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Anastasopoulos v. Maloney

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 21, 2010

FRANCINE ANASTASOPOULOS AND PETROS ANASTASOPOULOS, AS GUARDIANS FOR THE INFANT DECEDENT, ANTONIS ANASTASOPOULOS AND ON BEHALF OF THE ESTATE OF ANTONIS ANASTASOPOULOS, AND FRANCINE ANASTASOPOULOS AND PETROS ANASTASOPOULOS, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
MARK MATTHEW MALONEY, DEFENDANT-RESPONDENT, AND NEW JERSEY TRANSIT, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6516-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

Seventeen-year-old Antonis Anastasopoulos (Tony) was struck and killed by a New Jersey Transit train as he and two friends attempted to cross a trestle. His parents, individually and on behalf of their son's estate, sued New Jersey Transit (Transit), alleging that the train tracks were a dangerous condition, and the operator of the train, Mark Matthew Maloney (defendant), alleging that he was negligent because he did not stop the train in time to avoid hitting decedent. In a previous appeal, we affirmed a grant of summary judgment in favor of Transit, but reversed the order of summary judgment in favor of defendant, holding that there were sufficient issues of fact as to defendant's negligence in the operation of the train. Anastaspoulos v. New Jersey Transit, No. A-1789-06 (App. Div. Nov. 9, 2007) (slip op. at 14-15). At trial, the jury returned a no cause verdict. Plaintiffs appeal, arguing that there were a number of evidentiary and jury charge errors that amounted to a miscarriage of justice and warrant a new trial. Specifically, plaintiffs argue:

I. APPELLATE REVIEW IS APPROPRIATE WHERE THERE HAS BEEN A MISCARRIAGE OF JUSTICE.

A. The Court erred when it failed to provide a curative instruction after defense counsel attacked plaintiff's expert for his failure to rely upon a Track Chart for the subject area in his opinions, when in fact the defendant refused to provide the track chart due to security reasons after 9-11.

B. The court erred in permitting the defendant, Mark Maloney, to testify to the distance between the point of tangency and the trestle, despite having previously testified that he could only guess at the distance.

C. The Court erred in failing to find a violation of the principles set forth in McKenney v. Jersey City Medical Center, 167 N.J. 359 (2001) when Mark Maloney changed his testimony after plaintiff's expert had testified.

D. The Court erred in precluding the jury from considering the issue of the perception reaction time of the defendant and from refusing to compel the production of Mr. Maloney's employment file, even though the defendant suffers from profound hearing loss as a result of a brain tumor and related chemotherapy.

E. The Court erred in precluding photographic evidence regarding the proximity of the train tracks to various streets and residential properties in multiple locations in Montclair.

II. FAILURE TO PROPERLY CHARGE A JURY IS REVERSIBLE ERROR.

A. The Court erred in directing that the jury charge state that Tony had to be found negligent.

B. The Court erred in charging the Sudden Emergency Doctrine, where, as here, there was evidence that the defendant's conduct may have contributed to the existence of the emergency.

C. The Court erred in charging that Tony violated N.J.S.A. 48:12-152[(a)] and must be found to be a trespasser implying negligence.

We find no error and affirm

On the evening of August 19, 2002, Tony met his girlfriend, sixteen-year-old Allison Holmes-Surbeck and her friend, fourteen-year old Abigail Banegas, at a restaurant in Montclair. They left the restaurant and went to a park, then decided to go to the video store to rent a movie. En route to the video store, the three walked on the train tracks because it was shorter and more direct than walking on the public streets. They came to a trestle at approximately 9 p.m., and Allison walked across first, with Abigail and Tony following. Abigail was wearing "clunky" shoes, so Tony held her hand and walked beside her in order to help her over the gaps on the trestle. Before they could make their way over the trestle, a Transit train approached. Allison and Abigail were able to move out of the way to safety. According to Allison, however, Abigail was having trouble moving, so Tony "picked her up, he fell, and then when he fell, her foot got stuck, and when he threw her, the train hit him on the left side." Tony was thrown onto the road below, where he was run over by oncoming traffic. Arriving firefighters and paramedics found that Tony had no pulse and was not breathing. They performed cardiopulmonary resuscitation (CPR) in an attempt to revive him, but were unsuccessful.

The train was operated by defendant, the engineer. It had left Watchung Station and was traveling west towards Upper Montclair Station when the accident occurred. Leaving Watchung Station, the train traveled up a grade and around a curve before reaching a straightaway that led to the trestle. According to defendant, when he came around a curve and up the grade from Watchung Station "something caught [his] eye, just a movement." He blew the horn first, and then put the train into "emergency," which meant the train went into emergency braking and he no longer had control over it. Defendant could not say how far in front of the trestle he was when he first saw the teenagers. He did not immediately see them upon reaching the straight part of the track, the so-called "point of tangency," or clear view.

Estimating the distance from the point of tangency to the trestle, Maloney said that with a six-car train like his, the train would span from the trestle to the point of tangency. Each car was 83 feet long, and the locomotive was 43 feet long, for a total length of 541 feet.

The maximum track speed was 50 miles per hour. When defendant put the train into "emergency," the throttle was at the maximum position of eight in order to reach the speed necessary to reach the next station in time. When a train is put into "emergency," it goes into a power lockout system and the position of the throttle is no longer relevant.

The train's event recorder showed that the train had reached a speed of 38 miles per hour and the throttle was in the eighth position when the train was put into emergency braking. Maloney activated the horn between 4.8 and 3.8 seconds before impact, and applied the emergency brakes between 1.8 and 2.8 seconds before impact.

Defendant had worked for Transit since 1989. Sometime after he was hired, he was diagnosed with a brain tumor, which was treated by surgery, radiation, and chemotherapy. A shunt was put in to prevent excess fluid buildup in his brain. He suffered hearing loss as a result of the chemotherapy, and wore hearing aids. He also wore safety glasses when operating a train because he had an astigmatism.

In order to keep his engineering certification, defendant was required to undergo regular physical examinations, which he had always passed. His neurosurgeon, Dr. Edward Engel, wrote a note for him to bring to his employer after his brain surgery, stating that he was suffering no ill effects from the surgery and that he was competent to return to work.

According to Stephen Klejst, Deputy General Manager of Safety and Training for New Jersey Transit Rail Operations at the time of the accident, who testified for defendant, it is known that people walk the tracks, though he was not aware of any specific problems with trespassers on the Boonton line, where this accident took place. Furthermore, in areas where there is a high number of incidents with pedestrians near trains, Transit takes steps to address the problem. When an engineer determines that a condition on the tracks, including trespassers, is going to affect the operation of the train, he or she first blows the horn, and then places the train into emergency braking. Also, Transit engineers are required to undergo annual medical tests, visual acuity, and hearing tests. Defendant satisfactorily completed the requisite medical examinations.

Plaintiffs' expert, James R. Loumiet, a mechanical engineer who specializes in railroad and traffic accident reconstruction, used an overhead photograph from Google Earth Pro and approximated the distance from the tangency of the curve (the point where the track goes from curved to straight) to the point of impact on the trestle as approximately 800 feet. He also estimated the time between tangency and impact as approximately 16.8 seconds. Based thereon, he opined that defendant would have seen the teenagers as soon as he rounded the curve, and even using a slow reaction time of 2.5 seconds, if he had reacted immediately he would have had enough time to stop the train and avoid the impact. He also surmised that instead of putting the train into emergency braking, defendant could have reduced the throttle or applied the brake to slow the train down. Loumiet admitted on cross-examination, however, that he never made any measurements on the ground and relied solely on Google maps. He also acknowledged that if the point of tangency was 580 feet from the point of impact, as defendant had estimated, defendant would have had six or seven seconds less to react.

At the close of evidence, following summations and the court's instructions, the jury returned a verdict of no cause of action.

I.

Plaintiffs first argue that there was a miscarriage of justice and that a new trial is warranted. This issue, however, is not cognizable on appeal as plaintiffs did not move for a new trial below. R. 2:10-1.

In any event, the jury verdict was not "contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice, or partiality." Lanzet v. Greenberg, 126 N.J. 168, 175 (1991). The accident occurred in the evening, at approximately 9 p.m., at an area of the track where the train traveled up a grade and around a curve before reaching a straightaway that led to the trestle. Defendant said that he did not immediately see the teenagers upon reaching the straight part of the track, but that as soon as he saw them, he blew the horn and then placed the train into "emergency[.]" The event recorder showed that defendant activated the horn between 4.8 and 3.8 seconds before impact, and applied the emergency brake between 1.8 and 2.8 seconds before impact. In view of this testimony, the jury was free to disregard plaintiff's expert's contrary opinion that fourteen to fifteen seconds elapsed from the point of tangency to impact, which, according to the expert, was more than enough time for defendant to have taken evasive action. Thus, there was sufficient credible evidence for the jury to find defendant was not negligent.

II.

Plaintiffs next argue that the court erred in permitting defendant to testify to the distance between the point of tangency and the trestle, despite having previously testified at deposition that he could only guess at the distance. We disagree. Defendant's trial testimony did not conflict with his deposition testimony, and therefore did not unfairly surprise plaintiffs.

"A trial court is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). N.J.R.E. 403(a) provides that relevant evidence may be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion of issues, or misleading the jury. While not an explicit bar under N.J.R.E. 403, the "surprise factor" has been a consideration in precluding evidence under the rule. Biunno, New Jersey Rules of Evidence, comment 7 on N.J.R.E. 403 (2009). See, e.g., Suanez v. Egeland, 330 N.J. Super. 190, 194, 196 (App. Div. 2000) (relying on unfair surprise and a number of additional factors in concluding that videotape that had not been provided in discovery should not have been shown to jury); Balian v. General Motors, 121 N.J. Super. 118, 129-32 (App. Div. 1972) (stating that "the strongest counter-factor militating against the admission of" the evidence was element of unfair surprise), certif. denied, 62 N.J. 195 (1973).

For instance, in McKenney v. Jersey City Medical Center, 167 N.J. 359 (2007), husband and wife plaintiffs sued a hospital and several staff members, alleging failure to provide proper prenatal care and post-delivery care after their baby was born with spina bifida, a severe birth defect. Id. at 364. The mother had received a sonogram at about twenty-two weeks into the pregnancy, which, according to the plaintiffs' expert, indicated that the baby had spina bifida. Id. at 366.

One of the defendant physicians testified in his deposition that he reviewed the sonogram on the day it was performed. Id. at 366. However, at trial he changed his testimony, stating that he had reviewed a log book that plaintiffs' counsel had sought unsuccessfully to obtain during discovery, and that he probably did not review the sonogram until several weeks later. Id. at 366-70. The ultrasound sonographer also changed her testimony, stating at deposition that a note on the sonogram report ("follow-up study suggested") was not made by her and she did not know who had made it, while at trial she admitted she had made the notation. Id. at 366-68. These issues were critical to the plaintiffs' case, as the mother was near twenty-four weeks pregnant at the time of the sonogram, and would not have been able to secure a legal abortion in New Jersey after the twenty-fourth week. Id. at 366-67.

The Court held that defense counsel had a continuing obligation to disclose to the trial court and counsel for the plaintiffs any anticipated material changes in a defendant's or a material witness's deposition testimony. Id. at 371. Plaintiffs "went to trial misled by false information," and thus the failure to grant a mistrial was an abuse of discretion. Id. at 376.

The facts of McKenney, however, are distinguishable from those here. The McKenney witnesses testified to something completely different than what they testified to in their depositions. In contrast, defendant here did not contradict his deposition testimony at trial. Thus, there was no unfair surprise testimony, and plaintiffs did not go to trial "misled by false information." Ibid.

At his deposition, defendant was asked:

Q: How far was the front of your train from the pedestrians when you could first saw [sic] them?

A: I couldn't begin to guess.

Q: Where in terms of location was it that you could first see them?

A: Again, there is a straight track there, but to actually give you distances and stuff, I couldn't begin to guess. It happened very fast.

Thus, at trial, defendant estimated that the distance from point of tangency to the trestle was 541 feet, but that he could not say how far he was away from the trestle when he first saw the teenagers on the track, and was not sure when he put the train in emergency. When asked at his deposition about the distance from the front of the train to the teenagers when he first saw them, defendant answered similarly and said he "couldn't begin to guess." However, defendant was never asked at deposition, as he was at trial, to estimate the distance between point of tangency to impact. If there were any surprise, it was due to incomplete elicitation of facts at time of deposition and not to a purposeful attempt to conceal or confuse on the part of the defense.

In any event, plaintiff suffered no prejudice from any claimed surprise. At trial, plaintiff's counsel confronted defendant with his deposition testimony, so the jury was made aware of any alleged discrepancy or inconsistency. Moreover, plaintiff's expert, Loumiet, testified that even if the distance from the point of tangency to impact was 580 feet,*fn1 "there was still enough time and distance for the engineer to see, perceive, react, and get on the brakes without ever hitting anybody." According to the expert, using the lesser distance, defendant still would have had five full seconds from the point of tangency to "perceive, react, hit on the brakes and get stopped. So five seconds is more than enough time to do that and get the train to stop." Under the circumstances, the trial court did not abuse its discretion in allowing the defense to prove an alternate point of tangency of 580 feet, as plaintiffs have not shown any prejudice thereby.

III.

Plaintiffs also argue that the court erred when it failed to provide a curative instruction immediately after defense counsel questioned plaintiffs' expert regarding his failure to rely upon a track chart for the geographical area of his opinions, when in fact defendant had refused to provide the track chart due to national security concerns. We disagree. The court promptly sustained plaintiffs' objection to this question and gave a curative instruction as part of its jury charge.

By way of background, plaintiffs' expert's estimate of 800 feet from point of tangency to impact was critical to his opinion that defendant had sufficient time to stop the train before hitting Tony. On cross-examination, defense counsel challenged Loumiet's estimate by questioning whether the expert had reviewed a track chart for the area:

Q: Now, the point of tangency is certainly important in this case. Is that correct?

A: Yes.

Q: It also would be important to New Jersey Transit especially the part of track maintenance. Isn't that correct?

A: Yes.

Q: So it would be important for them to know where the point of tangency is. Isn't that correct?

A: Yes.

Q: Probably important enough to actually mark. Is that correct?

A: Yes.

Q: But since you didn't walk there, you don't know where that point of tangency that they've marked is at.

A: No, I don't. It's hard to mark.

Q: Okay. Did you review any track charts?

A: I'm going to have to go back to the list. I don't have it all with me. I can pull this and see if there's a track chart on there.

THE COURT: If you could just tell us what you're looking at, please.

THE WITNESS: I'm referring to P-13.

Q: Can you just tell the jury was P-13 is? A: That's my March 8, 2006 expert report that has a list of what I would use --Q: Thank you.

A: -- relevant to -- an no, the track chart is something I wasn't provided.

Q: Okay. Did you ask for track charts?

Did you ask Mr. Britcher to get you track charts?

A: I sent a standard list of information that I generally request at the beginning of the case and the track chart would be on there.

Q: Do you know for a fact it was on this list?

A: It probably was.

Q: Okay. But you never got the track chart.

A: Correct.

Q: Did you follow up with Mr. Britcher saying where is the track chart?

[PLAINTIFFS' COUNSEL]: Your Honor, may we approach?

[Sidebar not recorded.]

According to the recreation of the record, at sidebar plaintiffs' counsel informed the court that they had requested the track chart during discovery, but it was not provided on the ground of national security. The court "directed defense counsel to move on noting that it would at some point provide the jury with a curative instruction." The court did not give a curative instruction at that time.

On a subsequent day, plaintiffs' counsel again raised the curative instruction about the track chart. The court said it would give the instruction as part of the jury charge, and plaintiffs' counsel agreed. In charging the jury, the court stated:

Any testimony that I have stricken from the record is not evidence and should not be considered by you as part of your deliberations and as I explained when we started, even though you may remember the testimony that was stricken, you may not use it in your deliberations or consider it in any way.

In addition, if I gave a limiting instruction as to how to use certain evidence, that evidence may be considered by you for that purpose only and not for any other purpose. During the cross-examination of Mr. Loumiet there was a discussion about New Jersey Transit track charts and the fact [t]hat Mr. Loumiet did not consult them.

It has transpired that the track chart was, in fact, requested by the plaintiff, but was not provided to them due to security concerns. Accordingly, I am charging you the jury to disregard all cross-examinations relating to the track charts and any suggestion that Mr. Loumiet should have consulted them.

We discern no error in giving the limiting instruction as part of the jury charge. "Neither the Rules of Evidence nor case law in this State dictates that a limiting instruction respecting N.J.R.E. 404(b) must be delivered at the time the evidence is received rather than as part of the court's final charge to the jury." State v. Angoy, 329 N.J. Super. 79, 89 (App. Div.), certif. denied, 165 N.J. 138 (2000). The court's instruction was accurate, clear, and comprehensive, and there is no reason to believe that the delay in giving the instruction caused the jury to disregard it.

IV.

Plaintiffs next argue that the court erred in precluding the jury from considering the issue of defendant's perception reaction time, and further, in refusing to compel production of defendant's employment file, given that he suffers from hearing loss as a result of a brain tumor and related chemotherapy. We disagree.

During the charge conference, plaintiffs raised the issue of defendant's perception reaction time as an element of his negligence. The court refused to present the issue to the jury, finding insufficient evidence from which a factfinder could conclude that defendant had a delayed perception reaction time. When plaintiffs repeated this same argument in support of its mistrial motion, the court reasoned similarly in its denial of the relief.

The grant of a mistrial is an extraordinary remedy, the purpose of which is to prevent a manifest injustice and should be granted only when an error cannot be remedied by an instruction to the jury or some other curative action. State v. Winter, 96 N.J. 640, 646-47 (1984). Such motions are addressed to the sound discretion of the trial court. Id. at 647.

We find no error in refusing to present such a "theory" to the jury. Plaintiffs offered no expert testimony regarding delayed perception reaction time, nor did they seek to have defendant examined by a doctor. Indeed, there was no evidence whatsoever that defendant did in fact suffer from such a medical condition. Instead, plaintiffs merely postulated that a delay in perception might be an effect of defendant's treatment for brain cancer. The suggestion, however, is purely speculative, amounts to no more than a theory, and, because unsupported by any competent proof in the record, affords no basis for its presentation to the jury.

Neither does it support plaintiffs' request to compel production of defendant's employment file, the denial of which in pre-trial was also the subject of a mistrial motion. In this regard, plaintiffs argued that defendant's employment file, which should have contained the note from defendant's neurosurgeon clearing defendant's return to work, was relevant because it "would have contained at a minimum the information about his medical treatment relative to this particular condition and what, if any, certification, testing, or medical information would have existed relative to how this impacted his ability to operate the train." The court denied the mistrial motion, but ordered Transit to produce the doctor's note. The note, however, was not in the file.

We find no abuse of discretion in denying plaintiffs' motion for a mistrial on this ground. Plaintiffs were well aware of defendant's medical history, including his treatment for brain cancer. They had an opportunity to seek an expert opinion as to any effect such treatment - radiation and chemotherapy - may have had on defendant's ability to operate a train. Plaintiffs also had the opportunity to arrange for an independent medical examination of defendant. They did neither, and the evidence at trial demonstrated that defendant had passed all required medical examinations and was considered fit to operate a train by his employer. Therefore, there was no abuse of the court's sound discretion in denying plaintiffs' motion for a mistrial.

V.

Plaintiffs' remaining arguments raise alleged errors in the admission of evidence and the rendering of instructions that concern decedent's comparative negligence. We perceive no errors, but to the extent any were made, they were all rendered harmless by the jury's finding defendant was not negligent.

A.

Plaintiffs first argue that the court erred in precluding photographic evidence regarding the proximity of the train tracks to various streets and residential properties in multiple locations in Montclair. We disagree.

Relevant evidence is, of course, admissible at trial, N.J.R.E. 402, but it may be excluded if "its probative value is substantially outweighed by the risk of... undue prejudice, confusion of issues, or misleading the jury[.]" N.J.R.E. 403(a). The trial court "is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green, supra, 160 N.J. at 492. Thus, "[d]eterminations pursuant to N.J.R.E. 403 should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 106 (1982)). See also State v. Conklin, 54 N.J. 540, 545 (1969) (holding that photographs were "clearly relevant" and "fairly admitted within the trial court's discretion").

During Allison's testimony, plaintiffs' counsel asked her how often she would walk the train tracks, and how she would get onto the tracks. She responded that she walked on the tracks every day, and that she would "[j]ust walk on them". Plaintiffs' counsel then sought to introduce photographs of the area, arguing that the photographs showed how accessible the tracks were and were relevant in mitigation of any possible comparative negligence on decedent's part. Defense counsel objected, and the court sustained the objection, barring their use.

There was no abuse of discretion in refusing to allow plaintiffs to introduce the photographs. In the previous appeal affirming summary judgment dismissing the direct liability claims against Transit, we concluded that the trial court was correct in determining that the condition of the train tracks was not sufficient to establish a dangerous condition of public property and to survive summary judgment under the Tort Claims Act:

N.J.S.A. 59:4-2 of the Tort Claims Act provides that a public entity is liable for injuries that are proximately caused by the dangerous condition so long as "the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred" and the public entity either "created the dangerous condition" or "had actual or constructive notice... a sufficient time prior to the injury to have taken measures to protect against [it]."

N.J.S.A. 59:4-1a defines dangerous condition as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Emphasis added). Thus, in order to present a liability claim for the creation or knowledge of a condition of public property, the plaintiff must first establish that the condition is dangerous. [Anastasopoulos, supra, No. A-1789-06 (slip op. at 7-8).]

We held that:

We agree with the findings of the motion judge that decedent's use of the train tracks and trestle as a footpath shortcut is so objectively unreasonable that the unguarded condition of the property cannot reasonably be said to have caused the injury. The use of tracks alone as a footpath is objectively unreasonable. The increased and obvious danger posed by use of an elevated overpass as a pedestrian walkway with less opportunity for escape from an approaching train provides added support to the conclusion that its use as a footpath did not constitute use with due care in a reasonably foreseeable manner as required by the Tort Claims Act. [Id. (slip op. at 11-12).]

Because we had previously determined the tracks were not a dangerous condition, the photographs were not relevant to any issue in the case, including decedent's comparative negligence. Moreover, as noted, any error in precluding admission of the photographs was undoubtedly harmless, Rule 2:10-2, given the jury's finding that defendant was not negligent.

B.

Plaintiffs also argue that the court erred in charging the jury that decedent had to be found negligent. We disagree.

At the charge conference, the judge noted that "based upon the testimony that the [c]court heard that there is no reasonable jury that can conclude from the evidence that [decedent] was zero percent negligent." The court charged the jury that it was to determine the degree to which decedent was comparatively negligent, taking into consideration his age, judgment, experience, and his capacity to understand and avoid the danger to which he was exposed. It also charged that:

[Defendant] further contend[s] that the negligence of decedent, Antonis Anastasopoulos in failing to act in a reasonable manner and use reasonable care with respect to his own safety was a proximate cause of the injuries sustained by the [decedent].

The burden of proof is always on each party to establish its own claim by a preponderance of the evidence. So in other words, the party making an allegation is the party that has to prove the allegation and it has to prove the allegation by a preponderance of the evidence.

We discern no error in this charge. The instruction informed the jury of defendant's contention that decedent failed to act in a reasonable manner, and that this was a proximate cause of his injuries. It then stated that the burden of proof was on defendant to establish this claim by a preponderance of the evidence.

Also, because the jury never reached the issue of decedent's negligence since it found no cause of action against defendant, any error in the charge concerning decedent's comparative negligence had no affect on the outcome of the trial, and therefore would be harmless. R. 2:10-2.

C.

Plaintiffs argue that the court erred in charging the jury with the Sudden Emergency Doctrine, as there was evidence that defendant's conduct may have contributed to the existence of the emergency. We disagree.

"The jury charge 'should set forth an understandable and clear exposition of the issues.'" Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 464 (2000) (quoting Campos v. Firestone Tire and Rubber Co., 98 N.J. 198, 210 (1984)), certif. denied, 165 N.J. 607 (2000). When an appellant raises error in the jury charge, the charge "should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). "An appellate court should not reverse a trial court when the charge adequately conveys the law and does not confuse or mislead the jury." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997). Courts should "uphold even erroneous jury instructions when those instructions are incapable of producing an unjust result or prejudicing substantial rights." Fisch v. Bellshot, 135 N.J. 374, 392 (1994).

Here, after charging negligence and over plaintiffs' objection, the court charged the jury on the Sudden Emergency Doctrine, consistent with Model Jury Charge (Civil), § 5.10G:

In connection with the question of negligence, the defendant[] assert[s] that Mark Maloney was confronted with a sudden emergency when a person without any fault on his part is confronted with a sudden emergency, that is placed in a sudden position of immediate peril not reasonably to be anticipated. The law will not charge him with negligence if he does not select the very wisest course in choosing between alternate courses, alternative courses of action.

An honest mistake of judgment in such... a sudden emergency will not of itself constitute negligence even though another course might have been better or safer. All that is required of such a person is that he exercises the care of a reasonably prudent person in like circumstances.

It is for you, the jury, to determine from the evidence whether such an emergency existed; whether it arose without the fault of that person and whether that person acted with due care under the circumstances.

Again, on this issue the burden of proof is on the defendant[].

According to a "Note to Judge" preceding the Model Charge:

This doctrine is in disfavor. "(W)e entertain grave doubt whether a sudden emergency charge should ever be given in an ordinary automobile case. There is a modern view that it is argumentative and confusing, and should be eliminated." Finley v. Wiley, 103 N.J. Super. 95, 101 (App. Div. 1968). "We again caution that this instruction should be given in only the most unusual circumstances." Leighton v. Sim, 248 N.J. Super. 577, 580 (App. Div. 1991). No reported case can be found where use of the charge has been upheld since the advent of contributory negligence. Query: isn't this "reasonable care under the circumstances?"

Based thereon, plaintiffs argue that the court erred in giving the charge because defendant was not faced with an emergency and could have acted sooner, but he chose not to.

The sudden emergency charge is in disfavor in cases involving automobile accidents. For example, in Leighton, supra, 248 N.J. Super. at 578, we reversed and remanded for a new trial because the trial judge gave prejudicial, misleading instructions, one of which was the sudden emergency doctrine.

The defendant in Leighton had been walking on the roadway when she was hit by the plaintiff's car. In discussing the sudden emergency charge, we noted that "[a] party is entitled to a sudden emergency charge only in those situations where he or she is confronted by an imminent situation over which he or she had no control, without fault on his or her part." Id. at 580. We "caution[ed] that this instruction should be given in only the most unusual circumstances. In most instances[,] the sudden emergency charge is argumentative in its effect and unduly emphasizes one phase of the total proofs." Ibid.

In Leighton, we held that the judge erred in giving the charge because the defendant "was confronted with 'no more than an everyday traffic problem[.]'" Ibid. (quoting Finley, supra, 103 N.J. Super. at 103). We did not cite a conflict between the charge and the doctrine of comparative negligence as a reason for finding error in the use of the charge.*fn2 Further, we also found error in other aspects of the jury charge, in that the judge had described the defendant's statutory obligations in terms of his "conduct," while the plaintiff's were described in terms of her "negligence." Id. at 580-81. Thus, the charge "heaped imbalance atop patent legal error." Id. at 581. See also Roberts v. Hooper, 181 N.J. Super. 474, 477-78 (App. Div. 1981) (reversing and remanding for new trial in automobile accident case where sudden emergency charge "was disproportionately emphasized").

However, in Ettin v. AVA Truck Leasing, Inc., 53 N.J. 463, 485-86 (1969), the Court found no actual prejudice in giving the sudden emergency charge as "[t]he jury was instructed elsewhere in the charge as to negligence generally, and the sudden emergency language told it little or nothing beyond its undoubted knowledge as to human behavior and the overriding rule of due care in the circumstances."

In Harpell v. Public Service Coordinated Transport, 20 N.J. 309, 312 (1956), (before the comparative negligence statute's enactment) the Court held that the trial judge correctly charged the jury with the sudden emergency charge in a case involving a small piece of concrete thrown at a trolley car, injuring a passenger. Noting that a sudden emergency may leave a person "no time for thought, and so [the person] cannot weigh alternative courses of action, but must make a speedy decision," the Court nonetheless held that "the conduct required is still that which is reasonable under the circumstances[.]" Id. at 317.

While the charge is in disfavor in automobile accident cases, use of the charge here was reasonable given the facts presented. There was evidence to suggest that defendant was "confronted by an imminent situation over which he... had no control, without fault on his... part[,]" Leighton, supra, 248 N.J. Super. at 580, and that the teenagers using the trestle created an emergency to which defendant had to react. Moreover, the judge properly emphasized that the burden was on defendant to prove that such an emergency existed, that it arose without fault of defendant, and that defendant used due care under the circumstances. Thus, there was no error in the court charging the jury with the sudden emergency doctrine.

D.

Lastly, plaintiffs argue that the court erred in charging that decedent violated N.J.S.A. 48:12-152(a) and must be found to be a trespasser, implying negligence. There was no error.

The railroad trespasser statute, N.J.S.A. 48:12-152(a), provides:

No person other than those connected with or employed upon the railroad who are acting within the scope of their employment shall enter upon the right of way of any railroad or come into contact with any equipment, machinery, wires or rolling stock of any railroad. This section shall not prohibit a passenger for hire from utilizing those parts of a railroad particularly intended for passenger use nor shall it prohibit a person from using a crossing established by the railroad.

After reading this statute to the jury, the court charged the jury as follows:

This statute sets up a standard of conduct for users of the trains and for people who use the railroad's right-of-way. If you find that the decedent has violated that standard of conduct, such violation is evidence to be considered by you in determining whether negligence as I've defined it for you already has been established[.] You may find that such a violation constitutes negligence on the part of the decedent; or you may find that it does not constitute such negligence.

Your finding on this issue may be based on the violation alone, but in the event that there [is] other or additional evidence that bears upon this issue, you will consider the violation together with all such additional evidence in arriving at your ultimate conclusion as to the decedent's negligence.

Plaintiffs contend that the charge improperly narrowed the jury's fact finding function by removing any consideration of their expert's opinions or of defendant's actions. Contrary to plaintiffs' assertions, however, the charge instructed the jury that it was to consider any additional evidence. Prior to giving this instruction, the court had also charged the jury on the standard of care for children:

A child old enough to be capable of negligence is required to act with the same amount of care as children of similar age, judgment and experience. In order for you to determine the degree of this child's negligence, you should take into consideration his age, intelligence, [and] experience.

You must also consider his capacity to understand and avoid the danger to which he was exposed in the actual circumstances and situation in this case. You, the jury, must decide the degree to which the child was comparatively negligent. [(emphasis added).]

Moreover, even if the court erred in giving the charge, the jury never reached the issue of decedent's negligence and consequently the charge could not have been capable of producing an unjust result, rendering it harmless. R. 2:10-2.

Affirmed.


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