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January 19, 1989

VIOLET IRENE NEBEL, as Executrix of the Estate of John J. Nebel, Deceased, and VIOLET IRENE NEBEL, in her own capacity, Plaintiffs,

The opinion of the court was delivered by: COHEN

 Before us, in this personal injury action with "negligent security" *fn1" and "failure to rescue" *fn2" overtones, is a motion by the plaintiffs (Violet Irene Nebel, as Executrix of the Estate of John J. Nebel, Deceased, and in her own capacity) for a new trial pursuant to Fed. R. Civ. P. 59 on the issues of proximate cause, compensatory damages and punitive damages.


 This matter arises out of a most unfortunate incident which occurred the morning of June 19, 1985 at the Airport Motor Inn ("Inn") in the Chelsea Heights section of Atlantic City, New Jersey. The defendants, the owners and operators of the Inn, are residents of London, England, and have delegated responsibility for its day to day affairs to a manager hired for this purpose. According to the testimony adduced at trial, John Nebel and his wife, Violet Irene Nebel, were registered guests at the Inn. On the morning of the subject incident, having concluded their stay, the Nebels were preparing to check out. Mrs. Nebel was inside their motel room getting dressed while Mr. Nebel loaded their belongings into their van which was parked immediately outside. At approximately 10:00 that fateful morning, Mr. Nebel observed two black males walking down the street bordering on the Inn's open parking lot, and noted that they were looking and walking his way. Sensing trouble, he immediately secured the van, returned to his motel room and shut the door. Although the door closed, it did not lock, and Mr. Nebel stood with his back up against it, whereupon the two young men, one brandishing a long knife in his hand, the other a gun, pushed the unsecured door open and proceeded to rob the Nebels. During the course of the crime's commission, an altercation ensued resulting in Mr. Nebel being shot in the right thigh. The perpetrators fled and remain at large. While this action was pending, on March 15, 1987, Mr. Nebel died from causes unrelated to this incident.

 Trial commenced before a jury on September 26, 1988. On behalf of the plaintiffs, testimony was presented by Mrs. Nebel, Dr. Robert Shellow (plaintiff's security expert), and the Inn's manager Morene Geno (whom the plaintiffs called as a hostile witness pursuant to Fed. R. Evid. 611 and presented as if on cross-examination). In addition, a deposition of Mr. Nebel conducted in March of 1987 was read to the jury, and the jury viewed the video-taped de bene esse depositions of Dr. J. P. Carey, M.D. (who examined Mr. Nebel and diagnosed a condition of severe spinal stenosis) and Dr. David G. Baer, M.D. (who treated Mr. Nebel for severe hypertension from October 1986 through March 1987). Defendants offered only the testimony of their security expert Mr. Joseph L. Chernikoff to highlight the non-existence of proximate cause, which was the chief theory asserted and stressed by the defendants at trial. After seven days of trial, on October 4, 1988, the jury answered Special Interrogatories which found the defendants negligent, but that such negligence was not "a proximate cause of the [subject] incident and the plaintiffs' resulting injuries and damages." A Judgment of No Cause for Action was entered by the Court on October 5, 1988.

 Plaintiffs base their motion for a new trial on the ground that the jury's finding of no proximate cause was against the weight of the evidence. Specifically, plaintiffs contend that through the testimony of Dr. Shellow, the cross-examination of Morene Geno, and the testimony of Mrs. Nebel, they presented "overwhelming" evidence that the Inn's failure to employ at least some of the myriad security devices and techniques available to them was a "substantial contributing factor" to the commission of the crime against the Nebels and the resulting physical injuries and damages suffered by the plaintiffs as a result thereof. See Brief in Support of Plaintiffs' Motion for New Trial ("Plaintiffs' Brief") at 4-6. Plaintiffs allege that the Inn was negligent in (a) failing to warn the Nebels of recent daytime robberies in Atlantic City; (b) failing to provide a security patrol on the premises during the daylight hours; (c) failing to provide a properly operating door lock; (d) failing to provide a perimeter barrier or fence between the motel rooms along Filbert Avenue and the street; and (e) failing to provide functional and operational closed circuit surveillance cameras and monitors.

 In an attempt to rebut this admitted testimony, defendants offered the opinion of Mr. Chernikoff that the subject incident was an "off the wall" event which none of plaintiffs' proposed security measures or techniques would certainly have prevented. *fn3" Plaintiffs submit that Mr. Chernikoff's opinion was mere "opinion" and "speculation" unsupported by factual analysis of either the crime committed or the security precautions taken by the Inn. *fn4" Id. at 6. There was testimony by plaintiffs' expert, Dr. Shellow, that during the years 1980 to 1985 Atlantic City had the highest crime rate, per capita, in the United States. Rather a dubious distinction. Plaintiffs suggest that since the jury found Dr. Shellow's postulation that the security practices at the Inn were deficient in light of the statistical probability of crime as presented at trial to be eminently credible, (the jury found the defendants to be "negligent") there is no compelling palpable or articulable reason why the jury would not find Dr. Shellow's opinion that this failure to provide adequate security was a substantial contributing factor to the occurrence of the subject incident (plaintiffs' nomenclature for proximate cause) to be equally credible. Thus, plaintiffs conclude, "in light of this evidence [and the jury's decision on negligence], the jury's conclusion that there was no proximate cause is against the greater weight of the evidence." Id. at 7. We believe that the applicable standards for proximate causation in negligent security and failure to rescue cases have been misconstrued. Under the proper test, however, defendants have proffered no bona fide evidence on the issue of "increased risk of harm," but plaintiffs have provided such evidence, as we shall discuss, infra.

 We agree that the jury's conclusions are at variance with the evidence presented. However, a more significant problem is presented by this motion for a new trial. Now, at this post-trial phase of the litigation, plaintiffs have for the first time called to our attention a line of tort cases that the New Jersey Supreme Court terms "lost chance of survival" or "rescue" actions. *fn5" See, e.g., Hake v. Manchester Township, 98 N.J. 302, 311, 486 A.2d 836 (1985). The "lost chance" theory holds acts (or the lack thereof as the case may be) of "nonfeasance" as a basis of liability in certain limited factual situations, in abrogation of the general common law rule that one is under no duty to come to the aid of an imperiled stranger, even where that human being faces imminent mortal danger and the rescuer faces little or no risk in attempting to save life. In such negligent omission cases, New Jersey courts formulate the test for a finding of proximate cause as to whether or not the specific acts of nonfeasance complained of may be viewed as a "substantial factor" contributing to the loss. However, in the specific context of lost chance and negligent security cases, "substantial factor" is articulated in terms of negligence which increases the risk of harm to the plaintiff. We believe this to be the correct and accurate depiction of the proximate cause standard to be applied in a hybrid lost chance/negligent security case such as the one at bar, yet the jury was never charged in precisely those terms.

 In light of this newly discovered law which was unbeknownst to the Court at the time of trial and our belief that the jury's verdict was against the substantial weight of the evidence, a miscarriage of justice has occurred. These grounds present compelling reasons for the grant of a new trial and such a reconsideration is absolutely necessary. Consequently, plaintiffs' motion for a new trial shall therefore be granted.


 A. The Standards Controlling a Motion for a New Trial

 Fed. R. Civ. P. 59(a) provides that new trials may be granted "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States". Under prevailing federal law, new trials may be granted if the trial judge "is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict." Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350 (4th Cir. 1941).

 A new trial may also be granted even where an entry of judgment notwithstanding the verdict is inappropriate. Roebuck v. Drexel University, 852 F.2d 715, 735 (3d Cir. 1988). Judgment n.o.v. may be granted only where the evidence was insufficient for the jury to consider. A new trial may be granted when, in the "opinion of the trial court, the verdict is contrary to the great weight of the evidence, thus making a new trial necessary to prevent a miscarriage of justice." Id. at 735-36 (citations omitted).

 A district court's discretion is limited in that the court may not replace its opinion for that of the jury. Id. at 735 n.35 (citation omitted). However, the exclusive domain of the jury is not invaded by a careful analysis of what inferences the jury could actually draw from the evidence presented at trial. Id. at 736. Where the inferences to be drawn from the testimony as presented border on "mere speculation," a new trial becomes necessary. Id.

 Further, a verdict can be manifestly against the weight of the evidence even where the evidence was such that reasonable people could reach a verdict as the jury did. J. Friedenthal, M. Kane and A. Miller, Civil Procedure 555 (West. 1985) (citation omitted). Under such circumstances, the trial judge may weigh the evidence and grant a new trial. Id. (citing Bevevino v. Saydjari, 574 F.2d 676 (2d Cir. 1978); Yeatts, supra). A motion for a new trial is entrusted to the sound discretion of the trial judge, however, the court may not replace its opinion for that of the jury. See Roebuck, 852 F.2d at 735 n. 35 (citing Lind v. Schenley Industries, 278 F.2d 79, 90 (3d Cir. 1960)).

One of the purposes of a motion for a new trial is to call to the court's attention errors that may have been committed during the trial, whether those errors be such as have been discovered since the trial, or were committed in opposition to the moving party's contentions asserted at the trial. In other words, the motion may not only be made on the grant of newly discovered evidence, but upon newly discovered law; in fact, the trial court may, during the term at which the judgment was rendered, on its own motion, set aside its judgment and grant a new trial.

 Sulzbacher v. Continental Casualty Co., 88 F.2d 122, 124 (8th Cir. 1937). See also Henderson v. S.C. Loveland Co., Inc., 396 F. Supp. 658, 661 (N.D. Fla. 1975) ("Newly discovered law may, in particular instances and cases, serve as the basis for the granting of a motion for a new trial.")

 B. An Innkeeper's Duty

 The common law rule that private individuals had no duty to protect another from criminal attack traces its genesis to the seemingly ancient jurisprudential distinction between misfeasance and nonfeasance, and the traditional disinclination of the courts to construct liability rules involving the latter for fear that no workable standards were attainable. Bazyler, The Duty to Provide Adequate Protection: Landowners' Liability for Failure to Protect Patrons from Criminal Attack, 21 Ariz. L.Rev. 727, 735 (1979). A policy reason frequently offered in support of this doctrine was that "the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer harm because of his omission to act." W. Prosser, Prosser and Keeton on the Law of Torts, 373 (5th ed. 1984). Out of this seemingly wooden distinction between misfeasance and nonfeasance emerged four discrete lines of cases which developed important exceptions to the general rule to ameliorate its often brutally harsh consequences: (a) affirmative conduct cases (the duty to avoid affirmative acts which make the situation of a person in difficulty or peril any worse); *fn6" (b) cases involving the prevention of aid by others (the duty to take reasonable care that he does not prevent others from rendering assistance); *fn7" (c) cases imposing an obligation to exercise control over the conduct of third persons (a duty arising from public policy considerations that certain relationships which are protective by nature require a defendant to guard his charge against harm from others); *fn8" and (d) cases involving the duty to aid one in peril (the moral and occasionally legal responsibility to come to the aid of another human being who is in danger). *fn9"

 Plaintiffs rely exclusively on opinions falling into this fourth category of nonfeasance cases to support their argument that proximate cause is implicit in the jury's finding that defendants breached their duty of care. As we have discussed supra, under New Jersey "rescue" cases, the proper question as to proximate cause is whether the negligent omission complained of increased the risk of harm to the plaintiff and whether that increased risk was a "substantial factor" in producing the resulting injury. See Plaintiffs' Brief ...

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