Thorn v. Travel Care, Inc.

• Decision Date: 14 January 1997
• Citation: 686 A.2d 1234,296 N.J.Super. 341
• Parties: Martina THORN and James Thorn, Plaintiffs-Respondents, v. TRAVEL CARE, INC. and/or Travel Care Patient Transportation Service, Leonard H. Adoff, t/a Travel Care Patient Transportation Service, and Theresa M. Wegrzyn, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 341

296 N.J.Super. 341

686 A.2d 1234

Martina THORN and James Thorn, Plaintiffs-Respondents, v. TRAVEL CARE, INC. and/or Travel Care Patient Transportation Service, Leonard H. Adoff, t/a Travel Care Patient Transportation Service, and Theresa M Wegrzyn, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Nov. 18, 1996.

Decided Jan. 14, 1997.

Thomas D. Monte, Jr., Sea Girt, for defendants-appellants (Monte & Marriott, attorneys; Mr. Frank E. Borowsky, Jr. on the brief).

Mark Rothman, Woodbridge, for plaintiff-respondent Martina Thorn (Raymond A. Gill, Jr., attorney; Francis E. Wilton on the joint brief).

Spencer B. Robbins, Woodbridge, for plaintiff-respondent James Thorn (Robbins & Robbins, attorneys; Mark S. Rothman, of counsel; Mr. Robbins on the joint brief).

Before Judges HAVEY, KESTIN and EICHEN.

The opinion of the court was delivered by

EICHEN, J.A.D.

In this personal injury action, defendants appeal from the trial court's denial of their motions for a directed verdict at the close of plaintiffs' case and judgment notwithstanding a jury verdict awarding aggregate damages in the amount of $472,875 to plaintiffs. Defendants contend that the testimony of plaintiffs' experts was insufficient to establish that defendants' negligent maintenance of a seat belt proximately caused plaintiff Martina Thorn's injuries. ¹ Defendants argue that plaintiff's injuries would have been the same or worse even if she had been wearing a seat belt, and therefore she had the burden to demonstrate by expert testimony that an operable seat belt would have prevented those injuries. We disagree and affirm.

Plaintiff was injured while riding in defendants' invalid motor coach. She had hired the coach to transport her daughter, who is wheelchair-bound, to the dentist. While in transit, the coach stopped abruptly and caused plaintiff to be forcibly thrown from her bench-type seat across the aisle into her daughter's wheelchair. Although the coach was equipped with a seat belt, it was inoperable due to a missing buckle. When the coach stopped abruptly to avoid being "cut-off" by another vehicle, plaintiff experienced a rapid "acceleration and deceleration" movement of her body as she was thrown across the coach. As a result, plaintiff sustained a "traumatic brain injury," permanent in nature, as well as damage to her cervical and lumbar spine.

Plaintiffs instituted a personal injury action against defendants alleging negligent operation of the motor coach and negligent failure to properly maintain the seat belt. At trial, plaintiffs introduced four expert witnesses, all of whom concluded, within a reasonable degree of medical certainty, that plaintiff had suffered a permanent "closed head injury," as well as cervical and lumbar injuries, and that her injuries were caused by the accident. In regard to plaintiff's head injury, the experts testified that the acceleration and forceful deceleration of plaintiff's brain caused a collision between her brain and skull, resulting in a traumatic brain injury.

Dr. William Mullally, a Harvard University trained neurologist, who is board certified in neurology and internal medicine, testified on behalf of plaintiffs. He described the field of neurology as being concerned with the forces of acceleration and deceleration as they relate to the movement of the brain within the skull. Describing these forces, he stated:

[I]n space and time, if the body is moving, the brain is moving at the same speed. If the body is stopped at any time, the brain will continue to move just like any other object. It may bounce against the skull. It goes forward and then backwards, and it also turns, rotates.

He gave as an example, "shaken baby syndrome," where continuous shaking of a baby "bounces the brain around," causing impact with the skull, sometimes producing such significant trauma to the brain that death occurs. Dr. Mullally concluded that plaintiff's chronic head pain and cognitive deficits were the result of the "closed head injury" she sustained in the accident. Neither he nor the other experts presented by plaintiffs specifically testified concerning what, if any, injuries plaintiff would have sustained had she been wearing her seat belt. Defendants did not present any medical experts or introduce evidence that plaintiff's injuries would have been the same or worse had a properly functioning seat belt been employed by plaintiff.

Defendants moved for a directed verdict at the close of plaintiffs' case, arguing that plaintiffs failed to sustain their burden of proof with respect to proximate cause on the negligent maintenance of the seat belt claim. The trial judge denied defendants' motion, ruling that "[t]he plaintiff is not required to prove that if [she] had used a good safety belt ... she would not have sustained ... injury."

At the conclusion of the trial, the jury absolved defendants of liability on the claim of negligent operation of the motor coach, but determined that defendants were negligent in failing to properly maintain the seat belt, which negligence proximately caused plaintiff's injuries. After judgment was entered, defendants moved for judgment notwithstanding the verdict, again arguing that plaintiffs had failed to demonstrate that plaintiff would not have been injured had she been wearing a seat belt. The trial court denied the motion, stating that the jury "could have reasonably concluded that defendants' negligence in failing to maintain the vehicle was clearly a proximate cause of the injuries sustained."

Defendants make the same argument on appeal. They maintain that the trial court erred in failing to grant their motions for judgment because plaintiffs were required to specifically prove through expert testimony that the absence of an operable seat belt proximately caused plaintiff's injuries.

Defendants maintain, as earlier noted, that had plaintiff been wearing a seat belt, the abrupt acceleration/deceleration forces experienced by her body when the motor coach stopped short would have been the same or greater and therefore would have produced the same or worse injuries than those she sustained. In other words, defendants contend that plaintiff would have experienced "the same whiplash type motion" whether or not she had been wearing a seat belt, and therefore their failure to maintain a proper safety restraint was not the cause of her injuries. Accordingly, defendants insist that it was plaintiffs' burden to demonstrate through expert testimony that plaintiff's injuries would not have occurred had she been wearing a seat belt.

It is fundamental that in order to impose tort liability upon a defendant, a plaintiff must prove the defendant's wrongful conduct, injury and proximate cause. See, e.g., Dawson v. Bunker Hill Plaza Associates, 289 N.J.Super. 309, 322, 673 A.2d 847 (App.Div.), certif. denied, 146 N.J. 569, 683 A.2d 1164 (1996). Hence, the plaintiff has the burden of proving by a preponderance of the evidence that a defendant's negligent conduct is a cause-in-fact of the plaintiff's injury. See Kulas v. Public Serv. Elec. & Gas Co., 41 N.J. 311, 317, 196 A.2d 769 (1964); see also Battista v. Olson, 213 N.J.Super. 137, 148-49, 516 A.2d 1117 (App.Div.1986). Moreover, an act or omission is not regarded as a cause-in-fact of an event if the event would have occurred without such act or omission. Kulas, supra, 41 N.J. at 317, 196 A.2d 769. Nevertheless, "[t]his rule has been tempered by cases holding that, even if damage would have occurred in the absence of a defendant's negligence, liability still may be imposed upon a showing that the negligent conduct was a substantial factor in causing the harm alleged." Battista, supra, 213 N.J.Super. at 149, 516 A.2d 1117. See Conklin v. Hannoch Weisman, 145 N.J. 395, 417, 419, 678 A.2d 1060 (1996) (discussing "causation in fact," and specifically noting that "our concepts of causation for failure to act are expressed in terms of whether the negligent conduct may be considered a substantial factor contributing to the loss"); see also Grassis v. Johns-Manville Corp., 248 N.J.Super. 446, 457, 591 A.2d 671 (App.Div.1991) (noting that the law does not require a plaintiff to prove a single cause, only that defendant's conduct was a substantial factor in causing the injury).

In Battista, supra, we explained that the "substantial factor" exception to the general rule of proximate causation rests largely on our courts' acceptance of the following tort principles:

[An] actor's negligent conduct is a legal cause of harm to another if a) his conduct is a substantial factor in bringing about the harm.... [2 Restatement, Torts 2d, § 431 at 428 (1965) ].

* * * * * *

(1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.

(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing about it. [Id., § 432 at 430 (Emphasis supplied) ].

[213 N.J.Super. at 149, 516 A.2d 1117 (citations omitted).]

In short, although tort law recognizes that there may be multiple causes of an injury, these causes " 'need not, of themselves, be capable of producing the injury; it is enough if they are 'a substantial factor' in bringing it about.' " Conklin, supra, 145 N.J. at 419, 678 A.2d 1060 (quoting Scott v. Salem County Memorial Hosp., 116 N.J.Super. 29, 34, 280 A.2d 843 (App.Div.1971) (citations omitted)).

In determining whether a cause is a substantial factor "we do not tell a jury that a significant factor must be" a particular percentage to be deemed substantial, but leave that determination to the fact finder itself. See Grassis, supra, 248...