GEORGINE OLSEN v. CLASSIC CRUISERS, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2158-10T2

GEORGINE OLSEN, Executrix of

the ESTATE OF FLORENCE CARLIN,

Plaintiff-Appellant,

v.

CLASSIC CRUISERS, INC., d/b/a

CLASSIC TOURS a/k/a CLASSIC TOURS

INC., HOWARD KUNTZ, JESSIE-ANN BARRY,

MARY J. BARRY a/k/a MARY BARRY,

SUNRISE TRAVEL CENTER, INC., and/or

CRESTWOOD VILLAGE SHOPPING CENTER,

Defendants-Respondents.

_____________________________________

January 7, 2013

 

Argued October 3, 2011 - Decided

 

Before Judges A. A. Rodr guez, Sabatino and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2096-08.

 

Terrence Smith argued the cause for appellant (Davis, Saperstein & Salomon, P.C., attorneys; Mr. Smith on the brief).

 

Laurence T. Bennett argued the cause for respondent Classic Cruisers, Inc. d/b/a Classic Tours, Inc. (Weber Gallagher Simpson Stapleton Fires & Newby, LLP, attorneys; Mr. Bennett, on the brief).

PER CURIAM

Plaintiffs appeal from a December 3, 2010 order granting summary judgment in favor of defendants Classic Cruisers, Inc. (Classic) and Howard Kuntz Classic's bus driver.1 Plaintiff argues the trial court erred by concluding that its expert provided a net opinion and that no genuine issues of material fact exist. We reverse.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). We must "consider 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). Viewed most favorably to plaintiff, the summary judgment record established the following facts.

On December 17, 2006, seventy-nine-year-old Florence Carlin (decedent) exited Classic's bus at a mid-block stop in front of the Crestwood Village Shopping Center (Shopping Center) on Route 530 in Whiting. The stop was approximately 332 feet beyond a lighted intersection at Schoolhouse Road, where crosswalks were designated. A CVS store and decedent's residential complex are located across the street from the bus stop.

Upon stopping, Kuntz activated the bus's four-way flashing lights. Decedent walked towards the rear of the bus, turned right to pass behind it, then stepped off the sidewalk into the street. A motorist approached the rear of the bus and witnessed decedent enter the roadway. Decedent crossed into the westbound lane where motorist defendant Jessie-Ann Barry struck her.2 On December 27, 2006, decedent died from her injuries.

In June 2008, plaintiff filed a complaint against multiple defendants alleging negligence resulting in decedent's death.3 During Kuntz's deposition, he testified that he stops mid-block because he was "trained to stop there." He also testified that during "inclement weather," such as when "there is snow piled up," he stops the bus in the Shopping Center's parking lot. When asked whether he had ever seen anyone cross the street by the mid-block stop, Kuntz responded, "[o]n occasion." He further testified that "if someone were to get off the bus and say they were crossing the street, I would watch the traffic and help them cross the street safe[ly]." Moreover, he testified that "it's very rare that anybody on our bus would cross the street." (Emphasis added). Last, Kuntz testified that the majority of their bus passengers were "older people," in "the range of [sixty] on up."

Mark Waterhouse, Classic's owner, testified at his deposition that the New Jersey Department of Transportation (NJDOT) authorized the mid-block stop, there is no bus stop sign at the mid-block location or waiting structure of any kind, and that no other bus companies use the mid-block stop. He further testified that the Shopping Center owner did not permit Classic to pick up or drop off passengers in the Shopping Center.

On October 7, 2010, the parties attended a mandatory, non-binding arbitration. The arbitrator awarded $1,200,000 to plaintiffs and apportioned liability equally and solely between decedent and Jessie-Ann Barry. On October 15, 2010, defendants Classic and Kuntz moved for summary judgment. On December 3, 2010, the judge conducted oral argument, granted defendants' motion, and issued an oral decision in two parts: one immediately following the hearing, and a second when counsel was not present.

The judge excluded two reports issued by plaintiff's bus stop selection and design expert, Ned Einstein, as net opinion. In refuting the expert's opinion that the elderly should be treated as children under the law, the judge stated that "[t]here are no standards cited at all, medical standards or otherwise, as to the expert's suggestion that seniors lack cognitive ability; that seniors, for example, deserve this higher standard of duty, standard of care . . . ." The judge found Einstein's suggestion "condescending and insulting." The judge also found that Einstein's opinion that the mid-block stop induced decedent to cross lacked adequate support. Ultimately, the judge held that Einstein's opinion was "reduced to speculation without any factual basis, or . . . any similar expert studies, treatises[,] or standards." The judge relied on Snell v. Coast Cities Coaches, 15 N.J. Super. 595 (App. Div. 1951), in holding that it could not "find that there exists a duty under these facts that was breached by . . . [Classic]." In particular, the judge noted that "the sidewalk itself was safe," and "[a]s such, it's an independent act of a capable adult who voluntarily walked down the sidewalk . . . and then . . . jaywalk[ed]."

On appeal, plaintiff argues that (1) Einstein's expert's opinions were based on fact, reliable methodology, and reasonable scientific certainty or probability; and (2) Classic negligently selected its bus stop in a dangerous location. Plaintiff maintains that Classic knew about the risks associated with the mid-block stop.

I.

 

We begin by addressing plaintiffs' argument that the judge erred in excluding Einstein's reports as constituting a net opinion.

"[W]e apply the same deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). To be admissible, an expert opinion "must be offered by one who is 'qualified as an expert by knowledge, skill, experience, training, or education' to offer a 'scientific, technical, or . . . specialized" opinion that will assist the trier of fact.'" Pomerantz, supra, 207 N.J. at 372 (quoting N.J.R.E. 702). Additionally, "the opinion must be based on facts or data of the type identified by and found acceptable under N.J.R.E. 703." Ibid. New Jersey Rule of Evidence 703 provides, in pertinent part that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing."

"[A]n expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered." Pomerantz, supra, 207 N.J. at 372. Experts must "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Ibid. (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). Further, "a trial court may not rely on expert testimony that lacks an appropriate factual foundation and fails to establish the existence of any standard about which the expert testified." Id. at 373. Moreover, "if an expert cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is 'personal,' it fails because it is a mere net opinion." Ibid.

New Jersey Rule of Evidence 104(a) provides, in pertinent part:

Question of admissibility generally. When the qualification of a person to be a witness, or the admissibility of evidence, . . . is subject to a condition, and the fulfillment of the condition is in issue, that issue is to be determined by the judge. . . . The judge may hear and determine such matters out of the presence or hearing of the jury.

 

An "[N.J.R.E.] 104 hearing allows the court to assess whether the expert's opinion is based on scientifically sound reasoning or unsubstantiated personal beliefs couched in scientific terminology." Kemp v. State, 174 N.J. 412, 427 (2002). During the hearing, the "expert must be able to identify the factual basis for his [or her] conclusion, explain his [or her] methodology, and demonstrate that both the factual basis and underlying methodology are scientifically reliable." Ibid. "The court's role is to 'determine whether the expert's opinion is derived from a sound and well-founded methodology that is supported by some expert consensus in the appropriate field.'" Ibid. (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)).

Here, Einstein produced a report dated April 7, 2010, with an addendum report dated July 19, 2010. He relied on depositions, incident reports, motion pleadings, witness statements, and a document that the Transportation Research Board in Washington, D.C., prepared, entitled Guidelines for the Location and Design of Bus Stops (Guidelines). He also visited the accident site.

In his April report, Einstein made three primary findings. First, Classic negligently chose a mid-block stop. He opined that because mid-block stops encourage jaywalking, and the CVS was situated across the street, it was foreseeable that such would induce decedent to cross from the stop. For this, Einstein relied on the Guidelines. Second, because decedent was elderly as were the majority of Classic's passengers Classic should have known that its passengers would be induced to jaywalk at the mid-block stop and thus should have taken steps to prevent it. More broadly, he drew a parallel between elderly persons which he defined as sixty and older and children in opining that Classic owed its passengers "an enhanced duty" of care. Third, given this heightened duty, a bus driver "has a continuing duty to monitor the whereabouts of its passengers in and about the immediate vicinity of the bus." In his July report, Einstein stated that NJDOT authorized Classic to stop only at the Route 530 and Schoolhouse Road intersection.

Einstein alludes to "literature and industry standards" at different points in his April report, but he does not identify what those sources are or what they specifically state. When asked during his deposition what support he relied on in opining that elderly passengers require a heightened duty of care similar to that of children, Einstein responded that the standard is "implied in the statute" defining common carriers. Similarly, when asked what industry standard he relied on in finding that bus drivers have a duty to monitor an exiting passenger, Einstein answered that "[i]t's a broad industry standard," but that "[t]here is no name for th[e] standard." The Guidelines are the only actual standard or document outside of the discovery materials on which Einstein relied. The Guidelines state that one "[d]isadvantage[]" to mid-block stops is that it "[e]ncourages patrons to cross [the] street at mid-block (jaywalking)."

Einstein has failed to provide the "why and wherefore" needed to support his opinions, Pomerantz, supra, 207 N.J. at 372, regarding a heightened duty of care and a duty to monitor exiting passengers. More pointedly, he "fail[ed] to establish the existence of any standard about which [he] testified," id. at 373, related to both opinions. As such, the trial court did not abuse its discretion in deeming these two particular opinions as net opinions. Id. at 371. Einstein did, however, rely on an industry guideline in forming his discrete opinion that Classic's mid-block stop induced decedent to cross the street. We conclude that the court prematurely rejected this opinion and its foundation. Accordingly, we direct the court to conduct an N.J.R.E. 104(a) hearing to "'determine whether the expert's opinion [on this subject] is derived from a sound and well-founded methodology that is supported by some expert consensus in the appropriate field,'" Kemp, supra, 174 N.J. at 427.

II.

Plaintiffs argue primarily that Classic negligently chose the mid-block stop location in a dangerous area with knowledge of the risks that it posed. Plaintiffs further contend that the judge erred by granting summary judgment because genuine issues of material fact exist. We agree.

"Although the existence of a duty is a question of law, whether the duty was breached is a question of fact." Jerkins v. Anderson, 191 N.J. 285, 305 (2007). While New Jersey is without a statutory mandate requiring a "high duty of care" from common carriers, its courts impose such a standard. Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76, 85 (1993) (quoting Ricci v. Am. Airlines, 226 N.J. Super. 377, 381 (App. Div.), certif. denied, 113 N.J. 639 (1988)). The New Jersey Supreme Court has stated that

[w]hile the carrier is not an insurer of the passenger's safety, he is enjoined to shield him from those dangers which human care and foresight can reasonably anticipate and prevent, compatible with the nature and needs of the business. If the carrier knew, or had reasonable cause to know, of the likelihood of injury to the passenger, and the danger is preventable by the exercise of due care, so measured, he is answerable for the consequences of his nonconformance to that standard.

 

[Harpell v. Pub. Serv. Coordinated Transport, 35 N.J. Super. 354, 359-60 (App. Div. 1955) (emphasis added) (quoting Kinsey v. Hudson & Manhattan R.R. Co., 130 N.J.L. 285, 288 (Sup. Ct. 1943), aff'd, 131 N.J.L. 161 (E. & A. 1943)), aff'd, 20 N.J. 309 (1956).]

 

Moreover, "a bus company is duty bound to provide a reasonably safe place for its passengers to alight." Weidenmueller v. Pub. Serv. Interstate Transp. Co., 129 N.J.L. 279, 282 (Sup. Ct. 1942).

Additionally, Model Jury Charge (Civil), 5.73D(1), "Carriers for Hire" (2012), states that a common carrier has a

duty to select a reasonably safe place for the passenger to get off the vehicle and leave. If you find that the carrier, in selecting a place to unload plaintiff, failed to exercise its high degree of care, and as a result that brought about his/her injuries, you should find for plaintiff. But, understand, that a common carrier does not have a duty to anticipate every uneven surface or defect in the road or alongside of the road, and then stop the vehicle to avoid the remote possibility of a passenger stepping on some uneven surface or in a depression which, even though the carrier exercised reasonable watchfulness, did not appear to be dangerous.

 

[(Emphasis added) (citations omitted).]

 

Last, an employer's representative's "appreciation of . . . danger" could be "imputed to the employer." Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 620 (2002) (quoting Laidlow v. Hariton Machinery Co., Inc., 335 N.J. Super. 330, 350 (App. Div. 2000) (Lintner, J.A.D., dissenting)).

Here, the facts are distinguishable from Snell, supra, 15 N.J. Super. 595. There, the court held that there was "no evidence in the transcript from which it could be logically inferred that the existence of the depression in the grass plot was sufficiently exposed to view to have been visible to a reasonably vigilant and cautious driver similarly situated." Id. at 599. In the instant matter, Kuntz testified that he had seen persons cross the street by the mid-block stop "on occasion." He also testified that it was "very rare that anybody on our bus would cross the street." (Emphasis added). Rare does not equate to never, and plaintiffs are entitled to the reasonable inference that Classic knew its passengers crossed the street mid-block. As such, a genuine issue of material fact exists as to whether Classic knew of the dangers attendant to its mid-block stop. Laidlow, supra, 170 N.J. at 620. A reasonable jury could find, with or without expert testimony, that knowledge of such risks resulted in a breach of Classic's duty, Jerkins, supra, 191 N.J. at 305, "to provide a reasonably safe place for its passengers to alight," Weidenmueller, supra, 129 N.J.L. at 282.

We also note that based on the record, it appears that Classic exercised some discretion in where it chose to stop its bus. Kuntz stated that during "inclement weather," such as "snow," he would stop the bus in the Shopping Center. Moreover, Waterhouse and Einstein disagree on their interpretation of NJDOT's authorization of Classic's bus stop: the former contends that NJDOT specifically authorized the mid-block stop; the latter asserts that NJDOT authorized only a stop at the Route 530 and Schoolhouse Road intersection. Given these additional disputed issues of fact, summary judgment was improperly granted.

We direct the judge to conduct a N.J.R.E. 104(a) hearing to establish the admissibility of Einstein's opinion, purportedly supported by industry guidelines, that Classic's mid-block stop induced decedent to cross the street. In so doing, the judge will determine if Einstein has rendered a net opinion. Because the parties dispute whether Classic negligently chose the mid-block stop location in a dangerous area with knowledge of the risks that it posed, we reverse the grant of summary judgment regardless of the ultimate ruling on the admissibility of Einstein's opinion on that subject. We do not retain jurisdiction.

1 Plaintiff appeals only that portion of the order pertaining to Classic.

2 Co-defendant Mary J. Barry, Jessie-Ann's mother, owned the car.

3 In January 2011, plaintiff settled with Jessie-Ann Barry, Mary J. Barry, and Sunrise Travel Center, Inc.