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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...