NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 3, 2012
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5392-08.
Marc A. Weinberg argued the cause for appellant (Saffren & Weinberg, attorneys; Mr. Weinberg on the briefs).
James J. Law argued the cause for respondent (Campbell, Lipski & Dochney, attorneys; Mr. Law on the brief).
Before Judges Axelrad and Nugent.
Plaintiff, Wes DiDominicis, appeals from the Law Division order that entered judgment on a jury verdict of no cause for action in his personal injury case. He contends he is entitled to a new trial because the trial court erroneously permitted defense counsel to impeach him with a twelve-year-old conviction. Although we agree that the trial court erred by not weighing the probative value and risk of undue prejudice of the conviction before admitting it, we conclude the error was not clearly capable of producing an unjust verdict. For that reason, we affirm.
Plaintiff was injured in a single-car accident while driving his Lincoln Navigator on a street traversed by a railroad crossing that was under construction. As he drove through what he perceived to be a large puddle, the front end of his Navigator suddenly sank to the frame. Plaintiff flew forward into the dashboard and inadvertently depressed the gas pedal, causing the Navigator to lurch forward, "twist up onto its side, " and suddenly stop.
The work site at the location where plaintiff was injured was a railroad crossing "at South Jersey Port's Broadway Terminal in Camden." The contractor, defendant Railroad Construction Co. of South Jersey, Inc. (Railroad Construction), a "specialized construction company that [did] only railroad construction, " was replacing the railroad crossing.
For this job, the company obtained a permit to excavate an area of the roadway approximately forty-six feet long by twelve feet wide. Plaintiff apparently drove into the excavated area of the road on the day of the accident. At trial, plaintiff and Railroad Construction, the only remaining defendant, disputed the extent of Railroad Construction's responsibility for plaintiff's accident.
Plaintiff's theory of liability was that Railroad Construction, as the general contractor, was required by United States Department of Labor Occupational Safety and Health Administration (OSHA) regulations to "implement hazard control means and methods to ensure, not only the safety of the worker, but also of the general public who may [come] in contact . . . [with] that work area[.]" Plaintiff's liability expert, John Posusney, a civil engineer, testified OSHA regulations mandated "that any construction activity that involves the work . . . in a public roadway comply with the Manual on Uniform Traffic Control Devices" (MUTCD), which provides a standard of care "as to how to set up a traffic control area through a work zone to provide information to the motoring public, . . . warning them of conditions, giving them directions on how to proceed and, possibly, [avoid] an encounter with a work area or a work zone."
According to Posusney, Railroad Construction created an unguarded excavation that posed a hazard and danger to motorists and was the cause of plaintiff's accident. Posusney cited deposition testimony of Railroad Construction employees to emphasize their awareness that tidal flooding of the roadway regularly occurred. The flooding masked the hazard. He opined that Railroad Construction should have installed steel roadway plates over the unfilled excavation, thereby eliminating the foreseeable risk that a motorist would mistake the excavation for a large puddle of water. Although Posusney implicitly conceded that Railroad Construction may have placed barricades in the area of the excavation, he suggested the barricades had been knocked down, rendering them useless.
Railroad Construction disputed virtually every aspect of Posusney's testimony. According to Railroad Construction's expert, Fred Hanscomb,  OSHA regulations did not apply. Railroad Construction asserted that because the project involved a railroad crossing, "the Federal Railway Administration would be the entity responsible for construction work on railways. Railroad Construction also asserted that section 1A.07 of the MUTCD stated, "[t]he Highway Agency has the sole responsibility for ...