On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-3577-99.
Before Judges King, Wecker and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2002
Defendant, New Jersey Transit Rail Operations, appeals from a $150,000 judgment for personal injuries entered pursuant to a jury verdict in favor of plaintiff, Anthony Stevens, in this action under the Federal Employer's Liability Act, 45 U.S.C.A. §§ 51 to 60 (FELA). On appeal, defendant argues (1) its motions for summary judgment and involuntary dismissal should have been granted because without expert testimony plaintiff failed to establish a prima facie case of negligence to establish a design defect, and (2) defendant was unfairly prejudiced by the cumulative effect of (a) plaintiff's failure to inform defendant prior to trial of his intended change in testimony, (b) violations of two in limine orders, and (c) improper summation remarks inviting the jurors to put themselves in plaintiff's place in rendering a verdict and award of damages. Defendant argues we should reverse the trial court judgment and enter judgment in its favor, or, alternatively, order a new trial. We reject these arguments and affirm. Plaintiff filed a protective cross-appeal seeking to bar certain evidence in the event we ordered a retrial. Because of our disposition, we do not address and dismiss the cross-appeal.
Plaintiff was employed by defendant as a storekeeper at defendant's facility where trains are repaired. Parts are stored on shelving racks thirty to thirty-six feet high. Plaintiff's job duties required him to retrieve parts. A manlift machine, known as a Hefty Herman machine, is used for this purpose. This is a motorized platform, which can be driven to the desired location within the storage racks and then elevated, lifting the operator to the necessary height to reach the needed parts. One machine owned by defendant was the Hefty Herman #3.
In its "down" position, the machine's platform is about five feet off the ground. Above the platform, flush with the side where the machine is mounted and dismounted, is a moveable safety cross-bar, which can be slid up to the location of a higher fixed cross-bar. *fn1 In mounting the machine, the operator must place one foot on the step, which is about two to three feet off the ground. While stepping up to the platform he must push the moveable safety bar upward with both hands. While continuing to move his body upward, the operator must engage in an awkward twisting motion of his upper body under the bar, which he is holding with both hands. He then lowers the safety bar behind him as he gets onto the platform. Dismounting requires a similar process in reverse.
Plaintiff and many other storeroom employees constantly complained to their supervisors about the difficulty in mounting and dismounting the machine. They received no training on mounting and dismounting techniques. Although their supervisors regularly observed them mounting and dismounting the machine, the supervisors never informed plaintiff or his co-workers they were getting on or off incorrectly.
Prior to December 1995, the Hefty Herman #3 had no step attached. One of plaintiff's co-workers, Robert Woodson, testified at trial about the injury he suffered on December 6, 1995 in dismounting the machine:
Well, I was dismounting the Hefty Herman, which is a[n] awkward machine to begin with. Always said you had to be a contortionist to get off that machine. And you literally had to propel yourself off, swing out. And in doing so, there was a[n] oil spot and I slipped and hurt myself in the groin area.
Shortly after Woodson's accident, defendant welded a step on the Hefty Herman #3. At about the same time, defendant ordered a newer version of the machine, which came equipped with a ladder for mounting and dismounting. When the new machine, known as the Genie, arrived and was placed into service, defendant's supervisors instructed plaintiff and his co-workers to use the Genie whenever possible because it is safer to mount and dismount; the Hefty Herman #3 was to be used only if the Genie was unavailable.
Plaintiff injured his shoulder on November 2, 1997 while mounting the Hefty Herman #3. He tore his rotator cuff, requiring two surgeries. In his trial testimony, plaintiff described the mounting procedure:
Yes. You -- you have to have one foot on that. You have to hold up the cross bar with two hands to pull it up to the top. So the cross bar don't come down on your head. Then you have to pull yourself up under, release and go under ...