October 18, 2007
MARK ROVETTO, PARENT AND NATURAL GUARDIAN FOR JUSTIN ROVETTO, A MINOR, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
CSX TRANSPORTATION, INC. AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2396-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2007
Before Judges Parrillo, Graves and Alvarez.
Plaintiffs Mark and Kimberly Rovetto,*fn1 parents of a minor child, Justin, appeal from a judgment in favor of defendants, CRX Transportation, Inc. (CRX) and Consolidated Rail Corp. (Conrail), after a jury verdict of no cause that found defendants' negligence was not the proximate cause of the accident. Justin Rovetto was severely injured while jumping on and off a slow-moving freight train owned by defendant CRX and previously owned by defendant Conrail. Plaintiff appeals contending the trial court erred in instructing the jury on proximate cause, in excluding one of plaintiff's railroad safety experts, and in barring prior accident evidence. Defendants cross-appeal from the judge's failure to grant their motions for judgment. We affirm.
CRX's River Line, which up until 1999, was owned by Conrail, runs 132 miles from Selkirk, New York, south to North Bergen, New Jersey. The River Line's single set of tracks runs north-south through the middle of Dumont. The tracks have been in place since the turn of the last century and the town had grown up around the tracks. Trains pass through Dumont at approximately twenty miles per hour during the day and faster at night. Loud train whistles could be heard throughout Dumont, and rumbling trains could be felt and heard.
A football field separates Dumont High School from the tracks. Fencing surrounds the perimeter of the high school and football field. The fencing runs behind the football field's bleachers along the tracks. A chain link fence on top of a wall "that drops down in elevation" separates businesses from the other side of the tracks. Open space exists on either side of the tracks, between the outer edge of the tracks and the respective fence lines. According to Dumont Police Sergeant Robert Roem, twenty feet of space separates the tracks from a fence, although he was not clear as to which fence.
The segment of track in question runs between the New Milford Avenue and Madison Avenue crossings. Although there was a hole in the fence separating the high school football field from the track, thick shrubbery made access to the hole difficult if not impossible.
There are vehicular and pedestrian gate arms, bells and flashing lights at the Milford Avenue crossing. When in a down position, the pedestrian gate arm provides a physical barrier across the sidewalk to prevent people from traversing the track. A very narrow space separates the lowered pedestrian gate arm from a post. One must squeeze by to get through.
Twelve-year old Justin and his friends often engaged in adrenalin-rush activities such as performing difficult tricks skateboarding and snowboarding, and swinging on a rope over a brook. November 7, 2000 was a half-day of school. Justin left school, had lunch at home with some friends, and returned to go skateboarding with others on the steps of the high school, knowing it was not allowed and without wearing protective gear. There, he noticed a slow-moving ninety-six car freight train decelerate even more. Believing it fun, having jumped on a slow-moving train before, Justin asked his friends "if they wanted to go up towards the tracks and try to jump on it." Justin and a friend, Gavin, rode to the New Milford crossing on bicycles, while the others stayed behind, aware of the danger involved. Even though the crossing was fully guarded and protected, and ignoring the pedestrian gate in a down position as well as the flashing red lights and ringing bells, Justin and his friend proceeded on foot down a strip of land adjacent to the track.
On two previous occasions, Justin successfully jumped on ladders attached to box cars, rode five to ten feet, and jumped off. He failed, however, in his third attempt, resulting in a partially severed foot that was subsequently amputated. Justin described the incident that occurred that afternoon:
I guess I grabbed a . . . rung of the ladder that was too low and I tried to lift my legs up to keep them from . . . like, dragging on the ground . . . but my foot, from what I guess, went under the wheel or I stepped on the rail and it rolled over my foot, [I] blacked out for a couple seconds, and then came to, and I was on the ground.
Justin admitted being warned about the dangers of railroad tracks and trains by his parents, who told him to stay away from the tracks practically every time he went out. These same warnings were frequently repeated by other relatives and friends' parents. Justin's father also acknowledged that even before his son was nine years old, he warned Justin about the dangers of railroad tracks and reiterated these warnings on multiple occasions:
[He] would tell . . . [Justin] the dangers of the railroad tracks and that he shouldn't play on the railroad tracks or go on the railroad tracks or walk on them and that a train could be dangerous and it is obviously slower, but it could be a fast-moving vehicle at times and you can get hurt.
In fact, when Justin was only four years old and the family lived in Pennsylvania, plaintiff taught Justin railroad safety and the school he attended provided railroad safety training, including a book on that subject which plaintiff read with his son. In contrast, according to Justin, he had not been instructed on railroad safety in school since his family's move to New Jersey. In fact, had he been presented with a "scared-straight" (graphic) video, "[t]hat would have changed . . . [his] mind because . . . [he] had to learn the lesson the hard way."
Both adults and children regularly were seen in the track area spanning the stretch between the New Milford and Madison crossings, jogging, bicycling and walking dogs. David Mauro, the train engineer, would see people in the six-foot grassy area next to the track, which is "in the clear," and where people were not in danger of being hit by the train. Patrolman James Flaherty, a ten-year police veteran, encountered adults in the track area on a daily basis and on occasion would see children walking between the rails, whom he ordered off. Michael Pearson, one of Justin's friends, walked across the tracks on a daily basis when leaving the school grounds to get lunch. It was a shorter route than using a crossing. Michael would see children walking in the track area "[a]ll day . . . . all the time" and adults walking dogs in that location, although he himself never jumped on a moving train.
Dumont Police Captain Thomas Coughlin did not perceive a "persistent trespass" problem at the location where Justin was injured, and both he and Flaherty said there was no "beaten path" spanning the tracks from one side to the other in that area. In the four years that engineer Mauro made trips through Dumont, he never experienced anyone attempting to jump on his train, and never reported a trespassing problem in the area. In fact, there is no evidence that anyone other than Justin or his friend had ever jumped on a train from this area.
Second-graders in the Dumont school district were introduced to safety programs relating to, among other things, railroads and pedestrians, through the "Adopt-A-Cop" school safety program implemented by Coughlin in the early 1990's. The railroad safety component of the program included a video entitled "Sly Fox and Birdie" and a coloring book by the same name. The coloring book contained a message to parents indicating that it was given to their child by Operation Lifesaver and that the parents are supposed to reinforce the safety message contained in the book. Although the program was given to second-graders because they were old enough to understand the significance of railroad safety, the police department apparently did not continue to provide railroad safety information to children in grades three through twelve.
CSX hired Thomas W. Heilig as a Public Safety Coordinator from 1999 to 2003. Heilig, who had been employed by Conrail from 1976, became a Level 1 presenter for Operation Lifesaver in 1993. Between 1993 and 1999, as a volunteer presenter, Heilig had contact with approximately 50,000-60,000 school children in the area around Selkirk, New York. In addition to other duties at CSX, as a paid Public Safety Coordinator, he continued making Operation Lifesaver presentations to students and others. In connection with that program, Heilig used a variety of charts and video tapes, and would impress upon school children, depending upon their grade level: that trains operate twenty-four hours a day; that trains could not be steered to avoid hitting something; the distance required to stop a train; and the awesome crushing power of a moving train. While a volunteer presenter at Conrail, his "territory" did not include New Jersey. Although his territory covered Bergen County during his tenure as CSX Coordinator, Heilig never made an Operation Lifesaver presentation in Dumont prior to November 7, 2000. According to Heilig, the decision to make a presentation in a particular school was predicated upon "a trespass problem reported by the police or somebody from the town." He did not go into the Dumont schools between June 1, 1999 and November 7, 2000 because there had been no reports of trespass.
Plaintiff's safety expert, Daniel Della-Giustina, considered the Operation Lifesaver program, which he believed had been developed by CSX for grades kindergarten through twelve, to be excellent. He opined that CSX should have helped to develop the full Operation Lifesaver program in the Dumont schools, and that the police department's existing "Sly Fox" video and coloring book program was neither sufficient nor comprehensive "enough to give . . . [Justin] that type of experience . . . to reflect on." The expert also opined that warning signs should have been placed in the area behind the high school between the two crossings. Della-Giustina acknowledged, however, that on the day of the accident, Justin ignored the operating warning devices at the crossing; railroads were not required to make safety presentations in schools under Federal Railroad Administration safety regulations; and Justin "was a risk taker to a certain degree" who, even with a comprehensive railroad safety program in place, "still might have jumped on the train anyway."
As noted, plaintiff, on Justin's behalf, sued defendants in negligence on the theory they breached an affirmative duty to implement railroad safety-education programs in the local schools. At the conclusion of evidence, the jury found defendants negligent, but the negligence was not a proximate cause of Justin's injuries. Thereafter, the judge denied defendants' pre-verdict motions for judgment, on which he reserved decision, finding them moot. The judge also denied plaintiff's motion for a new trial.
On appeal, plaintiff contends the court erred in instructing on proximate cause, excluding one of plaintiff's railroad safety experts, and in precluding "prior accident" evidence. We find these contentions lacking in merit.
Plaintiff contends, for the first time on appeal, that the court erred in its instructions on proximate cause and that by failing to give Model Jury Charges (Civil) §§ 7.13 and 7.14 dealing with concurrent and intervening causes of harm, allowed the jury to "mistakenly determine that there was one proximate cause . . . of Justin Rovetto's injury." We disagree.
As a threshold matter, we note that not only did plaintiff fail to raise the issue below, but he actually submitted a written request to charge only Model Jury Charge (Civil) § 7.11 and specifically agreed that Model Jury Charge (Civil) § 7.13 was inappropriate. In fact, during colloquy over the jury's question about proximate cause in response to the judge's inquiry, plaintiff's counsel stated that there was but one proximate cause, that is, defendants' "failure to provide the education." It was not until plaintiff moved for a new trial that counsel asserted that Model Jury Charges (Civil) §§ 7.13 and 7.14 should have been given.
It is well-settled that "in addition to the requirement that objection to instructions be raised before the jury retires to deliberate, it is also incumbent upon the party to apprise the trial court of the specific nature of his objection at that time." Gaido v. Weiser, 227 N.J. Super. 175, 198 (App. Div. 1988) (citing West v. MacDonald, 103 N.J. Super. 201, 213 (App. Div. 1967), aff'd o.b., 52 N.J. 536 (1968)), aff'd, 115 N.J. 310 (1989). "[A]ny alleged deficiencies concerning [a] charge . . . should be disregarded on appeal unless they were clearly capable of producing an unjust result under the 'plain error' standard set forth in R. 2:10-2." Ibid. Thus, since the objection to the charge in this case was first made at the motion for a new trial, we consider any deficiency in the jury instructions under the plain error standard. Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419, 424 (App. Div. 1996); see also R. 2:10-2. Governed by this principle, we discern no error -- much less plain error -- in the court's charge on proximate cause.
In conformance with the requests of both counsel, the trial judge charged proximate cause as follows:
Proximate cause. Plaintiffs, even if they have proven each of the elements of [the] Persistent Trespasser Doctrine or each of the elements of the Infant Trespasser Doctrine, and even if they have proven that the defendants were negligent, [they] must also prove that the defendant's negligence or failure to use reasonable care proximately caused the plaintiff's injury.
By proximate cause I refer to a cause that in a natural and continuous sequence produces the accident or incident or event and resulting injury, loss and harm and without which the resulting accident, injury or event or loss and harm would not have occurred. A person who is negligent is held responsible for any accident, incident or event, or injury, loss or harm that results in the ordinary course of events from his negligence.
In this case this means that you must first find that the plaintiff has proven each and every element of the Persistent Trespasser Doctrine or each and every element of the Infant Trespasser Doctrine. Plaintiff must also prove that the defendants were negligent because they failed to exercise reasonable care.
Plaintiffs must also prove that the resulting accident or injury to Justin Rovetto would not have occurred but for the negligent conduct of Consolidated Rail Corporation or CSX Transportation, Inc.
Finally, you must find that the defendant's negligent conduct was a substantial factor in bringing about the resulting accident or injury and by substantial I mean that the cause is not remote, trivial or inconsequential. If you find that Consolidated Rail Corporation or CSX Transportation, Inc.'s negligence was a cause of the accident, and that such negligence was a substantial factor in bringing about the injury, then you should find that Consolidated Rail Corporation or CSX Transportation, Inc. was a proximate cause of Justin Rovetto's injury and loss.
During deliberations, the jury asked several times to be reinstructed on the definition of "proximate cause." The court complied, twice repeating the proximate cause charge to the jury along with an additional portion agreed to by both counsel:
[A]s I indicated earlier, the language that I read before that the attorneys agreed to further explanation of proximate cause is as follows:
Has the plaintiff proven that the defendant Conrail's failure to exercise reasonable care was a proximate cause of Justin Rovetto's injury? It is the plaintiff's contention [that] a proximate cause of Justin Rovetto's injury was the railroad's failure to provide railroad safety education to Justin Rovetto in the Dumont schools in addition to the adopt a cop program [given] in second grade.
And there can be more than one proximate cause. [(emphasis added).]
The jury next asked what was meant by the charge that there could be more than one proximate cause and requested an example. This time the judge read Model Jury Charge (Civil) § 7.10*fn2 to the jury together with the charge he had previously given containing the agreed-upon addition. The judge instructed the jury that since the Model Charge refers to "a proximate cause," it "can reasonably infer that there may be more than one proximate cause."
Plaintiff now contends, as at the motion for a new trial, that it was plain error to give the "routine tort case" proximate cause charge. We disagree as the court's proximate cause instructions were properly tailored to the facts in evidence.
The traditional jury charge on proximate cause as a continuous sequence is inapt for cases in which there are concurrent causes of harm. Thus, "[w]hen instructing a jury on proximate cause, trial courts must distinguish between the routine tort cases and cases where concurrent causes of harm are present." Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309 (App. Div.), certif. denied, 156 N.J. 386 (1998). "In the former, the law requires proof that the result complained of probably would not have occurred 'but for' the negligent conduct of the defendant." Ibid. (quoting Conklin v. Hannoch Weinstein, 145 N.J. 395, 417 (1996) (citations omitted)). In the latter, the "jury . . . must be instructed to determine whether the negligence was a substantial factor in bringing about the ultimate harm." Conklin, supra, 145 N.J. at 422; see also Camp, supra, 309 N.J. Super. at 309-10. In Camp, we further distinguished the two tests:
The "but for" standard concentrates on one cause that sets the other causes in motion, while the "substantial factor" test recognizes that "'a tortfeasor will be held answerable if its "negligent conduct was a substantial factor in bringing about the injuries," even where there are "other intervening causes which were foreseeable or were normal incidents of the risk created."'" In the latter circumstance, "[a]lthough the law of negligence recognizes that there may be any number of concurrent causes of an injury, '[n]evertheless, these acts need not, of themselves, be capable of producing the injury; it is enough if they are a "substantial factor" in bringing it about.'" [309 N.J. Super. at 309-10 (citations omitted).]
Even assuming evidence of concurrent causes of harm in this case, namely defendants' failure to educate and Justin's actions, the jury was nevertheless specifically informed of the "substantial factor" test and that there may be more than one proximate cause. Indeed, the court gave Model Jury Charge (Civil) § 7.10 and that instruction "accommodates both the 'but for' and the 'substantial factor' tests." Id. at 310. Unlike Camp, where the charge in a case of concurrent causes included no instruction on the "substantial factor" test and emphasized that the plaintiff was required to establish that the defendants' negligence was the proximate cause of the harm that occurred, the charge here did not instruct the jury to concentrate on an exclusive cause, but rather was properly tailored to deal with the concurrent causes arguably suggested by the facts in evidence.
By the same token, the evidence did not warrant giving Model Jury Charge (Civil) § 7.14, which deals with intervening or superseding causes, and instructs that each intermediate cause may be deemed a proximate result of the first wrongful act if reasonably foreseeable. Here, a reasonable jury could only find that any "causal connection [was] broken by a superseding intervening cause" that was neither anticipated nor foreseen. Davis v. Brooks, 280 N.J. Super. 406, 412 (App. Div. 1993). Illustrative is Vega ex rel. Muniz v. Piedilato, 154 N.J. 496, 500 (1998), in which a boy attempting to jump from the roof of one apartment building to another tripped and fell into the air shaft between the buildings. The plaintiff argued that the owners of the apartment buildings were negligent in failing to implement various security measures to keep children off the roof, where they knew children would play. Id. at 505. Reasoning that the plaintiff's attempted leap was an intervening cause, the Court held that no reasonable jury could find that the lack of security measures was the proximate cause of his fall. Id. at 509. As a matter of law, the plaintiff's attempt to leap over the air shaft from one apartment building to another was not a foreseeable intervening cause. Ibid. Citing Vega ex rel. Muniz, the Court in Miller ex rel. Miller v. Estate of Sperling, 166 N.J. 370, 386 (2001), observed that "[a]lthough proximate cause is generally an issue for the jury, . . . . [t]here are occasions when a court may resolve that issue . . . ."
Here, defendants never raised the defense of "superseding intervening cause" and, in any event, Justin's jumping on a moving train, like the child's attempt to jump over the air shaft in Vega ex rel. Muniz, was not a foreseeable intervening cause as a matter of law. Nor is there any evidence of third-party responsibility for Justin's injury to warrant giving such an instruction. Accordingly, under the circumstances, we perceive no error, much less plain error, in the failure to give Model Jury Charge (Civil) § 7.14. Considering the "charge . . . as a whole," State v. Wilbely, 63 N.J. 420, 422 (1973), it cannot be said that it was unfair or would have "led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Plaintiff next contends that the trial court erred in excluding the testimony of one of his railroad safety experts, Richard Beall. We disagree.
"Ordinarily, the competency of a witness to testify as an expert is remitted to the sound discretion of the trial court." Carey v. Lovett, 132 N.J. 44, 64 (1993). "Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion." Ibid. (citing Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 411 (1960)).
N.J.R.E. 702 provides that "[i]f 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." The Court in State v. Kelly, 97 N.J. 178, 208 (1984) (citations omitted), enumerated three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
Stated differently, "[t]he test of need of expert testimony is whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982) (citing 2 Harper & James, Law of Torts § 17.1 at 966 (1956)). Indeed, "'the uncritical acceptance of expert testimony [where it is not needed] can becloud the issues.'" State v. Hackett, 166 N.J. 66, 81 (2001) (citing State v. R.W., 104 N.J. 14, 30 (1986)).
As to "speculative" expert testimony, we noted in Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.), certif. denied, 146 N.J. 569 (1996) (citations and quotations omitted):
Under New Jersey law, an expert's opinion must be based on a proper factual foundation. In other words, [e]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. This prohibition against speculative expert opinion has been [labeled] by modern courts as the net opinion rule. Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities.
Governed by these principles, the trial judge did not abuse his considerable discretion in excluding Beall's testimony. At a N.J.R.E. 104 hearing, it was established that while Beall was employed by freight railroads almost exclusively as an engineer or conductor, he had no educational background in railroad safety, had not worked in a safety capacity for a school system, and had not been hired by a railroad company to develop dual safety programs.
More significantly, the jury was fully competent on its own and without expert assistance to resolve issues which Beall was called upon to testify, namely that of trespass and whether Justin would have taken heed if he had been presented with "graphic" depictions of human encounters with trains. In other words, the particular subject matter was neither scientific nor technical in nature and not beyond the ken of the average juror.
Further, Beall acknowledged there were no regulations, laws or industry standards imposing a duty on railroads to educate the general public or children about the dangers of playing on or near railroad tracks, and therefore his opinion was not based on generally accepted or otherwise reliable principles. On the contrary, Beall admitted that his opinions on whether there was such a duty, whether the accident was avoidable if an educational program was in place, and whether there was, in fact, a trespassing "problem" in Dumont, were strictly personal. For all these reasons, Beall's proposed testimony was properly ruled inadmissible, and in any event, cumulative to that of plaintiff's other railroad safety expert, Della-Giustina, who was found properly qualified to render his professional opinions.
Plaintiff's final contention is that the trial court erred in excluding evidence of three prior accidents involving a five-year-old girl who was struck and killed by a freight train; a sixteen-year-old girl who was killed running across the tracks before an approaching train; and a sixteen-year-old boy who apparently committed suicide by walking in front of a train. Plaintiff argues these incidents are evidential of the need for railroad safety education programs in the Dumont schools.
In granting defendants' pretrial motion to exclude evidence of these three prior incidents, the judge found them to be too dissimilar to the present case to be of any evidential value whatsoever. Subsequently, in response to plaintiff's claim of error on his motion for a new trial, the judge added:
I thought that I was correct in precluding . . . the prior accidents. There has to be some similarity between those accidents and the occurrence, and there wasn't any. And regardless, even if it was error to preclude that testimony or evidence, with the issue of whether [a] dangerous condition existed was determined by the jury that it did.
As noted by the Court in DiDomenico v. Pennsylvania-Reading Seashore Lines, 36 N.J. 455, 464-65 (1962), "[s]afety history may be admissible for some purposes but before it can have any probative value it is incumbent upon the party who offers the evidence to show the other occurrences took place under the same or substantially the same conditions as the accident in question." In Wymbs ex rel. Wymbs v. Twp. of Wayne, 163 N.J. 523 (2000), the Court held that prior accidents can be used to prove the existence of a dangerous condition on public property if the following threshold standard is satisfied: (1) the same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and (2) the absence of other causes of the accident.
The requirement of substantial similarity is more stringent when the prior-accident evidence is offered to prove the existence of a dangerous condition than when offered to prove notice because all that is required [for notice] is that the previous . . . [accident] should be such as to attract the defendant's attention to the dangerous situation which resulted in the litigated accident. Requiring different levels of similarity depending on the purpose for which the prior accidents are offered ensures that there is a logical connection between the prior accidents and the fact in issue. Trial courts have broad discretion in determining whether the logical connection exists and whether that evidence should be otherwise excluded under N.J.R.E. 403. [Id. at 536-37 (citations and quotations omitted).]
We are satisfied that there was no abuse of the trial court's discretion in excluding the challenged evidence because no "logical connection" exists between Justin's accident and the three prior incidents to render the latter of any probative value.