GERALD ORRICO VS. PORT AUTHORITY TRANS-HUDSON CORPORATION (L-5389-13, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2380-15T1

GERALD ORRICO,

Plaintiff-Appellant,

v.

PORT AUTHORITY TRANS-

HUDSON CORPORATION,

Defendant-Respondent.

_____________________________

Argued March 20, 2018 – Decided August 30, 2018

Before Judges Fasciale, Sumners and Moynihan.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No. L-

5389-13.

Jaclyn A. Gannon argued the cause for

appellant (Cerussi & Gunn, PC, attorneys;

Charles A. Cerussi, of counsel and on the

brief).

Thomas R. Brophy argued the cause for

respondent (Port Authority Law Department,

attorneys; Thomas R. Brophy and Lauren T.

Grodentzik, of counsel and on the brief).

PER CURIAM

Plaintiff Gerald Orrico sued his employer, the Port Authority

Trans-Hudson Corporation (PATH), under the Federal Employer's

Liability Act (FELA), 45 U.S.C. §§ 51 to 60, for premises liability

for a knee injury he sustained when he tripped and fell while

walking along railroad tracks. The jury found that PATH was not

negligent, and the trial judge denied Orrico's motion for a new

trial. Orrico argues the trial judge erred in denying his motion

for a new trial in which he contended the judge made incorrect

evidentiary rulings and gave misleading jury instructions, and

that PATH counsel made prejudicial summation remarks. We affirm

in part, reverse in part, and remand for a new trial.

I

A FELA action brought in state court is governed by federal

law on both liability and damages. Donovan v. Port Auth. Trans-

Hudson Corp., 309 N.J. Super. 340, 348 (App. Div. 1998). Plaintiff

alleges defendant violated FELA by negligently failing to provide

him with a reasonably safe workplace. See 45 U.S.C. § 51. FELA

provides in pertinent part:

Every common carrier by railroad . . . shall

be liable in damages to any person suffering

injury while he is employed by such carrier

in such commerce . . . for such injury or

death resulting in whole or in part from the

negligence of any of the officers, agents, or

employees of such carrier, or by reason of any

defect or insufficiency, due to its

negligence, in its . . . works.

[Ibid.]

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We begin with a brief synopsis of the evidence concerning the

alleged accident. Orrico, a PATH railroad switchman/engineer, was

walking along the Harrison Yards railroad tracks, which is secured

by a perimeter fence, when he stepped in a hole in the ballast –

the stones that surround and hold the railroad cross ties in place.

John Venditolli, a PATH operations examiner with the

responsibility to investigate accidents at the Harrison Yards and

determine if they were caused by unsafe conditions, testified on

Orrico's behalf. He stated he saw two holes – which were "hard

to notice due to sun glare and they blended in with the rest of

the ballast" – five minutes after the accident. Although he was

unaware how the holes were created, he remarked that it "looked

like someone took a shovel worth of ballast stone and, you know,

dug in, dumped it," possibly to get to air lines that are

underneath the ballast. He filled in the holes by kicking the

ballast with his foot. Another witness for Orrico, Jasmine Hosni,

a PATH Operations Examiner, testified that uneven surfaces are

regularly encountered by PATH workers and that the hole should

have been taken care of.

Testifying on behalf of PATH, John Wargo, Chief Maintenance

Supervisor of PATH's track department, who oversees maintenance,

repair and inspection of ballast, stated he had seen similar

ballast holes on the tracks, which were not dug by a person because

3 A-2380-15T1

he was unaware of any maintenance or inspection that required

removal of the ballast with a shovel. He remarked such holes

"could be caused simply by somebody just walking through the

ballast if it's [a] soft ballast or it could be caused by equipment

running through the area." He further stated that while a large

section of the track is inspected daily, the entire track is

inspected monthly.

II

Orrico appeals the denial of his motion for a new trial

claiming that: (1) the judge erred in denying the admission of

evidence; (2) the judge erred in giving jury instructions regarding

notice of the unsafe condition and not instructing the jury

regarding respondeat superior; (3) defense counsel made

prejudicial remarks in his closing argument; and (4) the verdict

was against the weight of the evidence.

We begin by noting that federal law governs a FELA action,

including a determination of whether a verdict is contrary to the

weight of the evidence. Kapsis v. Port Auth. of N.Y. & N.J., 313

N.J. Super. 395, 402 (App. Div. 1998); see Pressler & Verniero,

Current N.J. Court Rules, cmt. 1.6 on R. 4:49-1 (2014). When

examining the denial of a motion for a new trial under federal

law, a reviewing court applies the abuse of discretion standard,

see Springer v. Henry, 435 F.3d 268, 274 (3d Cir. 2006), and the

4 A-2380-15T1

evidence is viewed in the light most favorable to the party for

whom the verdict was returned, Wagner v. Firestone Tire & Rubber

Co., 890 F.2d 652, 656 (3d Cir. 1989). A new trial should be

granted "only where the 'great weight' of the evidence cuts against

the verdict and 'where a miscarriage of justice would result if

the verdict were to stand.'" Springer, 435 F.3d at 274 (quoting

Sheridan v. E. I. Dupont de Nemours & Co., 100 F.3d 1061, 1076 (3d

Cir. 1996) (en banc)). In order for a motion for a new trial to

be granted on the grounds the verdict was against the weight of

the evidence, the record must show that the jury's verdict "cries

out to be overturned or shocks [the] conscience." Williamson v.

CONRAIL, 926 F.2d 1344, 1353 (3d Cir. 1991). However, a court

must not substitute its "judgment of the facts and the credibility

of the witnesses for that of the jury." Lind v. Schenley Indus.,

Inc., 278 F.2d 79, 90 (3d Cir. 1960) (en banc).

Guided by these principles, we conclude the jury verdict was

a miscarriage of justice and that there should be a new trial

because of our determinations regarding the admission of evidence

and the jury instructions that are discussed below.

A. Evidentiary Rulings

Orrico argues that the judge's limitations on the testimony

of two of his key witnesses, both PATH employees, denied him the

right to present evidence of PATH's negligence. He sought to have

5 A-2380-15T1

Venditolli testify if he "would agree that the person who dug the

hole[] should have ensured that they were either filled in or

cordoned off." The judge sustained defense counsel's objection1

because "the question asked goes to the question of liability,

which is ultimately a jury question. . . . He's not an expert.

He's a fact witness." The judge was also unpersuaded that

Venditolli's work duties qualified him to answer the question

because there was nothing in the incident report he prepared that

indicated who was responsible. Orrico contends that Venditolli,

even though not an expert, should have been allowed to testify

regarding his lay opinion under N.J.R.E. 701 despite the fact his

incident report made no such assertion and his testimony goes to

an ultimate issue to be decided by the jury.

Orrico was also denied the opportunity to admit into evidence

a portion of an incident report authored by PATH Operations

Examiner, Millard Corbett, stating the incident was caused by an

unsafe condition "of holes dug in ballast," as well as Corbett's

testimony that his findings were based upon looking at photographs

of the incident scene and speaking to Venditolli and Orrico. The

judge rejected Orrico's contention that the report constituted a

1

Counsel claimed Venditolli was not an adverse witness and could

not be asked a leading question. He also asserted no foundation

was provided for how the holes were dug; thus, Venditolli's answer

would have been "pure speculation" and "highly prejudicial."

6 A-2380-15T1

statement by a party opponent under N.J.R.E. 803(b), determining

the report was not a business record because it was "[Corbett's]

job to fill out [the report]. He's not an 'authorized

representative'" of PATH and the report's findings are based upon

hearsay. The judge further added the report and Corbett's

testimony were inadmissible because whether the holes in the

ballast were an unsafe condition is ultimately a jury question.

Orrico argues the judge's refusal to admit the incident report and

allow Corbett's testimony concerning the report was contrary to

N.J.R.E. 701 and 704. He contends that Corbett was an authorized

representative of PATH and that his findings were based upon photos

of the holes and interviews with him and Venditolli.

We conclude that the judge mistakenly applied his discretion

in barring Venditolli and Corbett's testimony and the latter's

incident report. See Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008).

A witness may offer lay opinion "if it (a) is rationally based on

the perception of the witness and (b) will assist in understanding

the witness' testimony or in determining a fact in issue."

N.J.R.E. 701. By contrast, N.J.R.E. 702 states: "If scientific,

technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue,

a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an

7 A-2380-15T1

opinion or otherwise." N.J.R.E. 704 provides: "Testimony in the

form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided

by the trier of fact." Thus, "[i]f lay . . . opinion testimony

is otherwise competent under N.J.R.E. 701 . . . , the fact that

it may embrace the ultimate fact issue in dispute does not render

it incompetent." Biunno, Weissbard & Zegas, Current N.J. Rules

of Evidence, cmt. 1 on N.J.R.E. 704 (2018).

Venditolli's barred testimony fell within the parameters of

these evidentiary rules. Based upon his observations of the

incident scene within minutes after it occurred, he determined

that the holes in the ballast were an unsafe condition that were

created by someone who should have filled in the holes to prevent

the type of incident that Orrico claimed caused his injury. It

was Venditolli's responsibility as a PATH operations examiner to

oversee the Harrison Yards and investigate an accident such as

this, and determine how it occurred. Though his testimony would

have assisted the jury in understanding the ultimate issue before

the jury – conditions of the ballast that allegedly caused Orrico's

injury – his proffered lay opinion was admissible.

Similarly, Corbett's report could have been admitted and his

testimony regarding the report's findings should have been

allowed. His finding was based upon photos and interviews of

8 A-2380-15T1

Venditolli and Orrico, and should not have led the judge to deny

the admissibility of his report or his testimony. Corbett was

doing the job PATH authorized him to perform; speaking with

witnesses and viewing any evidence, including photos. The fact

that his observation of the accident scene was limited to photos

goes to the weight of his testimony not its admissibility. His

opinion, which was based upon his employment duties, did not

require that he be qualified as an expert. Furthermore, we see

no need for the exclusion of such evidence due to a risk of undue

prejudice substantially outweighing its probative value. N.J.R.E.

403.

B. Jury Instructions

Orrico argues the judge erred in giving jury instructions on

actual and constructive notice. Because he contended PATH, through

its agents or employees, created the unsafe condition of holes in

the ballast that caused his injury, he therefore argues he did not

have to prove that PATH knew or should have known of the unsafe

condition as set forth in the jury instructions, section 89-11

regarding foreseeability considerations, or section 89-15

regarding the duty to inspect. He also contends that since PATH

created the unsafe condition, the judge should have included a

respondeat superior charge. He maintains the jury's request to

9 A-2380-15T1

recharge on negligence was an indication of its confusion due to

the misleading instructions.

PATH argues that the notice instructions were not

prejudicial, but rather helped Orrico by providing two different

ways to prove a foreseeable risk of harm because it could have

been held liable for failure to inspect and notice of the unsafe

condition even if it did not create the unsafe condition. As for

the respondeat superior instruction, PATH argues that Orrico did

not object to the lack of such an objection; he included such

instruction in his pretrial exchange but lodged no objection when

the judge did not include it in his jury charge. Furthermore,

PATH maintains that the essence of a respondeat superior was

included, when the judge instructed in section 89-22: "The fourth

element is whether an injury to the plaintiff resulted in whole

or in part from the negligence of the railroad or its employees

or agents." PATH argues the omission of the instruction still

would not have prejudiced Orrico based on Howard v. New Jersey

Transit Rail Operations, Inc., 78 F. App'x 842, 843 (3d Cir. 2003)

(holding the jury instruction "that the employer was directly

liable for the negligence of its employees" was sufficient notice

of the employer's liability and an easier standard for the

plaintiff to satisfy).

10 A-2380-15T1

In denying Orrico's motion for a new trial, the judge stated

in his written decision:

Most of the sections of the [c]ourt's charge

including elements of a FELA cause of action,

page 11 and 12 of the instruction, provided

to Counsel, negligence and the definition of

negligence, and foreseeability

considerations, page 12 and 13 as well as

thereafter identifying the [d]efendant's

responsibility to provide a safe place to work

which duty is non-delegable and a duty to

inspect, are all engrafted from published

federal jury instructions, including Matthew

Bender's publication, with the citations in

the Court's charge to the Bender identified

numbered section.

A proper jury charge is essential to a fair trial. Pressler

& Verniero, Current N.J. Court Rules, cmt. 3.3.2. on R. 2:10-2

(2018). In clear, understandable language, the jury charge should

explain the law that applies to the issues at trial. Toto v.

Ensuar, 196 N.J. 134, 144 (2008). The charge "is a road map that

explains the applicable legal principles, outlines the jury's

function, and spells out 'how the jury should apply the legal

principles charged to the facts of the case at hand.'" Ibid.

(quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)).

Under FELA, a railroad has a "nondelegable duty to provide

its employees with a safe place to work." Shenker v. Balt. & Ohio

R.R. Co., 374 U.S. 1, 7 (1963). A plaintiff must establish the

customary elements of a negligence action, i.e., duty, breach,

11 A-2380-15T1

causation, and damages. Stevens v. N.J. Transit Rail Operations,

356 N.J. Super. 311, 319 (App. Div. 2003). The "quantum of

evidence required to establish liability in [a] FELA case is much

less than in an ordinary negligence case." Kapsis, 313 N.J. Super.

at 403 (quoting Harbin v. Burlington N. R. Co., 921 F.2d 129, 131

(7th Cir. 1990)).

Reasonable foreseeability, however, is a prerequisite to any

claim. Hines v. CONRAIL, 926 F.2d 262, 268 (3d Cir. 1991). The

employer's responsibility is measured by "what a reasonably

prudent person would anticipate as resulting from a particular

condition." Gallick v. Balt. & Ohio R.R. Co., 372 U.S. 108, 118

(1963). Nevertheless, to bypass the notice requirement in ordinary

premises liability actions, a plaintiff may demonstrate that the

defendant created a hazardous condition on its premises. See

Smith v. First Nat'l Stores, Inc., 94 N.J. Super. 462, 466 (App.

Div. 1967) ("Notice, either actual or constructive, is not required

where a defendant . . . creates a dangerous condition."); Model

Jury Charges (Civil), 5.20F(9), "Notice Not Required When

Condition is Caused by Defendant" (rev. Oct. 2003).

In this case, the claim raised by Orrico was not one of

notice, but that PATH created the unsafe condition which caused

his injury. Under this limited accusation, the judge should not

have instructed the jury on the theories of actual and constructive

12 A-2380-15T1

notice because they were not consistent with his claim. By doing

this, along with the aforementioned mistaken discretion in barring

the testimony that PATH employees or agents created the unsafe

condition that caused the accident, Orrico's FELA claim was

prejudiced. Contrary to PATH's opposition, presenting an

alternative theory of liability was unnecessary and clearly could

have influenced the jury's no cause verdict. For the same reason,

the judge should have instructed the jury more in line with Model

Jury Charges (Civil), 5.10I, "Agency" (rev. Aug. 2011), which in

part provides:

A. Employer/Employee

An employee is a person (or other entity)

engaged to perform services for another, the

employer, and who is subject to the employer’s

control or right to control the physical

conduct required to perform such services. In

determining whether a person or entity

performing services is an employee, rather

than an independent contractor or other

relation, the following aspects may be

considered:

(1) the extent of control which, by

agreement, expressed or implied, the entity

for which the services are performed has the

right to exercise over the details of the

services performed;

(2) whether one performing such services is

engaged in an occupation or business distinct

from that of the entity for which services are

performed;

(3) whether the services rendered are usually

done under the direction of the employer in

the particular locality, or whether such

services are usually done by a specialist

without such direction;

13 A-2380-15T1

(4) the skill required in performing the

services;

(5) whether the entity for which the services

are performed supplies the instrumentalities,

tools and place of work, or whether the entity

performing the services supplies those items;

(6) the length of time anticipated for the

performance of the services;

(7) the method of payment;

(8) whether the services to be performed are

part of the regular business of the entity for

which the services are performed;

(9) whether the parties believe they are in

the relationship of employer and employee;

(10) whether the entity for which services are

to be performed is in business; and

(11) such other factors as may be reasonably

considered in determining whether the entity

for which the services are being performed

controls, or has the right to control, the

entity performing the services.

. . . .

B. Respondeat Superior

1. When Agency is in Issue:

A principal, such as defendant [name] may act

only through natural persons who are its

officers, employees or agents [choose

appropriate term]. Generally, any officer,

employee or other agent [choose appropriate

term] of an entity may bind that entity by

acts and declarations made while acting within

the scope of the authority delegated to the

officer, employee, or agent [choose

appropriate term] by the principal, or by acts

and declarations made within the scope of the

duties assigned to the officer, employee or

other agent[choose appropriate term] of the

principal.

So, if you find that an officer, employee or

agent [choose appropriate term] of defendant

[name] acted negligently while in the scope

of his/her duties or authority, that

negligence is as a matter of law charged to

14 A-2380-15T1

the principal, here defendant [name]. If you

so find, defendant [name] will be deemed

negligent for the wrongdoing to the same

extent as the officer, employee or agent.

Given the specifics of Orrico's allegations, the jury would have

been provided a better roadmap under this instruction than the one

given: the jury must decide if Orrico's injury could have resulted

"in whole or in part from the negligence of [PATH] or its employees

or agents." And, despite Orrico's failure to object at the charge

conference, we find his pre-trial request for a respondeat superior

charge to be an adequate notification to the judge regarding the

law that he wanted the jury to apply.

C. Defense Counsel's Misconduct

Orrico argues that PATH's counsel infringed upon the "golden

rule" during his summation when he asked the jurors to put

themselves in his shoes rather than what a reasonable person would

have done to determine if PATH was liable. At closing, counsel

stated:

Put yourself in the situation. Put yourself

in that yard. You've heard the story. You

know the facts. You're working in the

Harrison Yard, reflective safety vests,

electrical graded safety shoes. Consider your

tasks. You're on and off and between heavy

railroad equipment operating near the third

rail. You've been working all morning, a full

morning shift in the yard. You've moved 20

to 25 different trains already. You're

holding over on overtime. It’s a hot day,

15 A-2380-15T1

certainly sunny, but interestingly about the

glare from the sun, you testify specifically

that you can see where you're going, that the

glare doesn't bother you.

Now you come up the ladder. You hit the

switch for the train on six. The train comes

in and it makes its (indiscernible). Now you

don't wait for that train to pull out so that

you can walk across the apron. You have to

get to the 11 track down the yard so you cross

in front of the equipment on six track. How

are you doing it? How are you walking? Are

you looking down carefully stepping over that

third rail, that first rail, walking along the

ties until you come to the next rail, walking

along the ties until you come to the next rail,

watching each step you take? And then where

do you go? You walk towards the track.

Well, how do you do it? If you're being

careful, if you're being reasonable, if you've

got your common sense you're watching where

you're walking. That's not what happened with

Mr. Orrico. That's not what he told us. He

told us that after he came around the car he

was looking straight ahead. He didn't see

that two and a half-foot by 1.4 foot

depression in the ballast.

PATH trains, PATH provides safety

equipment, PATH provides annual refreshers and

inspections, but PATH can't make you be

careful and watch where you are walking.

Orrico did not object at the time the remarks were made, but

first raised the argument in his motion for a new trial. The

judge found his argument was meritless as the remarks were not

prejudicial and, thus, did not violate the golden rule.

16 A-2380-15T1

We begin our review of Orrico's argument with the

understanding that counsel has "broad latitude" to make closing

arguments to the jury, Diakamopoulos v. Monmouth Med. Ctr., 312

N.J. Super. 20, 32 (App. Div. 1998), but "[s]ummation commentary

. . . must be based in truth," and counsel is not free to misstate

the facts or the law, Bender v. Adelson, 187 N.J. 411, 431 (2006).

Because Orrico did not object to counsel's summation at the time

it was made, we apply the plain error rule and reverse only if the

error could have possibly led the jury "to an unjust verdict."

State v. G.V., 162 N.J. 252, 262 (2000) (quoting State v. Macon,

57 N.J. 325, 335 (1971)). In civil cases, relief under the plain

error rule "is discretionary and 'should be sparingly employed.'"

Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 129 (1999) (quoting

Ford v. Reichart, 23 N.J. 429, 435 (1957)); Bldg. Materials Corp.

of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 487 n.14, (App.

Div. 2012). The failure to object to counsel's summation comments

may be interpreted as an indication that the alleged errors were

not so egregious in the context of the entire trial that they

affected the jury's verdict. See Tartaglia v. UBS PaineWebber,

Inc., 197 N.J. 81, 128 (2008). Moreover, the excesses of summation

could have been corrected at trial by a timely objection and

curative instruction. See Bender, 187 N.J. at 433.

17 A-2380-15T1

The golden rule is based on the principle that "you should

do unto others as you would wish them to do unto you." Geler v.

Akawie, 358 N.J. Super. 437, 464 (App. Div. 2003). It is improper

for an attorney to invoke the rule because it tends to encourage

"the jury to depart from neutrality and to decide the case on the

basis of personal interest and bias rather than on the evidence."

Id. at 464-65 (quoting Spray-Rite Serv. Corp. v. Monsanto Co., 684

F.2d 1226, 1246 (7th Cir. 1982)), aff'd on other grounds, 465 U.S.

752, 104 S.Ct. 1464, 79 L. Ed. 2d 775 (1984). A golden rule

argument suggests to jurors that they should "adopt what they

would want as compensation for injury, pain and suffering." Id.

at 464.

Although the general rule is generally invoked to prohibit a

plaintiff's appeal to the jury concerning damages, we can envision

a situation where either party's summation might solicit the jury

to decide liability for personal reasons and not the evidence. We

conclude PATH counsel came ever so close in crossing that line in

the noted comments, and would have been better off in making more

artful remarks by not constantly referring to "you" in addressing

the jury. However, considering there was no objection and our

cautious use of plain error in civil matters, we are not convinced

that the comments were solely so prejudicial as to cause an unjust

result. Therefore, we will not disturb the judge's ruling that

18 A-2380-15T1

PATH's summation was not prejudicial to Orrico on the issue of

liability. Nevertheless, the comments taken in the light of the

cumulative other errors provide a further basis to reverse and

remand for a new trial.

D. Motion For New Trial

As noted, federal law governs a FELA action, including a

determination of whether a verdict is contrary to the weight of

the evidence. Kapsis, 313 N.J. Super. at 402; Pressler & Verniero,

Current N.J. Court Rules, cmt. 1.6 on R. 4:49-1 (2014). When

examining the denial of a motion for a new trial under federal

law, a reviewing court applies the abuse of discretion standard,

see Springer, 435 F.3d at 274, and the evidence is viewed in the

light most favorable to the party for whom the verdict was

returned, Wagner, 890 F.2d at 656. A new trial should be granted

"only where the 'great weight' of the evidence cuts against the

verdict and 'where a miscarriage of justice would result if the

verdict were to stand.'" Springer, 435 F.3d at 274 (quoting

Sheridan, 100 F.3d at 1076 (en banc)).

In light of our determinations regarding the admission of

evidence and the jury instructions, we conclude the jury verdict

was a miscarriage of justice to Orrico and he should be given a

new trial.

19 A-2380-15T1

Affirmed in part, reversed in part, and remanded for a new

trial consistent with this opinion.

20 A-2380-15T1