On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0306-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman, and J. N. Harris.
Joel R. Rosenberg argued the cause for appellants/cross-respondents (Stark & Stark, attorneys; Mr. Rosenberg, of counsel and on the brief; Deborah S. Dunn, on the brief). Michael J. Heron argued the cause for respondents/cross-appellants (Lenox, Socey, Formidoni, Brown, Giordano, Cooley & Casey, LLC, attorneys; Mr. Heron, on the brief).
Plaintiffs appeal from a jury verdict in their favor that effectively awarded a six-year-old $15,000 in net compensatory damages for a fractured skull and its permanent sequelae. The injuries were sustained while the youngster was crossing the street between her school bus and home. Because we find that the trial court committed several material errors of law, which erode our confidence in the reliability of the jury's verdict, we reverse and remand for a new trial on all issues.
Beginning in September 2002, plaintiff Kasie VanMeter (daughter of plaintiffs Ronda and Troy VanMeter), was enrolled in the Bridgeton school district as a kindergartener at the West Avenue School located on West Avenue. Defendant Bridgeton Board of Education (the BOE) provided transportation to and from Kasie's home, which was located, coincidentally, on West Avenue. West Avenue, in the vicinity of Kasie's house, was a two-lane paved roadway with neither curbs nor sidewalks. The lanes of travel were separated by two yellow-painted lines, and the outside perimeters of the lanes were marked by white lines, creating narrow shoulders on both sides of the traveled way.
Defendant Patricia Zoyac was employed by the BOE as a school bus driver for the 2002-2003 school year. At that time, Zoyac had been driving a school bus for eight years. Zoyac was assigned the bus route to transport Kasie to and from school each day. At the inception of the school year, Kasie's bus stop was set up at the nearest intersection to her house, located at West Avenue and Northwest Drive. In consultation with Mrs. VanMeter, Zoyac agreed to change the location of the bus stop to directly in front of the VanMeter house.*fn1 It was described as "a stop specifically for Kasie." This permitted the child, in the morning, to walk down her driveway directly onto the school bus without entering the roadway for more than a few steps. In the afternoon, the bus stopped across the street from the same driveway, and Zoyac supervised Kasie's crossing over West Avenue, usually with Mrs. VanMeter observing from the side door of the family home.
On April 16, 2003, Zoyac drove Kasie and approximately twenty other students home. Zoyac testified that upon approaching Kasie's bus stop, she prepared for the drop-off in her usual fashion by taking the following steps: manually activating the bus's amber warning lights, applying the brakes to slow down, checking mirrors to assess traffic conditions, pulling the bus to "right of center," stopping the bus and placing the transmission in neutral, and opening the front entrance door slightly to automatically activate the red warning lights and causing the "stop arm to come out." Then, after looking a distance ahead to the signalized intersection at West Avenue and West Park Drive, Zoyac observed that the traffic signal was red. After a second look, and making the same observation about the traffic signal, Zoyac opened the bus door and allowed Kasie to alight from the vehicle.
As Kasie proceeded around the front of the school bus and walked across the street, Zoyac kept her eyes on the child. Unbeknownst to and undetected by Zoyac, defendant Brittany Pierce (herself only eighteen years of age) was driving in the opposite direction on West Avenue. Although Pierce had been stopped at the traffic light and observed the school bus ahead of her -- described as "a yellow substance at a distance" -- she proceeded along West Avenue towards Kasie. Too late to avoid an impact, Pierce finally observed Kasie crossing the street. Although she applied her brakes, Pierce's 1991 Honda struck the child. She stopped the car right away and waited for the police.
Kasie was immediately transported to a local hospital's emergency room where she was evaluated, treated, and released. Complaining of a headache the next day, Kasie returned to the emergency room where she was observed to have an abrasion to her right cheek and soft tissue swelling and bruising over her right temporal region. A CT scan revealed that the girl had suffered a non-displaced right temporal bone fracture with associated soft tissue hematoma. As a result of the accident and injury, plaintiffs assert that "Kasie sustained a permanent traumatic brain injury that led to changes in behavior and cognitive functioning that remain."
Plaintiffs filed their Law Division action seeking remedies*fn2
against the BOE, Pierce, the owner of the Honda, and Zoyac. Among the theories of liability leveled against the BOE were negligent hiring, training, and supervision relating to the transportation of school children; negligent placement of the school bus stop; and respondeat superior. Zoyac was accused of acting negligently in the placement of the school bus stop and in overseeing the unloading of Kasie from the school bus on the date of the accident.
Following pretrial management, an eleven-day jury trial was conducted. Plaintiffs' claims against Pierce and the owner of the Honda were settled and dismissed during the trial, and are not the subject of this appeal. Mrs. VanMeter's claims (and her husband's derivative claims) were "reluctantly" dismissed by the trial court on a motion for a directed verdict pursuant to the TCA, and are not the subject of this appeal.
The jury deliberated on the remaining claims and rendered a verdict awarding $150,000 in total compensatory damages, but allocating only ten percent of the fault to Zoyac, with the balance of ninety percent attributed to Pierce. No percentage of fault was assigned to the BOE for its putative negligence. Plaintiffs' post trial motions for judgment notwithstanding the verdict or a new trial were denied, as was their motion for an additur. The BOE's and Zoyac's motion for counsel fees and ...