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Schwartz v. Jordan3/5/2001
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 14, 2001
Following a three-day liability trial, the jury concluded that, although Plainsboro Township had created a dangerous condition of which it had notice and which was a proximate cause of plaintiff's personal injury , the Township's action and/or inaction with respect to remedying the condition was not palpably unreasonable. On appeal plaintiff raises several contentions, only one of which we need address as our consideration as to that issue leads us to conclude a reversal and new trial is required. That issue concerns the trial judge's exclusion of evidence of the motivating force behind the Township's remedial efforts, that is, prior accidents in the general vicinity of plaintiff's accident, which had caused serious injury and death. We are convinced under the particular circumstances that the evidence was highly relevant to the only real issue in contention, whether the Township was palpably unreasonable in its efforts to remedy the dangerous condition which the jury concluded was a proximate cause of plaintiff's injury. We are further convinced the exclusion of this evidence cannot be considered harmless error.
Here are the facts. At approximately 6:19 p.m. on January 3, 1997, plaintiff, who has cerebral palsy and uses crutches to assist him in walking, entered the north side of a crosswalk on Plainsboro Road, near the entrance to Morris Davidson Park. The crosswalk is not located at a signaled intersection, but is located between the Hunters Glen Drive/Deer Creek Drive intersection and the T-intersection at which Thoreau Drive intersects with Plainsboro Road across from Morris Davidson Park. The crosswalk, close to the corner of Thoreau Drive, crosses the four lanes of Plainsboro Road, which runs east and west. As plaintiff entered the crosswalk, he began crossing the westbound lanes of Plainsboro Road. Defendant Jordan, traveling in the left lane of the westbound traffic at approximately forty miles per hour, struck him.
At the time of the accident, the crosswalk was painted with two lines and "hash marks going across." There was no controlling traffic light at this crosswalk, although one was located 1280 feet east of the crosswalk at the intersection of Tamarron Drive/George Davidson Drive. The speed limit on Plainsboro Road was forty-five miles per hour. Posted signs warned both westbound and eastbound motorists that they were approaching a crosswalk. At the crosswalk itself, signs informed both westbound and eastbound motorists of the State law requiring them to "yield to pedestrians in a crosswalk."
Although plaintiff urged a number of actions that could have been taken to improve the safety of the crosswalk prior to his accident, the lighting, or lack thereof, was the primary focus. In that respect, it is undisputed that at the time of the accident the lighting was poor. Indeed, while there was a street lamp on the south side of the crosswalk illuminating the eastbound lanes, there was none on the side from which plaintiff entered. Moreover, there were no street lamps on that side of Plainsboro Road from the corner of Hunters Glen Drive/Deer Creek Drive east to the corner of Tamarron Drive/George Davidson Drive, a distance that encompassed the park.
Thus, the accident report stated "intersection is lit by a street lamp, but it would not be considered a well illuminated area." The driver, defendant Jordan, never saw plaintiff until impact and an independent witness to the accident stated that all he "noticed was a silhouette of something. . . . It was very dark."
Plaintiff's claim against the Township, of course, is governed
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