Millar’s motion for a new trial pursuant to FED R. CIV. P. 59. Specifically,

Millar alleges that the District Court erred by: (1) allowing references to certain hearsay

testimony; (2) permitting the introduction of evidence concerning escalators adjacent to

the one involved in the claim; (3) instructing the jury as to industry standards when no

standards were put into evidence, and; (4) finding that the inappropriate statements made by

Plaintiff’s counsel during closing remarks did not influence the jury’s verdict. The facts of

this case are well known to the parties and only those relevant to our disposition are cited

herein. We will affirm.

                Millar first argues that the District Court erred by permitting the introduction

of hearsay testimony when it allowed Nigroni’s counsel to make references to the

deposition of Len Cannon, an employee of Millar. With regard to the motion for new trial,

the District Court found that the references to Len Cannon’s deposition were not employed

for the truth of Cannon’s statements, but rather to form hypothetical questions to

witnesses. Further, the District Court found that the jury was instructed that questions by




                                                     2
counsel were not evidence to be considered, and that the use of the testimony did not in any

way affect Millar’s substantive rights.

                 Hearsay is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” FED R. EVID. 801(c). The rule further explains that a statement is not hearsay if

it is offered against a party and is “a statement by the party’s agent or servant concerning a

matter within the scope of the agency or employment, made during the existence of the

relationship.” FED. R. EVID. 801(d)(2)(D). As Millar’s brief explains, “[a]t the time of the

accident Len Cannon was an hourly employee of Millar.” App. Br. at 10. Mr. Cannon was

employed as a mechanic and was present for the state inspection of the escalators, as well

as immediately after the accident in question. His statements concerning the mechanical

aspects of the escalator at the time of the inspection and immediately after the accident

were thus made during, and in the context of, his employment for Millar. Because Mr.

Cannon’s statements do not qualify as hearsay, but rather as admissions by a party-

opponent, they may be properly admitted against Millar.

                 Next, Millar contends that the introduction of evidence regarding the

breakdown of an adjacent escalator after a state inspection was inappropriate. We disagree.

Escalator 16 was located in the same escalator bank as escalator 17 – the escalator in

question – and was subject to the same preventive maintenance. Further, both escalators

passed state inspection shortly before Mr. Nigroni’s accident. As the District Court

explained, such “testimony was naturally relevant to demonstrate that the mere fact that

                                                       3
escalator 17 passed a state inspection less that a month before the accident did not

foreclose a malfunction at the time of Nigroni’s accident.” Order of August 23, 2001.

Given that the maintenance of the escalators was in issue, and that evidence concerning the

state inspection of the escalators was entered, the District Court did not abuse its

discretion by permitting evidence as to the post-inspection condition of escalator 16.

                In instructing the jury, the District Court explained the effects of an industry

standard on their deliberations. We have reviewed both the instruction and Millar’s

objections to it and find such an instruction was permissible. Both parties elicited

testimony from expert witnesses as to the proper standards for escalator maintenance and

repair, although no uniform industry standard was established. The District Court

instructed the jury that “[c]ompliance with an industry standard is not necessarily

conclusive as to the issue of negligence, and does not, of itself, absolve the defendant from

liability.” The instruction provided by the District Court simply informed the jury of how it

should consider the standards discussed by the experts under New Jersey law, but did not

create a presumption that any particular expert’s testimony about a standard was

determinative. Such an instruction was not prejudicial to either party and was permissible.




                Millar also alleges that the remarks made by Nigroni’s counsel during the

closing arguments were inappropriate and improperly influenced the jury. The District

Court considered this argument in deciding Millar’s motion for new trial and found that the

remarks, although inappropriate, did not influence the jury. When the motion for new trial

                                                     4
relates to counsel misconduct, we will defer to the trial court's assessment of the level of

prejudice involved. The District Court was in a better position to judge the effects of the

remarks by Nigroni’s counsel. Looking at the record, we cannot say that the District Court

abused its discretion by finding that the remarks did not improperly influence the jury.

                We will affirm.




_________________________


TO THE CLERK:

                Please file the foregoing opinion.




                                                     _
                                              /s/ Richard L. Nygaard
                                                     Circuit Judge




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