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Peer v. City of Newark

Decided: November 30, 1961.

EILEEN LINDA PEER, AN INFANT BY HER GUARDIAN AD LITEM, ADELE PEER AND ADELE PEER AND HARVEY PEER, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
THE CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND JOSEPH THOMAS, DEFENDANT



Price, Sullivan and Leonard. The opinion of the court was delivered by Leonard, J.s.c. (temporarily assigned).

Leonard

[71 NJSuper Page 15] This is an appeal by defendant the City of Newark from a judgment

entered pursuant to jury verdicts against it and in favor of plaintiffs and from an order denying its motion for a new trial.

Defendant Joseph Thomas (Thomas) was appointed a police officer by defendant the City of Newark (city) on December 10, 1956, and since then has continuously engaged in that occupation.

On April 26, 1958 Thomas was off-duty all day and dressed in civilian clothes. He spent about three hours of that afternoon in a tavern consuming five or six bottles of beer. About 8:20 P.M. he returned to the apartment wherein he resided, went to the kitchen and removed his outer three-quarter length coat. He then entered the bathroom (6' x 8') for the purpose of using the toilet facilities. At the time, on his left side and attached to a belt supporting his trousers, he wore an off-duty holster in which he carried a loaded .38 calibre police service revolver. He removed this revolver from the holster with his right hand, intending to place it on a water tank about three feet from him. When the revolver was about one foot away from his body, it discharged.

Infant plaintiff, Eileen Linda Peer (Linda) lived with her parents, plaintiffs Adele Peer (Adele) and Harvey Peer (Harvey), in an apartment adjoining that of Thomas. At the time in question Linda was in the bathtub and her parents were in the kitchen. The Peer bathroom and the Thomas bathroom had a common wall about 6 1/2" thick.

The bullet from the discharged revolver passed through this wall and struck Linda, entered the left side of her neck, went through the upper part of her body and lodged against her seventh dorsal vertebra. As a result thereof, she suffered serious permanent injuries, hereinafter described in detail.

The following facts were admitted by city:

(1) Linda was struck by a bullet discharged from the police service revolver issued to Thomas on December 10, 1956.

(2) City retained title to and was the owner of that revolver and bullet.

(3) Thomas, on the date in question, was a patrolman of the Newark Police Department and not under suspension.

(4) Thomas, as a member of the police department, was ordered to carry his police service revolver at all times during off-duty hours, except when on vacation, under suspension, sick or injured. (Emphasis added) (Manual of Procedure of Newark Police Department , § 420.)

Infant plaintiff Linda, through her guardian ad litem , plaintiff Adele, and plaintiffs Adele and Harvey, her parents, instituted action against defendant city based on active wrongdoing and against defendant Thomas based on negligence. At the trial verdicts were returned against both defendants in favor of Linda in the sum of $180,000, and in favor of her parents in the sum of $45,000.

Both defendants appealed therefrom, but the appeal of defendant Thomas was voluntarily withdrawn and a stipulation of dismissal thereof has been filed. Plaintiffs likewise, by stipulation, withdrew their cross-appeal from the court's dismissal of the second and third counts of the complaint relating to the negligent hiring of Thomas by city.

The grounds of the appeal of city are as follows:

I -- The opinions of plaintiffs' experts in support of the claim of active wrongdoing on the part of city were incompetent and should have been stricken because they were based on only part of city's police training program.

II -- Plaintiffs did not establish by competent proof that city failed to train and instruct officer Thomas adequately in the use and handling of a .38 calibre police service revolver.

III -- The court erred in refusing to charge Nos. 1, 2, 3 and 7 of city's requests to charge, hereinafter set forth.

IV -- The verdicts are against the weight of the evidence and the trial court's failure to grant a new trial constituted an erroneous exercise of discretion.

V -- The verdicts are excessive, lack evidential justification, and overlap.

I.

The basis of plaintiffs' claim of active wrongdoing by city was that its training program was inadequate; i.e. , that it had inadequately trained or instructed Thomas in the safe use of the .38 calibre police service revolver. In support of this, two experts -- one Donald MacNamara and one Paul Weston -- testified for plaintiffs. No objection was, or is now, made by city as to their respective qualifications as experts in the field of firearms, firearm safety and police training. Each had varied and vast experience therein. At the conclusion of all testimony in the case, city moved to strike the testimony of both on the grounds that their respective opinions were not based on "all the facts in evidence at the end of the case" and, therefore, were incompetent.

MacNamara testified that in his opinion Thomas' training was "inadequate" in three particulars:

(1) No adequate instruction as to safety during off-duty hours.

(2) No adequate instruction as to the type of holster to be used during off-duty hours or in the carrying of the gun during the same period.

(3) No retraining program, i.e. , Thomas had not fired his gun since his appointment -- a period of 16 1/2 months.

Weston testified that city's training program of Thomas was "below standard -- far below standard," and inadequate for substantially the same reasons.

A consideration of an outline of city's training program with reference to service revolvers is pertinent. On the first day, Lt. Frank Spiessbach, the officer in charge of training for the police department, gave an hour lecture and a short talk, including demonstrations; certain "give away" material was distributed; a lecture and demonstration

were given by one James J. Tracey, a member of the F.B.I.; the trainees engaged in dry and actual range shooting practice; an F.B.I. motion picture was shown. On the second day, Tracey delivered another lecture; they again participated in dry and actual shooting practice, and they were shown another F.B.I. motion picture. On the third day, there were another F.B.I. film and more range firing practice.

Plaintiffs placed the following in evidence: -- the .38 calibre revolver, the bullet, the off-duty holster, two other holsters, an hour-by-hour schedule of the entire training program, the details of the range schedule, the mimeographed "give away" material, an outline of Lt. Spiessbach's lecture, Manual of Rules of Police Department, Manual of Procedure of Police Department , and a portion of depositions of Thomas and Lt. Spiessbach.

Both experts testified that they had read all of the above prior to trial and were familiar with their contents. MacNamara stated he knew the contents of the F.B.I. lectures from his previous experience; that he had seen some F.B.I. films and was, therefore, familiar with the ones shown; that he had knowledge of city's entire training program because, in 1957, when he was "Director, New Jersey Municipal Police Survey," he was furnished a complete outline of all its training programs, including an hour-by-hour detailed account thereof.

Weston likewise testified, by reason of experience, to familiarity with the F.B.I. course of instruction and declared he had a "pretty good idea" of the contents of the F.B.I. films.

The crux of city's objection is that these experts based their respective opinions on only part of city's training program, i.e. , they personally did not hear the lectures of Lt. Spiessbach or Tracey, did not see their demonstrations in connection therewith, and did not see the three F.B.I. films. Thus, argues city, their testimony was incompetent and should have been stricken.

Preliminarily, it is noted that this objection factually cannot be directed to all of their testimony. In the depositions previously mentioned, both Spiessbach and Thomas conceded that the latter had not received any retraining. Likewise, Thomas testified therein that his off-duty holster was not issued to him by city; he purchased it at a clothing store; there were no regulations as to the type of off-duty holster he could use; he was not told what type to wear; he could wear "what you please." Thus, these two aspects of their opinions were based entirely upon facts in evidence.

We shall next consider the competency of the balance of their testimony. In Angel v. Rand Express Lines, Inc. , 66 N.J. Super. 77, 85-86 (App. Div. 1961), the court said:

"The ability to render expert opinion is by definition beyond the experiential capacity of the ordinary layman. See 2 Wigmore, Evidence , § 556, p. 635. In fact, the primary justification for lifting the ban on the admission of opinion testimony, in the case of experts, is the relative helplessness of the average juror in dealing with a subject not of common knowledge; thus our cases speak of the 'necessity' or 'reasonable necessity' for expert opinion. Beck v. Monmouth Lumber Co. , 137 N.J.L. 268, 277 (E. & A. 1948); Rempfer v. Deerfield Packing Corp. , 4 N.J. 135, 141-142 (1950); Thompson v. Pennsylvania R.R. Co. , 51 N.J.L. 42, 46 (Sup. Ct. 1888); Pincus v. Sublett , 26 N.J. Super. 188, 192 (App. Div. 1953); certification denied 13 N.J. 294 (1953); see 7 Wigmore, supra , § 1923, pp. 21-22.

To insure, however, that the flow to the jury of 'expert' information is not wholly bogus in nature, there has developed the safeguard implicit in the preliminary process of 'qualifying' the witness, the control of which is almost invariably left to the sound discretion of the trial judge. Cowdrick v. Pennsylvania R.R. Co. , 132 N.J.L. 131, 141 (E. & A. 1944); Bosze v. Metropolitan Life Ins. Co. , 1 N.J. 5, 10 (1948); Zampieri v. River Vale Tp. , 29 N.J. 599, 611 (1959); see 2 Wigmore, supra , § 561, pp. 641-643. And as a further check on the funnelling of improper or legally irrelevant conclusions to the trier of fact, our law has fashioned the principle that the opinions of experts must be founded either upon facts within their own knowledge or, in the case of a hypothetical question, upon facts and inferences supportable by the proofs -- i.e., evidence which there is a fair possibility the jury will accept. Beam v. Kent , 3 N.J. 210, 215 (1949); Stanley Co. of America v. Hercules Powder Co. , 16 N.J. 295, 305-306 (1954); Fink v. City of Paterson , 44 N.J. Super. 129, 135

(App. Div. 1957); see 2 Wigmore, supra , § 682, p. 805.

Once these hurdles are overcome, the credibility of the expert and the weight to be accorded his testimony rest in the domain of the trier of fact. 20 Am. Jur., Evidence , § 867, pp. 731-732; see Kreis v. Owens , 38 N.J. Super. 148 (App. Div. 1955). Unless contrary to common sense, common knowledge, or recognized physical laws, or based on primary facts absent from the proofs, the expert's statements are to be sifted by the jury like other testimony. See Annotation, 136 A.L.R. 965 (1942); 66 A.L.R. 2 d 1082 (1959); see 32 C.J.S. Evidence § 569a, p. 392. The testimonial and experiential weaknesses of the witness, * * * may be exposed by the usual methods of cross-examination. He may be required to detail the premises upon which his observations are based, 2 Wigmore, supra , § 672, pp. 792-793, and these premises, as well as his ultimate conclusions, may be contradicted by rebuttal experts and by other evidence of the opposing party. Panko v. Grimes , 40 N.J. Super. 588, 596 (App. Div. 1956); Kelly v. Martino , 375 Pa. 244, 99 A. 2 d 901, 902 (Sup. Ct. 1953)." (Emphasis added)

There must be a proper foundation for the expert's testimony. Schumann v. Horn & Hardart Baking Co. , 8 N.J. Super. 153 (App. Div. 1950). If the "opinion" is so completely lacking in proper foundation as to be worthless, it is not admissible. Skupienski v. Maly , 27 N.J. 240, 246 (1958). It is valueless unless it is rested upon the facts in evidence which are admitted or proved. (Where a question is so indefinite as to admit of no answer except as mere guesswork it has been held to be prejudicial error to overrule the objection thereto.) Stanley Co. of America v. Hercules Powder Co., supra , 16 N.J., pp. 305, 306.

It is not necessary that hypothetical questions should embody all the facts exhibited by the evidence. It is sufficient, on the contrary, that they embody such a state of facts fairly within the range of evidence, as counsel propounding them deemed to have been proved. Daggett v. North Jersey St. Ry. Co. , 75 N.J.L. 630, 637 (E. & A. 1907); Schnoor v. Palisades Realty Co. , 112 N.J.L. 506 (E. & A. 1934).

City relies upon Rempfer v. Deerfield Packing Corp., supra , for the proposition that an ...


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