On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6516-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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.
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 ...