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Cadiz v. Perez

Court of Common Pleas of Delaware, New Castle

January 30, 2017


          Submitted: January 13, 2017

          D. Miika Roggio, Esquire Silverman McDonald & Friedman Attorney for Plaintiff

          Brian T. Jordan, Esquire Jordan Law, LLC Attorney for Defendant


          The Honorable Robert H. Surles Judge

         This is an action for common law battery and personal injury. The events in question occurred at Dover Downs Hotel & Casino, in which the defendant, Ruffino Perez (hereinafter "Perez"), allegedly struck the plaintiff, Michael Cadiz (hereinafter "Cadiz"). On December 13, 2016, a trial was convened on the matter. At the conclusion of the trial, the Court requested briefing from the parties and reserved decision. This is the Court's final decision after trial and after consideration of the parties' briefings.


         During the trial, the Court sat as the trier of fact. Therefore, it belongs solely to the Court to assess the credibility of the testifying witnesses and, where there is a conflict in the testimony, to reconcile these conflicts, "if reasonably possible[, ] so as to make one harmonious story."[1] In doing so, the Court takes into consideration the demeanor of the witnesses, their apparent fairness in giving their testimony, their opportunities in hearing and knowing the facts about which they testified, and any bias or interest they may have concerning the nature of the case.[2]


         At trial, the Court heard testimony from the plaintiff, Michael Cadiz; the defendant, Ruffino Perez; and from three other individuals: Harry Jones (hereinafter "Jones"), a security supervisor at Dover Downs; Stacey Cadiz (hereinafter "Stacey"), the ex-wife of Perez and the current wife of Cadiz; and Joseph Cadiz (hereinafter "Joseph"), the brother of Michael Cadiz. The Court also received documentary evidence, including surveillance videos from Dover Downs, photographs allegedly depicting Cadiz's injuries, and invoices from Bayhealth Medical and Delaware Eye Care.[3] The Court, as the sole trier of fact, assessed the credibility of each witness and finds the relevant facts to be as follows.

         Perez and Stacey were married for approximately seven years, during which time they had a son. At some point after Perez and Stacey divorced, Stacey began dating Cadiz, and ultimately married Cadiz in 2014. During the general time surrounding the incident in question, Perez had custody of his son, and managed any transfers of the son to Stacey's supervision by conducting the transfer at a police station. Whenever Perez had physical custody of their son, Stacey would call Perez, who would hand the phone to their son, so Stacey could tell her son goodnight. At this point, Cadiz had not yet married Stacey, but the two were well along in their relationship. Cadiz and Perez had known each other for some time, and Perez - a correctional officer employed by the Delaware Department of Corrections - had previously supervised Cadiz while Cadiz was incarcerated. This context frames the incident at Dover Downs.

         On May 31, 2014, Cadiz and his family - including Stacey, Joseph, and others - went to Dover Downs. At approximately 7 P.M., and before entering the casino, Stacey called Perez to tell her son goodnight, as per her custom. At no point did Stacey tell Perez or her son where she was or what she was doing, nor did she speak to Perez personally. After entering the casino, Cadiz and the others spent several hours amusing themselves before ultimately going to the gazebo bar.[4] Shortly after arriving, Perez entered the area, spotted Stacey, and approached.[5]

         The gazebo bar, or at least the relevant section of the bar, is laid out in a particular fashion. It consists of a bar, an aisle, and a half wall, standing at approximately waist height. Customers must enter the area and walk up the aisle to reach a given seat at the bar. Around 11:17 P.M., when Perez spotted Stacey, he entered the gazebo bar area and walked up the aisle, with the bar to his right and the half wall to his left. Once Perez was near Stacey, he initiated an argument with Stacey and ultimately called her a derogatory name one or more times.[6] Perez then removed his hat, placed it on the half wall, and continued the argument.

         Cadiz, who was seated next to Stacey, began turning in his chair and was attempting to stand up. However, before Cadiz could leave his seat, Perez struck Cadiz twice in the face in quick succession. The members of Cadiz's party all came to their feet and began surrounding Cadiz and Perez. Perez began moving backward, but his progress was slowed because Cadiz had grabbed onto Perez's shirt and was half-stumbling, half being dragged along with Perez. Perez then made two or three more actions as though he intended to strike Cadiz again.[7] Cadiz finally let go of Perez's shirt and fell to the floor, while Cadiz's family members surrounded him and exchanged shouts and threatening gestures with Perez.[8] Perez retreated from the gazebo bar and made his way immediately out of the casino and into the parking lot.[9]

         At the gazebo bar, members of Dover Down's security team, including Jones, approached Cadiz and ushered him into the security room. Once there, Jones called an ambulance for Cadiz; Cadiz ultimately refused to go with the ambulance and, after discussing the incident with Jones, left Dover Downs of his own accord. Cadiz then went to Bayhealth and was treated for a split lip, a blackened and bruised eye, and a bruised lump on his forehead. One week later, Cadiz also visited Delaware Eye Center, as he testified he had trouble seeing and was unable to drive.

         While Cadiz and Stacey testified as to their fear and apprehension surrounding Perez following the incident, contact continued between the two parties. Shortly after the incident, Stacey called Perez to determine who was watching their son. The very next morning, after Cadiz left the hospital, Perez and Stacey met to exchange physical custody of their son. It was uncontroverted at trial that Cadiz was driving the vehicle that morning. In the intervening period between the incident and the trial, Perez, Stacey, and Cadiz had varying levels of contact, none of which is germane to the matter at hand.[10]


         Because the Court withheld making final determinations of admissibility on several pieces of evidence, the Court will begin by addressing those matters, followed by a discussion on liability and damages.

         I. Admissibility of the Documentary Evidence

         Before trial, the parties attempted to enter the following disputed documents into evidence: 1) a surveillance video from Dover Downs; 2) an incident report from Dover Downs; 3) medical records from Bayhealth; 4) medical records from Delaware Eye Care; 5) an invoice from Bayhealth; 6) an invoice from Delaware Eye Care; 9) criminal dockets relating to Cadiz. The Court will address these items seriatim.

         a. The Surveillance Video

         It is well established that videotapes, photographs, and other such evidence must be authenticated before admission into evidence.[11] Delaware Rule of Evidence 901 provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Authentication can come from the testimony of a witness with knowledge.[12] This Court routinely admits video surveillance.

         Jones was the officer called to testify on the video. Jones testified that, while he was not involved in the creation of the video itself, he was familiar with the procedures surrounding the video's creation. Jones was also able to identify specific locations within Dover Downs from the video, had reviewed the video shortly after its creation, and implicitly verified at least part of the video's accuracy by noting his own presence within the video. Jones further testified as to the date and time of the incident. The Court is satisfied this testimony satisfies the requirements of authentication; therefore, the Court will admit the video and give its contents appropriate weight in reaching its ultimate conclusions.

         b. The Incident Report

         Under Delaware Rule of Evidence 803(6), certain documents are admissible under the business records exception to the hearsay rule. Such documents must be made and kept in the course of a regularly conducted business activity; furthermore, any hearsay within such documents must be independently admissible under an exception to the hearsay rule.

         Jones testified that it was part of his job duties to prepare reports on incidents occurring at Dover Downs. However, Dover Downs is a casino; it is not in the business of security, nor does it function as any sort of investigative service. Rule 803(6) requires the record to be made in the course of a regularly conducted business activity - not a record made as a random, situational corollary beyond the scope of the regular activities of the business.[13] Jones had the aid of his report in refreshing his recollection, but there is no need, and no appropriate ground, for admitting the report into evidence. Accordingly, the Court will exclude the contents of the report from its considerations.

         c. Bayhealth Medical and Delaware Eye Care Records

         As with the incident report, medical records are considered business records, thus requiring a proper foundation prior to admissibility. Cadiz sought to move the medical records into evidence without any testimony from a custodian, a qualified person, or a medical expert. A party must comply with Rule 803(6) to overcome the fact that medical records are, in fact, hearsay. Cadiz cannot testify himself as to the foundational requirements for admissibility, nor can he testify that he utilized the records in any capacity as an expert. The Court does not even reach the question of whether an expert would be required to interpret the records, because the records are not admissible as evidence without a testifying witness.[14]

         d. Bayhealth Medical and Delaware Eye Care Invoices

         Invoices also require compliance with the business records exception.[15] Cadiz did not provide any testimony from the creator or custodian of the invoices, nor was he qualified to testify as to whether the invoices were generated and kept in the regular course of business.[16]Therefore, the Court will not allow the invoices into evidence.

         e. Cadiz's Criminal Docket

         Delaware Rule of Evidence 609 allows a party to impeach the credibility of a witness through the introducing evidence of a prior conviction of the witness. The conviction may be for any felony and/or for any crime of dishonesty, including misdemeanors; crimes of dishonesty do not require balancing the probative value against the prejudicial effect. However, if more than ten years have elapsed since the date of conviction or the date of release from confinement imposed for that conviction - whichever is later - then the Court must undertake an additional step. The Court must determine whether "the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."[17]

         It is uncontested the two convictions in question were for crimes of dishonesty. It is likewise uncontested that at least ten years have passed since Cadiz was convicted. Therefore, the Court must look to the "specific facts and circumstances" of the convictions, and must then weigh the probative value against the prejudicial effect. In Fisher v. Beckles, the Superior Court refused to allow evidence of prior convictions because the record lacked any specific details pertaining to those convictions.[18] This failure utterly precluded the defendant from utilizing the prior convictions.

         In the case at bar, Perez likewise failed to offer any specific facts and circumstances relating to the convictions. Even when the Court granted Perez leave to cross examine Cadiz on these matters, pending a final determination by the Court, Perez failed to elicit any testimony on the circumstances beyond the date and the general nature of the crime. Fisher is binding upon this Court. The Court cannot allow evidence of a conviction older than ten years without having sufficient facts upon which to ...

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