November 13, 2013
PAUL ROURA, Plaintiff-Respondent,
CITY OF NEWARK, COUNTY OF ESSEX, STATE OF NEW JERSEY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3473-08.
Anna P. Pereira, City of Newark Corporation Counsel, attorney for appellant (Gary S. Lipshutz, Assistant Corporation Counsel, on the brief).
Eichen, Crutchlow, Zaslow & McElroy, LLP, and The Maglione Firm, P.C., attorneys for respondent (Barry R. Eichen and Dean Maglione, of counsel; M. Anthony Barsimanto, on the brief).
Before Judges Simonelli, Koblitz and Accurso.
Defendant City of Newark appeals a judgment following a $3, 000, 000 jury verdict in this Tort Claims Act case contending that multiple errors deprived it of a fair trial. We agree and reverse.
Plaintiff Paul Roura was riding a motorcycle on June 30, 2007 along Joseph Street, a two-block thoroughfare in a largely industrial section of the Ironbound, when he slid on gravel while attempting to brake and fell into a pothole resulting in a comminuted fracture of his left leg. He was riding in formation with two other riders and although he saw the pothole, he was unable to avoid it without colliding with one or the other of his companions.
Plaintiff, sixty at the time of trial, required six surgeries to repair his leg, including a total knee replacement which his doctor causally related to the accident. The parties stipulated to past medical expenses of $199, 756.87. Plaintiff presented no lost wage claim. The only testimony regarding future medical expenses was offered by plaintiff's surgeon who testified that plaintiff would likely require another knee replacement at a cost of $50, 000. The jury apportioned liability of eight percent to plaintiff and awarded him $3, 000, 000 consisting of $199, 756.87 in past medical expenses, $500, 000 in future medical expenses, and $2, 300, 243.13 for pain and suffering. The trial judge denied defendant's motion for new trial or remittitur and, after reducing the verdict to reflect the jury's apportionment of liability and medical expenses paid by insurance, entered judgment for plaintiff in the sum of $2, 696, 497.90.
The central issues in the case were whether the City had actual or constructive notice of the existence of the potholeand, if so, whether its failure to protect against that defect in the road was palpably unreasonable. The testimony regarding the City's notice of the condition centered around the testimony of the proprietor of the motorcycle club the riders were leaving at the time of the accident, the City's records of repairs performed on Joseph Street eleven months before the accident, and the testimony of plaintiff's expert.
The proprietor of the motorcycle club testified that he had complained to City employees on a garbage truck at some unspecified time about the general condition of the street, but conceded that he had not called the City to complain about the road's condition and had not complained to anyone about the pothole at issue. The City produced documents in discovery noting that it had received a complaint about Joseph Street on July 28, 2006, eleven months before the accident, and had repaired "12 holes" three days later, on July 31, 2006.
Plaintiff's engineering expert testified at trial that there were "hundreds of depressions" along the two-block length of Joseph Street "and so many repairs, that . . . [t]here's nothing about this [pothole] that makes it stand out, it's just one among many." The expert also testified on the basis of photographs taken shortly after the accident, showing road aggregate in the pothole, that the pothole had existed for more than eleven months. That testimony led to the following exchange:
Q: - on July 31, 2006, [a pothole repair crew] should have [seen] that pothole, true?
A: Yeah, that was number 13. That – that was there to be seen.
Q: - [or] number 100.
A: Or number 100, but I mean, that – that was there for them to see, there's no question about that.
Q: - that represent a dangerous condition?
A: This is a dangerous condition, there's no question about that.
Q: Do you believe the City of Newark was palpably unreasonable in failing to – take care of that?
A: I absolutely do. Absolutely.
Q: And you've done [work] for Newark, true?
Q: So is it your opinion that the City had notice?
A: Oh, there's no question they had notice. There – there's so many repairs on that roadway of different ages and different colorations of repair that they clearly know that this road was in bad condition and that it needed attention and needed regular attention.
Q: Knowing that Dexter Cobbs was the [supervisor of street repairs] for the City of Newark – he testified that there is no – schedule for Newark employees with regard to inspecting the streets. Is that appropriate behavior[?] –
A: No, it's not. I mean, if you – if you have structure like this, a roadway is a structure. If you have a structure, it's got to be inspected. You need regular routine inspection of it to know its condition.
The expert also testified, over objection, that the pothole had been repaired when he visited the scene a little over two weeks after the accident. Plaintiff was allowed to admit pictures, also over the City's objection, of the fresh repair.
That led to testimony that figures prominently in the dispute on appeal. The proprietor of the motorcycle club was allowed to testify, over objection, that he repaired the pothole following plaintiff's accident as well as others on the street because he "didn't want it to happen again." The witness further testified that the pothole at issue had been there for two years before the accident and that the City had never made any repairs on Joseph Street to his knowledge.
The City in its case presented testimony that when it got a complaint about potholes on Joseph Street in July 2006, the potholes were promptly repaired and that no further complaints had been made prior to the accident. Personnel from the City's engineering department testified that while the City annually inspected all traffic signals and stop signs, it lacked the resources for any further inspection program for the City's three hundred and sixty-five miles of roadway. Consequently, the City relied on complaints from citizens or reports from City workers as to potholes or other problems in the condition of the streets.
The trial judge denied the City's request for the allocation of resources charge, Model Charge 5.20(a), finding that "to say that you never had a program doesn't mean you couldn't afford a program." The judge, however, allowed the City to argue the issue in closing. Corporation counsel argued in closing that plaintiff had criticized the City for its maintenance of Joseph Street but contended that the City "cannot do everything." While acknowledging that plaintiff's expert opined that the City was palpably unreasonable for failing to have an inspection program, counsel argued that palpably unreasonable behavior means "behavior that is unacceptable." He argued that given
all the things that we expect of a government, police, fire, . . . social services, public records, sewers, signs, everything that the government has to do. . . . The City has to rely upon the citizenry in some cases and this is one of those cases. . . . [W]e have to rely upon them to report conditions.
Plaintiff's counsel began his closing with the following:
[T]his is a case about – failure of a government to take action – clear responsibility – when we grow up, we kind of assume that government is – for the people – we're supposed to be a government for the people.
And when you look at times today, things have changed a lot and not for the better. When we look at who gets help from our government, we could take a look at right – Wall Street – mountains of taxpayer's money being given to huge institutions and I mean – and that taxpayer money, out of that money comes their salaries which every one in this room could get one of their salaries and support a family of 10 for 20 years, that's what the government does.
There's no restriction on that money – [plaintiff], because he drives a motorcycle and he doesn't wear a tie to work, he doesn't deserve simple integrity [in] government. And you know what, there's something terribly wrong [when] that happens, terribly.
Plaintiff's counsel went on to argue that the City's lack of resource argument "is a red herring, " and that "what [corporation counsel] wants you to believe is that [palpably unreasonable means] under any circumstances – unacceptable under any circumstances. That's not the law. Please listen to the Judge. She has the law."
On appeal, the City argues that the trial court erred in allowing evidence of the subsequent repair of the pothole and in failing to give the resource allocation charge. The City also contends that plaintiff's counsel's quoted remarks in summation had no relation to the evidence presented at trial and had the effect of inflaming the jury. Finally, the City argues that the trial judge erred in not dismissing one of the jurors for cause and in failing to adequately address a question posed by the jury on damages. We address each of these contentions in turn.
This case was tried before the Supreme Court issued its opinion in Polzo v. Cnty. of Essex (Polzo II), 209 N.J. 51 (2012), in which the Court discussed at length the basic principles governing imposition of liability on public entities for injuries caused by potholes and depressions in our roads. There Justice Albin, speaking for the Court, wrote:
Although potholes and depressions are a common sight on New Jersey's roads and highways, public-entity liability is restricted under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Liability attaches to a public entity only when a pothole or depression on a roadway constitutes a dangerous condition; the public entity either causes the condition or is on actual or constructive notice of it; and, if so, the public entity's failure to protect against the roadway defect is palpably unreasonable. See N.J.S.A. 59:4-2.
[209 N.J. at 55.]
Despite the lack of testimony explaining the basis for plaintiff's expert's opinion that the pothole constituted a dangerous condition, the City did not seriously contest the expert's conclusion or present its own engineering expert. The focus instead was on the City's actual or constructive notice of the existence of the pothole and, if so, whether its failure to repair it was palpably unreasonable.
Plaintiff did not present any competent evidence that the City had actual notice of the pothole that injured plaintiff. There was no evidence of any prior accidents having been recorded on Joseph Street and no complaints other than the one instance noted in the record. We reject plaintiff's contention that the generalized complaint about Joseph Street made to City garbage collectors constitutes notice of a dangerous condition of public property to the City. See Lodato v. Evesham Twp., 388 N.J.Super. 501, 510 (App. Div. 2006) (suggesting that to be effective, actual notice must be given to a government body with actual authority to repair the dangerous condition). The guiding principle of the Tort Claims Act is that governmental immunity from tort liability is the rule and liability the exception. Polzo v. Cnty. of Essex (Polzo I), 196 N.J. 569, 578 (2008). To allow a citizen's general complaint about street conditions to garbage collectors employed by the City to suffice for actual notice to the City of the pothole alleged to constitute a dangerous condition would be to read the actual notice requirement of N.J.S.A. 59:4-2b out of the statute.
A public entity has constructive notice of a dangerous condition when the condition is "obvious" and has existed "for such a period of time" that the entity should have discovered it through the exercise of reasonable care. N.J.S.A. 59:4-3b. Although questioning the veracity of the City's records of having filled "twelve holes" on Joseph Street eleven months before the accident, plaintiff used the records, in conjunction with his expert's testimony that the pothole had to have existed for more than one year, to argue that a City repair crew was on Joseph Street eleven months before the accident and should have discovered the "obvious" dangerous condition of the pothole that injured plaintiff.
The City argued from the same records that it responded to a complaint about the street by promptly repairing twelve potholes, including the one that injured plaintiff. As the City did not call any members of the work crew to testify at trial and the records were insufficient to identify the location of the "twelve holes" repaired, the City's constructive notice of the alleged dangerous condition created by the pothole into which plaintiff fell was very much at issue in the trial.
Because there was adequate evidence in the record to allow the jury to conclude that the City had constructive knowledge of the pothole within sufficient time prior to plaintiff's accident to have repaired it, whether the City's failure to repair it was palpably unreasonable was likewise a critical issue. See Polzo II, supra, 209 N.J. at 66 (explaining that even if the plaintiff proves that a pothole in the road constituted a dangerous condition of which the public entity had constructive notice within a sufficient time before the accident to have taken measures to protect against it, the entity "still will not be liable unless the public entity's failure to protect against the dangerous condition can be deemed 'palpably unreasonable'" N.J.S.A. 59:4-2). Although the term "palpably unreasonable" is not defined in the Act, it is well-established that "the term implies behavior that is patently unacceptable under any given circumstance." Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)). "[F]or a public entity to have acted or failed to act in a manner that is palpably unreasonable, it must be manifest and obvious that no prudent person would approve of its course of action or inaction." Id. at 195-96. The burden of proving that the City acted in a palpably unreasonable manner rested with plaintiff. Holloway v. State, 125 N.J. 386, 403 (1991).
It is against this backdrop that we consider the admission of the testimony of the subsequent repair by the proprietor of the motorcycle club. Defendant contends that the evidence was wholly irrelevant and extremely prejudicial because it served to "inflame the jury against the City." Plaintiff contends that the defense seeks
to cloak Newark from the fact that private citizens had to repair the pothole themselves, at their own expense and with no help from Newark's city government. These private citizens were able to do so with ease, which was probative of the fact that the failure to make the repair was palpably unreasonable.
Plaintiff's argument demonstrates both the error in admitting the evidence and its highly prejudicial effect.
As Justice Albin reiterated in Polzo II, the 1972 Task Force Comment on N.J.S.A. 59:4-2 specifically addresses the palpably unreasonable standard.
This section recognizes the difficulties inherent in a public entity's responsibility for maintaining its vast amounts of public property. Thus it is specifically provided that when a public entity exercises or fails to exercise its discretion in determining what action should or should not be taken to protect against the dangerous condition that judgment should only be reversed where it is clear to the court that it was palpably unreasonable. Bergen v. Koppenal, [52 N.J. 478, 480] (1968). That decision was based on the thesis that a public entity's discretionary decisions to act or not to act in the face of competing demands should generally be free from the second guessing of a coordinate branch of Government. Harry A. Margolis and Robert Novack, Claims against Public Entities, 1972 Attorney General's Task Force on Sovereign Immunity comment on N.J.S.A. 59:4-2 (Gann 2011).
[Polzo II, supra, 209 N.J. at 76.]
There was no dispute at trial regarding Newark's ability and resources to repair the pothole that injured plaintiff. There was ample testimony in the record that the City regularly repaired potholes brought to its attention. Further, plaintiff's own expert testified to the many repairs visible on Joseph Street in the vicinity of the pothole plaintiff failed to avoid. Thus, plaintiff's proof that the pothole could be easily repaired was not relevant to any issue in dispute. N.J.R.E. 401, 402; Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (relevance requires there be a "logical connection between the proffered evidence and a fact in issue"). To the extent that the repair could be construed as somehow relevant to whether the City was palpably unreasonable in failing to repair the pothole, any probative value it possessed as to the City's ability to have as easily repaired the defect was far outweighed by its prejudice and potential to confuse the jury requiring its exclusion under N.J.R.E. 403. Brenman v. Demello, 191 N.J. 18, 30 (2007) (noting that even relevant evidence should be excluded if its probative value is substantially outweighed by risk of prejudice or jury confusion).
Although not material, the evidence was highly prejudicial to the City, and misleading to the jury, in two distinct but related ways. First, it allowed plaintiff to counter the straw-man defense the City was not proffering, that it could not afford to allocate necessary resources to repair a single pothole. Second, it allowed plaintiff to argue that City government was so unresponsive to the needs of the community that individual citizens had to step up and shoulder obligations obviously belonging to the City, notwithstanding that plaintiff had failed to offer any evidence that the City had received complaints to which it had been unresponsive. Although we review the admission of evidence under a deferential standard, we are convinced that the admission of the pothole repair by a private citizen was an abuse of discretion, so wide of the mark that the City was deprived of a fair trial. State v. Carter, 91 N.J. 86, 106 (1982).
The City requested the allocation of resources charge, Model Charge 5.20(a), to counter plaintiff's contention that its failure to have a regular road inspection program was inappropriate and contributed to its failure to detect and address the dangerous condition of the pothole that injured plaintiff. The City also sought the charge to support its defense that it reasonably relied on complaints from residents to learn of problems in the condition of City streets. The Supreme Court in Polzo II has since explicitly stated that
This Court does not have the authority or expertise to dictate to public entities the ideal form of road inspection program, particularly given the limited resources available to them. See N.J.S.A. 59:1-2 (declaring that government's "power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done"). We cannot find that the absence of a more systematic program violates the Tort Claims Act, particularly when plaintiff has not provided this Court with any recognized standard of care that demands otherwise.
[Polzo II, supra, 209 N.J. at 69.]
As the City adduced sufficient evidence to establish a conscious decision to allocate its limited resources to the regular inspection of traffic signals and stop signs and to rely on reports from residents and others as to potholes, it was error to refuse the charge. Lopez v. City of Elizabeth, 245 N.J.Super. 153, 156 (App. Div. 1991) (noting a public entity raising a resource allocation defense under N.J.S.A. 59:2-3d has the burden of proving a discretionary decision among competing demands and that the allocation decision was a proximate cause of the condition). The error was not an insignificant one, as the court failed to properly instruct the jury regarding the City's defense to plaintiff's claims, that is, that its failure to have a regular inspection program was a proximate cause of the development of the pothole, as the City had not received further complaints after its last repair. Its omission also left uncorrected plaintiff's counsel's misstatement of the law regarding the City's failure to institute an inspection program when addressing the meaning of palpably unreasonable conduct. Wade v. Kessler Institute, 343 N.J.Super. 338, 345, 350-52 (App. Div. 2001) (holding that a jury instruction which tends to confuse or mislead the jury requires reversal, especially when an applicable clarifying charge is omitted).
We turn now to other aspects of plaintiff's counsel's summation. The City did not object to the remarks in plaintiff's summation which it complains of now, until the following day when the jury presented a question on damages. Accordingly, we review counsel's comments only for plain error, Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 493, (2001), that is, error clearly capable of producing an unjust result. R. 2:10-2. Plaintiff contends that his remarks in summation were not improper and were necessary to counter corporation counsel's contention that the City "cannot do everything." We disagree.
After presenting testimony that a private citizen was forced to repair potholes along his street at his own expense and "with no help from Newark's city government, " plaintiff's counsel told the jury that "our government" was giving "mountains of taxpayers' money" to Wall Street. There was, of course, no evidence in the record that Newark had anything at all to do with the federal government's bailout of the big Wall Street banks, an issue on which many citizens harbor strong feelings. The comments were thus not relevant to the issues in the case and were capable of distracting the jurors' attention by inviting their consideration of various reasons for dissatisfaction with government spending.
Public entities, like all other litigants, are entitled to fair trials in our courts. It has long been acknowledged that an attack by counsel on a "litigant's character or morals, when they are not in issue, is a particularly reprehensible type of impropriety[, ]" Paxton v. Misiuk, 54 N.J.Super. 15, 22 (App. Div. 1959), because of the potential for such comments to cause injustice by instilling "'in the minds of the jury impressions not founded upon the evidence, '" Geler v. Akawie, 358 N.J.Super. at 437, 467 (App. Div. 2003) (quoting Botta v. Brunner, 26 N.J. 82, 98 (1958)). These statements apply equally to public entities as other litigants.
We conclude that there is a substantial likelihood that plaintiff's counsel's comments about "who gets help from our government" and his inappropriate allusions to "mountains of taxpayers' money" going to Wall Street led the jury to a result it otherwise would not have reached. State v. Macon, 57 N.J. 325, 336 (1971); Szczecina v. PV Holding Co., 414 N.J.Super. 173, 184 (App. Div. 2010). Accordingly, the trial judge's denial of defendant's motion for a new trial was a miscarriage of justice. R. 2:10-1; Henker v. Preybylowski, 216 N.J.Super. 513, 517 (App. Div. 1987) (explaining that where a verdict is disproportionately high, the court should carefully consider any factors tending to infect the verdict with prejudice, partiality or passion).
We address only briefly defendant's two remaining issues. The City contends that the judge should have excused a juror for cause after corporation counsel raised her possible connection to a litigant then suing the City for civil rights violations. The judge refused to ask the juror whether she was related to the individual suing the City, instead asking whether she had "any family presently involved in trials – civil or criminal." The juror replied, "I'm not sure."
In response to further questions, the juror revealed that she was related to a person who corporation counsel identified as having been arrested by City police and whose brother was suing the City for civil rights violations. The judge accepted that the juror was related to the individual suing the City but refused the City's request to ask the juror about her knowledge of that case, stating "I am not going to start asking about things that don't have anything to do with this trial." The judge refused the City's application to excuse the juror for cause.
As the City had been forced to use its last peremptory challenge to excuse a potential juror who had sued the City of East Orange over the death of her son in a closed City-owned pool, after the judge refused to strike her for cause, the juror was seated. The City contends that the judge erred in forcing the City to use its last peremptory challenge on a juror that should have been excused for cause, and the subsequent seating of the objectionable juror constituted reversible error under Catando v. Sheraton Poste Inn, 249 N.J.Super. 253, 264-65 (App. Div. 1991) (holding in civil cases that the erroneous denial of a challenge for cause is reversible error if all peremptory challenges have already been exhausted; or if the party challenging the juror uses a peremptory challenge to excuse him or her, exhausts all peremptory challenges, and makes a clear showing on the record that a subsequently summoned juror was objectionable).
Because of our disposition of this case, we need not decide the issue. It suffices to say, that given the judge's acknowledgment that the objectionable juror was related to a person suing the City for civil rights violations, the juror's answer that she was unsure as to whether she had relatives "presently involved in trials, " made it incumbent on the court to make further inquiry to ascertain the basis for her expressed uncertainty. While trial court decisions as to whether to excuse potential jurors for cause are given substantial deference, "[t]here are simply too many unbiased and otherwise qualified individuals eligible to sit on any given jury to quibble over persons who have voluntarily articulated a grave potential for bias." Id. at 262 (internal quotation marks and citation omitted).
The City's final argument concerns the judge's response to a question the jury posed on damages. The only testimony in the record regarding future damages was offered by plaintiff's surgeon, who testified that plaintiff would likely require a future knee replacement at a cost of $50, 000. During deliberations, the jury posed a question as to whether it could "include future medical expenses beyond the $50, 000." The judge denied the City's request that the court reread the charge as to future medical expenses. Instead, the judge advised the jury that "You are not limited to the $50, 000, but the $50, 000 is for that expense that we have told you about. If you so think that there is any additional than that, add that to that on that line."
The jury awarded future medical expenses of $500, 000, ten times the amount plaintiff's surgeon testified was probable. The City contends that the judge's failure to reread that portion of the charge relating to future medical expenses, which instructs the jury that it is to base an award of future damages "on the probable amount that plaintiff will incur, " and that it is plaintiff's burden to prove the reasonableness of the charge, coupled with the answer the judge provided, led to a grossly excessive verdict for future damages. We agree. There is no basis in the record for viewing the great differential between the expert's evaluation of plaintiff's probable future medical expenses and the jury verdict as justified by the considerable discretion reposed in jury evaluations. Boryszewski v. Burke, 380 N.J.Super. 361, 393 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). The award is so great a departure from the proofs adduced at trial that it serves as an additional reason to require a new trial in this matter. Ibid.
Because multiple errors in this case resulted in depriving the City of a fair trial, we reverse and remand for a new trial on all issues.
Reversed and remanded for further proceedings.