NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3436-19
ROGER C. GATES and LORRAINE GATES, his wife,
Plaintiffs-Respondents,
v.
COUNTY OF PASSAIC,
Defendant-Appellant. ___________________________
Argued November 29, 2021 – Decided December 8, 2021
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2925-17.
Donald A. Klein argued the cause for appellant (Weiner Law Group, LLP, attorneys; Jay V. Surgent, of counsel; Donald A. Klein, Andrew J. Kyreakakis, and Howard E. Brechner, on the briefs). Jeffrey M. Patti argued the cause for respondent (Patti & Patti, Esqs., attorneys; Jeffrey M. Patti, of counsel and on the brief).
PER CURIAM
Defendant County of Passaic (the County) appeals from an August 30,
2019 order denying its summary judgment motion; a March 17, 2020 judgment
in favor of plaintiffs entered after a jury trial; and a March 27, 2020 order
denying its motions for judgment notwithstanding the verdict (JNOV) and for a
new trial.
On appeal, the County argues:
POINT I1
THE [MOTION JUDGE] ERRED IN DENYING THE COUNTY'S MOTION FOR SUMMARY JUDGMENT.
A. The County Is Immune From Liability For Discretionary Activities Under N.J.S.A. 59:2- 3(d).
B. Plaintiffs Cannot Satisfy The Prerequisites For Public Entity Liability Under N.J.S.A. 59:4-2.
1. Oak Ridge Road was not "a dangerous condition" at the time of the accident.
1 To comport with our style conventions, we have altered the capitalization of the County's point headings, but have omitted these alterations for readability. A-3436-19 2 2. The County did not create or have notice of an alleged dangerous condition.
3. The County's conduct was not palpably unreasonable.
POINT II
THE TRIAL [JUDGE] ERRED IN QUALIFYING [MICHAEL] MURPHY AS AN EXPERT, IN NOT STRIKING HIS TESTIMONY IN ITS ENTIRETY AS A NET OPINION, AND IN FAILING TO CURE HIS IMPROPER AND PREJUDICIAL TESTIMONY.
A. Murphy Was Improvidently Qualified As An Expert.
B. Murphy's Testimony Was Merely A Net Opinion And Should Have Been Stricken In Its Entirety.
C. The Trial [Judge's] "Curative" Instruction To The Jury Was Not Only Insufficient, It Was Also Impossible To Implement.
POINT III
THE TRIAL [JUDGE] ERRED IN BARRING THE COUNTY FROM PRESENTING EVIDENCE OF ITS "RESOURCES" IMMUNITY AT TRIAL AND INSTRUCTING THE JURY THAT IT SHOULD NOT BE CONSIDERED.
POINT IV
THE EVIDENCE AT TRIAL CONFIRMED THAT THE COUNTY WAS NOT LIABLE UNDER N.J.S.A.
A-3436-19 3 59:4-2; AND THE TRIAL [JUDGE] ERRONEOUSLY EXCLUDED RELEVANT EVIDENCE REGARDING THE COUNTY'S IMMUNITY WHICH FURTHER DEMONSTRATED THAT THE COUNTY WAS NOT LIABLE UNDER THIS STATUTE.
POINT V
THE TRIAL [JUDGE] ERRED IN BARRING THE COUNTY FROM PRESENTING EVIDENCE OF "DESIGN" IMMUNITY AT TRIAL.
POINT VI
THE TRIAL [JUDGE] ABUSED HIS DISCRETION IN PERMITTING TESTIMONY BY PLAINTIFFS' WITNESSES CONTRARY TO THE COURT RULES.
POINT VII
THE TRIAL [JUDGE] ERRED IN FAILING TO CURE EGREGIOUS PREJUDICAL STATEMENTS BY PLAINTIFFS' COUNSEL IN HIS SUMMATION.
A. The Trial [Judge] Permitted Plaintiffs To Equate The Standard For Liability Under The Tort Claims Act With Information On The County's Website.
B. The Trial [Judge's] Deficient Response To Improper Remarks By Plaintiffs' Counsel In His Summation Regarding The County's Resources Significantly Compounded Other Errors.
POINT VIII
FUELED BY ERRONEOUS EVIDENTIARY RULINGS, THE JURY'S FAILURE TO FIND
A-3436-19 4 [PLAINTIFF] TO BE COMPARATIVELY NEGLIGENT TO ANY DEGREE WAS DEMONSTRABLY AGAINST THE WEIGHT OF THE EVIDENCE.
POINT IX
THE INDIVIDUAL AND CUMMULATIVE EFFECT OF THE TRIAL [JUDGE'S] ERRORS WARRANTS REVERSAL OF THE JURY VERDICT AND JUDGMENT.
POINT X
THE TRIAL [JUDGE] ERRED IN DENYING THE COUNTY'S POST-VERDICT MOTIONS.
We affirm all orders under review.
I.
The County was not entitled to summary judgment. We review a ruling
on a motion for summary judgment de novo and apply the same standard as the
motion judge. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224
N.J. 189, 199 (2016). We consider, as the motion judge did, "whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). A judge grants
summary judgment "if the pleadings, depositions, answers to interrogatories and
A-3436-19 5 admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-2(c). "To defeat a
motion for summary judgment, the opponent must '"come forward with
evidence" that creates a genuine issue of material fact.'" Cortez v. Gindhart, 435
N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield
of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). We owe no special
deference to the motion judge's legal analysis. Templo Fuente De Vida Corp.,
224 N.J. at 199. On such dispositive motions, we must look at the facts in the
light most favorable to the non-moving party, here, plaintiffs.
On April 14, 2016, plaintiff Roger C. Gates lost control of his motorcycle
after its front wheel struck a large pothole on Oak Ridge Road. Plaintiff was
not exceeding the speed limit of forty miles per hour. Although plaintiff
attempted to navigate this road, which had been filled with recurrent pothole
problems due to the road's state of disrepair, pavement irregularities, and
multiple potholes, plaintiff's motorcycle crossed the road into oncoming traffic,
struck a minivan, and his body went flying.
Paul Janiec, a Passaic County Road Department district supervisor,
explained that the road department had a road crew of approximately fourteen
A-3436-19 6 members and two inspectors. He explained that the peak of the pothole season
was around February and March when there was a lot of freezing at night and
warming during the day. He stated that in April each year, on an as-needed
basis, the crew would therefore fill potholes. In the first half of 2016, Janiec
would inspect Oak Ridge Road once every two weeks, and an inspector in his
district did the same thing. Janiec admitted that in April 2016, there was a
"rough patch" of several potholes on Oak Ridge Road at the intersection of
Cooper Road, less than a mile south of where the accident occurred, which were
filled "on a regular basis." Janiec understood Oak Ridge Road had persistent
potholes. He knew of no pothole policy other than fixing the "ones [that] need
the most attention first."
Kenneth Simpson, Supervisor of the Passaic County Road Department,
knew that since 2014, there was a "recurring [pothole] problem" on Oak Ridge
Road in the vicinity of Wallace Cross Road, directly north of where the accident
occurred. Importantly, and implicitly characterizing the substantial dangerous
condition, Simpson said that during the time of year when the accident occurred,
there could be "thousands of potholes in one particular week." In addition,
"[d]uring this time frame," potholes in the same location could be filled on a
recurring basis. Acknowledging that repair work was unsuccessful, he
A-3436-19 7 explained that the road crew "could literally go there in the morning and fill the
pothole. And by the time they're coming back, the pothole is out." Simpson
stated that Oak Ridge Road was a candidate for resurfacing in April 2016, based
on several factors, including the last time it had been resurfaced and the
condition of the road, but despite their persistent problems, road resurfacing was
not done until April 2018.
A resident (the resident), who lived near the scene of the accident,
confirmed that on the day of the accident there were two potholes near the
middle of the northbound lane on Oak Ridge Road in front of her house. She
estimated that the potholes were three feet long and up to a foot deep. She
observed vehicles swerving to avoid the potholes. She notified the Township of
the presence of potholes starting in 2014.
Plaintiffs' liability engineering expert, Steven Schorr, concluded that the
northbound lane of Oak Ridge Road, approaching the area where the accident
occurred, was in "poor condition, including pavement irregularities and
potholes," and that this "poor roadway condition" was a significant contributing
factor to the accident. After Schorr passed away, his engineering firm submitted
a report prepared by Robert Lynch, a licensed professional engineer, who also
concluded that the "poor condition" of Oak Ridge Road approaching the curve
A-3436-19 8 "presented difficulties" for plaintiff as he approached and navigated the curve.
He opined that the potholes caused plaintiff to lose control of the motorcycle
and that the "poor roadway conditions" were a significant contributory factor to
the accident.
We reject the County's arguments that it was immune from liability under
N.J.S.A. 59:2-3(d) and that its conduct was not palpably unreasonable under
N.J.S.A. 59:4-2. Here, N.J.S.A. 59:2-3(d) does not apply because the County
did not engage in high-level policy-making discretionary decisions; rather, the
County made operational decisions. And under N.J.S.A. 59:4-2, a jury was
required to resolve whether the County's repeated unsuccessful road work was
palpably unreasonable.
A public entity is not liable for an injury resulting from the exercise of
judgment or discretion vested in the entity. N.J.S.A. 59:2-3(a). Specifically, a
public entity is
not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a [judge] concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.
A-3436-19 9 [N.J.S.A. 59:2-3(d).]
Subsection (d) creates immunity when, faced with competing demands,
the public entity exercises its discretion on whether and how to apply its existing
resources. Brown v. Brown, 86 N.J. 565, 577 (1981). A policy decision made
at the planning level, and not (like here) the operational level, as to whether to
resurface a road is immune from liability under N.J.S.A. 59:2-3(d). Costa v.
Josey, 83 N.J. 49, 59-60 (1980).
These discretionary determinations include decisions such as what roads
should be repaired, whether to repair the road by patching or resurfacin g, and
whether to use the available resources for the maintenance of the road. Id. at
55. Immunity under subsection (d) protects only "basic policy determinations."
Ibid. Once resources have been provided, a public entity may be liable for its
determination of priorities in the application of such resources if that
determination is palpably unreasonable. Margolis & Novack, Claims Against
Public Entities, 1972 Task Force Comment on N.J.S.A. 59:2-3(d) (2021). The
palpably unreasonableness standard of care in N.J.S.A. 59:2-3(d) overlaps with
the palpably unreasonable standard in N.J.S.A. 59:4-2. Brown, 86 N.J. at 579-
80.
A-3436-19 10 Here, resurfacing the roadway and the funds available for road repairs,
which are high-level planning decisions, are not at issue. Rather, the repair of
potholes at the operational level of decision-making is the focus of plaintiffs'
claims. Therefore, immunity under N.J.S.A. 59:2-3(d) is inapplicable to the
facts of this case.
Liability for a dangerous condition of public property is set forth in
N.J.S.A. 59:4-2:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
A-3436-19 11 N.J.S.A. 59:4-3 provides:
a. A public entity shall be deemed to have actual notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
b. A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.
The Tort Claims Act (TCA) defines a "dangerous condition" as a "condition of
property that creates a substantial risk of injury when such property is used with
due care in a manner in which it is reasonably foreseeable that it will be used."
N.J.S.A. 59:4-1(a).
As to dangerous condition, the resident, who lived directly adjacent to the
scene of the accident, stated there were numerous potholes in the road in front
of her house, including ones that were multiple feet long and "maybe [five]
inches, maybe deeper I don't know but I know they were bad." She regularly
saw people swerve to avoid potholes, and when vehicles could not, the resident
described the noise as "bah bump bah bump." The resident's daughter said the
potholes were "deep" and "pretty long." A local department of public works
A-3436-19 12 supervisor emailed Simpson (on the night of the accident), stating that the
potholes that put plaintiff out of control, near the accident, were "good-sized
ones."
As to notice, the County knew for years that the accident area had been
problematic with recurring potholes, at least since 2014. Simpson, the resident,
and the resident's daughter established that fact. Eventually, the County put the
road on a resurfacing list, but not until after the accident. Discovery revealed
that the County's road crew and supervisors themselves knew of the dangerous ,
continued problems that persisted. At a minimum, whether the pothole situation
and the roadway constituted a dangerous condition was for the jury to determine
as the fact finder.
And as to palpably unreasonable, plaintiffs produced sufficient evidence
for the jury, not a judge, to resolve. The pothole problem persisted, during the
time of year when the accident occurred, there could be "thousands of potholes
in one particular week," the resident made multiple reports about the condition
of the roadway in the area of the accident, and although he admitted that the area
required pothole repairs, Janiec confirmed such repairs were unsupported by
work records.
A-3436-19 13 II.
The County contends that the trial judge abused his discretion by
qualifying Murphy as an expert in traffic operations and maintenance, that his
entire testimony should have been stricken as a net opinion, and that the judge's
limiting instruction as to the use of the testimony was insufficient.
The decision to admit or exclude expert testimony is reviewed for abuse
of discretion. Townsend v. Pierre, 221 N.J. 36, 52-53 (2015). "If scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify thereto
in the form of an opinion or otherwise." N.J.R.E. 702. In order to be admissible
as expert testimony, the witness must have sufficient expertise to offer the
intended testimony. Thompson v. Merrell Dow Pharm., Inc., 229 N.J. Super.
230, 240 (App. Div. 1988). An expert witness must possess the minimal
technical training and knowledge essential to a meaningful and reliable opinion.
Hake v. Manchester Twp., 98 N.J. 302, 314 (1985).
The judge properly admitted Murphy as an expert. Indeed, the County
conceded that Murphy had the requisite work experience. Murphy was retired
from the Pennsylvania Department of Transportation after over forty years of
A-3436-19 14 service, where he had been a county maintenance manager and an equipment
operator who had filled potholes, and had experience in roadway drainage
systems, maintenance, and repair. Murphy had a couple of years of college,
which included coursework in pothole patching. He also had previously been
admitted as an expert in different courts, and at the time of trial, he worked for
a traffic planning and design company preparing reports.
Merely because Murphy did not have an engineering degree and did not
inspect the accident scene does not disqualify him to testify as an expert, as the
County suggests. An expert may be qualified by study without practice or
practice without study. State v. Smith, 21 N.J. 326, 334 (1956). Expertise may
be acquired by occupational experience. Correa v. Maggiore, 196 N.J. Super.
273, 282 (App. Div. 1984). "Our case law is replete with examples of the
generous approach taken by our courts when qualifying experts based on
training and experience." State v. Jenewicz, 193 N.J. 440, 454 (2008). Murphy
had over forty years of experience in road maintenance, including pothole repair,
and had repaired potholes himself. His occupational experience qualified him
as an expert.
The County maintains that Murphy offered net opinions. The net opinion
rule provides that "an expert's bare conclusions, unsupported by factual
A-3436-19 15 evidence," are inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
The County raised this on two separate occasions.
At the close of plaintiffs' case, the County moved to strike Murphy's
testimony in its entirety. The judge granted the motion in part, finding that the
minimal questioning regarding whether the County should have done permanent
patching prior to the accident was "based on nothing, no standard, and he's not
qualified to say that." Therefore, "any of the opinions that say what should have
been done are out." The judge added that there were "not that many places where
he did that."
At the close of its case, the County renewed its motion to strike the entirety
of Murphy's testimony. The judge denied the motion again but stated that he
would "fashion an instruction for the jury . . . to explain that portions of his
testimony are being stricken from the record and shouldn't be considered by
them." The judge instructed the jury:
After the testimony was completed, I ruled that portions of Mr. Murphy's opinions were not admissible in this case. I found that he lacks expertise, or a sufficient basis, for reaching some of his conclusions.
Specifically, I am striking any testimony . . . regarding any opinions he holds as to what the County should have done to repair the road because he's not qualified to render such opinions. You are not to
A-3436-19 16 consider those opinions in reaching your decision in this case.
Any opinions that he rendered regarding road maintenance techniques, types of repairs, the methodology of such repairs, and the necessary equipment to perform such repairs are valid opinions within his field of expertise and are admissible in this trial.
Given our standard of review, we see no error as to the judge's evidentiary
rulings, let alone an abuse of discretion. As to what the County "should have
done," we note that the jury learned about alternative methods of road repair
from the County's expert, John Desch, who identified four methods for repairing
the road. Of course, Desch was subject to cross-examination. Thus, even if
there was an evidentiary error, which is not the case under the facts here, it was
harmless.
III.
In the County's Points III and IV, the County maintains that the trial judge
erred in excluding evidence relating to resource immunity at trial and in
instructing the jury that such a defense should not be considered. N.J.S.A. 59:2-
3(d) creates immunity when, faced with competing demands, a public entity
exercises its discretion on whether and how to apply its existing resources. As
we previously pointed out, the County was not entitled to the resource immunity
A-3436-19 17 defense, in part, because whether the County should have repaved Oak Ridge
Road prior to the accident was not at issue.
IV.
In Point V, the County contends that the judge erred by precluding it from
presenting a design immunity defense merely because plaintiffs decided to drop
their claim that there was a design defect. We conclude the County is barred by
the doctrine of invited error from arguing on appeal that the judge erred in
excluding evidence of design immunity. Plaintiffs withdrew their claim for
design defect before trial, and the County proceeded to inform the judge that it
agreed with the judge that withdrawal of the claim mooted its design immunity
defense.
Plan or design immunity under N.J.S.A. 59:4-6 provides:
Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.
A-3436-19 18 To avail itself of the immunity under N.J.S.A. 59:4-6, the public entity
"must demonstrate that the specific design or plan detail alleged to constitute
the dangerous condition was itself the subject of prior approval or prior
approved standards." Weiss v. N.J. Transit, 128 N.J. 376, 384 (1992). In
determining whether a public entity has design immunity, judges first identify
the culpable cause of the accident and then ask whether that identified cause is
one the Legislature intended to immunize. Kain v. Gloucester City, 436 N.J.
Super. 466, 473 (App. Div. 2014); see also Manna v. State, 129 N.J. 341, 358-
59 (1992) (explaining that "a plaintiff cannot cast a design improvement as a
'maintenance' action to circumvent the immunity given the original design").
In its answer, the County pleaded "each and every . . . immunity provided
under the" TCA. At a pre-trial hearing, the County claimed that Desch's report
raised a plan or design immunity defense. It further argued that it was raising
the defense in response to Murphy's report, which included a section drafted by
another professional engineer, Gerald Baker, referring to storm drainage and a
lack of catch basins as being a cause of the accident. Plaintiffs argued that
Murphy was just being thorough and that what they were claiming were
maintenance issues, not design. The County maintained that the jury should still
be permitted to consider the defense. The trial judge responded that because
A-3436-19 19 plaintiffs were "not moving forward" with the claim, the report claiming design
or plan defect was "not . . . go[ing] in . . . why would we let the jury hear that
there's an immunity for design defect?" Counsel for the County responded, "All
right . . . [t]hat makes sense . . . I can't raise a defense for an argument that's not
being made."
The design or plan immunity is an affirmative defense as to which the
public entity bears the burden of pleading as well as proof. Birchwood Lakes
Colony Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 600 (1982); see
also Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 111 (1996)
(explaining that a public entity did not meet its burden of establishing design or
plan immunity for its drainage system because, although it pled the defense in
its answer, it had not presented any evidence about its initial decision to
establish the drainage system).
The County is barred from raising design immunity because it invited the
error by agreeing with the judge's conclusion that it could not raise a defense to
an argument that was not being made. "A party who consents to, acquiesces in,
or encourages an error cannot use that error as the basis for an objection on
appeal." Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div. 1993). In
Spedick, from the colloquy between the trial judge and the attorneys, it appeared
A-3436-19 20 that the plaintiff "essentially agreed" to permit certain testimony. Id. at 592.
We concluded that the plaintiff was barred from challenging the admission of
the testimony on appeal. Id. at 593.
The County also argues that the judge should have allowed it to introduce
Baker's portion of the report as an adoptive admission under N.J.R.E. 803(b)(2),
which provides that "a statement whose content the party-opponent has adopted
by word or conduct or in whose truth the party-opponent has manifested belief"
is admissible. The County cites plaintiffs' attorney's cover letter to the report
stating that plaintiff "hereby amends answers to interrogatories to include the
enclosed narrative report," and that Murphy and Baker had been previously
named as experts who would testify as to the County's road maintenance
practices.
Admission of such a statement requires that the party-opponent be aware
of it, understand the content of the statement, and unambiguously assent to it.
McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 529-30 (2003). The County
failed to offer evidence that plaintiffs were aware, understood, or
unambiguously assented to the conclusions in Baker's report. Unlike an answer
to an interrogatory, an expert report "is not a statement of a party and therefore
A-3436-19 21 cannot be treated as admission simply because a party furnished it in discovery."
Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985).
The County cites Sallo v. Sabatino, 146 N.J. Super. 416, 418-19 (App.
Div. 1976), where we held that a statement made in an answer to interrogatories
in a prior litigation, referring to a physician's report, was admissible as an
adoptive admission. The physician's report concluded that the plaintiff was
totally disabled. Id. at 418. This court found "[i]n submitting the report in
support of their claims in the previous lawsuit plaintiffs were presumably
manifesting their adoption of it and their belief in its truth." Ibid. But that case
involved a medical report describing the extent of the plaintiff's injuries , so to
the extent that the Sallo court was correct, the nature and specificity of the report
differed from the report in this case.
Finally, we reject the County's claim that the report was admissible under
judicial estoppel. Plaintiffs never changed positions before the trial judge on
the validity or substance of the report. Judicial estoppel bars a party from
successfully arguing a position before a judge and then subsequently assuming
a contrary position. Newell v. Hudson, 376 N.J. Super. 29, 38 (App. Div. 2005).
Nor was the evidence admissible because plaintiffs "opened the door" to it, as
claimed by the County, since design immunity was ruled out of the case. Nor
A-3436-19 22 was it admissible because it was not privileged, as the County claims, citing
Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 302 (2006), and In re Pelvic
Mesh/Gynecare Litig., 426 N.J. Super. 167, 182-83 (App. Div. 2012). Here, the
question was the evidence's relevance in light of whether design immunity was
at issue.
In Point VI, the County argues that the trial judge erred in permitting the
resident's de bene esse deposition testimony to be read into evidence at trial
rather than having her testify and that the judge's curative instruction did not
eliminate the prejudicial nature of her testimony. In addition, the County asserts
that the judge abused his discretion in permitting Christopher Gates (plaintiffs'
son) and Lorraine to testify because they had not been listed as witnesses in the
pre-trial discovery. We see no error by permitting the resident to testify by
deposition and Christopher and Lorraine to testify.
In pertinent part, Rule 4:16-1(c) provides that a deposition of a witness
may be used at trial against another party
who was present or represented at the taking of the deposition or who had reasonable notice thereof if the [judge] finds that the appearance of the witness cannot be obtained because of death or other inability to testify, such as age, illness, infirmity or imprisonment, or is out of this state . . . . The deposition of an absent
A-3436-19 23 but not unavailable witness may also be used if, upon application and notice, the [judge] finds that such exceptional circumstances exist as to make such use desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.
A trial judge's decision to admit or exclude evidence, including a
deposition, is entitled to deference absent a showing of an abuse of discretion,
namely, a clear error of judgment resulting in a manifest denial of justice. Rowe
v. Bell & Gossett Co., 239 N.J. 531, 551-52 (2019). Here, the resident was
unable to testify due to an illness.
The deposition was played for the jury, during which the County objected
that the video was not properly edited in accordance with the trial judge's prior
rulings after the resident testified that if a motorcycle had hit the potholes in
front of her house it would be "bad" and would "cause damage." The judge
sustained the objection and gave a curative instruction with the County's consent
and without objection:
As I stated from the outset at some points during the course of the case, I would be making rulings on admissibility of certain things. And in this case my ruling was that [the resident] was not competent to testify about what would or would not cause damage to a vehicle or anything else.
So, for that reason the testimony where she said that it would cause damage I am excluding, and you
A-3436-19 24 should not consider it in your deliberations in this case whatsoever.
Whether a curative instruction was adequate is entitled to deference, and
will result in reversal only for abuse of discretion. State v. Kueny, 411 N.J.
Super. 392, 403 (App. Div. 2010). Moreover, it can be assumed that the jury
followed the judge's admonition. See State v. Manley, 54 N.J. 259, 271 (1969).
The County did not object to the adequacy of the curative instruction below, and
instead, counsel told the judge, "I would want that. Generally[,] I would not,
but I think I would want that in this case."
Prior to trial, the County moved to bar Christopher from testifying because
neither he nor Lorraine were listed in the interrogatories as persons with
knowledge of the case's particulars. Plaintiffs argued that neither witness was a
surprise because Christopher's name had been listed in their first pre-trial
submission, and Lorraine's deposition had already been taken. The judge ruled
that he would permit Christopher to testify as to his observations of the accident
scene the day after the accident.
A trial judge's determination of whether to exclude testimony based on a
discovery violation is reviewed for abuse of discretion. Bender v. Adelson, 187
N.J. 411, 428 (2006). Factors that would strongly urge a judge to suspend the
imposition of such a sanction include the absence of a design to mislead, the
A-3436-19 25 absence of surprise, and the absence of prejudice if the testimony is admitted.
Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000).
Testimony by one of the plaintiffs, Lorraine, could hardly have been a
surprise to the County. Moreover, she was listed as a witness to be called at
trial by plaintiffs in their pre-trial exchange of information pursuant to Rule
4:25-7(b) that was submitted six to seven weeks prior to trial. Nor is there any
evidence that plaintiffs sought to mislead the County as to the fact that she would
be called as a witness. Finally, her testimony that there were a few potholes
about four or five inches deep and two to three feet in length the day after the
accident was merely cumulative. Therefore, the County cannot be said to have
been prejudiced by the testimony.
As for Christopher, his testimony that his observations the day after the
accident that the road conditions in the area of the accident were poor, and that
there was one long pothole that was quite deep, was also cumulative. Nor does
the County offer any evidence that plaintiffs sought to mislead by not including
his name in the answer to interrogatories. Finally, as with Lorraine, there was
no surprise as Christopher's name was listed in the pre-trial exchange of
information submitted some six weeks prior to trial.
A-3436-19 26 VI.
In Point VII, the County contends that the trial judge erred in failing to
cure prejudicial statements made by plaintiffs' counsel in summation.
Specifically, the County points to counsel's remark citing the County's mission
statement on its website regarding making roads safe for all travelers. It argues
that the mission statement was not introduced into evidence and that the judge
refused to so instruct the jury. The County also argues that the judge's curative
instruction, after counsel's remark that the County could have performed
permanent patching even though the judge had barred evidence regarding
resource immunity, was flawed because the instruction did not cite the judge's
preclusion of that defense.
During summation, plaintiffs' counsel told the jury as to the question of
whether the roadway constituted a dangerous condition:
[T]he Passaic County road system's . . . own mission statement on their website [states] . . . the services and programs carried out by the [County] are to provide for the safe passage of both motorists and pedestrians while using County roads. And . . . you've got to ask yourself, did they meet their own standard in this case?
At the end of the summation, counsel added:
[I]n sum, remember Passaic County's own mission statement[:] Making those roads safe for all travelers. And you decide whether being reactive is enough, or
A-3436-19 27 should they have been proactive and been out there and knowing this condition is recurring . . . and it's not getting fixed[.] . . . [A]nd you have to decide for yourselves whether or not that is good enough because . . . but for the fact that they did not carry out their mission statement, we wouldn't be here today.
The County objected to these remarks because counsel sounded as though
he was "almost trying to suggest [the mission statement was] the law." The
judge stated, "I don't think he was suggesting that it was the law. I think it's
fine." The County did not request a curative instruction.
In general, attorneys are afforded "broad latitude" in closing arguments.
Bender, 187 N.J. at 431. However, such comments should be restrained and
"not 'misstate the evidence nor distort the factual picture.'" Ibid. (quoting
Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999)). When they
transgress the boundaries of that broad latitude, a new trial must be granted if
the "comments are so prejudicial that 'it clearly and convincingly appears that
there was a miscarriage of justice under the law.'" Ibid. (quoting R. 4:49-1(a)).
A trial judge's determination as to whether the remarks were unduly prejudicial
is reviewed for abuse of discretion. Litton Indus., Inc. v. IMO Indus., Inc., 200
N.J. 372, 392-93 (2009).
Counsel in summation "may draw conclusions even if the inferences that
the jury is asked to make are improbable, perhaps illogical, erroneous or even
A-3436-19 28 absurd, unless they are couched in language transcending the bounds of
legitimate argument, or there are no grounds for them in the evidence." Spedick,
266 N.J. Super. at 590-91. Plaintiffs do not dispute that the County's mission
statement was not part of the record. Reference to it was improper; however,
making roads safe for all travelers is essentially a truism. It is difficult to
conclude that such a remark was so prejudicial as to constitute a miscarriage of
justice under the law.
In addition, the County objected to the portion of the second paragraph in
which counsel discussed whether the County was proactive enough in knowing
about the condition of the roadway and in repairing it. The County maintained
that the remark was improper because there was no expert testimony that the
County was insufficiently proactive. The judge stated that he believed the
remark was a "fair comment on the evidence in the case" and not unduly
prejudicial. However, the judge added that he believed the comment was wrong
as a matter of fact because the testimony was that the County personnel would
drive around checking the roads and would fill potholes upon discovery. The
comment would not appear to be a legitimate, if incorrect, inference from the
evidence because there was no evidence that the County was not "proactive" in
searching for potholes. However, the remark was not unduly prejudicial because
A-3436-19 29 counsel qualified the assertion by stating that it was up to the jury to determine
whether the County's actions were "good enough." This was a legitimate
consideration for the jury in determining whether the County was palpably
unreasonable under N.J.S.A. 59:4-2. "To be palpably unreasonable, it must be
action or inaction that is plainly and obviously without reason or reasonable
basis, capricious, arbitrary or outrageous." Johnson v. Essex Cnty., 223 N.J.
Super. 239, 257 (Law Div. 1987).
The County also challenges the following statement plaintiffs' counsel
made in summation: "[Y]ou heard Mr. Desch say, rather forcefully, they don't
do permanent patching. They contract that out. Therefore, it can be done. And
it could have been done." The County objected because counsel was "raising a
resource argument" and asked for a curative instruction. The judge agreed to
such an instruction and initially decided, after summation had been completed,
to include a sentence in the instruction noting that the County had been
precluded from raising a resource allocation immunity defense. After plaintiffs
objected, the judge agreed to take out this portion of the instruction over the
County's continuing objection. In his general charge to the jury, the judge told
them:
The information from John Desch about contracting out for permanent patching can be considered by you only
A-3436-19 30 to demonstrate a method to do the patch. The jury cannot consider that information for the purpose of determining that the County should have hired an outside contractor to do this work.
The County claims that by taking out the sentence about the resource
immunity defense, the jury was left with the question of why the County did not
contract out the repairs, thereby exacerbating the prejudice. However, the judge
alleviated that possibility by instructing the jury that they could not use the
evidence to conclude that the County should have hired an outside contractor.
It is assumed that the jury would faithfully follow the judge's admonition. See
Manley, 54 N.J. at 271.
VII.
In Point VIII, the County argues that the trial judge erred in excluding
plaintiff's driving record and his lack of insurance, and that this error led the
jury to its finding that plaintiff was not comparatively negligent. The County
claims that the driving record was admissible as habit evidence and that, in any
event, it was admissible to impeach plaintiff's deposition testimony, wherein he
stated that he could not recall being involved in any other motor vehicle
accidents.
A-3436-19 31 According to plaintiff's driving abstract, he had numerous violations from
1972 to 2012. Prior to trial, the judge ruled that this record would not be
admissible under N.J.R.E. 404 because of undue prejudice. The judge stated:
How do you get those things in, because essentially what you're doing is what [N.J.R.E.] 404 says you can't do. Character evidence, evidence of a person's character or character trait, including a trait of care or skill or lack thereof is not admissible for the purpose of proving that person acted in conformity therewith on a particular occasion. There's two exceptions, this doesn't fall into [either] one of the two exceptions.
Under N.J.R.E. 406:
(a) Evidence, whether corroborated or not, of habit or routine practice is admissible to prove that on a specific occasion a person or organization acted in conformity with the habit or routine practice.
(b) Evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice.
"[A] mere tendency to act in a particular manner does not constitute" a habit.
L.T. v. F.M., 438 N.J. Super. 76, 90 (App. Div. 2014). For an action to rise to
the level of a habit, it must be repeated behavioral response to a specific factual
stimulus. Sharpe v. Bestop, Inc., 158 N.J. 329, 330 (1999). "[B]efore a [judge]
may admit evidence of habit, the offering party must establish the degree of
specificity and frequency of uniform response that ensures more than a mere
A-3436-19 32 'tendency' to act in a given manner, but rather, conduct that is 'semi-automatic'
in nature." Id. at 331 (first alteration in original) (quoting Thompson v. Boggs,
33 F.3d 847, 854 (7th Cir. 1994)).
In State v. Bogus, 223 N.J. Super. 409, 427-29 (App. Div. 1988), the trial
judge admitted an abstract of the defendant's driving record as habit evidence
where the defendant was charged with vehicular aggravated manslaughter. We
concluded the judge erred because the violations contained in the abstract were
not indicative of a regular response to a repeated situation. Id. at 428-29. We
distinguished between general evidence of careless driving to show how
someone drove on a particular occasion, which was inadmissible, and evi dence
that an individual repeatedly drove carelessly on a particular part of a particular
road, which was admissible. Ibid.
Here, the evidence in question did not relate to plaintiff's driving on Oak
Ridge Road, but other violations and a lack of insurance. Thus, it lacked the
particularity or specificity required to be admissible as habit evidence.
Therefore, the judge did not abuse his discretion in not admitting the evidence.
The County also argues that it was improperly precluded from impeaching
plaintiff as to his driving record. However, the record establishes that it was
given a limited opportunity to impeach on that issue. Christopher testified that
A-3436-19 33 he was surprised to learn that plaintiff did not have registration or insurance on
the day of the accident. In addition, plaintiff testified that in October 2015, he
fell off a motorcycle and broke his clavicle when he was forced to make an
evasive move to avoid a vehicle coming at him. On cross-examination, the
County asked plaintiff whether he considered himself to be a law-abiding
motorcycle driver. Plaintiff responded that he tried to be. The County then
referred to plaintiff's deposition in which he stated that he could not recall
whether he had had any prior vehicle accidents. Plaintiff then claimed that he
did not consider his fall off a motorcycle in October 2015 to be a motor vehicle
accident. Rather, he considered it an evasive move to avoid a vehicle that was
coming straight at him.
VIII.
In Point IX, the County maintains that the cumulative effect of the trial
errors deprived it of a fair trial. Where legal errors, in the aggregate, are of such
a magnitude as to render the trial unfair, the prejudiced party will be entitled to
a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954). The aggrieved party
carries the heavy burden of showing the injustice clearly and convincingly.
Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 52 (2009). The County has not met
this burden.
A-3436-19 34 IX.
In Point X, the County argues that the court erred in denying its post -trial
motions for a new trial or JNOV because plaintiffs did not establish a prima
facie case under N.J.S.A. 59:4-2, the verdict was against the weight of the
evidence, and the judge's legal rulings resulted in severe prejudice to the County.
In denying the County's post-trial motions, the trial judge stated:
[W]here the [d]efense case fell apart . . . was when your expert testified that the County had all they needed to be able to do a semi-permanent patch, because now what they had before them was testimony of virtually . . . all of the witnesses on the issue of patching . . . . I think they all agreed that the semi- permanent patch . . . is the more permanent method.
We left out from the jury's consideration about repaving. So the sole issue in this case was whether or not it was palpably unreasonable for the County to fill the pothole as they had been doing in this case . . . .
....
The jury was instructed on what it means to be palpably unreasonable, and they decided that in this case it was palpably unreasonable for . . . [d]efendant to just continue to do what it was doing.
[A]ny errors that may have been made, and perhaps there were some in terms of what testimony should have been allowed, maybe some was limited more so that should have been . . . .
A-3436-19 35 However, I think it's harmless error when you have a defense . . . expert witness who says the County had all it needed to do a better job patching.
In reviewing a trial judge's denial of a motion for JNOV, an appellate court
"must accept as true all the evidence which supports the party defending against
the motion," according that party "the benefit of all legitimate inferences which
can be deduced therefrom, and if reasonable minds could differ, the motion must
be denied." Lanzet v. Greenberg, 126 N.J. 168, 174 (1991) (quoting Pressler,
Current N.J. Court Rules, cmt. on R. 4:40-2 (1991)). In reviewing a trial judge's
denial of a motion for a new trial because the verdict was against the weight of
the evidence, the reviewing court may overturn the trial judge's determination if
it clearly appears that there was a miscarriage of justice under the law, giving
deference to the trial judge's feel of the case and ability to assess witness
credibility. Id. at 175.
However, when a motion for JNOV raises a question of law, the reviewing
court will review it de novo. Royster v. N.J. State Police, 227 N.J. 482, 493
(2017). The trial judge's interpretation of the law and the legal consequences
that flow from the established facts are not entitled to any special deference.
Raspa v. Off. of the Sheriff of Gloucester Cnty., 191 N.J. 323, 334-35 (2006).
A-3436-19 36 We conclude any remaining contentions by the County is without
sufficient merit to warrant attention in a written decision. R. 2:11-3(e)(1)(E).
Affirmed.
A-3436-19 37