KASIE VANMETER v. BRITTANY PIERCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2715-09T3

KASIE VANMETER, a minor by her

parents, and RONDA VANMETER,

individually, and TROY VANMETER,

Plaintiffs-Appellants/

Cross-Respondents,

v.

BRITTANY PIERCE, LEROY PIERCE,

Defendants,

and

PATRICIA ZOYAC and BRIDGETON BOARD

OF EDUCATION,

Defendants-Respondents/

Cross-Appellants.

__________________________________

Argued April 6, 2011 Decided May 2, 2011

 

Before Judges Axelrad, R. B. Coleman, and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0306-05.

 

Joel R. Rosenberg argued the cause for appellants/cross-respondents (Stark & Stark, attorneys; Mr. Rosenberg, of counsel and on the brief; Deborah S. Dunn, on the brief).

 

Michael J. Heron argued the cause for respondents/cross-appellants (Lenox, Socey, Formidoni, Brown, Giordano, Cooley & Casey, LLC, attorneys; Mr. Heron, on the brief).

 

PER CURIAM

Plaintiffs appeal from a jury verdict in their favor that effectively awarded a six-year-old $15,000 in net compensatory damages for a fractured skull and its permanent sequelae. The injuries were sustained while the youngster was crossing the street between her school bus and home. Because we find that the trial court committed several material errors of law, which erode our confidence in the reliability of the jury's verdict, we reverse and remand for a new trial on all issues.

I.

A.

Beginning in September 2002, plaintiff Kasie VanMeter (daughter of plaintiffs Ronda and Troy VanMeter), was enrolled in the Bridgeton school district as a kindergartener at the West Avenue School located on West Avenue. Defendant Bridgeton Board of Education (the BOE) provided transportation to and from Kasie's home, which was located, coincidentally, on West Avenue. West Avenue, in the vicinity of Kasie's house, was a two-lane paved roadway with neither curbs nor sidewalks. The lanes of travel were separated by two yellow-painted lines, and the outside perimeters of the lanes were marked by white lines, creating narrow shoulders on both sides of the traveled way.

Defendant Patricia Zoyac was employed by the BOE as a school bus driver for the 2002-2003 school year. At that time, Zoyac had been driving a school bus for eight years. Zoyac was assigned the bus route to transport Kasie to and from school each day. At the inception of the school year, Kasie's bus stop was set up at the nearest intersection to her house, located at West Avenue and Northwest Drive. In consultation with Mrs. VanMeter, Zoyac agreed to change the location of the bus stop to directly in front of the VanMeter house.1 It was described as "a stop specifically for Kasie." This permitted the child, in the morning, to walk down her driveway directly onto the school bus without entering the roadway for more than a few steps. In the afternoon, the bus stopped across the street from the same driveway, and Zoyac supervised Kasie's crossing over West Avenue, usually with Mrs. VanMeter observing from the side door of the family home.

On April 16, 2003, Zoyac drove Kasie and approximately twenty other students home. Zoyac testified that upon approaching Kasie's bus stop, she prepared for the drop-off in her usual fashion by taking the following steps: manually activating the bus's amber warning lights, applying the brakes to slow down, checking mirrors to assess traffic conditions, pulling the bus to "right of center," stopping the bus and placing the transmission in neutral, and opening the front entrance door slightly to automatically activate the red warning lights and causing the "stop arm to come out." Then, after looking a distance ahead to the signalized intersection at West Avenue and West Park Drive, Zoyac observed that the traffic signal was red. After a second look, and making the same observation about the traffic signal, Zoyac opened the bus door and allowed Kasie to alight from the vehicle.

As Kasie proceeded around the front of the school bus and walked across the street, Zoyac kept her eyes on the child. Unbeknownst to and undetected by Zoyac, defendant Brittany Pierce (herself only eighteen years of age) was driving in the opposite direction on West Avenue. Although Pierce had been stopped at the traffic light and observed the school bus ahead of her described as "a yellow substance at a distance" she proceeded along West Avenue towards Kasie. Too late to avoid an impact, Pierce finally observed Kasie crossing the street. Although she applied her brakes, Pierce's 1991 Honda struck the child. She stopped the car right away and waited for the police.

Kasie was immediately transported to a local hospital's emergency room where she was evaluated, treated, and released. Complaining of a headache the next day, Kasie returned to the emergency room where she was observed to have an abrasion to her right cheek and soft tissue swelling and bruising over her right temporal region. A CT scan revealed that the girl had suffered a non-displaced right temporal bone fracture with associated soft tissue hematoma. As a result of the accident and injury, plaintiffs assert that "Kasie sustained a permanent traumatic brain injury that led to changes in behavior and cognitive functioning that remain."

B.

Plaintiffs filed their Law Division action seeking remedies2 against the BOE, Pierce, the owner of the Honda, and Zoyac. Among the theories of liability leveled against the BOE were negligent hiring, training, and supervision relating to the transportation of school children; negligent placement of the school bus stop; and respondeat superior. Zoyac was accused of acting negligently in the placement of the school bus stop and in overseeing the unloading of Kasie from the school bus on the date of the accident.

Following pretrial management, an eleven-day jury trial was conducted. Plaintiffs' claims against Pierce and the owner of the Honda were settled and dismissed during the trial, and are not the subject of this appeal. Mrs. VanMeter's claims (and her husband's derivative claims) were "reluctantly" dismissed by the trial court on a motion for a directed verdict pursuant to the TCA, and are not the subject of this appeal.

The jury deliberated on the remaining claims and rendered a verdict awarding $150,000 in total compensatory damages, but allocating only ten percent of the fault to Zoyac, with the balance of ninety percent attributed to Pierce. No percentage of fault was assigned to the BOE for its putative negligence. Plaintiffs' post trial motions for judgment notwithstanding the verdict or a new trial were denied, as was their motion for an additur. The BOE's and Zoyac's motion for counsel fees and costs pursuant to Rule 4:58-3(a) was denied.3 This appeal and a cross-appeal related to the counsel fees and costs ensued.

II.

On appeal, plaintiffs present the following points:

POINT I: THE JURY INSTRUCTIONS RELATIVE TO BRIDGETON'S STANDARD OF CARE CONSTITUTES REVERSIBLE ERROR.

 

A. THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE BRIDGETON BOARD OF EDUCATION HAS A HEIGHTENED DUTY TO PROTECT CHILDREN IN ITS CARE AS SET FORTH IN FRUGIS.

 

B. THE TRIAL COURT SHOULD NOT HAVE INSTRUCTED THE JURY THAT PLAINTIFFS HAVE THE BURDEN OF ESTABLISHING THAT DEFENDANTS' ACTIONS WERE PALPABLY UNREASONABLE.

 

C. THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY THAT ANY NEGLIGENCE ATTRIBUTED TO THE BRIDGETON BOARD OF EDUCATION SHOULD ALSO BE CONSIDERED IN LIGHT OF ITS FAILURE TO PROPERLY ENSURE THE EDUCATION, TRAINING AND QUALIFICATIONS OF ITS EMPLOYEES AND THE PROPER TRAINING AND EDUCATION OF ITS STUDENTS.

 

D. THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY THAT VIOLATION OF ESTABLISHED STANDARD OF CONDUCT IS EVIDENCE TO BE CONSIDERED IN DETERMINING NEGLIGENCE.

 

POINT II: THE JURY VERDICT SHEET LIKELY COMPOUNDED THE COURT'S ERRORS.

 

POINT III: THE TRIAL COURT'S EXCLUSION OF EVIDENCE CONSTITUTES AN ABUSE OF DISCRETION AND CANNOT BE SUSTAINED.

 

A. THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT IMAGES OF KASIE VANMETER'S SKULL FRACTURE INTO EVIDENCE.

 

B. THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT OFFICIAL PUBLICATIONS USED WITHIN THE SCHOOL TRANSPORTATION INDUSTRY INTO EVIDENCE.

 

C. THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT RELEVANT PORTIONS OF NEW JERSEY STATUTE, NEW JERSEY ADMINISTRATIVE CODE AND BRIDGETON BOARD OF EDUCATION POLICY INTO EVIDENCE.

 

D. THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT EVIDENCE OF CHANGES IN KASIE'S SCHOOL PERFORMANCE INTO EVIDENCE.

 

i. THE TRIAL COURT ERRED BY REFUSING TO ADMIT RELEVANT EXPERT TESTIMONY THAT RELATES KASIE'S COGNITIVE CHANGES TO THE COLLISION.

 

ii. THE TRIAL COURT ERRED BY REFUSING TO ADMIT THE BRIDGETON BOARD OF EDUCATION'S OWN RECORDS.

 

iii. THE TRIAL COURT ERRED BY REFUSING TO ADMIT PLAINTIFF'S PENNSVILLE SCHOOL RECORDS.

 

POINT IV: THE JURY WAS ENCOURAGED TO SPECULATE REGARDING INJURIES.

 

POINT V: DEFENSE COUNSEL'S CLEARLY INAPPROPRIATE STATEMENTS INFECTED THE JURY'S VERDICT.

 

POINT VI: THE EVIDENCE OF BRIDGETON BOARD OF EDUCATION'S NEGLIGENCE IS SO ONE SIDED THAT THE PLAINTIFFS' MOTION FOR JUDGMENT SHOULD HAVE BEEN GRANTED AS A MATTER OF LAW.

 

POINT VII: THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE SO AS TO CONSTITUTE A MISCARRIAGE OF JUSTICE AND THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR A NEW TRIAL.

 

A. THE JURY'S DETERMINATION REGARDING LIABILITY WAS CLEARLY A MISCARRIAGE OF JUSTICE.

 

B. PLAINTIFFS ARE ENTITLED TO AN ADDITUR.

We believe that plaintiffs are correct as to points I(B) and II, which are dispositive as to our lack of confidence in the jury's verdict, and require reversal and a remand for a new trial. Because of this disposition, we need not address plaintiff's myriad of other points and evidentiary challenges, which shall not constitute the law of the case, see Lanzet v. Greenberg, 126 N.J. 168, 192 (1991); State v. Hale, 127 N.J. Super. 407, 410-411 (App. Div. 1974). These issues shall abide a new trial and be addressed by the trial judge within his or her discretion according to sound jurisprudential principles. See State v. Brown, 170 N.J. 138, 147 (2001) (noting the standard of review applicable to evidentiary determinations at trial is whether the court misapplied its discretion, subject to reversal only where there is a clear error of judgment); see also Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999); Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990).

In light of our disposition, we do not address the now-moot cross-appeal, also treating the matter of reallocation of legal fees and costs as not governed by the law of the case doctrine.

A.

The most fundamental problem with the manner in which this case was presented to the jury in its final form was the failure of the trial court to properly identify, clearly delineate, and correctly explain plaintiffs' viable claims against the BOE and Zoyac. During the trial, plaintiffs produced a wealth of evidence, including expert opinion, concerning the putative deficiencies in the BOE's school bus procedures, particularly relating to Zoyac's unloading protocol, and choice of Kasie's bus stop. Several industry standards and administrative regulations were cited as bearing upon a board of education's obligation to ensure the safety of those riding school buses. See, e.g., N.J.A.C. 6A:27-11.3(b) (mandating safety education programs for school bus drivers, including training regarding loading and unloading procedures). The trial court distilled plaintiffs' claims to their essence, and elected to instruct the jury only on the theory of whether the BOE "create[d] a dangerous condition by placing the bus stop on the opposite side of the road."

We note that plaintiffs' theory of liability relating to the placement of the bus stop was dependent upon the harm caused by Zoyac's decision in conjunction with her BOE supervisors (who were not individually named parties to the litigation) where to locate the bus stop. The other concepts of negligent training, supervision, and retention relating to Zoyac's conduct on the day of the accident have no significance where the injury allegedly caused by the employee's negligence was in the direct performance of her duties. See Hoag v. Brown, 397 N.J. Super. 34, 53-54 (App. Div. 2007). This is so because an employer is vicariously responsible for the negligent acts of an employee acting within the scope of her employment "under standard agency principles" even if the employer was diligent in hiring, training, supervising and retaining the employees. See Mavrikidis v. Petullo, 153 N.J. 117, 133-34 (1998) (observing that the theory of negligent hiring is not applicable when the employer's liability can be established under the principles of respondeat superior); Wilson ex rel. Manzano v. City of Jersey City, 415 N.J. Super. 138, 145 (App. Div. 2010), certif. granted, 205 N.J. 80 (2011). Thus, the failure of the trial court to submit to the jury the superfluous theory of negligent hiring, training, and supervision was not in error.

However, what appeared on the jury verdict form, and the instructions that guided the jury's deliberations, were otherwise fundamentally flawed. The actual jury verdict summary contained the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Question Three asked the jury about a "dangerous condition," which is a concept foreign to the issues in this case. The trial court compounded the error by placing the burden of proof regarding the applicability of the TCA's discretionary activities immunity upon plaintiffs, instead of the BOE and Zoyac.4

The BOE and Zoyac defended this case by arguing that they were entitled to two types of TCA immunity: absolute immunity pursuant to N.J.S.A. 59:2-3(a) and N.J.S.A. 59:3-2(a) (involving actual, high level policymaking decisions), and qualified immunity pursuant to N.J.S.A. 59:2-3(d) and N.J.S.A. 59:3-2(d) (involving allocation of resources to adjust for competing demands). The trial court rejected the absolute immunity defense, and defendants have not appealed that decision. However, the trial court agreed with defendants regarding qualified immunity and instructed the jury that the selection of the location of the bus stop was to be measured by the palpably unreasonable standard. Thus, on appeal, defendants contend that the palpably unreasonable standard found in the qualified immunity provisions of the TCA relating to discretionary activities was correctly applied by the trial court.

The TCA governs actions against governmental entities and public employees. Specifically, N.J.S.A. 59:4-2 deals with governmental liability for injuries caused by "dangerous conditions" on public property. See Polzo v. Cnty. of Essex, 196 N.J. 569, 578-79 (2008). Public property is a statutorily defined term, meaning "real or personal property owned or controlled by the public entity." N.J.S.A. 59:4-1(c). The bus stop in this case was temporarily located in time and space on a public street that was clearly not owned or controlled by the BOE. Thus, any reference to a "dangerous condition" and its associated jurisprudence was palpably inapposite. Presenting Question Three to the jury that asked about a "dangerous condition" had the clear capacity to skew the proceedings inappropriately.

Briefly, we note that the polestar of the TCA provides that liability is the exception, not the rule. Polzo, supra, 196 N.J. at 578; Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 488 (2005). Accordingly, before a public entity will be held liable "for a condition of its property," a plaintiff must establish that (1) "the property was in dangerous condition at the time of the injury"; (2) the dangerous condition proximately caused plaintiff's injury; (3) the dangerous condition created a reasonably foreseeable risk of the type of injury that occurred 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.

 

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

Even if all of these elements are satisfied, liability will only be imposed where "the action the entity took to protect against the condition or the failure to take such action was . . . palpably unreasonable." Ibid. Thus, although the concept of palpably unreasonable conduct plays a role in cases that implicate the dangerous condition of public property, the instant case does not involve a claim against the public entity that owned, designed, built, or maintained West Avenue. What plaintiffs pursued was a challenge to the decision-making that resulted in the selection of the intangible location of the bus stop, which is a concept separate from the condition of public property. The trial court's melding of these concepts in its jury verdict summary and instructions had the clear capacity to work an injustice.5

In light of the guiding principles of the TCA, courts narrowly construe the statute and will find liability against public entities only where specifically permitted. Frugis v. Bracigliano, 177 N.J. 250, 275 (2003). N.J.S.A. 59:2-3(d) and N.J.S.A. 59:3-2(d) involve qualified immunity that flows from determinations of governmental actors of how to utilize resources in the face of competing demands. Thus, it is limited to decisions that are less than high-level, but within the orbit of a decision-maker charged with a duty to exercise more than ministerial functions. See Wilson, supra, 415 N.J. Super. at 154; Longo v. Santoro, 195 N.J. Super. 507, 518 (App. Div.), certif. denied, 99 N.J. 210 (1984).

The assignment of the burden of proof in cases that implicate only N.J.S.A. 59:2-3(d) or N.J.S.A. 59:3-2(d), and not N.J.S.A. 59:4-2, is sometimes confounding. See Margolis & Novak, Claims Against Public Entities, comment on N.J.S.A. 59:2-3, at 52-53 (Gann 2011) (observing the confusion attendant to applying the burden of proof in cases involving the palpably unreasonable standard). Nevertheless, we are satisfied that placing that burden of proof on plaintiffs in this case was in error.

Because this is a pure discretionary activities case at least regarding the location of the bus stop the qualified immunity of N.J.S.A. 59:2-3(d) and N.J.S.A. 59:3-2(d) acts as an affirmative defense that must be proven by the BOE and its employee. See Brown v. Brown, 86 N.J. 565, 578-79 (1981); Margolis & Novak, supra, at 52. Thus, the jury instructions that placed the burden of proof on plaintiffs, instead of compelling the BOE and Zoyac to show that their choice of location for the bus stop was not palpably unreasonable, was in error. It materially compromised the verdict such that there was a clear capacity for the jury to produce an unjust result. This requires a new trial. See, e.g., Das v. Thani, 171 N.J. 518, 527 (2002).

B.

Because this matter will be remanded for a new trial due to faulty jury instructions, we address one other claimed defect in the trial court's charge to the jury. Plaintiffs contend that the trial court erred by not instructing that the BOE must be held to the so-called "heightened" standard of Frugis:

In light of the strong public policy considerations that must inform the decision-making process in assessing comparative fault in a case of a board of education that fails to exercise due care in protecting its students from the very persons in charge of protecting those students, we conclude that similar guidelines are equally appropriate here. Therefore, with respect to apportionment of liability between [defendant] Bracigliano and the Board, the jury on remand should be instructed on the heightened duty of school boards to ensure students' safety from foreseeable harms, particularly those presented by the intentional acts of school personnel.

 

[Id. at 282.]

The trial court instructed the jury following the contours of the Model Jury Charge (Civil) 5.74, "Duty of Teachers and School Personnel to Student." We find that this was sufficient for purposes of this case.

It has been recognized that "parents entrust their children to the care of schools, and '[e]ducators have [n]o greater obligation . . . than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others.'" Jerkins v. Anderson, 191 N.J. 285, 296 (2007) (quoting L.W. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381, 406 (2007)). This duty imposed upon school personnel is clearly encompassed in the existing model jury charge, and under the facts of this case a more tailored Frugis-like instruction was not necessary. We view Frugis, as did the trial court, as implicating far different concerns than the more mundane yet equally poignant issues in the instant matter. Thus, the jury instruction describing the BOE's duty of care was not capable of producing an unjust result. R. 2:10-2.

III.

In summary, we conclude that a new trial is warranted because plaintiffs were erroneously deprived of having the jury properly consider the issues presented by the parties. The defects that we have identified had the undeniable capacity to engender a miscarriage of justice under the law. The remedy is a new trial.

Reversed and remanded for a new trial.6

 

1 Zoyac consulted with, and obtained permission from, Sharon Ulbrich (the BOE's district-wide transportation coordinator) to move Kasie's bus stop to its ultimate location.

2 Kasie sought damages for pain and suffering, personal injuries, medical expenses, future medical expenses, future life care expenses, and future loss of earnings. Mrs. VanMeter claimed to have witnessed the accident and pursued a bystander claim for negligent infliction of emotional distress. See Portee v. Jaffee, 84 N.J. 88, 90 (1980). Mr. VanMeter sought derivative damages for loss of consortium.

 

3 Prior to trial, the BOE and Zoyac offered plaintiffs the opportunity to take judgment against them in the amount of $350,000. Two months later, plaintiffs reciprocated with an offer of judgment against the BOE and Zoyac in the amount of $1,350,000. Ultimately, a molded judgment was entered in favor of Kasie and against the BOE in the amount of $16,394.97.

4 Zoyac, again, was accused of two different breaches of duty. The first related to the selection of the location of the bus stop; the second related to her actions in supervising Kasie across West Avenue on the date of the accident.

5 We note that the phrase "palpably unreasonable" appears in the TCA only three times: in N.J.S.A. 59:2-3(d), N.J.S.A. 59:3-2(d), and N.J.S.A. 59:4-2. The conflation of the concepts by the trial court, albeit understandable, was incorrect.

6 In their appeal, plaintiffs did not address the dismissal of Mrs. VanMeter's Portee claim and Mr. Vanmeter's per quod claim. Accordingly these issues are deemed abandoned and will not be part of the remand proceedings in the Law Division. See Vassallo v. Bell, 221 N.J. Super. 347, 355 n.2 (App. Div. 1987).