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Nick A. Musse v. the Port Authority of New York and New Jersey

April 26, 2012

NICK A. MUSSE, PLAINTIFF-APPELLANT,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, PORT AUTHORITY TRANS-HUDSON CORPORATION, DEFENDANTS-RESPONDENTS, AND MODERN FACILITIES SERVICES, INC., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4742-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 29, 2012

Before Judges Cuff, Waugh, and St. John.

Plaintiff Nick A. Musse appeals the Law Division's April 11, 2011 order granting a directed verdict in favor of defendants Port Authority of New York and New Jersey (Port Authority) and Port Authority Trans-Hudson Corporation (PATH). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On December 19, 2007, Musse was traveling from Hoboken to Journal Square on the PATH system. He boarded a train in Hoboken and got off at the Pavonia-Newport station, where he intended to board a train to Journal Square. As he approached the edge of the platform to observe an approaching train, he slipped and fell from the platform onto the tracks below.*fn1 He was unable to get back onto the platform and was hit by the train, resulting in significant injuries.

In January 2010, Musse filed suit against the Port Authority, PATH, and defendant Modern Facilities Services, Inc. (Modern Facilities), which maintained the platform at the PATH station. The defendants answered and discovery was taken by all parties.

Trial commenced before a jury on April 5, 2011. On the third day of trial, the judge held a Rule 104 hearing, outside the presence of the jury, to determine whether Musse's proposed expert, Colon Fulk, would be permitted to testify concerning the alleged negligence of the engineer of the PATH train that hit Musse. The trial judge found that Fulk was not qualified and that he offered a net opinion. The judge precluded Fulk's testimony, at which point Musse rested.

The judge granted defendants' motions for directed verdicts in their favor. R. 4:37-2(b). With respect to the Port Authority and PATH, the judge held that Musse could not prove negligence without the testimony of a qualified expert. With respect to Modern Facilities, the judge found that Musse failed to establish that Modern Facilities was negligent in maintaining the platform and that he also failed to establish that it had notice of any condition that might have caused Musse to slip.

Musse appeals the order of dismissal, but only as to his claims against the Port Authority and PATH.

II.

Musse argues that the trial judge erred in precluding Fulk's testimony because (1) he was qualified in the field of rail operations and ...


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