July 18, 2013
WES DIDOMINICIS, Plaintiff-Appellant,
RAILROAD CONSTRUCTION CO. OF SOUTH JERSEY, INC., Defendant-Respondent, and SOUTH JERSEY PORT CORPORATION, SANCO CORP., STATE OF NEW JERSEY, COUNTY OF CAMDEN, Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 installation, maintenance and inspection of traffic control devices." Posusney was not familiar with that section of the MUTCD.
To support its position, Railroad Construction moved into evidence a Memorandum of Understanding between the State of New Jersey and the South Jersey Port Corp. that "place[d] the responsibility of signage and detouring and closing the road on the State of New Jersey[.]" As conceded by Posusney, a traffic control plan that was in place when the accident occurred showed that the roadway was closed, except for local traffic. Posusney also conceded that if detour signs shown on a detour plan were in place on the date of the accident, and if plaintiff had heeded them, the accident would not have occurred. However, Posusney and plaintiff disputed that barricades and signage were in place on the day of the accident.
The testimony plaintiff now asserts as error did not occur when defense counsel attempted to impeach plaintiff on a liability issue, but instead pertained to plaintiff's damages. During his direct examination, despite asserting no claim for loss of income or loss of business revenue, plaintiff intimated that due to the injuries he sustained in the accident he was barely in business. He operated a trucking company that at its "peak" employed twenty-five people, employed approximately fourteen people during the year before the accident, but employed only eight in 2011 at the time of the trial. According to plaintiff, he was "like a one man show." He implied that his injuries had affected the operation of his business.
When defense counsel began to cross-examine plaintiff, counsel asked if there was any time in 1999 when plaintiff was out of business for six months. Plaintiff responded "no" and defense counsel then asked plaintiff if he had ever been convicted of a crime in 1999. Defense counsel asked:
Q: You indicated that you're having problems with your business because you've been out missing work, correct?
Q: How long have you owned that business?
A: Nineteen, almost twenty years now.
Q: You owned that business back in 1999?
Q: Okay. Was there a time in 1999 when you were out of business for six months?
A: No. Out of business?
Q: When you were not participating in your business in 1999.
A: Was there in 1999 that I'm missing? No.
Q: Sir, have you ever been convicted of a crime?
Plaintiff immediately objected and moved for a mistrial. Although plaintiff had testified at his deposition that he served six months in prison in 1999 following a conspiracy conviction, he argued to the trial judge that his prior conviction should have been excluded under N.J.R.E. 403 because its probative value was substantially outweighed by the risk of undue prejudice. Defense counsel replied that plaintiff "opened the door" by suggesting that his business was "going under" even though he owned the business in 1999 and was not present for six months because he was in prison.
The court initially suggested "[t]he door was opened by two separate responses to [defense counsel's] question which essentially said was there a period of time when you were not there." Although plaintiff responded that the conviction presented a "[N.J.R.E.] 403 issue, " the court did not conduct an analysis under that rule, but rather determined that in a civil case a judgment of a prior conviction is admissible for the purpose of attacking credibility.
Based upon "counsel's representation that [plaintiff was convicted] of conspiracy with regard to stolen goods, " the court preliminarily ruled that the conviction had "no relation in any way . . . to the issues in this trial." The court nevertheless determined that because "[t]he context within which [the conviction] was raised [was] one of focus on [plaintiff's] desire to resume his regular life, " the conviction was admissible in a civil case. Having determined that the conviction was admissible, the court told counsel it would do two things: preclude counsel from disclosing the nature of the conviction, and give a limiting instruction when it charged the jury.
After ruling that the conviction was admissible, the court said to defense counsel: "My instructions to you are, the question's already been asked and answered and an objection was made. The objection was overruled. Proceed however you wish to proceed. Understand that I will sanitize the facts except if the [p]laintiff brings them out." In response, defense counsel agreed he would not "go any further" if the court instructed the jury the question had been asked and answered. When testimony resumed the court instructed the jury: "A question was asked and answered, there was an objection, the objection was overruled."
Based on the court's ruling, plaintiff testified during redirect examination that he had never missed work before the accident due to illness or injury. He also testified that he had been convicted of a crime in 1996,  paid his debt to society, and accepted full responsibility for his actions. Plaintiff told the jury he did not believe the 1996 conviction had any relationship to the 2006 accident.
The jury found that each party was negligent, that each party's negligence was a proximate cause of the accident, and that plaintiff was sixty percent negligent and Railroad Construction forty percent negligent. Plaintiff filed a motion for a new trial, which the court denied. This appeal followed.
Plaintiff argues the trial court committed reversible error by admitting his twelve-year-old conviction without first determining whether its probative value, if any, was substantially outweighed by the risk of undue prejudice. He asserts that because the outcome of the trial depended largely upon his credibility, the conviction could have swayed the jury. He also asserts that the court erroneously reasoned that he "opened the door" when, during cross-examination, he said he had not been absent from his work twelve years earlier.
Railroad Construction argues that the trial court did not abuse its discretion by admitting the criminal conviction under N.J.R.E. 609, which authorizes the admission into evidence of a criminal conviction "[f]or the purpose of affecting the credibility of any witness, . . . unless excluded by the judge as remote or for other cause . . . ." Railroad Construction insists plaintiff "opened the door" by denying the fact that he had been away from his business in 1999. Railroad Construction also argues that the issue is moot, because plaintiff never answered defense counsel's question concerning the prior conviction.
At the outset, we reject Railroad Construction's argument that the issue is moot. According to the trial transcript, plaintiff did not answer defense counsel's question concerning the conviction. Were that the end of the inquiry, we would agree that the issue is moot. But during the discussion following plaintiff's objection to defense counsel's question, when the court told defense counsel the question had been asked and answered, defense counsel responded: "I won't go any further, Your Honor if Your Honor is going to instruct the jury that the question was asked and answered than that's fine. I don't have any reason to go any further with that."
The court so instructed the jury,  and in response, on redirect examination, plaintiff disclosed that he had been convicted of a crime in 1996. Because defense counsel urged the court to instruct the jury that the question had been answered, and because the court acceded to that request, we will not countenance Railroad Construction's argument that the issue is moot. Cf., Brett v. Great Am. Rec., 144 N.J. 479, 503 (1996) (holding that the doctrine of invited error barred the defendant from arguing on appeal that an adverse decision of the trial court was the product of error, when the defendant had urged the trial court to adopt that proposition).
We turn to the admission into evidence of plaintiff's conviction. The trial court correctly observed that plaintiff could have filed a motion in limine to bar the conviction and thereby provided an opportunity for the court to rule on its admissibility before it was disclosed to the jury. Additionally, defense counsel should have alerted the court to the issue before disclosing the conviction. Counsel's questioning of plaintiff about plaintiff's absence from work twelve years before the trial was clearly contrived to place the conviction before the jury. Particularly in view of the age of plaintiff's conviction, counsel risked a mistrial, which would have resulted in a waste of the time and money the parties expended to prepare and present their cases; a waste of jurors' time and the taxpayers' money to pay them; and a waste of judicial resources.
Although plaintiff did not file a motion in limine to bar his conviction, and though defense counsel did not disclose to the court his intention to impeach plaintiff, the court nevertheless should have conducted an analysis under N.J.R.E. 403 to determine the admissibility of the conviction, particularly after plaintiff argued that the conviction should be excluded under that rule. In State v. Sands, 76 N.J. 127, 144-45 (1978), the Supreme Court explained the need for a trial court to balance the probative value of a conviction against the risk of undue prejudice:
We hold that whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge. His discretion is a broad one which should be guided by the considerations which follow. Ordinarily, evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant.
The key to exclusion is remoteness. Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant.
The Sands standard applies to civil cases as well as criminal cases. See Vartenissian v. Food Haulers, Inc., 193 N.J.Super. 603, 611 (App. Div. 1984). If the conviction is not that of a criminal defendant, "'in applying [the Sands] standard, the balance will necessarily be affected by whose credibility it is that is sought to be impeached by use of the prior conviction.'" Ibid. (quoting State v. Balthrop, 92 N.J. 542, 546 (1983)).
Although the trial court misapplied its discretion by not balancing the probative value of plaintiff's conviction against the risk of undue prejudice, we nevertheless conclude that the error does not require a new trial. The court preliminarily ruled that the conviction had "no relation in any way here . . . to the issues in this trial." That was essentially a determination by the court that the conviction had no probative value. We agree with that determination as applied to defense counsel's proffer. Defense counsel offered the conviction only to impeach plaintiff's testimony that he had not been absent from his business in 1999, seven years before his accident and twelve years before his trial. Plaintiff's presence or absence from his business in 1999 was hardly relevant either to plaintiff's liability or his damage claims.
We understand Railroad Construction's argument that plaintiff attempted, implicitly, to "back door" an economic damage claim by suggesting that this business had suffered due to his physical impairments caused by the accident. But that issue could have, and should have, been addressed through appropriate motions in limine and limiting instructions rather than through the interjection into the case of a non-issue for the purpose of placing plaintiff's conviction before the jury.
During the charge conference, plaintiff's counsel reminded the court that it was "going to give a limiting instruction on the conviction." When the court asked if counsel had prepared a proposed instruction, and counsel said no, the court responded that preparing an instruction was "[the] lawyers' job, not the Judge's job." Counsel agreed. Later in the conference, counsel brought up the issue again, and intimated that he would speak to his client and, if necessary, frame a limiting instruction. However, counsel then asked defense counsel, "are you going to mention the issue of the conviction? If not, I'd have to talk about a limiting instruction now." When defense counsel responded that he would not mention the conviction in his closing argument, plaintiff's counsel responded: "No? Alright. Then, no reason - - I don't there's a reason for me to - - well, I - -." The court advised plaintiff's counsel, "that's your strategic call[.]" Plaintiff's counsel said that he wanted to talk to defense counsel again, and defense counsel repeated that he was not going to mention the conviction in his summation. Plaintiff's counsel did not bring up the subject again, and did not object when the court omitted to give a limiting instruction to the jury.
In view of those circumstances, we conclude that the erroneous admission of the conviction was harmless, that is, it was not clearly capable of producing an unjust result at trial. R. 2:10-2. When defense counsel asked plaintiff if he had been convicted of a crime, counsel was examining plaintiff on an issue of damages, not liability. That context was clear, as evidenced by plaintiff's redirect examination, in which he discussed the conviction after explaining that he had never been required to miss work for any extended period of time before the accident because of a medical condition, illness, or injury.
As to the conviction itself, plaintiff explained to the jury that it occurred in 1996, not 1999; that he had taken responsibility for his action and paid his debt to society; and that he did not believe that his conviction had any relationship to his accident. The nature of the conviction was never disclosed to the jury.
Moreover, plaintiff made a tactical decision not to request a limiting instruction after defense counsel assured plaintiff and the court that he would not mention the conviction during his closing argument. Plaintiff apparently did not believe the conviction warranted an instruction limiting its use to damages, so long as defense counsel did not mention the conviction in his closing argument. Cf. Tonsberg v. VIP Coachlines, Inc., 216 N.J.Super. 522, 529 (App. Div. 1987) (holding that where a limiting instruction would have been appropriate with respect to the criminal conviction of a witness affecting that witness' credibility, but the plaintiff neither requested such an instruction or objected to the charge, the plaintiff was "deemed to have waived such instruction as unnecessary for his protection").