DAWN HAMILTON v. ACADEMY BUS TOURS, INC. and PORTIA SHARIFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6128-04T16128-04T1

DAWN HAMILTON,

Plaintiff-Appellant,

v.

ACADEMY BUS TOURS, INC. and

PORTIA SHARIFF,

Defendants-Respondents,

and

PORT AUTHORITY OF NEW YORK AND

NEW JERSEY,

Defendant.

___________________________________

 

Argued September 27, 2006 - Decided December 29, 2006

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, No. MID-L-

0383-01.

Leonard D. Weiss argued the cause for

appellant (Baer, Arbeiter, Ploshnick,

Tanenbaum & Weiss, attorneys; Mr. Weiss,

on the brief).

Robert M. Brigantic argued the cause for

respondents Academy Bus Tours, Inc. and

Portia Shariff (Maloof, Lebowitz, Connahan &

Oleske, attorneys; Mr. Brigantic, on the

brief).

Respondent Continental Airlines did not

participate in this appeal.

PER CURIAM

Plaintiff appeals from a trial court order denying her motion for a new trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff was employed by Continental Airlines as a flight attendant and worked out of Newark Liberty International Airport. The airport is owned and operated by defendant Port Authority of New York and New Jersey ("Port Authority"). On July 11, 1996, plaintiff arrived at work and parked her car in the employee parking lot, "Lot F." This lot is some distance from the various terminals, and defendant Academy Bus Tours, Inc., provided shuttle service for employees working at the airport. Plaintiff took the shuttle bus from Lot F to the Continental terminal. When plaintiff finished her work on July 11, she boarded an Academy bus for the ride back to Lot F. Plaintiff had her purse with her, as well as a carry-on bag. She took a seat directly behind the driver, defendant Portia Shariff, an Academy employee.

The road entering Lot F has three lanes for traffic; entrance to the lot is controlled by a gate. The bus upon which plaintiff was riding became ensnared in traffic shortly before the entrance to the parking lot because the gate was not working properly, and the bus sat without moving for approximately five to ten minutes. Plaintiff then noticed that passengers were disembarking from another bus sitting in front of them.

Academy's employee manual directed that "[t]here shall be no stopping at places not designated by the company." Designated stops were periodically inspected for tripping hazards; Academy prohibited stops at undesignated stops for reasons of passenger safety. Academy also required drivers to discharge passengers within six inches of the curb. Port Authority had a similar prohibition against buses discharging passengers other than at designated bus stops. Port Authority's contract with Continental contained this same prohibition.

Plaintiff said she asked Ms. Shariff if they were going to be able to enter the lot in light of the traffic. Ms. Shariff testified that plaintiff, together with other passengers, began to demand that they be permitted to leave the bus. Ms. Shariff said she acceded to these demands.

Plaintiff took her purse and carry-on bag and began to disembark, holding her carry-on bag in front of her as she stepped down the bus's several steps. She did not ask for any assistance. As she stepped out of the bus with her right foot, she immediately felt an intense pain and fell onto the median. Her right foot looked as if it were turned, and her ankle began to swell in size.

Another passenger from the bus helped plaintiff get up from the ground. Plaintiff sat on the median, awaiting help while this passenger held her leg for her by the calf area. While she was waiting, plaintiff saw another passenger stumble as he got off the bus and stepped onto the curb area where she had fallen.

An ambulance took plaintiff to Elizabeth General Medical Center, where she was treated and discharged with instructions to see an orthopedist. She reported the accident to Continental, who referred her to Richard J. Scott, M.D. After examining plaintiff, Dr. Scott placed her in an air cast, provided her with crutches and told her not to report to work. She underwent a course of physical therapy. She was cleared to return to work on light duty on October 10, 1996.

Plaintiff continued to experience pain and discomfort, and Dr. Scott referred plaintiff to Walter Pedowitz, M.D., an orthopedist who specialized in foot and ankle injuries. Dr. Pedowitz examined plaintiff in November 1997. He found her ankle to be stiff and swollen. She reported pain between her tibia and fibula, an indication of a high ankle sprain. She was also experiencing severe pain in the sinus tarsi, the area between the talus, ankle and heel bones. Dr. Pedowitz eventually diagnosed plaintiff as having suffered a high ankle sprain and sinus tarsi syndrome. Dr. Pedowitz instructed plaintiff to stop her physical therapy and to continue to wear the removable cast; he also prescribed anti-inflammatory medication for her. He also diagnosed a stretch of the sural nerve, which provides sensation to the back of the ankle and the outer part of the foot.

When plaintiff's condition did not improve, Dr. Pedowitz recommended a surgical procedure to clean out the sinus tarsi, with the goal of stabilizing the ankle joint and the sinus tarsi. Plaintiff underwent this surgery in April 1997. Following the surgery, she was in a cast for six weeks and then underwent a course of physical therapy. She remained out of work from April 1997 through August 1997.

Plaintiff contended that her life had been dramatically affected by the accident. She experienced a significant weight gain, which she attributed to the accident. She no longer skied or used rollerblades and she gave up playing tennis and volleyball. She was no longer able to wear high heels and had a limp. Additionally, she did not follow through on her prior plans to pursue a career in law enforcement. Plaintiff had been accepted at the John Jay College of Criminal Justice at the time of her accident, but she never began classes.

Academy presented the testimony of Edward Rachlin, M.D., an orthopedic surgeon. Dr. Rachlin agreed with the diagnosis of sinus tarsi syndrome. He concluded that because plaintiff had full movement of her ankle up and down, this accident did not leave her with any functional limitations.

Shortly before trial commenced, plaintiff resolved her claim against Port Authority. At trial, the jury found Academy 20% liable, Port Authority 65% liable and plaintiff 15% liable. The jury awarded plaintiff damages of $68,000.

On appeal, plaintiff presents the following arguments:

POINT I THE TRIAL COURT ERRED IN NOT GIVING TWO REQUESTED CHARGES IMPACTING UPON THE JURY'S ASSESSMENT OF PROXIMATE CAUSE THEREBY WARRANTING A NEW TRIAL.

POINT II THE TRIAL COURT COMMITTED PLAIN ERROR IN DENYING PLAINTIFF'S REQUEST FOR A MISTRIAL OR IN THE ALTERNATIVE PERMITTING PLAINTIFF TO RE-OPEN ITS CASE UPON DISCOVERY THAT DEFENDANT ACADEMY WITHHELD EVIDENCE.

POINT III THE TRIAL COURT WAS MISTAKEN WHEN IT DENIED PLAINTIFF'S REQUEST TO STRIKE THE DEFENSE OF PLAINTIFF'S COMPARATIVE FAULT.

POINT IV THE TRIAL COURT IMPROPERLY EXCLUDED SEVERAL OF PLAINTIFF'S DAMAGES PROOFS, CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT.

POINT V THE JURY'S DAMAGES VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI THE JURY'S DAMAGES AWARD APPEARS TO BE A "QUOTIENT VERDICT" LONG RECOGNIZED AS ILLEGAL IN THIS STATE AND THEREFORE MUST BE SET ASIDE.

As to the last point, the record contains absolutely no indication that this verdict was a quotient verdict. There is no basis to set aside this verdict on those grounds. R. 2:11-3(e)(1)(E).

The trial court instructed the jury in the following manner as to Academy's duty to plaintiff, its passenger.

A common carrier must exercise a high degree of care to protect its passengers from dangers that are known or are reasonably foreseeable. Carriers must use the utmost caution to protect their passengers. The kind of caution that is characteristic of a very careful and prudent person. A carrier must act with the highest possible care consistent with the nature of the undertaking involved. This includes

the duty to select a reasonably safe place for the passenger to get off the vehicle and leave. If you find that the carrier, Academy, in selecting a place to unload plaintiff, Dawn Hamilton, failed to exercise its high degree of care and as a result that brought about her injuries you should find for Dawn Hamilton. But understand that a common carrier does not have a duty to anticipate every uneven surface or defect in the road or alongside the road [a]nd 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.

This portion of the charge tracks the principles contained in Model Charge 5.31 Carriers for Hire. Plaintiff requested the trial court to charge subparagraph 3 of Section A, dealing with the duties of a common carrier with regard to the acts of third parties. The trial court declined to include this within its charge and plaintiff complains that omission constitutes reversible error. We disagree.

That portion of the Model Charge states:

This (the carrier's duty to exercise a high degree of care) includes the duty to protect passengers from wrongful acts of a third party, if the utmost care could have prevented those acts from injuring a passenger. If a danger was known or reasonably could have been anticipated, the carrier has a duty to protect its passengers from any injury that could be caused by that danger.

This principle deals with a carrier's obligation to protect its passengers from affirmative acts of third parties, not negligent inaction. The underlying duty set forth in this portion of the Model Charge is illustrated by Harpell v. Public Serv. Coord. Transp., 20 N.J. 309 (1956), in which the defendant common carrier was found responsible for injuries sustained by its passenger from a piece of concrete thrown through its trolley car window. The defendant knew of approximately seventeen earlier incidents that had occurred; thus the subject accident could reasonably have been anticipated.

Plaintiff also complains that the trial court erred when it would not include Model Charge 7.14 on superseding or intervening causes. According to plaintiff, Academy's action in permitting plaintiff to get off the bus at an unscheduled stop was a superseding cause of the accident which made Academy solely responsible, with no contributory fault on the part of Port Authority.

We explained the concept of superseding and intervening causes in Davis v. Brooks, 280 N.J. Super. 406 (App. Div. 1993). Plaintiff in that case was injured in an automobile accident and sued for damages. Defendant moved for summary judgment, contending that plaintiff's injuries did not meet the verbal threshold as it was then framed. Id. at 408. Prior to the return date of the motion, plaintiff amended her claim for damages. She asserted that her physician had recommended a bone scan to determine the source of her persistent hip and leg pain. Id. at 409. Unbeknownst to plaintiff, she was three-weeks pregnant at the time of the bone scan. Ibid. Based upon the recommendation of her treating gynecologist, she had a therapeutic abortion. Ibid. We rejected defendant's argument that plaintiff's bone scan constituted a superseding cause which relieved him of liability. We explained our decision in the following manner.

There is no question that there may be any number of causes intervening between a negligent act and a final injurious occurrence. If they are reasonably foreseeable, each intermediate cause may be deemed a proximate result of the first wrongful act. The original negligence is deemed to continue and operate contemporaneously with all intervening acts of negligence that might reasonably be foreseeable, so that the original negligence is regarded as a concurrent cause of the final resulting injury. The causal connection may be broken by a superseding intervening cause. Such a cause must be one that so entirely supersedes the operation of the first tortfeasor's negligence that it alone caused the injury, without the first tortfeasor's negligence contributing thereto in any material way. But where the original tortfeasor's negligence is an essential link in the chain of causation, such a causal connection is not broken if the intervening cause is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable.

[Id. at 412.]

In the context of this matter, we concur fully with the trial court that the decision to permit plaintiff to disembark from the bus cannot be considered so improbable as to supersede the negligence of the Port Authority in not repairing this uneven curbing.

Plaintiff's next argument revolves around an incident that occurred during the summation of Academy's counsel, when he started to read from an Academy manual. He started to read the section of the introduction stating, "Certain rules of conduct must always be followed to insure the safety of our passengers and the general public. This manual is designed to aid both the experienced --." At that juncture plaintiff's counsel objected that the manual was not in evidence; the trial court sustained the objection and directed the remarks of defense counsel to be stricken from the record. At the end of the summation, plaintiff's attorney moved for a mistrial, which the trial court denied.

The following day plaintiff's counsel sought alternate forms of relief from the trial court; he renewed his motion for a mistrial and contended that if that were denied, he should be permitted to reopen his case. The trial court denied this motion as well.

Plaintiff contends the trial court erred in doing so. Plaintiff's argument fundamentally rests upon his contention that the language contained in the Academy manual converted Academy to a guarantor of plaintiff's safety. But the fact that the scrivener of this employee manual selected the word "insure" to describe the carrier's duty of care to its passengers is hardly sufficient to transform Academy into a guarantor.

Similarly, we see no error in the trial court's refusal to strike the defense of comparative negligence. Plaintiff got off the bus with her carry-on luggage in front of her. She thus did not have a clear view of the area upon she was stepping. The jury was fully entitled to assess her conduct in light of the overall situation.

Plaintiff also complains of certain evidentiary rulings of the trial court which she contends prejudicially affected her proof on damages. We see no prejudicial error. The settlement of plaintiff's workers' compensation claim against her employer was not a finding of the judge of compensation as to the extent of plaintiff's disability; it was no more than a voluntary resolution between disputants. Academy, moreover, was not a party to those workers' compensation proceedings for it was not plaintiff's employer. Additionally, the decision of the trial judge not to permit plaintiff to demonstrate to the jurors the extent of her limp by having them observe her using the court house staircase was not an abuse of its discretion.

Finally, the jury's verdict was not against the weight of the evidence. The parties presented contrasting evidence on the negligence of the parties and the extent to which plaintiff was injured in this accident. The jury had the opportunity to observe and hear the various witnesses. The jury drew its conclusion, and its assessment is beyond challenge before us.

 
Affirmed.

(continued)

(continued)

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A-6128-04T1

December 29, 2006