# ROGER C. GATES VS. COUNTY OF PASSAIC (L-2925-17, PASSAIC COUNTY AND STATEWIDE)

> New Jersey Superior Court Appellate Division · December 8, 2021

URL: https://www.frixlaw.com/law-library/cases/5132802

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** December 8, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5132802

## How later opinions describe it (automated extraction)

- explaining that a public entity did not meet its burden of establishing design or plan immunity for its drainage system because, although it pled the defense in its answer, it had not presented any evidence about its initial decision to establish the drainage system
- explaining that "a plaintiff cannot cast a design improvement as a 'maintenance' action to circumvent the immunity given the original design"

## Opinion text

NOT FOR PUBLICATION WITHOUT THE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-3436-19

ROGER C. GATES and
LORRAINE GATES,
his wife,

Plaintiffs-Respondents,

v.

COUNTY OF PASSAIC,

Defendant-Appellant.
___________________________

Argued November 29, 2021 – Decided December 8, 2021

Before Judges Fasciale and Sumners.

On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, Docket
No. L-2925-17.

Donald A. Klein argued the cause for appellant
(Weiner Law Group, LLP, attorneys; Jay V.
Surgent, of counsel; Donald A. Klein, Andrew J.
Kyreakakis, and Howard E. Brechner, on the
briefs).
Jeffrey M. Patti argued the cause for respondent
(Patti & Patti, Esqs., attorneys; Jeffrey M. Patti,
of counsel and on the brief).

PER CURIAM

Defendant County of Passaic (the County) appeals from an August 30,

2019 order denying its summary judgment motion; a March 17, 2020 judgment

in favor of plaintiffs entered after a jury trial; and a March 27, 2020 order

denying its motions for judgment notwithstanding the verdict (JNOV) and for a

new trial.

On appeal, the County argues:

POINT I1

THE [MOTION JUDGE] ERRED IN DENYING THE
COUNTY'S MOTION FOR SUMMARY
JUDGMENT.

A. The County Is Immune From Liability For
Discretionary Activities Under N.J.S.A. 59:2-
3(d).

B. Plaintiffs Cannot Satisfy The Prerequisites For
Public Entity Liability Under N.J.S.A. 59:4-2.

1. Oak Ridge Road was not "a
dangerous condition" at the time of
the accident.

1
To comport with our style conventions, we have altered the capitalization of
the County's point headings, but have omitted these alterations for readability.
A-3436-19
2
2. The County did not create or have
notice of an alleged dangerous
condition.

3. The County's conduct was not
palpably unreasonable.

POINT II

THE TRIAL [JUDGE] ERRED IN QUALIFYING
[MICHAEL] MURPHY AS AN EXPERT, IN NOT
STRIKING HIS TESTIMONY IN ITS ENTIRETY AS
A NET OPINION, AND IN FAILING TO CURE HIS
IMPROPER AND PREJUDICIAL TESTIMONY.

A. Murphy Was Improvidently Qualified As An
Expert.

B. Murphy's Testimony Was Merely A Net
Opinion And Should Have Been Stricken In Its
Entirety.

C. The Trial [Judge's] "Curative" Instruction To
The Jury Was Not Only Insufficient, It Was Also
Impossible To Implement.

POINT III

THE TRIAL [JUDGE] ERRED IN BARRING THE
COUNTY FROM PRESENTING EVIDENCE OF ITS
"RESOURCES" IMMUNITY AT TRIAL AND
INSTRUCTING THE JURY THAT IT SHOULD NOT
BE CONSIDERED.

POINT IV

THE EVIDENCE AT TRIAL CONFIRMED THAT
THE COUNTY WAS NOT LIABLE UNDER N.J.S.A.

A-3436-19
3
59:4-2; AND THE TRIAL [JUDGE] ERRONEOUSLY
EXCLUDED RELEVANT EVIDENCE REGARDING
THE COUNTY'S IMMUNITY WHICH FURTHER
DEMONSTRATED THAT THE COUNTY WAS NOT
LIABLE UNDER THIS STATUTE.

POINT V

THE TRIAL [JUDGE] ERRED IN BARRING THE
COUNTY FROM PRESENTING EVIDENCE OF
"DESIGN" IMMUNITY AT TRIAL.

POINT VI

THE TRIAL [JUDGE] ABUSED HIS DISCRETION
IN PERMITTING TESTIMONY BY PLAINTIFFS'
WITNESSES CONTRARY TO THE COURT RULES.

POINT VII

THE TRIAL [JUDGE] ERRED IN FAILING TO
CURE EGREGIOUS PREJUDICAL STATEMENTS
BY PLAINTIFFS' COUNSEL IN HIS SUMMATION.

A. The Trial [Judge] Permitted Plaintiffs To
Equate The Standard For Liability Under The
Tort Claims Act With Information On The
County's Website.

B. The Trial [Judge's] Deficient Response To
Improper Remarks By Plaintiffs' Counsel In His
Summation Regarding The County's Resources
Significantly Compounded Other Errors.

POINT VIII

FUELED BY ERRONEOUS EVIDENTIARY
RULINGS, THE JURY'S FAILURE TO FIND

A-3436-19
4
[PLAINTIFF] TO BE COMPARATIVELY
NEGLIGENT TO ANY DEGREE WAS
DEMONSTRABLY AGAINST THE WEIGHT OF
THE EVIDENCE.

POINT IX

THE INDIVIDUAL AND CUMMULATIVE EFFECT
OF THE TRIAL [JUDGE'S] ERRORS WARRANTS
REVERSAL OF THE JURY VERDICT AND
JUDGMENT.

POINT X

THE TRIAL [JUDGE] ERRED IN DENYING THE
COUNTY'S POST-VERDICT MOTIONS.

We affirm all orders under review.

I.

The County was not entitled to summary judgment. We review a ruling

on a motion for summary judgment de novo and apply the same standard as the

motion judge. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224

N.J. 189, 199 (2016). We consider, as the motion judge did, "whether the

competent evidential materials presented, when viewed in the light most

favorable to the non-moving party, are sufficient to permit a rational factfinder

to resolve the alleged disputed issue in favor of the non-moving party." Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). A judge grants

summary judgment "if the pleadings, depositions, answers to interrogatories and

A-3436-19
5
admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-2(c). "To defeat a

motion for summary judgment, the opponent must '"come forward with

evidence" that creates a genuine issue of material fact.'" Cortez v. Gindhart, 435

N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield

of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). We owe no special

deference to the motion judge's legal analysis. Templo Fuente De Vida Corp.,

224 N.J. at 199. On such dispositive motions, we must look at the facts in the

light most favorable to the non-moving party, here, plaintiffs.

On April 14, 2016, plaintiff Roger C. Gates lost control of his motorcycle

after its front wheel struck a large pothole on Oak Ridge Road. Plaintiff was

not exceeding the speed limit of forty miles per hour. Although plaintiff

attempted to navigate this road, which had been filled with recurrent pothole

problems due to the road's state of disrepair, pavement irregularities, and

multiple potholes, plaintiff's motorcycle crossed the road into oncoming traffic,

struck a minivan, and his body went flying.

Paul Janiec, a Passaic County Road Department district supervisor,

explained that the road department had a road crew of approximately fourteen

A-3436-19
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members and two inspectors. He explained that the peak of the pothole season

was around February and March when there was a lot of freezing at night and

warming during the day. He stated that in April each year, on an as-needed

basis, the crew would therefore fill potholes. In the first half of 2016, Janiec

would inspect Oak Ridge Road once every two weeks, and an inspector in his

district did the same thing. Janiec admitted that in April 2016, there was a

"rough patch" of several potholes on Oak Ridge Road at the intersection of

Cooper Road, less than a mile south of where the accident occurred, which were

filled "on a regular basis." Janiec understood Oak Ridge Road had persistent

potholes. He knew of no pothole policy other than fixing the "ones [that] need

the most attention first."

Kenneth Simpson, Supervisor of the Passaic County Road Department,

knew that since 2014, there was a "recurring [pothole] problem" on Oak Ridge

Road in the vicinity of Wallace Cross Road, directly north of where the accident

occurred. Importantly, and implicitly characterizing the substantial dangerous

condition, Simpson said that during the time of year when the accident occurred,

there could be "thousands of potholes in one particular week." In addition,

"[d]uring this time frame," potholes in the same location could be filled on a

recurring basis. Acknowledging that repair work was unsuccessful, he

A-3436-19
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explained that the road crew "could literally go there in the morning and fill the

pothole. And by the time they're coming back, the pothole is out." Simpson

stated that Oak Ridge Road was a candidate for resurfacing in April 2016, based

on several factors, including the last time it had been resurfaced and the

condition of the road, but despite their persistent problems, road resurfacing was

not done until April 2018.

A resident (the resident), who lived near the scene of the accident,

confirmed that on the day of the accident there were two potholes near the

middle of the northbound lane on Oak Ridge Road in front of her house. She

estimated that the potholes were three feet long and up to a foot deep. She

observed vehicles swerving to avoid the potholes. She notified the Township of

the presence of potholes starting in 2014.

Plaintiffs' liability engineering expert, Steven Schorr, concluded that the

northbound lane of Oak Ridge Road, approaching the area where the accident

occurred, was in "poor condition, including pavement irregularities and

potholes," and that this "poor roadway condition" was a significant contributing

factor to the accident. After Schorr passed away, his engineering firm submitted

a report prepared by Robert Lynch, a licensed professional engineer, who also

concluded that the "poor condition" of Oak Ridge Road approaching the curve

A-3436-19
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"presented difficulties" for plaintiff as he approached and navigated the curve.

He opined that the potholes caused plaintiff to lose control of the motorcycle

and that the "poor roadway conditions" were a significant contributory factor to

the accident.

We reject the County's arguments that it was immune from liability under

N.J.S.A. 59:2-3(d) and that its conduct was not palpably unreasonable under

N.J.S.A. 59:4-2. Here, N.J.S.A. 59:2-3(d) does not apply because the County

did not engage in high-level policy-making discretionary decisions; rather, the

County made operational decisions. And under N.J.S.A. 59:4-2, a jury was

required to resolve whether the County's repeated unsuccessful road work was

palpably unreasonable.

A public entity is not liable for an injury resulting from the exercise of

judgment or discretion vested in the entity. N.J.S.A. 59:2-3(a). Specifically, a

public entity is

not liable for the exercise of discretion when, in the face
of competing demands, it determines whether and how
to utilize or apply existing resources, including those
allocated for equipment, facilities and personnel unless
a [judge] concludes that the determination of the public
entity was palpably unreasonable. Nothing in this
section shall exonerate a public entity for negligence
arising out of acts or omissions of its employees in
carrying out their ministerial functions.

A-3436-19
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[N.J.S.A. 59:2-3(d).]

Subsection (d) creates immunity when, faced with competing demands,

the public entity exercises its discretion on whether and how to apply its existing

resources. Brown v. Brown, 86 N.J. 565, 577 (1981). A policy decision made

at the planning level, and not (like here) the operational level, as to whether to

resurface a road is immune from liability under N.J.S.A. 59:2-3(d). Costa v.

Josey, 83 N.J. 49, 59-60 (1980).

These discretionary determinations include decisions such as what roads

should be repaired, whether to repair the road by patching or resurfacin g, and

whether to use the available resources for the maintenance of the road. Id. at

55. Immunity under subsection (d) protects only "basic policy determinations."

Ibid. Once resources have been provided, a public entity may be liable for its

determination of priorities in the application of such resources if that

determination is palpably unreasonable. Margolis & Novack, Claims Against

Public Entities, 1972 Task Force Comment on N.J.S.A. 59:2-3(d) (2021). The

palpably unreasonableness standard of care in N.J.S.A. 59:2-3(d) overlaps with

the palpably unreasonable standard in N.J.S.A. 59:4-2. Brown, 86 N.J. at 579-

80.

A-3436-19
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Here, resurfacing the roadway and the funds available for road repairs,

which are high-level planning decisions, are not at issue. Rather, the repair of

potholes at the operational level of decision-making is the focus of plaintiffs'

claims. Therefore, immunity under N.J.S.A. 59:2-3(d) is inapplicable to the

facts of this case.

Liability for a dangerous condition of public property is set forth in

N.J.S.A. 59:4-2:

A public entity is liable for injury caused by a condition
of its property if the plaintiff establishes that the
property was in dangerous condition at the time of the
injury, that the injury was proximately caused by the
dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of the kind of
injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an
employee of the public entity within the scope of his
employment created the dangerous condition; or

b. a public entity had actual or constructive notice
of the dangerous condition under section 59:4-3 a
sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.

Nothing in this section shall be construed to
impose liability upon a public entity for a dangerous
condition of its public property if the action the entity
took to protect against the condition or the failure to
take such action was not palpably unreasonable.

A-3436-19
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N.J.S.A. 59:4-3 provides:

a. A public entity shall be deemed to have actual notice
of a dangerous condition within the meaning of
subsection b. of section 59:4-2 if it had actual
knowledge of the existence of the condition and knew
or should have known of its dangerous character.

b. A public entity shall be deemed to have constructive
notice of a dangerous condition within the meaning of
subsection b. of section 59:4-2 only if the plaintiff
establishes that the condition had existed for such a
period of time and was of such an obvious nature that
the public entity, in the exercise of due care, should
have discovered the condition and its dangerous
character.

The Tort Claims Act (TCA) defines a "dangerous condition" as a "condition of

property that creates a substantial risk of injury when such property is used with

due care in a manner in which it is reasonably foreseeable that it will be used."

N.J.S.A. 59:4-1(a).

As to dangerous condition, the resident, who lived directly adjacent to the

scene of the accident, stated there were numerous potholes in the road in front

of her house, including ones that were multiple feet long and "maybe [five]

inches, maybe deeper I don't know but I know they were bad." She regularly

saw people swerve to avoid potholes, and when vehicles could not, the resident

described the noise as "bah bump bah bump." The resident's daughter said the

potholes were "deep" and "pretty long." A local department of public works

A-3436-19
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supervisor emailed Simpson (on the night of the accident), stating that the

potholes that put plaintiff out of control, near the accident, were "good-sized

ones."

As to notice, the County knew for years that the accident area had been

problematic with recurring potholes, at least since 2014. Simpson, the resident,

and the resident's daughter established that fact. Eventually, the County put the

road on a resurfacing list, but not until after the accident. Discovery revealed

that the County's road crew and supervisors themselves knew of the dangerous ,

continued problems that persisted. At a minimum, whether the pothole situation

and the roadway constituted a dangerous condition was for the jury to determine

as the fact finder.

And as to palpably unreasonable, plaintiffs produced sufficient evidence

for the jury, not a judge, to resolve. The pothole problem persisted, during the

time of year when the accident occurred, there could be "thousands of potholes

in one particular week," the resident made multiple reports about the condition

of the roadway in the area of the accident, and although he admitted that the area

required pothole repairs, Janiec confirmed such repairs were unsupported by

work records.

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II.

The County contends that the trial judge abused his discretion by

qualifying Murphy as an expert in traffic operations and maintenance, that his

entire testimony should have been stricken as a net opinion, and that the judge's

limiting instruction as to the use of the testimony was insufficient.

The decision to admit or exclude expert testimony is reviewed for abuse

of discretion. Townsend v. Pierre, 221 N.J. 36, 52-53 (2015). "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 opinion or otherwise." N.J.R.E. 702. In order to be admissible

as expert testimony, the witness must have sufficient expertise to offer the

intended testimony. Thompson v. Merrell Dow Pharm., Inc., 229 N.J. Super.

230, 240 (App. Div. 1988). An expert witness must possess the minimal

technical training and knowledge essential to a meaningful and reliable opinion.

Hake v. Manchester Twp., 98 N.J. 302, 314 (1985).

The judge properly admitted Murphy as an expert. Indeed, the County

conceded that Murphy had the requisite work experience. Murphy was retired

from the Pennsylvania Department of Transportation after over forty years of

A-3436-19
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service, where he had been a county maintenance manager and an equipment

operator who had filled potholes, and had experience in roadway drainage

systems, maintenance, and repair. Murphy had a couple of years of college,

which included coursework in pothole patching. He also had previously been

admitted as an expert in different courts, and at the time of trial, he worked for

a traffic planning and design company preparing reports.

Merely because Murphy did not have an engineering degree and did not

inspect the accident scene does not disqualify him to testify as an expert, as the

County suggests. An expert may be qualified by study without practice or

practice without study. State v. Smith, 21 N.J. 326, 334 (1956). Expertise may

be acquired by occupational experience. Correa v. Maggiore, 196 N.J. Super.

273, 282 (App. Div. 1984). "Our case law is replete with examples of the

generous approach taken by our courts when qualifying experts based on

training and experience." State v. Jenewicz, 193 N.J. 440, 454 (2008). Murphy

had over forty years of experience in road maintenance, including pothole repair,

and had repaired potholes himself. His occupational experience qualified him

as an expert.

The County maintains that Murphy offered net opinions. The net opinion

rule provides that "an expert's bare conclusions, unsupported by factual

A-3436-19
15
evidence," are inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

The County raised this on two separate occasions.

At the close of plaintiffs' case, the County moved to strike Murphy's

testimony in its entirety. The judge granted the motion in part, finding that the

minimal questioning regarding whether the County should have done permanent

patching prior to the accident was "based on nothing, no standard, and he's not

qualified to say that." Therefore, "any of the opinions that say what should have

been done are out." The judge added that there were "not that many places where

he did that."

At the close of its case, the County renewed its motion to strike the entirety

of Murphy's testimony. The judge denied the motion again but stated that he

would "fashion an instruction for the jury . . . to explain that portions of his

testimony are being stricken from the record and shouldn't be considered by

them." The judge instructed the jury:

After the testimony was completed, I ruled that portions
of Mr. Murphy's opinions were not admissible in this
case. I found that he lacks expertise, or a sufficient
basis, for reaching some of his conclusions.

Specifically, I am striking any testimony . . .
regarding any opinions he holds as to what the County
should have done to repair the road because he's not
qualified to render such opinions. You are not to

A-3436-19
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consider those opinions in reaching your decision in
this case.

Any opinions that he rendered regarding road
maintenance techniques, types of repairs, the
methodology of such repairs, and the necessary
equipment to perform such repairs are valid opinions
within his field of expertise and are admissible in this
trial.

Given our standard of review, we see no error as to the judge's evidentiary

rulings, let alone an abuse of discretion. As to what the County "should have

done," we note that the jury learned about alternative methods of road repair

from the County's expert, John Desch, who identified four methods for repairing

the road. Of course, Desch was subject to cross-examination. Thus, even if

there was an evidentiary error, which is not the case under the facts here, it was

harmless.

III.

In the County's Points III and IV, the County maintains that the trial judge

erred in excluding evidence relating to resource immunity at trial and in

instructing the jury that such a defense should not be considered. N.J.S.A. 59:2-

3(d) creates immunity when, faced with competing demands, a public entity

exercises its discretion on whether and how to apply its existing resources. As

we previously pointed out, the County was not entitled to the resource immunity

A-3436-19
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defense, in part, because whether the County should have repaved Oak Ridge

Road prior to the accident was not at issue.

IV.

In Point V, the County contends that the judge erred by precluding it from

presenting a design immunity defense merely because plaintiffs decided to drop

their claim that there was a design defect. We conclude the County is barred by

the doctrine of invited error from arguing on appeal that the judge erred in

excluding evidence of design immunity. Plaintiffs withdrew their claim for

design defect before trial, and the County proceeded to inform the judge that it

agreed with the judge that withdrawal of the claim mooted its design immunity

defense.

Plan or design immunity under N.J.S.A. 59:4-6 provides:

Neither the public entity nor a public employee is liable
under this chapter for an injury caused by the plan or
design of public property, either in its original
construction or any improvement thereto, where such
plan or design has been approved in advance of the
construction or improvement by the Legislature or the
governing body of a public entity or some other body
or a public employee exercising discretionary authority
to give such approval or where such plan or design is
prepared in conformity with standards previously so
approved.

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To avail itself of the immunity under N.J.S.A. 59:4-6, the public entity

"must demonstrate that the specific design or plan detail alleged to constitute

the dangerous condition was itself the subject of prior approval or prior

approved standards." Weiss v. N.J. Transit, 128 N.J. 376, 384 (1992). In

determining whether a public entity has design immunity, judges first identify

the culpable cause of the accident and then ask whether that identified cause is

one the Legislature intended to immunize. Kain v. Gloucester City, 436 N.J.

Super. 466, 473 (App. Div. 2014); see also Manna v. State, 129 N.J. 341, 358-

59 (1992) (explaining that "a plaintiff cannot cast a design improvement as a

'maintenance' action to circumvent the immunity given the original design").

In its answer, the County pleaded "each and every . . . immunity provided

under the" TCA. At a pre-trial hearing, the County claimed that Desch's report

raised a plan or design immunity defense. It further argued that it was raising

the defense in response to Murphy's report, which included a section drafted by

another professional engineer, Gerald Baker, referring to storm drainage and a

lack of catch basins as being a cause of the accident. Plaintiffs argued that

Murphy was just being thorough and that what they were claiming were

maintenance issues, not design. The County maintained that the jury should still

be permitted to consider the defense. The trial judge responded that because

A-3436-19
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plaintiffs were "not moving forward" with the claim, the report claiming design

or plan defect was "not . . . go[ing] in . . . why would we let the jury hear that

there's an immunity for design defect?" Counsel for the County responded, "All

right . . . [t]hat makes sense . . . I can't raise a defense for an argument that's not

being made."

The design or plan immunity is an affirmative defense as to which the

public entity bears the burden of pleading as well as proof. Birchwood Lakes

Colony Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 600 (1982); see

also Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 111 (1996)

(explaining that a public entity did not meet its burden of establishing design or

plan immunity for its drainage system because, although it pled the defense in

its answer, it had not presented any evidence about its initial decision to

establish the drainage system).

The County is barred from raising design immunity because it invited the

error by agreeing with the judge's conclusion that it could not raise a defense to

an argument that was not being made. "A party who consents to, acquiesces in,

or encourages an error cannot use that error as the basis for an objection on

appeal." Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div. 1993). In

Spedick, from the colloquy between the trial judge and the attorneys, it appeared

A-3436-19
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that the plaintiff "essentially agreed" to permit certain testimony. Id. at 592.

We concluded that the plaintiff was barred from challenging the admission of

the testimony on appeal. Id. at 593.

The County also argues that the judge should have allowed it to introduce

Baker's portion of the report as an adoptive admission under N.J.R.E. 803(b)(2),

which provides that "a statement whose content the party-opponent has adopted

by word or conduct or in whose truth the party-opponent has manifested belief"

is admissible. The County cites plaintiffs' attorney's cover letter to the report

stating that plaintiff "hereby amends answers to interrogatories to include the

enclosed narrative report," and that Murphy and Baker had been previously

named as experts who would testify as to the County's road maintenance

practices.

Admission of such a statement requires that the party-opponent be aware

of it, understand the content of the statement, and unambiguously assent to it.

McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 529-30 (2003). The County

failed to offer evidence that plaintiffs were aware, understood, or

unambiguously assented to the conclusions in Baker's report. Unlike an answer

to an interrogatory, an expert report "is not a statement of a party and therefore

A-3436-19
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cannot be treated as admission simply because a party furnished it in discovery."

Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985).

The County cites Sallo v. Sabatino, 146 N.J. Super. 416, 418-19 (App.

Div. 1976), where we held that a statement made in an answer to interrogatories

in a prior litigation, referring to a physician's report, was admissible as an

adoptive admission. The physician's report concluded that the plaintiff was

totally disabled. Id. at 418. This court found "[i]n submitting the report in

support of their claims in the previous lawsuit plaintiffs were presumably

manifesting their adoption of it and their belief in its truth." Ibid. But that case

involved a medical report describing the extent of the plaintiff's injuries , so to

the extent that the Sallo court was correct, the nature and specificity of the report

differed from the report in this case.

Finally, we reject the County's claim that the report was admissible under

judicial estoppel. Plaintiffs never changed positions before the trial judge on

the validity or substance of the report. Judicial estoppel bars a party from

successfully arguing a position before a judge and then subsequently assuming

a contrary position. Newell v. Hudson, 376 N.J. Super. 29, 38 (App. Div. 2005).

Nor was the evidence admissible because plaintiffs "opened the door" to it, as

claimed by the County, since design immunity was ruled out of the case. Nor

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was it admissible because it was not privileged, as the County claims, citing

Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 302 (2006), and In re Pelvic

Mesh/Gynecare Litig., 426 N.J. Super. 167, 182-83 (App. Div. 2012). Here, the

question was the evidence's relevance in light of whether design immunity was

at issue.

V.

In Point VI, the County argues that the trial judge erred in permitting the

resident's de bene esse deposition testimony to be read into evidence at trial

rather than having her testify and that the judge's curative instruction did not

eliminate the prejudicial nature of her testimony. In addition, the County asserts

that the judge abused his discretion in permitting Christopher Gates (plaintiffs'

son) and Lorraine to testify because they had not been listed as witnesses in the

pre-trial discovery. We see no error by permitting the resident to testify by

deposition and Christopher and Lorraine to testify.

In pertinent part, Rule 4:16-1(c) provides that a deposition of a witness

may be used at trial against another party

who was present or represented at the taking of the
deposition or who had reasonable notice thereof if the
[judge] finds that the appearance of the witness cannot
be obtained because of death or other inability to
testify, such as age, illness, infirmity or imprisonment,
or is out of this state . . . . The deposition of an absent

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but not unavailable witness may also be used if, upon
application and notice, the [judge] finds that such
exceptional circumstances exist as to make such use
desirable in the interest of justice and with due regard
to the importance of presenting the testimony of
witnesses orally in open court.

A trial judge's decision to admit or exclude evidence, including a

deposition, is entitled to deference absent a showing of an abuse of discretion,

namely, a clear error of judgment resulting in a manifest denial of justice. Rowe

v. Bell & Gossett Co., 239 N.J. 531, 551-52 (2019). Here, the resident was

unable to testify due to an illness.

The deposition was played for the jury, during which the County objected

that the video was not properly edited in accordance with the trial judge's prior

rulings after the resident testified that if a motorcycle had hit the potholes in

front of her house it would be "bad" and would "cause damage." The judge

sustained the objection and gave a curative instruction with the County's consent

and without objection:

As I stated from the outset at some points during the
course of the case, I would be making rulings on
admissibility of certain things. And in this case my
ruling was that [the resident] was not competent to
testify about what would or would not cause damage to
a vehicle or anything else.

So, for that reason the testimony where she said
that it would cause damage I am excluding, and you

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should not consider it in your deliberations in this case
whatsoever.

Whether a curative instruction was adequate is entitled to deference, and

will result in reversal only for abuse of discretion. State v. Kueny, 411 N.J.

Super. 392, 403 (App. Div. 2010). Moreover, it can be assumed that the jury

followed the judge's admonition. See State v. Manley, 54 N.J. 259, 271 (1969).

The County did not object to the adequacy of the curative instruction below, and

instead, counsel told the judge, "I would want that. Generally[,] I would not,

but I think I would want that in this case."

Prior to trial, the County moved to bar Christopher from testifying because

neither he nor Lorraine were listed in the interrogatories as persons with

knowledge of the case's particulars. Plaintiffs argued that neither witness was a

surprise because Christopher's name had been listed in their first pre-trial

submission, and Lorraine's deposition had already been taken. The judge ruled

that he would permit Christopher to testify as to his observations of the accident

scene the day after the accident.

A trial judge's determination of whether to exclude testimony based on a

discovery violation is reviewed for abuse of discretion. Bender v. Adelson, 187

N.J. 411, 428 (2006). Factors that would strongly urge a judge to suspend the

imposition of such a sanction include the absence of a design to mislead, the

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25
absence of surprise, and the absence of prejudice if the testimony is admitted.

Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000).

Testimony by one of the plaintiffs, Lorraine, could hardly have been a

surprise to the County. Moreover, she was listed as a witness to be called at

trial by plaintiffs in their pre-trial exchange of information pursuant to Rule

4:25-7(b) that was submitted six to seven weeks prior to trial. Nor is there any

evidence that plaintiffs sought to mislead the County as to the fact that she would

be called as a witness. Finally, her testimony that there were a few potholes

about four or five inches deep and two to three feet in length the day after the

accident was merely cumulative. Therefore, the County cannot be said to have

been prejudiced by the testimony.

As for Christopher, his testimony that his observations the day after the

accident that the road conditions in the area of the accident were poor, and that

there was one long pothole that was quite deep, was also cumulative. Nor does

the County offer any evidence that plaintiffs sought to mislead by not including

his name in the answer to interrogatories. Finally, as with Lorraine, there was

no surprise as Christopher's name was listed in the pre-trial exchange of

information submitted some six weeks prior to trial.

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VI.

In Point VII, the County contends that the trial judge erred in failing to

cure prejudicial statements made by plaintiffs' counsel in summation.

Specifically, the County points to counsel's remark citing the County's mission

statement on its website regarding making roads safe for all travelers. It argues

that the mission statement was not introduced into evidence and that the judge

refused to so instruct the jury. The County also argues that the judge's curative

instruction, after counsel's remark that the County could have performed

permanent patching even though the judge had barred evidence regarding

resource immunity, was flawed because the instruction did not cite the judge's

preclusion of that defense.

During summation, plaintiffs' counsel told the jury as to the question of

whether the roadway constituted a dangerous condition:

[T]he Passaic County road system's . . . own mission
statement on their website [states] . . . the services and
programs carried out by the [County] are to provide for
the safe passage of both motorists and pedestrians while
using County roads. And . . . you've got to ask
yourself, did they meet their own standard in this case?

At the end of the summation, counsel added:

[I]n sum, remember Passaic County's own mission
statement[:] Making those roads safe for all travelers.
And you decide whether being reactive is enough, or

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should they have been proactive and been out there and
knowing this condition is recurring . . . and it's not
getting fixed[.] . . . [A]nd you have to decide for
yourselves whether or not that is good enough
because . . . but for the fact that they did not carry out
their mission statement, we wouldn't be here today.

The County objected to these remarks because counsel sounded as though

he was "almost trying to suggest [the mission statement was] the law." The

judge stated, "I don't think he was suggesting that it was the law. I think it's

fine." The County did not request a curative instruction.

In general, attorneys are afforded "broad latitude" in closing arguments.

Bender, 187 N.J. at 431. However, such comments should be restrained and

"not 'misstate the evidence nor distort the factual picture.'" Ibid. (quoting

Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999)). When they

transgress the boundaries of that broad latitude, a new trial must be granted if

the "comments are so prejudicial that 'it clearly and convincingly appears that

there was a miscarriage of justice under the law.'" Ibid. (quoting R. 4:49-1(a)).

A trial judge's determination as to whether the remarks were unduly prejudicial

is reviewed for abuse of discretion. Litton Indus., Inc. v. IMO Indus., Inc., 200

N.J. 372, 392-93 (2009).

Counsel in summation "may draw conclusions even if the inferences that

the jury is asked to make are improbable, perhaps illogical, erroneous or even

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28
absurd, unless they are couched in language transcending the bounds of

legitimate argument, or there are no grounds for them in the evidence." Spedick,

266 N.J. Super. at 590-91. Plaintiffs do not dispute that the County's mission

statement was not part of the record. Reference to it was improper; however,

making roads safe for all travelers is essentially a truism. It is difficult to

conclude that such a remark was so prejudicial as to constitute a miscarriage of

justice under the law.

In addition, the County objected to the portion of the second paragraph in

which counsel discussed whether the County was proactive enough in knowing

about the condition of the roadway and in repairing it. The County maintained

that the remark was improper because there was no expert testimony that the

County was insufficiently proactive. The judge stated that he believed the

remark was a "fair comment on the evidence in the case" and not unduly

prejudicial. However, the judge added that he believed the comment was wrong

as a matter of fact because the testimony was that the County personnel would

drive around checking the roads and would fill potholes upon discovery. The

comment would not appear to be a legitimate, if incorrect, inference from the

evidence because there was no evidence that the County was not "proactive" in

searching for potholes. However, the remark was not unduly prejudicial because

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counsel qualified the assertion by stating that it was up to the jury to determine

whether the County's actions were "good enough." This was a legitimate

consideration for the jury in determining whether the County was palpably

unreasonable under N.J.S.A. 59:4-2. "To be palpably unreasonable, it must be

action or inaction that is plainly and obviously without reason or reasonable

basis, capricious, arbitrary or outrageous." Johnson v. Essex Cnty., 223 N.J.

Super. 239, 257 (Law Div. 1987).

The County also challenges the following statement plaintiffs' counsel

made in summation: "[Y]ou heard Mr. Desch say, rather forcefully, they don't

do permanent patching. They contract that out. Therefore, it can be done. And

it could have been done." The County objected because counsel was "raising a

resource argument" and asked for a curative instruction. The judge agreed to

such an instruction and initially decided, after summation had been completed,

to include a sentence in the instruction noting that the County had been

precluded from raising a resource allocation immunity defense. After plaintiffs

objected, the judge agreed to take out this portion of the instruction over the

County's continuing objection. In his general charge to the jury, the judge told

them:

The information from John Desch about contracting out
for permanent patching can be considered by you only

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to demonstrate a method to do the patch. The jury
cannot consider that information for the purpose of
determining that the County should have hired an
outside contractor to do this work.

The County claims that by taking out the sentence about the resource

immunity defense, the jury was left with the question of why the County did not

contract out the repairs, thereby exacerbating the prejudice. However, the judge

alleviated that possibility by instructing the jury that they could not use the

evidence to conclude that the County should have hired an outside contractor.

It is assumed that the jury would faithfully follow the judge's admonition. See

Manley, 54 N.J. at 271.

VII.

In Point VIII, the County argues that the trial judge erred in excluding

plaintiff's driving record and his lack of insurance, and that this error led the

jury to its finding that plaintiff was not comparatively negligent. The County

claims that the driving record was admissible as habit evidence and that, in any

event, it was admissible to impeach plaintiff's deposition testimony, wherein he

stated that he could not recall being involved in any other motor vehicle

accidents.

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According to plaintiff's driving abstract, he had numerous violations from

1972 to 2012. Prior to trial, the judge ruled that this record would not be

admissible under N.J.R.E. 404 because of undue prejudice. The judge stated:

How do you get those things in, because essentially
what you're doing is what [N.J.R.E.] 404 says you can't
do. Character evidence, evidence of a person's
character or character trait, including a trait of care or
skill or lack thereof is not admissible for the purpose of
proving that person acted in conformity therewith on a
particular occasion. There's two exceptions, this
doesn't fall into [either] one of the two exceptions.

Under N.J.R.E. 406:

(a) Evidence, whether corroborated or not, of
habit or routine practice is admissible to prove that on
a specific occasion a person or organization acted in
conformity with the habit or routine practice.

(b) Evidence of specific instances of conduct is
admissible to prove habit or routine practice if evidence
of a sufficient number of such instances is offered to
support a finding of such habit or routine practice.

"[A] mere tendency to act in a particular manner does not constitute" a habit.

L.T. v. F.M., 438 N.J. Super. 76, 90 (App. Div. 2014). For an action to rise to

the level of a habit, it must be repeated behavioral response to a specific factual

stimulus. Sharpe v. Bestop, Inc., 158 N.J. 329, 330 (1999). "[B]efore a [judge]

may admit evidence of habit, the offering party must establish the degree of

specificity and frequency of uniform response that ensures more than a mere

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'tendency' to act in a given manner, but rather, conduct that is 'semi-automatic'

in nature." Id. at 331 (first alteration in original) (quoting Thompson v. Boggs,

33 F.3d 847, 854 (7th Cir. 1994)).

In State v. Bogus, 223 N.J. Super. 409, 427-29 (App. Div. 1988), the trial

judge admitted an abstract of the defendant's driving record as habit evidence

where the defendant was charged with vehicular aggravated manslaughter. We

concluded the judge erred because the violations contained in the abstract were

not indicative of a regular response to a repeated situation. Id. at 428-29. We

distinguished between general evidence of careless driving to show how

someone drove on a particular occasion, which was inadmissible, and evi dence

that an individual repeatedly drove carelessly on a particular part of a particular

road, which was admissible. Ibid.

Here, the evidence in question did not relate to plaintiff's driving on Oak

Ridge Road, but other violations and a lack of insurance. Thus, it lacked the

particularity or specificity required to be admissible as habit evidence.

Therefore, the judge did not abuse his discretion in not admitting the evidence.

The County also argues that it was improperly precluded from impeaching

plaintiff as to his driving record. However, the record establishes that it was

given a limited opportunity to impeach on that issue. Christopher testified that

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he was surprised to learn that plaintiff did not have registration or insurance on

the day of the accident. In addition, plaintiff testified that in October 2015, he

fell off a motorcycle and broke his clavicle when he was forced to make an

evasive move to avoid a vehicle coming at him. On cross-examination, the

County asked plaintiff whether he considered himself to be a law-abiding

motorcycle driver. Plaintiff responded that he tried to be. The County then

referred to plaintiff's deposition in which he stated that he could not recall

whether he had had any prior vehicle accidents. Plaintiff then claimed that he

did not consider his fall off a motorcycle in October 2015 to be a motor vehicle

accident. Rather, he considered it an evasive move to avoid a vehicle that was

coming straight at him.

VIII.

In Point IX, the County maintains that the cumulative effect of the trial

errors deprived it of a fair trial. Where legal errors, in the aggregate, are of such

a magnitude as to render the trial unfair, the prejudiced party will be entitled to

a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954). The aggrieved party

carries the heavy burden of showing the injustice clearly and convincingly.

Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 52 (2009). The County has not met

this burden.

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IX.

In Point X, the County argues that the court erred in denying its post -trial

motions for a new trial or JNOV because plaintiffs did not establish a prima

facie case under N.J.S.A. 59:4-2, the verdict was against the weight of the

evidence, and the judge's legal rulings resulted in severe prejudice to the County.

In denying the County's post-trial motions, the trial judge stated:

[W]here the [d]efense case fell apart . . . was when your
expert testified that the County had all they needed to
be able to do a semi-permanent patch, because now
what they had before them was testimony of
virtually . . . all of the witnesses on the issue of
patching . . . . I think they all agreed that the semi-
permanent patch . . . is the more permanent method.

We left out from the jury's consideration about
repaving. So the sole issue in this case was whether or
not it was palpably unreasonable for the County to fill
the pothole as they had been doing in this case . . . .

....

The jury was instructed on what it means to be palpably
unreasonable, and they decided that in this case it was
palpably unreasonable for . . . [d]efendant to just
continue to do what it was doing.

[A]ny errors that may have been made, and
perhaps there were some in terms of what testimony
should have been allowed, maybe some was limited
more so that should have been . . . .

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However, I think it's harmless error when you
have a defense . . . expert witness who says the County
had all it needed to do a better job patching.

In reviewing a trial judge's denial of a motion for JNOV, an appellate court

"must accept as true all the evidence which supports the party defending against

the motion," according that party "the benefit of all legitimate inferences which

can be deduced therefrom, and if reasonable minds could differ, the motion must

be denied." Lanzet v. Greenberg, 126 N.J. 168, 174 (1991) (quoting Pressler,

Current N.J. Court Rules, cmt. on R. 4:40-2 (1991)). In reviewing a trial judge's

denial of a motion for a new trial because the verdict was against the weight of

the evidence, the reviewing court may overturn the trial judge's determination if

it clearly appears that there was a miscarriage of justice under the law, giving

deference to the trial judge's feel of the case and ability to assess witness

credibility. Id. at 175.

However, when a motion for JNOV raises a question of law, the reviewing

court will review it de novo. Royster v. N.J. State Police, 227 N.J. 482, 493

(2017). The trial judge's interpretation of the law and the legal consequences

that flow from the established facts are not entitled to any special deference.

Raspa v. Off. of the Sheriff of Gloucester Cnty., 191 N.J. 323, 334-35 (2006).

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We conclude any remaining contentions by the County is without

sufficient merit to warrant attention in a written decision. R. 2:11-3(e)(1)(E).

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5132802. Public record. Not legal advice.