Rogove v. Stavola Construction Co.
Rogove v. Stavola Construction Co.
Opinion of the Court
Plaintiffs Bruce and Adrienne Rogove, husband and wife, appeal the dismissal of their complaint upon a jury verdict finding no cause for action. Plaintiff Bruce Rogove had fallen from his bicycle while participating in a road rally when he ran over a raised portion of pavement at the junction of a road and bridge. Defendant Stavola Construction Company, Inc., had paved the roadway leading to the bridge and the contention of plaintiffs was that defendant negligently failed to provide a smooth surface abutting the bridge. The case turned in large part on whether the raised “lip” of the pavement caused plaintiffs accident. Defendant attempted to show that even though plaintiff had been biking for over twenty-five miles before the accident occurred, somehow the wheel of plaintiffs bike came loose, separated from the frame and caused plaintiffs fall. The jury found that defendant had been negligent but also that that negligence was not the proximate cause of the accident.
During the cross-examination of plaintiffs expert, a civil engineer, he was asked if he had ever received the accident reports he had requested concerning prior accidents at the location of plaintiffs fall for the period 1985-1995. He responded that he had not received any such reports.
Prior to summation, plaintiffs counsel moved to prohibit defense counsel from commenting on the absence of prior accident records. The trial judge denied the motion finding that defense counsel was permitted to make fair comment on the evidence.
During summation defense counsel made the following remarks that form the sole basis for the present appeal:
Did you hear any evidence of anybody having an accident when their bike stopped short at that lip? Aside from Mr. Rogove? No. And you will recall that Mr. Hintersteiner specifically requested in his first report, “Please provide me with accident reports from 1985 through 1995.” Was he provided with any? No, he was not. Did you hear any evidence whatsoever that there was any other accident in this area? No.
These statements were made in the context of an argument concerning proximate causation.
We agree with plaintiffs’ arguments, but not entirely with the relief they apparently seek. It has long been the law in this State that the incidents or absence of other accidents is not admissible in a negligence action to show the dangerousness or the safety of the condition being impugned. Such information may be adduced for the limited purpose of establishing that a condition existed long enough to give notice to an owner or tenant, but then only with the appropriate limiting instruction.
These principles were recently modified by our Supreme Court in Wymbs v. Township of Wayne, 163 N.J. 523, 750 A.2d 751 (2000). The Court there held that evidence of prior accidents may, under certain circumstances, be admissible to show the existence of a dangerous condition. The “threshold standard” to be met by the proponent of the evidence is “(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.” Id. at 536, 750 A.2d 751. The Court added that “[t]he 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____” Ibid.
We also agree with plaintiffs that this case turned on the question of proximate cause. That being so, the dangerousness of the condition, vel non, was likely of great interest to the jury. Defense counsel’s comments should not have been made in the context of proximate cause and they cannot be regarded as harmless error. That defense counsel was commenting on information she had elicited from plaintiffs’ expert does not justify the remarks in summation. Absent a proper evidential purpose the testimony should not have been elicited in the first instance.
We part ways with plaintiffs to the extent that the wording of their argument implies that the remedy for this error is to preserve the jury’s finding on negligence and add to it a finding of proximate cause. We cannot say what a jury would have found absent the inappropriate comments. Nor can a partial verdict be preserved in these circumstances. Although the jury found defen
The order dismissing plaintiffs’ complaint is reversed and the matter is remanded for further proceedings.
In this case the condition was created by defendant so notice was not an issue.
Reference
- Full Case Name
- BRUCE ROGOVE AND ADRIENNE ROGOVE, HIS WIFE v. STAVOLA CONSTRUCTION COMPANY, INC., DEFENDANT-RESPONDENT, AND STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, COUNTY OF MIDDLESEX, TOWNSHIP OF MONROE
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