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Genovese v. New Jersey Transit Rail Operations Inc.

Decided: July 14, 1989.

ANTHONY J. GENOVESE, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY TRANSIT RAIL OPERATIONS, INC., DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Union County.

Gaulkin, R. S. Cohen and A. M. Stein. The opinion of the court was delivered by R. S. Cohen, J.A.D.

Cohen

Plaintiff was employed by defendant as a train ticket collector. On New Year's Eve, patronage by rowdy celebrants skyrocketed in response to defendant's offer of free rides. Plaintiff, two other operating employees of New Jersey Transit and two Amtrak police officers were in charge of a ten-car train with 1170 seats which left New York City at 1:30 a.m. There were 1300 to 2500 passengers.

The situation was chaotic. At the Elizabeth stop, plaintiff tried to help people exit and was attacked by unruly passengers. He was beaten and choked, but suffered no serious physical injury. The emotional consequences claimed by plaintiff were, however, severe and permanent. He has not returned to any employment. He made an attempt to do so but could not function for a single day.

Plaintiff started this action under the Federal Employers' Liability Act, 45 U.S.C. ยง 51 et seq., charging that defendant failed to provide him with a safe place to work. The matter was tried to a jury, which found defendant liable and assessed damages of $413,000. Defendant appealed, asserting various errors. We affirm the verdict on liability, but reverse the verdict on damages and remand for a new trial on that aspect.

The only argument made by defendant respecting the liability verdict focuses on the testimony of Amtrak police officer William Hawley. He was on the train with plaintiff, and at trial described the perilous situation in considerable factual detail. In addition, Hawley was permitted to give his opinion that the security provided by him and his partner was not effective or sufficient.

Hawley had been a law enforcement officer for some 18 years. He was qualified by that experience and his own observation of and participation in the hectic events of New Year's Eve to give the opinion asked of him. Essentially the same questions and answers appeared in Hawley's deposition. His opinion was therefore no surprise to defendant. He was not, however, named as an expert in answers to interrogatories.

The descriptions of the situation given to the jury called for the conclusion elicited from Hawley. His opinion was nearly superfluous. The trial court's discretionary call was within the permitted range of sound judgment. See Westphal v. Guarino, 163 N.J. Super. 139 (App.Div.), aff'd 78 N.J. 308 (1978). Even if the decision were wrong there would be no reason to think it capable of producing an unjust result. R. 2:10-2.

A problem arose in the damage phase of the trial which requires partial reversal. Plaintiff produced an expert economist. Over defendant's objection, the trial judge himself elicited testimony from him announcing "bottom line" wage loss figures, which clearly violated the prohibition of such testimony announced in Tenore v. Nu Car Carriers, 67 N.J. 466 (1975). Next day, the judge saw that he had erred and thus told the jury to disregard the bottom line figures. He repeated the admonition in the general instructions at the end of the trial.

Plaintiff argues that Tenore does not apply because the Federal Rules of Evidence govern a New Jersey court trying an FELA case. Not so. In general, rules of evidence are classified as procedural. Busik v. Levine, 63 N.J. 351, 367 app. dism., 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973).

Tenore 's*fn1 bar to presenting "bottom line" aggregate wage loss figures concerns the manner of presenting evidence, and is thus subject to the rules of the forum. It is not a matter of measuring damages, which in FELA cases is governed by substantive federal law. St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 410, 105 S. Ct. 1347, 1347-1348, 84 L. Ed. 2d 303 (1985); Norfolk v. W. Ry. Co. v. Liepelt, 444 ...


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