896 F.2d 723 (3rd Cir. 1990), 88-5789, Waldorf v. Shuta

Docket Nº:88-5789, 88-5797, 88-5817
Citation:896 F.2d 723
Party Name:Mark WALDORF, Appellant in No. 89-5818, Cross-Appellee in
Case Date:February 07, 1990
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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896 F.2d 723 (3rd Cir. 1990)

Mark WALDORF, Appellant in No. 89-5818, Cross-Appellee in

Nos. 88-5789, 88-5797, 88-5817


Edward J. SHUTA, Carolyn Wood, Kenneth C. Spence, Jr., Mark

Kay Spence, The Borough of Kenilworth, a municipal

corporation of the State of New Jersey, Joseph Rego, Henry

J. Moll, Victor Smith, Lawrence Stickle, Charles David,

Joseph Ventre, Thomas Neville, William J. Ahern, William E.

Conrad, Livio Mancino, Gary Rowinsky, Mario DiBella, Vincent

Scorese, Harry Grapenthin, Mary Kelly, Richard McCormack,

William Holt, A. Zeleniak, Richard Lomax, C. William

Gutekunst, Frederick Bailey, Michael Padula, Charles

Scheuerman, Fred Sues, Joseph Walyuf, Thomas McHale, Philip

Ernst, Frank J. Mascaro, Walter E. Boricht, Jr., Albert

Simmenroth, James E. O'Brien, Frank J. Johdof, Michael Bury,

Peter S. Patuto, Raymond Blydenburgh, Edward Kasbarian, John

J. O'Lock, Edmac Enterprises, Edward McDermott.

Appeal of Joseph REGO.


Appeal of Kenneth C. SPENCE, Jr.

Nos. 88-5789, 88-5797, 88-5817 and 89-5818.

United States Court of Appeals, Third Circuit

February 7, 1990

Argued Sept. 27, 1989.

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Randall J. Richards (argued), of counsel, Alison Wholey Mynick, Wilentz, Goldman & Spitzer, Woodbridge, N.J., for appellant.

Robert A. Goodsell (argued), of counsel, Charles R. Church, John A. Stone, Mary H. Post, David L. Epstein, Irwin and Post, P.A., Roseland, N.J., for appellee, the Borough of Kenilworth.

Paul J. Hirsh, of counsel, Steven Backfish, (argued), John C. Whipple, Whipple, Ross, & Hirsh, P.A., Madison, N.J., for appellee, Joseph Rego.



A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This case presents an appeal and cross-appeals from an $8,400,000 jury verdict awarded a plaintiff who was rendered quadriplegic in a motor vehicle accident. Defendants the Borough of Kenilworth, New Jersey, and one of its police officers, Joseph Rego, appeal several issues of liability and damages. 1 The plaintiff, Mark Waldorf, appeals partial summary judgments in favor of the Borough of Kenilworth on two issues. We will affirm in part, reverse in part, vacate in part and remand for a new trial.


The district court had diversity jurisdiction over this case under 28 U.S.C. Sec. 1332(a). The plaintiff is a citizen of New York and all the defendants are citizens of New Jersey. We have jurisdiction of the appeal under 28 U.S.C. Sec. 1291.

Waldorf's tragic accident occurred at approximately 11:45 P.M. on Wednesday, November 17, 1982, at the four-way intersection of Monroe Ave. and North Fourteenth St. in the Borough of Kenilworth, New Jersey [hereinafter "Borough"]. II Joint Supplemental Appendix [hereinafter "JSA"] 282-83. On the night of the accident, the red light facing west at the intersection failed. II JSA 1223-24, 1262. Corporal Victor Smith of the Kenilworth police department discovered that the red light was out at approximately 11:00 P.M., when he was driving to the police station on his way to work. He radioed police headquarters to report the malfunction to his supervisor Lieutenant Joseph Rego. II JSA 1225. Smith tried to get the light to work and then to switch it to blinking mode, but he failed in both efforts. II JSA 434-39, 1223-30. The intersection had little traffic on week nights and there was none during the time Smith was at the intersection observing and trying to fix the light. II JSA 442, 529, 1241, 1305-06. Smith radioed police headquarters to report the malfunction to his supervisor Lt. Joseph Rego and proceeded to the station.

Lieutenant Joseph Rego, a twenty-one year veteran of the Kenilworth Police Department, was the officer in charge on the 11:00 P.M. to 7:00 A.M. shift on the night of the accident. II JSA 1319-20, 1331. Under his command were two other police officers, Corporal Smith and Patrolman Henry Moll. Rego assigned them to other duties that he considered more urgent than the intersection with the non-functioning red light. As soon as Corporal Smith got to the station, Rego ordered him to assist Moll in arresting Phillip Mathias. Mathias, whom Moll had seen outside a local tavern, was the subject of an outstanding bench warrant in an assault case. II JSA 531-32, 1237, 1326-27. It was standard police procedure in the Borough to use two police

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officers to make an arrest. II JSA 531-32, 1327. As soon as Smith and Moll got back to the station, Rego sent them to a hospital in a neighboring town to pick up a drunk driver who had been injured in an automobile accident. He had been arrested and taken to the hospital earlier by an officer who had gone off duty at 11:00 P.M. The hospital had notified Rego that the patient was ready for release into their custody, and the police department had a policy of picking up arrestees from the hospital as soon as they were able to be moved. II JSA 505, 546, 1332-33. Shortly after they arrived at the hospital, Smith and Moll received a radio call from Rego about the accident involving Waldorf. II JSA 1348.

Mark Waldorf was a passenger in a Dodge van, driven by Kenneth Spence, which was travelling south on 14th Street in Kenilworth. He was sitting in the back of the van on a bench that was not bolted down and was secured only by elastic straps. II JSA 261-62. Edward Shuta was driving a Datsun Sedan east on Monroe Ave. at the same time. II JSA 1168. The intersection of 14th and Monroe was controlled by a traffic signal mounted from a mast arm overhanging the intersection. It had only one signal head with one set of the usual red, yellow and green lights facing in each direction. II JSA 435. The signal head was also equipped with a flashing motor and manual override. II JSA 438.

The light was green facing Spence, and he proceeded into the intersection at approximately 20-25 miles per hour. II JSA 284. Shuta testified that he saw a green light in his direction as he was crossing some railroad tracks that are 237 feet from the intersection. II JSA 1168, 1176-77. He stated that he did not observe the light change to yellow, nor did he notice that the red light was not working. II JSA 1177. A passenger in Shuta's car testified that she had observed that the red light was not working, but that she did not have time to warn Shuta before the accident occurred. II JSA 1016, 1018. The vehicles collided and Waldorf was thrown from his seat on the bench in the rear of the van. The bench struck his head; his neck was broken and his spinal cord was crushed, rendering him quadriplegic. II JSA 1499-1500, 1540-41.

Waldorf sued the Borough of Kenilworth, Corporal Smith, Lt. Rego, and the drivers of the two vehicles. 2 The court granted partial summary judgments to the Borough on two issues on grounds of immunity under the New Jersey Tort Claims Act, N.J.Stat.Ann. Secs. 59:1-1 to 59:12-3 (West 1982), and denied it partial summary judgment under the Act on a third issue. The jury found the Borough 60% liable for its failure to provide emergency signaling devices, Lt. Rego 25% liable for his negligent deployment of police personnel once he had learned of the signal failure, Edward Shuta 10% liable for his negligent driving, Kenneth Spence 5% liable for his improper installation of the bench in his van, and Corporal Smith not liable at all. I JSA 7. Waldorf appeals the partial summary judgments in favor of the Borough and the Borough and Lt. Rego appeal various findings of liability and damages.


In an appeal, we would normally consider first the issues raised by the appellant/cross-appellee, and then consider those raised by the appellees/cross-appellants. In this case, however, Mark Waldorf has conceded that his appeal of the two summary judgments in favor of the Borough would be moot if the other liability issues appealed by the Borough were upheld. We shall therefore consider first the three liability issues appealed by the Borough to see whether we need to reach the issues raised by Waldorf. The issues and the order in which we shall discuss them are as follows: (1) whether the district court erred in refusing to grant partial summary judgment to the Borough on the issue of its failure to provide police with emergency

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signaling devices; (2) whether it improperly instructed the jury as to the burden of proof on that issue; and (3) whether it erred in allowing inconsistent liability verdicts to stand. Then we shall review the two partial summary judgments appealed by Mark Waldorf. Those judgments were based on the district court's findings (4) that the Borough had immunity with regard to its installation of a traffic light with only one signal face in each direction, in violation of New Jersey law and (5) that it had immunity with regard to its lack of a preventive maintenance program for servicing the light. Next, we shall consider two liability issues appealed by defendant Joseph Rego: (6) that the liability verdict against him was contrary to the weight of the evidence and (7) that the court erred in its jury instructions regarding the vicarious liability of the Borough for his actions. Finally, we shall review two issues of damages appealed by both the Borough and Joseph Rego: (8) that the district court erred in allowing evidence as to Mark Waldorf's future earnings as an attorney and (9) that improper remarks in the closing statement by plaintiff's counsel that referred to a dollar amount to be awarded for plaintiff's pain and suffering require that a new trial be held.



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