JORGE ALBARRACIN v. CROWN EQUIPMENT CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2319-05T32319-05T3

JORGE ALBARRACIN,

Plaintiff-Respondent,

v.

CROWN EQUIPMENT CORPORATION,

Defendant-Appellant,

and

A&E STORES, INC.,

Defendant-Respondent.

_______________________________________

 

Argued April 24, 2007 - Decided August 14, 2007

Before Judges Skillman, Holston, Jr. and

Grall.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-1160-03.

William J. Conroy argued the cause for

appellant Crown Equipment Corporation

(Campbell Campbell Edwards & Conroy,

attorneys; Mr. Conroy and Susan L. Bucknum,

on the brief).

Daniel K. Newman argued the cause for

respondent Jorge Albarracin.

Respondent A&E Stores, Inc. did not file

a brief.

PER CURIAM

Defendant Crown Equipment Corporation (Crown) appeals from a final judgment awarding plaintiff Jorge Albarracin damages for personal injuries. Plaintiff's right hand was amputated because of damage sustained when it was pinned between the mast and body of a forklift manufactured and serviced by Crown and owned by plaintiff's employer, defendant A&E Stores, Inc. (A&E). Plaintiff alleged that the accident was caused by defendant's negligence and A&E's intentional wrong. Crown filed a cross-claim against A&E for contribution and indemnification. All claims against A&E were dismissed prior to trial. A jury found plaintiff thirty-two and one-half percent and Crown sixty-seven and one-half percent negligent.

Plaintiff used the forklift he was operating at the time of the accident on a daily basis for about six months prior to the accident. The accident occurred on March 15, 2001. The fifteen-year-old forklift was one of two owned by A&E.

The forklift is equipped with a glass safety shield that rests in rubber grooves which hold it in place. The shield separates the compartment in which the operator stands from the path of the forklift's mast. At the time of the accident, the safety shield on this forklift was cracked and taped with yellow and black tape across the top of the glass and several layers of clear tape along one side of the rubber channel that holds the glass.

On four or five occasions before his accident, plaintiff was unable to lower the forks of the lift because the safety shield tilted outward and blocked the descent of the mast. In order to continue his work when this occurred, plaintiff raised the forks off the safety shield, turned off the machine and left the compartment to push the safety shield back into place. He generally used a metal bar, but on the day of his accident, he reached under the mast and repositioned the glass with his hand. Plaintiff knew it was dangerous to use his hand and had been warned not to stand under or on the forks. He did not know that the mast could fall on him. On the day of the accident, plaintiff did not see the metal bar or anything else he could use as a tool. When he pushed the safety shield back, the mast fell and trapped his hand and forearm against the machine.

Crown manufactured and serviced the forklift. Jose Rodriguez was hired by Crown in September 2000 to inspect and repair forklifts. He visited A&E twice prior to plaintiff's accident. On February 19, 2001, Rodriguez performed a planned maintenance inspection. He noticed a crack in the right side of the glass safety shield. Crown inspectors doing planned maintenance checks use a prepared form that lists the component parts of a forklift. Rodriguez wrote the letter "R," signifying the need for repair, next to "Safety Shield" and other items. He did not elect to mark the box with a "U," which indicates urgency. On the section of the form reserved for comments, Rodriguez listed several parts in need of repair or replacement, including the safety shield.

Michael Smith, plaintiff's supervisor, signed the February 19 planned maintenance form twice - once on a printed signature line reserved for an "Authorized Signature" and once in the margin above the comments section. A line with an arrow at its end was drawn between Smith's signature in the margin and the last line of the comment section. That is the line on which Rodriguez had written the words "Replace, load wheels safety shield."

Smith did not recall why he signed the form twice, but he understood that his signature indicated his authorization of the repairs. According to Rodriguez, when he reviewed the form with Smith, Smith told him that he would call Crown when he was ready to have the repairs done. For that reason, Rodriguez did not complete a work order to replace the safety shield. To Rodriguez, Smith's signature on the line reserved for an "Authorized Signature" simply confirmed the service visit. Rodriguez asked Smith to sign in the margin to indicate his refusal to authorize the repairs. He did not repair the safety shield. Smith explained that Rodriguez did not have the necessary part and he expected Rodriguez to return when the part was available. Smith's father, who supervised him at A&E, also understood that the safety shield was to be repaired when Crown received the part.

Rodriguez did not advise Smith to take the forklift out of service. Rodriguez knew that a safety shield tilted outward could obstruct the movement of the mast and pose a safety threat. When he moved the forks up and down during his inspection on February 19, however, he did not have that problem. Rodriguez understood that the purpose of planned maintenance inspections is to ensure the safety of the forklifts. On other occasions he had told forklift owners not to use machines until necessary repairs were made. He did not recall whether he saw tape on the shield on the date he inspected it.

Both Smith and his father denied any knowledge of the problems that plaintiff experienced with the safety shield obstructing the movement of the forks. Smith used the same forklift regularly, but the safety shield never blocked the descent of the mast. Smith also claimed that plaintiff did not tell him about the difficulties he was experiencing. According to plaintiff, the first time the safety shield blocked the descent of the forks, he told Smith and was directed to call Crown. He claimed that he told Smith and called Crown every time the forklift got stuck.

When plaintiff called Crown, he spoke with a woman whose name he could not recall. After the first call, while waiting for Crown's representative to arrive, plaintiff noticed that it was the safety shield that was blocking the mast. He took it upon himself to fix the problem by pushing the safety shield back into place with a metal bar so that he could do his work.

On March 9, 2001, Rodriguez returned to A&E at the direction of Crown's dispatcher, who told him that A&E had a forklift that was not moving. According to plaintiff, he placed a call on March 9, which he believed was the second day on which he had trouble with the safety shield. Prior to calling, he tried to fix the problem himself, as he had the first time, but could not restart the machine to raise the forks off the safety shield.

Crown's service order, dated March 9, 2001, and signed by Smith for A&E, indicates that the customer described the problem on March 9 as "some time not move [sic]." A&E's work order, which Smith did not sign until March 27, 2001, reflects a call for service on March 8 and a service visit on March 9, in response to a complaint that the forklift would not "consistently travel." Crown's service manager reviewed company records of service calls and found one call related to this forklift made on March 8, 2001 and reporting a "travel" problem.

When Rodriguez arrived on March 9, plaintiff took him to the forklift but did not talk to him or mention the problem with the safety shield blocking the descent of the mast. According to plaintiff, he had told the woman who took his call for service and did not repeat himself. According to Rodriguez, he was sent to A&E on March 9, 2001 to fix a "travel problem," which he did. He did not have a problem with the safety shield when he had raised and lowered the forks.

Plaintiff was not sure whether he told Smith that Rodriguez left without fixing the safety shield. He continued to use the same forklift from that day until his accident.

On March 15, 2001, Robert H. Jones, a supervisor for Crown who trained Rodriguez, responded to the accident scene. He spoke to Smith, who was crying and in "bad shape." Smith told him that the mast had been getting stuck on the safety shield. Smith also told Jones that plaintiff had used a stick to push it back numerous times. Smith told Jones that A&E would not approve the repair.

Jones inspected the machine and saw multiple layers of tape along the left side of the safety shield where it met with the rubber channel. Jones acknowledged that he would consider a safety shield held together with tape to be defective. He had never seen this forklift before, however, and could not tell how long it had been taped in that way. Jones also explained that Crown had no authority to require a customer to take a forklift out of service or to make repairs without authorization. Under the circumstances as he understood them to be, he would not have advised A&E to take the forklift out of service on either February 19 or March 9.

In the opinion of Dr. Robert L. Grunes, plaintiff's engineering expert, the accident was caused by the mast being blocked by the safety shield, which stuck out from its proper position into the path of the mast's travel. Dr. Grunes testified that Crown's manual for the forklift warned "[I]f defects are found, they should be recorded and the truck taken out of service until it is put in safe operating condition again." Dr. Grunes explained:

Discovery of the defect should have resulted in Mr. Rodriguez having taken the unit out of service and, at the very least, advise A&E of the seriousness of the matter and that it was a serious safety defect and urge them to take it out of service until it was fixed, if it could not be fixed immediately. There are further recourses, but it was not his property to take away and close down, but he could have reported it elsewhere as a safety defect to the Department of Labor and other agencies.

In Grunes's opinion, if Rodriquez inspected the forklift and saw the damaged safety shield and the tape holding it, "the unit should [have been] taken out of service until the problem, the deficiency, the safety defect was solved, cured, removed. Absent that, it should have been fixed immediately." According to Grunes, Crown's manual, American National Standards Institute ("ANSI") standards and OSHA regulations require removal of a forklift that has a safety defect. The court explained that Grunes's opinion was based on assumed facts, and that the jurors should not credit the opinion unless they found that those facts existed.

Trial commenced on November 7, 2005. On October 31, 2005, plaintiff pled guilty to conspiracy to distribute a controlled dangerous substance, a crime of the third degree. He was scheduled to be sentenced on December 20, 2005. His plea agreement required the State to recommend a sentence of probation and 180 days of imprisonment in county jail. Crown's attorney moved for leave to impeach plaintiff's credibility with evidence of the guilty plea. The trial court denied that request on the grounds that the judgment of conviction had not been entered and plaintiff's crime did not implicate his veracity.

A trial court has broad but not unbounded discretion to permit or prohibit impeachment by a prior conviction. See State v. Spivey, 179 N.J. 229, 243 (2004); State v. Sands, 76 N.J. 127, 140, 144-47 (1978). In exercising judicial discretion, a court "must take account of the law applicable to the particular circumstances of the case and be governed accordingly." State v. Madan, 366 N.J. Super. 98, 110 (App. Div. 2004) (noting that judicial discretion requires "judgment directed by law and reason"); see Sands, supra, 76 N.J. at 144-47 (identifying the principles that guide the exercise of discretion relevant to impeachment by prior conviction). An explanation of findings and conclusions adequate to permit the parties and a reviewing court to understand the basis for the court's discretionary ruling also is essential. See Rosenberg v. Bunce, 214 N.J. Super. 300, 303-04 (App. Div. 1986).

N.J.R.E. 609 governs the exercise of this discretion. It provides:

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

This evidence rule is intended to "follow[] provisions contained in N.J.S.A. 2A:81-12[, which permits such impeachment through proof of "conviction of any crime,"] as interpreted by State v. Sands." 1991 Supreme Court Committee Comment (reproduced following N.J.R.E. 609 in Biunno, Current N.J. Rules of Evidence (2007) (citation omitted)). Accordingly, our courts rely upon Sands in construing and applying its terms. See Spivey, supra, 179 N.J. at 242-43.

"[A]dmission of prior conviction evidence 'derives from the idea that there is a basis in reason and experience why one may place more credence in the testimony of one who has lived within the rules of society . . . than in that of one'" who has not. Sands, supra, 76 N.J. at 143 (quoting State v. Sinclair, 57 N.J. 56, 64 (1970)) (alterations added). Sands holds that a prior conviction must be admitted to affect credibility unless the trial court "finds that its probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice." Spivey, supra, 179 N.J. at 242-43 (quoting Sands, supra, 76 N.J. at 147). The burden of proving a ground for exclusion is on the party resisting the impeachment evidence. Ibid. (quoting Sands, supra, 76 N.J. at 144).

In this case the trial court determined that defendant's guilty plea did not qualify as a "conviction" because the judgment had not yet been entered. The "ordinary legal meaning of conviction" is a confession of the accused in open court voluntarily entered or the announcement of a verdict of guilty by a jury. State v. Baker, 133 N.J. Super. 398, 401 (App. Div. 1975). On that basis, in Baker this court rejected a claim that a conviction may not be used to impeach before judgment is entered. Id. at 400. Recognizing that "[t]he witness' credibility is equally affected by [a conviction based on plea or verdict] and [that a] sentence [not yet imposed] adds no more taint," we concluded that "a plea of guilty is as relevant [for the purposes of impeachment] as a judgment after sentence." Id. at 401-02.

There is no basis in the rationale or language of N.J.R.E. 609 or subsequent decisions of our courts to deviate from Baker. Conviction, not entry of judgment, is the basis for impeachment. "[C]onviction may be proved by examination, production of the record thereof, or by other competent evidence." N.J.R.E. 609; see also N.J.R.E. 101 (definitional sections that include no special definition of conviction); compare N.J.S.A. 2C:44-4b (defining prior conviction for purposes of sentencing provisions of the Code of Criminal Justice to require expiration of the time for appeal) with N.J.S.A. 2C:44-4d (defining permissible means of proof).

We recognize that this court has held that it is "fundamentally unfair to permit the use of a prior conviction to impeach credibility while the very credibility of th[e] conviction itself is under attack through the appellate process." State v. Blue, 129 N.J. Super. 8, 12 (App. Div.), certif. denied, 66 N.J. 328 (1974); id. at 11 (addressing an appeal from a second conviction after the prior conviction, which was used to impeach the defendant in the second trial was reversed on appeal). But the rule enunciated in Blue is not based on the absence of a "conviction." See id. at 11-12.

Blue is best understood as resting on the effect of a pending appeal on the balance of probative value and risk of undue prejudice. Sands, supra, 76 N.J. at 147. In Blue, because the credibility of the conviction was under attack on appeal, there was an enhanced risk of undue prejudice, which was the potential that any impairment of credibility would prove to be unwarranted if the conviction was reversed. 129 N.J. Super. at 11-12. The risk of "undue" prejudice was too high and the probative value too low.

That reading of Blue is consistent with this court's decision in State v. Anderson, 177 N.J. Super. 334, 336 (App. Div. 1981). In Anderson we reversed an order precluding use of a prior conviction for impeachment purposes because the witness had a pending appeal challenging the sentence imposed as a consequence of a guilty plea. We distinguished Blue on the ground that the appeal did not implicate "the integrity of his guilty plea." Ibid.

We do not hold that a conviction based on a plea of guilty should or must be admitted to affect credibility in every case. We hold that evidence of a prior conviction based upon a plea of guilty may not be excluded automatically on the ground that the sentence and judgment have not been imposed and entered.

Where there is a qualifying prior conviction, the question remains whether the party resisting impeachment has shown that the prior conviction should be excluded "as remote or for other causes." N.J.R.E. 609. The trial court also found that exclusion of this conviction was supported because this drug crime was not probative of veracity. This conviction, however, is not even arguably remote, and the fact that it did not require proof of dishonesty was not a permissible reason for exclusion. See Sands, supra, 76 N.J. at 142-44. The exercise of judicial discretion pursuant to this rule requires a reasoned consideration of circumstances relevant to the balance of probative value and the risk of undue prejudice in the particular case. See State v. Balthrop, 92 N.J. 542, 543-46 (1983) (discussing probative value of convictions for drug crimes and risk of prejudice).

As noted above, the phrase "other causes" must be construed to incorporate N.J.S.A. 2A:81-12 as interpreted in Sands. Sands permits exclusion of prior conviction evidence when the probative value is "substantially outweighed" by the risk of "undue prejudice" due to "remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions." Spivey, supra, 179 N.J. at 243 (quoting Sands, supra, 76 N.J. at 147); see N.J.R.E. 609; N.J.R.E. 403; cf. Fed. R. Evid. 609(a) (expressly referencing Fed. R. Evid. 403 (which is consistent with N.J.R.E. 403)). Thus, "other causes" includes those circumstances relevant to the balance of probative value and risk of undue prejudice, but it does not permit exclusion solely because the witness's prior conviction is for a crime that does not require proof of an element involving dishonesty. See Sands, supra, 76 N.J. at 144-45. Where, as here, the conviction is not arguably remote, the nature of the crime may be relevant to the risk of prejudice, which may be cured by "sanitizing" the conviction, but absence of an element related to dishonesty cannot be deemed an adequate grounds for exclusion because that conclusion is contrary to N.J.S.A. 2A:81-12. Sands, supra, 76 N.J. at 144-45; see State v. Brunson, 132 N.J. 377 (1993) (holding that convictions must be sanitized to avoid disclosure of the nature of the crime, as opposed to the fact of conviction when the conviction is not too remote to bear on credibility but disclosure of the nature of the crime would be prejudicial given the issues in dispute at the trial in which the witness will testify). In contrast, where circumstances subsequent to conviction raise questions about the validity of the conviction, its diminished probative value may warrant exclusion. See Blue, supra, 129 N.J. Super. at 11.

In this case, plaintiff did not show any circumstances sufficient to permit the trial court to exclude his prior conviction. He did not represent that he planned to move to vacate his plea prior to sentencing on the ground that it was invalid, and he did not suggest that the conviction was otherwise subject to reversal on appeal. See State v. Knight, 183 N.J. 449, 470-71 (2005); State v. Simon, 161 N.J. 416, 443 (1999); R. 3:5-7(d); R. 7:5-2(c)(2) (permitting appeal from the denial of a motion to suppress physical evidence after a guilty plea); R. 3:28(g) (permitting appeal from denial of admission into a pretrial intervention program following a plea of guilty); R. 3:9-3(f) (permitting appeal of an issue preserved by entry of a conditional plea).

Although it was error to prohibit Crown from impeaching plaintiff with his prior conviction, that error is harmless. See Sands, supra, 76 N.J. at 147 (noting applicability of harmless error analysis). Given the evidence and the theories of liability presented to the jurors, we cannot see how admission of evidence diminishing plaintiff's credibility could have led the jury to reach a different verdict. State v. Macon, 57 N.J. 325, 338 (1971).

With respect to Crown, the jurors were permitted to find Crown liable on only one basis. The case was submitted on the question whether Crown breached its duty to advise, or recommend to A&E to remove the forklift from service until the safety shield was repaired or replaced.

The jurors were directed that they could not find Crown liable unless they found "that the forklift assembly was unsafe to continue operating and that Jose Rogriguez knew or should have know[n] this." The court invited the jurors to consider "factual issues" in determining whether Rodriguez knew or should have known the forklift assembly was safe. The factual issues the court referenced were: the adequacy of Crown's training of Rodriguez; the condition of the safety shield assembly when he inspected the machine; whether he tested its functioning; the results of such testing; what had been communicated to him about the safety shield interfering with the mast; and what he communicated to Smith.

Plaintiff testified that he did not tell Rodriguez about the problem with the safety shield. Defense counsel relied on the veracity of plaintiff's testimony on that point in his closing argument. There was no evidence that Rodriguez was told about the four or five times that the mast was stuck on the safety shield. The charge to the jury did not permit a finding of negligence based on the telephone operator's conduct. Thus, with respect to Crown's negligence, plaintiff's testimony had limited relevance.

By way of defense, Crown alleged that plaintiff's negligence caused the accident. Plaintiff, however, acknowledged his own negligence. He admitted that he knew what he did was dangerous.

The severity of plaintiff's injury was beyond any dispute. Crown's attorney conceded that point in closing argument to the jurors. Crown's argument on appeal that the damage award would have been different if the jurors knew that plaintiff's plans to receive the equivalent of a high school diploma had the potential to be disrupted by service of a 180-day jail sentence is a make-weight claim.

Crown also alleged that A&E's negligence, not Crown's, was the proximate cause of the accident. The credibility issue at the center of that dispute was between the Crown employees and plaintiff's superiors at A&E. In arguing that A&E's negligence was the real cause of the accident, Crown's attorney relied several times on plaintiff's testimony that he talked to Smith about the problem with the forklift. Plaintiff's testimony on that point was consistent with and supported by the testimony given by Jones, the Crown employee who testified about finding Smith in tears and Smith's admission that A&E refused to pay for the repair.

Crown raises the following additional issues on appeal.

II. The Trial Court Misconceived The

Law In Permitting Plaintiff's

Expert To Opine On The Meaning

and Applicability Of OSHA And

[ANSI] Standards.

A. N.J.R.E. 702 and the Standard

of Review.

B. The Trial Judge Ignored

McGarvey v. G.I. Joe Septic

Serv. and Allowed the Jury to

Hear Conflicting Expert

Testimony on the

Interpretation of a Standard.

C. Dr. Grunes's Incorrect

Interpretation Of OSHA And

ANSI and the Trial Judge's

Subsequent Recognition of

This Fact.

D. The Trial Judge's Ruling

Prejudiced Crown.

III. Dr. Grune's [sic] Opinions Exceeded The

Scope Of Permissible Expert

Testimony.

A. Standard of Review.

B. Dr. Grunes Is Not Qualified

In Forklift Maintenance.

C. The Trial Judge Misapplied

the Law in Permitting Dr.

Grunes to Opine Based on His

Credibility Determinations.

IV. Expert Testimony Is Required For Claim

Of Negligent Training In This Case.

After review of the record, including the jury charge, we see no abuse of discretion that would permit us to interfere with the court's discretionary determinations of these evidentiary issues. See Bender v. Adelson, 187 N.J. 411, 416 (2006). The arguments lack sufficient merit to warrant discussion in a written opinion beyond the brief comments that follow. R. 2:11-3(e)(1)(E).

Relevant to Crown's objection to testimony about ANSI and OSHA standards, the court told the jury that "Crown did not have a duty to repair the forklift unless . . . authorized by A&E." The court further explained, that only "A&E could take the forklift out of service," and that Crown had no "duty to take the truck out of service."

We need not consider whether expert testimony would be required to establish a claim of negligent training relevant to forklift inspection and repair. The jury charge in this case did not permit a finding of negligence based on training.

 
Affirmed.

As the Committee explained in its report to the Chief Justice, in recommending revision of New Jersey's Rules of Evidence, the members generally followed the Federal Rules of Evidence but followed New Jersey law "when it reflected a resolution of previous controversy over important principles. For example, Rule 609 embodies the holding of Sands . . . as to the use of prior convictions for impeachment purposes . . . ." Report of the New Jersey Supreme Court Committee on the Rules of Evidence (letter reproduced preceding N.J.R.E. 101 in Biunno, supra). The rule was adopted by the Supreme Court and not revised or disapproved by the Legislature. J. Res. 3, 205 Leg., 2nd Ann. Sess. (1993).

While the facts relevant to probative value and prejudice may vary in civil and criminal trials, the same standards are applied. See Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 611 (App. Div. 1984)(affirming lower court's exclusion of evidence of defendant's twenty-four-year old robbery conviction); see also Tonsberg v. VIP Coach Lines, Inc., 216 N.J. Super. 522, 528-29 (App. Div. 1987)(allowing the introduction of evidence of plaintiff's witness's conviction for mail fraud the previous year); Mackay v. CSK Publ'g Co., 300 N.J. Super. 599, 610, 617 (App. Div. 1997)(affirming the use of plaintiff's conviction eighteen years earlier for attempted forgery).

With respect to the balance of probative value and prejudice, N.J.R.E. 609 differs from Fed. R. Evid. 609. Under the federal rule, admission is subject to Fed. R. Evid. 403. Under N.J.R.E. 609, admission also is limited by N.J.S.A. 2A:81-12, which precludes exclusion based only on a particular judge's view of the relative probative value of various crimes.

(continued)

(continued)

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A-2319-05T3

August 14, 2007