Ian Michael Wymbs v Township of Wayne
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Ian Michael Wymbs, et als. V. Township of Wayne, et als. (A-114-98)
Argued February 28, 2000 -- Decided May 11, 2000
COLEMAN, J., writing for a unanimous Court.
This case involves a claim that a sharp curve in a roadway was a “dangerous condition” on public property as defined by N.J.S.A. 59:4-1a of the New Jersey Tort Claims Act (“TCA”). The specific issues involve the propriety of a number of evidentiary rulings made by the trial court.
On May 29, 1991, plaintiff, Ian Michael Wymbs, was severely injured in an automobile accident in Wayne Township. The driver of the vehicle in which Wymbs was a passenger failed to negotiate a curve on westbound Preakness Avenue between Garside Avenue and Jansen Lane. Preakness Avenue is owned by the County of Passaic and is patrolled by the Township of Wayne Police Department. On the night of the accident, there were no lights illuminating the curve. Although there was one yellow warning sign of the existence of the curve approximately 150 feet from the curve itself, that sign was partially obstructed by foliage.
Following the accident, Wymbs filed suit against several persons and entities. He subsequently settled the matter with some of them, leaving only the Township of Wayne, Passaic County, and the State of New Jersey as defendants. In his complaint, Wymbs alleged that the curve in Preakness Avenue constituted a “dangerous condition” under the TCA.
At trial, Wymbs asserted three theories of liability to support his claim that the curve in Preakness Avenue constituted a dangerous condition. Specifically, he claimed that the physical characteristics of the roadway were inherently dangerous, including the curves' severity, radius, and super-elevation; that the curve's warning sign failed to adequately warn motorists of the severity of the curve; and that the warning sign was obstructed by foliage. Wymbs offered the testimony of a civil engineer and land surveyor to establish the dangerousness of the curve. That expert testified that for a twenty-five miles per hour zone (the speed limit in the area of the curve), the maximum curvature in the roadway should have been more than nine degrees lower than that at the curve on Preakness Avenue.
In addition to the expert's testimony, Wymbs presented three additional types of evidence to establish the existence of a dangerous condition and that the remaining defendants had notice of such a condition. Specifically, Wymbs offered prior signage evidence, testimonial evidence regarding prior accidents at the same curve, and a 1966 engineering plan calling for a widening of the curve's radius that was never implemented. The trial court limited the use of that evidence to the issue of notice of the allegedly dangerous condition to the remaining public entity defendants. The court specifically disallowed its use as substantive evidence of a dangerous condition.
Over Wymbs' objection, the trial court allowed the State of New Jersey (State), one of the remaining defendants, to call a previously undisclosed witness, William Anderson, a Traffic Engineer. The State wished to call Anderson as its only witness to testify with regard to the State's regulation and maintenance of county-owned roadways. Although Anderson had not been identified by the State as a potential witness at any point during pretrial discovery, the trial court allowed Anderson to testify, finding that his testimony was “pivotal” to the State because it was its only evidence. However, the court placed restrictions on Anderson's testimony that would allow him only to testify with regard to the practices and procedures of the Department of Transportation in performing its functions of supervising or directing and controlling public roadways in the State. Anderson was to give no expert testimony in respect of Preakness Avenue.
Despite the trial court's attempted limitations on Anderson's testimony, he did indeed testify specifically on the State's evaluation of Preakness Avenue. The effect of Anderson's testimony was to tell the jury that the curve was not a dangerous condition and that the prior signage and its removal had nothing to do with the issue of a dangerous condition.
The jury returned a verdict in favor of the remaining defendants, finding that Wymbs had failed to prove that the nature of the curve and the warning signs on Preakness Avenue constituted a dangerous condition within the meaning of the TCA. The trial court subsequently denied Wymbs motion for a new trial, in spite of its recognition that it should not have permitted Anderson to testify. The Appellate Division affirmed the judgment of the trial court in an unpublished opinion.
The Supreme Court granted Wymbs petition for certification.
HELD: Properly presented evidence of prior accidents at the same location as the one involved in a trial may be admissible to prove the existence of a dangerous condition; the trial court committed reversible error when it permitted a surprise key witness for the State to testify over plaintiff Wymbs' objection.
1. Under the TCA, public entities may be held liable for injuries caused by a “dangerous condition” of its property, which is defined as a condition of property that creates a substantial risk of injury when such property is used with due care in a manner that is reasonably foreseeable. (pp. 6-7)
2. New Jersey has not adopted a per se rule precluding the use of prior accidents as substantive evidence of a dangerous condition. Rather, this has been left to the discretion of the trial court to determine its relevance to the facts in issue. (pp. 9 11)
3. In different contexts, the Court has permitted evidence of prior accidents to establish circumstantially that a condition or a product is dangerous, provided that the prior accidents are substantially similar to the one at issue and occurred under the same or substantially the same conditions as the accident at issue. (pp. 11-12)
4. Trial courts should have the discretionary authority to determine, on a case-by-case basis, the relevance of prior accidents to the case at hand. (pp. 12-14)
5. Prior accidents can be used to prove the existence of a dangerous condition on public property if the circumstances between the prior accident and the one involved in the case on trial are the same or substantially similar, and if there is an absence of other causes of the accident. Thus, given the evidence presented in this case, the trial court properly limited the prior-accident evidence to the issue of notice. (pp. 14-15)
6. The existence of prior signage at or near the curve on Preakness Avenue was not probative of the curve's dangerousness. Thus, the trial court's ruling limiting the prior signs evidence to the issue of notice was proper. (pp. 15-17)
7. A never-implemented plan to widen a road is not probative of whether the curve crated a substantial risk of injury when used with due care. Thus, the trial court properly limited that evidence to the issue of notice and the ruling did not produce and unjust result. (pp. 17-18)
8. To establish an entitlement to plan or design immunity, a public entity must demonstrate that an approved feature of the plan sufficiently addressed the condition that is causally related to the accident, which was not the case here. (pp. 18-19)
9. Trial courts have wide discretion in deciding the appropriate sanction for a breach of discovery rules so long as the sanction is just and reasonable. Generally, factors that would strongly urge a trial judge to suspend the imposition of sanctions are the absence of a design to mislead; absence of the element of surprise if the evidence is admitted; and the absence of prejudice which would result form the admission of the evidence. (pp. 24-26)
10. The trial court committed reversible error when it admitted Anderson's testimony because the surprise to plaintiff was real, the State's conduct in failing to identify him prior to trial was inexcusable, and the prejudice to the plaintiffs was irreparable. At a minimum, plaintiffs' motion for a new trial should have been granted. (pp. 28-29)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, LONG, and VERNIERO join in JUSTICE COLEMAN's opinion. JUSTICE LAVECCHIA did not participate.
SUPREME COURT OF NEW JERSEY
A- 114 September Term 1998
IAN MICHAEL WYMBS, an infant by his guardians ad litem Jesse B. Wymbs and Lillian Wymbs, and JESSE B. WYMBS and LILLIAN WYMBS,
TOWNSHIP OF WAYNE, COUNTY OF PASSAIC, and STATE OF NEW JERSEY,
NANCY CONNELLY, ANNE J. CONNELLY and PUBLIC SERVICE GAS AND ELECTRIC COMPANY,
Argued February 28, 2000-- Decided May 11, 2000
On certification to the Superior Court, Appellate Division.
Leonard P. Rosa argued the cause for appellants (Harwood Lloyd, attorneys).
Michael H. Cohen argued the cause for respondent Township of Wayne (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, attorneys; Heidi P. Rubin Cohen, on the letter brief).
Albert C. Lisbona argued the cause for respondent County of Passaic (Dwyer, Connell & Lisbona, attorneys).
Valerie L. Egar, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Farmer, Jr., Attorney General, attorney; Mary C. Jacobson, Assistant Attorney General, of counsel).
The opinion of the Court was delivered by
This case involves a claim that a sharp curve in a roadway was a “dangerous condition” on public property as defined in N.J.S.A. 59:4-1a of the New Jersey Tort Claims Act. The specific issues raised involve a number of evidentiary rulings made by the trial court that, according to plaintiffs, improperly restricted their opportunities to satisfy their burden of proof. The jury found that plaintiffs had failed to prove that the road in question was a dangerous condition. The Appellate Division affirmed, finding that none of the alleged evidentiary errors was relevant to the issue of whether the road was a dangerous condition.
We hold that properly presented evidence of prior accidents at the same location as the one involved in a trial may be admissible to prove the existence of a dangerous condition. We also hold that the trial court committed reversible error when it permitted a surprise key witness for the State to testify over plaintiffs' objections.
On May 29, 1991, four high school students, Nancy Connelly, Ian Wymbs, Frank Goffredo, and Mark Harding, drove home together from a church meeting in Wayne Township (Township), Passaic County (County). Connelly, who was driving her mother's car, dropped off Harding and proceeded onto Preakness Avenue. As she proceeded westbound on Preakness Avenue, she entered a curve between Garside Avenue and Jansen Lane and lost control of the vehicle. The car swerved several times, traversing the eastbound lane of Preakness Avenue, and then traveled sideways, eventually striking a utility pole on the eastbound shoulder of the roadway. Fortunately, all of the vehicle's occupants survived. Wymbs, however, sustained severe head injuries resulting in substantial mental and physical impairments.
Preakness Avenue is owned by the County and is patrolled by the Township of Wayne Police Department. Although no speed limit sign was posted on the westbound side, the area is residential with a speed limit of twenty-five miles per hour. N.J.S.A. 39:4 98b(1). On the night of the accident, there were no street lights illuminating the curve. There was one yellow warning sign with a black curve symbol placed approximately 150 feet from the curve. It is undisputed that the sign was partially obstructed by foliage.
On December 16, 1992, Wymbs and his parents initiated the present litigation against Connelly, her mother, the Township, the County, the State of New Jersey, Public Service Electric and Gas Company (PSE&G), and several fictitious individuals, corporations, and public officials. The relevant portion of the complaint alleged that the public entities and employees were liable for Wymbs's injuries because the curve constitutes a “dangerous condition” under the New Jersey Tort Claims Act, N.J.S.A. 59:4-1a. Based on a settlement reached prior to trial, plaintiffs filed voluntary stipulations dismissing the complaint with prejudice against Connelly, her mother, and PSE&G. The three public entities were the only remaining defendants in the case at the time of trial.
Plaintiffs asserted three theories of liability to support the claim that the curve on Preakness Avenue was a dangerous condition: (1) the physical characteristics of the roadway were inherently dangerous, including the curve's severity, radius, and super-elevation; (2) the curve's warning sign failed to adequately warn motorists of the severity of the curve; and (3) the warning sign was obstructed by foliage. Defendants denied the curve was a “dangerous condition”, arguing instead that the accident was caused solely by the driver's negligence. Alternatively, defendants contended that they lacked sufficient control of the roadway and its signage to be held liable.
Plaintiffs presented expert testimony by William Poznak, a civil engineer and land surveyor, in an attempt to establish the dangerousness of the curve. Poznak testified that his measurements indicated that the curve was 40.74 degrees with a super elevation of 0.064.See footnote 11 Poznak asserted that for a twenty five miles-per-hour zone, the maximum curvature should have been 31.49 degrees, and added, “if the super elevation was higher, it would be safer.” Poznak conceded, however, that the curve could be safely negotiated at twenty-one to twenty-five miles per hour, and hazardous speeds for driving that curve were “around thirty, thirty-five.”
Plaintiff presented three additional types of evidence to establish the existence of a dangerous condition and that defendants had notice of such a condition. Plaintiff offered prior signage evidence, testimonial evidence regarding prior accidents at the curve, and a 1966 engineering plan calling for a widening of the curve's radius that was never implemented. The trial court limited the use of that evidence to the issue of notice of a dangerous condition pursuant to N.J.S.A. 59:4-3, and disallowed it as substantive evidence of a dangerous condition. Finally, over plaintiffs' objection, the trial court permitted the State to call a previously undisclosed witness, William Anderson, a Traffic Engineer.
The jury returned a verdict, by a vote of five to one, finding plaintiffs had failed to prove “by a preponderance of the evidence that the nature of the curve and the warning signs on Preakness Avenue between Garside and Jansen created a substantial risk of injury when used with due care.” Plaintiffs' motion for a new trial was denied. The Appellate Division affirmed the judgment in an unpublished opinion. We granted plaintiffs' petition for certification, 161 N.J. 332 (1999), and now reverse.
The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12 3, specifies the circumstances under which a public entity can be held liable for injuries to another. “Generally, immunity for public entities is the rule and liability is the exception.” Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999). The exception relevant to this case is found in N.J.S.A. 59:4-2, which provides that public entities may be liable for injuries caused by a “dangerous condition” on the property of a public entity. A successful plaintiff under this subsection of the TCA must prove by a preponderance of the evidence that “at the time of the injury the public entity's property was in a dangerous condition, that the condition created a foreseeable risk of the kind of injury that occurred, . . . that the condition proximately caused the injury. . . . [and that] the action the entity took to protect against the [dangerous] condition or the failure to take such action was . . . palpably unreasonable.” Garrison v. Township of Middletown, 154 N.J. 282, 286 (1998) (internal quotations omitted). The term “palpably unreasonable” connotes “behavior that is patently unacceptable under any given circumstance.” Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). Within the TCA, a “dangerous condition” is defined 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 1a. A dangerous condition under that provision refers to the “physical condition of the property itself and not to activities on the property.” Levin v. County of Salem, 133 N.J. 35, 44 (1993)(citations omitted).
Plaintiffs argue that the trial court erred in limiting the use of evidence of prior accidents, prior warning signs, and a 1966 engineering plan to the issue of notice of a dangerous condition. Plaintiffs, relying on Manna v. State, 129 N.J. 341, 348 (1992), contend that multiple accidents at a specific location establish a prima facie case under N.J.S.A. 59:4-2. Plaintiffs maintain that by “limiting the evidence of prior accidents at the site, the trial court prejudicially prevented them from utilizing all possible proofs in connection with the roadway's dangerous condition.” Finally, plaintiffs contend that they were severely prejudiced by the surprise testimony presented by William Anderson. They argue that the jury could have found the curve was not a dangerous condition based solely on Anderson's testimony. Both the State and the County argue that the trial court properly limited the prior-accident evidence to the issue of notice because plaintiffs failed to proffer any testimony with regard to the specific causation of any of the accidents. According to the State, plaintiffs did not offer such evidence because the police reports of the prior accidents clearly indicated that none of them was attributable to the curve. The Township agrees that the trial court properly limited the testimony regarding prior accidents, and argues that “plaintiffs cannot seriously contend that they were prejudiced because witnesses were precluded from testifying as to events of which they had no personal knowledge.”
First, we address plaintiffs' contention that the trial court erred in restricting the use of evidence of prior accidents at the curve, prior signage, and the 1966 engineering plan for the curve to demonstrate notice only.
Plaintiffs offered testimonial evidence regarding prior accidents at the curve as substantive evidence and proof of notice of the curve's dangerousness. The trial court determined that that evidence would be probative of the curve's dangerousness only if there was specific testimony that the specific accidents “were a product of the curve in the road.” After hearing the testimony and reviewing police reports presented by the State, the court determined that there was no proof that the prior accidents were caused by the curve. Hence, that evidence was limited to the issue of notice.
Whether the occurrence of multiple accidents at a particular location can be used as substantive evidence to prove the existence of a dangerous condition at that location has been widely debated. The Supreme Judicial Court of Massachusetts has accurately summarized why the use of such prior-accident evidence is problematic. It stated:
[The] persuasive force [of prior accident evidence offered to establish dangerousness] depends upon similarity in the circumstances of different injuries, of which it is hard to be certain. Substantial identity in the alleged defective condition is only the first essential. The person who was injured at the time to which the offered evidence relates may have been defective in eyesight, feeble, or careless. The fact that he was injured may have little or no bearing upon the danger to a normal traveller. Moreover, though the same defective condition may have been present at both times, the actual causes of the two injuries may have been different. Unless a comparison of the circumstances and causes of the two injuries is made, the injury to another is without significance. But if such a comparison is undertaken, the minds of the jurors must be diverted from the injury on trial into a detailed and possibly protracted inquiry as to injuries received by others at various times. Those injuries have only a collateral and often minor bearing upon the case. As to them the opposing party will often be ill prepared to present evidence. There is danger that a jury may disregard the real differences in the circumstances of the two incidents, and find upon mere superficial similarity that a dangerous condition existed.
[Kromhout v. Commonwealth, 500 N.E.2d 789, 793 (Mass. 1986) (internal quotations and citation omitted).]
Those are legitimate concerns. Nevertheless, many jurisdictions, including New Jersey and Massachusetts, have not adopted a per se rule precluding the use of prior accidents as substantive evidence of a dangerous condition. The rationale for not adopting a per se rule of preclusion is that that practice conflicts with the modern rules of evidence, which emphasize a trial court's discretionary determination of relevancy. See N.J.R.E. 401-403; Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). “In determining relevance, the trial court should focus on 'the logical connection between the proffered evidence and a fact in issue[,]' or 'the tendency of evidence to establish the proposition that it is offered to prove.'” Green, supra, 160 N.J. at 492 (internal citations omitted).
We have previously permitted evidence of prior accidents, albeit in slightly different contexts than the one presented in this case, to establish circumstantially that a condition or a product is dangerous, provided that the prior accidents are substantially similar to the one at issue.
In DiDomenico v. Pennsylvania Reading Seashore Lines, 36 N.J. 455 (1962), a case involving an accident at a railroad crossing, an issue arose concerning whether the plaintiff's proffered evidence of prior accidents had any probative value in proving that the crossing was “extra-hazardous.” We noted that “[s]afety history may be admissible for some purposes but before it can have any probative value it is incumbent upon the party who offers the evidence to show the other occurrences took place under the same or substantially the same conditions as the accident in question.” Id. at 464-65. Similarly, in Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276 (1990), a products-liability case, we discussed whether prior accidents are admissible in “design-defect failure-to-warn cases” to show the dangerousness of a particular product. Id. at 290. We concluded that under a risk-utility analysis, “[e]vidence of prior similar accidents is relevant and should be admissible as evidence of the risk, or lack thereof, of a product.” Ibid. Those cases inform our decision in the present appeal.
In light of existing case law, we see no sound reason to unduly limit a trial court's discretion in deciding whether evidence of prior accidents is admissible as substantive evidence of a dangerous condition in a case such as this one. A majority of other jurisdictions agree that trial courts should have the discretionary authority to determine, on a case-by-case basis, the relevancy of prior accidents to the case at hand. See, e.g., Johnson v. State, 636 P.2d 47, 57 (Alaska 1981) (noting that evidence of both prior and subsequent occurrences is admissible to prove defective or dangerous condition, causation, or notice, so long as conditions are similar); Jones v. Pak-Mor Mfg. Co., 700 P.2d 819, 821 (Ariz.), cert. denied, 474 U.S. 948, 106 S. Ct. 314, 88 L. Ed.2d 295 (1985) (observing that “the trial court has discretion to admit evidence of prior accidents”); Chicago, Rock Island & Pacific R.R. Co. v. Lynch, 441 S.W.2d 793, 795 (Ark. 1969) (admitting evidence of prior accidents if there is “showing of such substantial similarity of conditions in the proof as to make it reasonable and probable that the same cause existed to produce the same result”); Elsworth v. Beech Aircraft Corp., 37 Cal.3d 540, 555 (1984), cert. denied, 471 U.S. 1110, 105 S. Ct. 2345, 85 L. Ed.2d 861 (1985) (stating “[e]vidence of prior accidents is admissible to prove a defective condition, knowledge, or the cause of an accident, provided that the circumstances of the other accidents are similar and not too remote”); Kaeo v. Davis, 719 P.2d 387, 393 (Haw. 1986) (allowing evidence of previous accidents as proof of dangerous condition if “'the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question'”) (citation omitted)); Simon v. Town of Kennebunkport, 417 A.2d 982, 986 (Me. 1980) (allowing admission of other accident evidence if “there is a substantial similarity in the operative circumstances between the proffer and the case at bar” and noting that “the admission of other-accident evidence is committed to the sound discretion of the [judge]”); Kromhout, supra, 500 N.E. 2d at 793 (noting that “where substantial identity in the circumstances appears, and the danger of unfairness, confusion or undue expenditure of time in the trial of collateral issues seems small, the admission of such [prior-accident] evidence has resided in the judge's sound discretion”); Berry v. Fruehauf Trailer Co., 124 N.W.2d 290, 291 (Mich. 1963) (allowing similar prior-accident evidence to establish a dangerous or defective condition subject to requirement of similar conditions and reasonable proximity in time); Stewart v. State, 597 P.2d 101, 112 (Wash. 1979) (noting judge's decision is “largely discretionary” regarding admission of “evidence of a prior accident which occurred under the same or substantially similar circumstances . . . for the purpose of showing a dangerous or defective condition and the defendants [sic] notice of such condition”); see also 2 Wigmore, Evidence § 443-44 at 528-32 (Chadbourn rev. 1979) (stating a similar rule).
We hold that prior accidents can be used to prove the existence of a dangerous condition on public property if the following threshold standard is satisfied: (1) the same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and (2) the absence of other causes of the accident.
The requirement of substantial similarity is more stringent when the prior-accident evidence is offered to prove the existence of a dangerous condition than when offered to prove notice because “'all that is required [for notice] is that the previous . . . [accident] should be such as to attract the defendant's attention to the dangerous situation which resulted in the litigated accident.'” Kaeo, supra, 719 P. 2d at 393 (citation omitted). Requiring different levels of similarity depending on the purpose for which the prior accidents are offered ensures that there is a “logical connection” between the prior accidents and the “fact in issue.” Green, supra, 160 N.J. at 492 (internal quotations omitted). Trial courts have broad discretion in determining whether the “logical connection” exists and whether that evidence should be otherwise excluded under N.J.R.E. 403. Ibid. Notably, California, whose TCA served as the model for our own, Fluehr, supra, 159 N.J. at 542, utilizes a similar approach. Fuller v. State, 125 Cal. Rptr. 586, 596-97 (Cal. Ct. App. 1975) (stating “[t]he strictness of [the] requirement of similarity of conditions is 'much relaxed,' however, when the purpose of the offered evidence is to show notice”) (internal quotations omitted). Application of the foregoing principles to the present case persuades us to conclude that the trial court properly limited the prior-accident evidence to the issue of notice.
Plaintiffs also presented evidence of warning signs posted in the vicinity of the curve that had been removed by one of the public entities prior to the accident.
One of the signs was a four-by-three-feet yellow sign with black letters reading “Dangerous Curve.” Another sign was square shaped with a white background that contained red and black letters stating “Slow Sharp Curve.” Plaintiffs presented a speed survey in which the State recommended removing the two signs posted at the westbound entrance to the curve. The trial court limited that evidence to the issue of notice, and initially plaintiffs agreed with that ruling. At the charge conference, however, plaintiffs argued that the prior signs should also serve as substantive evidence of the curve's dangerousness under N.J.R.E. 803(b), as an admis
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