                                                    NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                   ________________

                         No. 15-2355
                      ________________


      BETANIA TORIBIO, Administratrix of the Estate of
       John Joaquin Toribio, Deceased and Individually,

                                    Appellant

                               v.

PINE HAVEN LLC, d/b/a Pine Haven Campground, and Pine Haven
     Camping Resort; DIVERSIFIED INVESTMENTS INC,
                 a/k/a Diversified Investments, LLC,
         a/k/a Diversified Investments Services, LLC

                               v.

HEATHER MILLER, a/k/a Heather Dioscon; TIMOTHY MILLER;
     ANTHONY DIOSCON; MICHELLE WHEELER
                 ________________

          Appeal from the United States District Court
                  for the District of New Jersey
            (D.C. Civil Action No. 1-12-cv-04975)
           District Judge: Honorable Joseph E. Irenas
                       ________________

          Submitted Under Third Circuit LAR 34.1(a)
                     November 15, 2016

  Before: AMBRO, CHAGARES, and FUENTES, Circuit Judges

              (Opinion filed: December 7, 2016)
                                    ________________

                                        OPINION*
                                    ________________

AMBRO, Circuit Judge

       Betania Toribio, Administratrix of the Estate of John Joaquin Toribio, filed suit

against Pine Haven, LLC alleging that the drowning death of her son, John, resulted from

Pine Haven’s negligence. After trial, the jury found that John Toribio was 93% liable for

his drowning and that Pine Haven was 7% negligent. This finding resulted in a no-cause-

of-action verdict in favor of Pine Haven. A no cause of action results under New Jersey

law when a plaintiff is determined to be more than 50% liable; when this occurs, the

court will dismiss the action against the defendant. Betania Toribio appeals, arguing that

the District Judge exhibited bias and partiality and that he erred in failing to provide the

jury with a proper instruction. We disagree and thus affirm.

                                       I. Background

       In August 2010, fourteen-year-old John Toribio spent a weekend with his friend

and friend’s parents at Pine Haven Campground in Ocean View, New Jersey. The

campground’s amenities include a swimming lake, playgrounds, and basketball courts.

On the night of August 8, 2010, John and several other teenagers took a dip in the

campground’s man-made swimming lake. The lake was not fenced off, patrolled by

lifeguards or other personnel, or monitored by surveillance cameras. The lake was also



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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dark. Around 8:15 p.m., John started splashing in the water, and his friends lost sight of

him. Not long after, emergency personnel recovered his body and pronounced him dead

at the scene.

       The decedent’s mother, Betania Toribio (“Toribio”), filed suit against Pine Haven

arguing that its negligence caused her son’s death because it failed to (1) place a fence

around the lake, (2) install artificial lighting, (3) install surveillance cameras, and (4)

provide roving security throughout the campground. The jury trial spanned 11 days. In

the end, the jury found both John and Pine Haven negligent and apportioned 93% of the

fault to John and 7% of the fault to Pine Haven. Because John was more than 50% at

fault, the Court dismissed the claims against Pine Haven.

       Toribio now appeals the District Court’s order. She argues that the District Judge

undermined her case and that he should have given the jury an instruction on what is a

“duty voluntary assumed.”

                                        II. Discussion

                                               A.

       While federal judges may not assume the role of an advocate, they may question

witnesses because judges are more than “mere moderator[s].” United States v. Wilensky,

757 F.2d 594 (3d Cir. 1985); accord United States v. Beaty, 722 F.2d 1090, 1092–93 (3d

Cir. 1983) (elaborating on “judicial participation in trials”); FED. R. EVID. 614(b) (“The

court may examine a witness regardless of who calls the witness.”). In Liteky v. United

States, the Supreme Court held that “judicial remarks during the course of a trial that are

critical or disapproving of, or even hostile to, counsel, the parties, or their cases,

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ordinarily do not support a bias or partiality challenge. . . [unless] they reveal such a high

degree of favoritism or antagonism as to make fair judgment impossible.” 510 U.S. 540,

555 (1994).

       Toribio alleges two indiscretions: (1) the District Judge’s commentary and

questioning during the testimony of her fact and expert witnesses amounted to advocacy;

and (2) the District Judge mocked her fact and her expert witnesses throughout the trial.

To support these allegations, Toribo cites various points in the trial transcript when the

District Judge interjected during direct- and cross-examination. These interjections

consisted of questions and comments both in front of and in the absence of the jury.

While the trial transcript is vast, the District Judge’s questions or comments in the jury’s

presence include phrases such as “I mean, it could be a hundred acres or 200 acres,” “Ask

proper questions,” and “You weren’t – you weren’t paying attention to whether there

were signs anywhere, were you?” Transcript of Record at 202, 457, 753, Toribio v. Pine

Haven, LLC, No. 12-4975 (JEI)(JS) (D.N.J. May 14, 2015). Outside the jury’s presence

during a hearing to qualify experts, the Judge stated “You’re flabbergasted. I’m trying to

keep this case from turning into a nightmare and I’m going to let the jury decide it, but

quite candidly, I think there’s going to be a big chance if they come out for the plaintiff,

I’m going to set it aside, based on [the witness’s testimony].” Tr. at 383.

       When confronted with allegations of bias, we consider factors such as the number

of times the judge interfered in the trial, the extent of that interference, and the degree to

which the judge exhibited partisanship. See Beaty, 722 F.2d at 1093; Wilensky, 757 F.2d

at 598–599; see also United States v. Ottaviano, 738 F.3d 586, 597 (3d Cir. 2013).

                                               4
       After reviewing the record, we disagree that the District Judge demonstrated a bias

or partiality that would have changed the jury’s verdict. For example, we disagree that he

was acting as an advocate. When the District Judge questioned or interrupted the

witnesses, he did so to clarify the testimony. Indeed, at one point during the trial

Toribio’s counsel thanked the Judge for “clarification.” Tr. at 249. Additionally, his

interjections are found in only a small part of the trial transcript, and some of his

responses related to evidentiary objections of the parties. The interruptions mentioned

were also not partial to one party, as they were of counsel to both sides. (Toribio also

cites to questions and comments made during discussions outside the jury’s presence to

demonstrate bias and partiality; however, because the jurors were not present, these

discussions could not have influenced them.)

       To Toribio’s second point—that the District Judge mocked her fact and expert

witnesses—she has not demonstrated bias or partiality. Even if, at times, the District

Judge appeared frustrated or condescending, that is not enough to establish bias or

prejudice. See, e.g., United States v. Liteky, 510 U.S. 540, 555–56 (1994) (noting that

impatience, dissatisfaction, anger, or sternness do not establish bias or partiality). While

it was not advisable for the Judge to make these comments, they appeared to exhibit mere

frustration and not bias.

       We discern in this context no judicial bias or partiality.



                                              B.



                                              5
       Toribio argues also that the District Judge failed to instruct the jury properly,

specifically, that the jury should have been charged on “Duty Voluntarily Assumed.” In

New Jersey, state courts impose “duties of reasonable care on defendants who voluntarily

undertake services.” Ceneviva v. Homes, No. 09-2452, 2011 WL 2470596, *1, *3

(D.N.J. June 20, 2011) (citing Thorne v. Miller, 722 A.2d 626, 629 (N.J. Super. Ct. L.

Div. 1998)). For example, a person voluntarily assumes a duty when voluntarily holding

a ladder for another person. See Ceneviva, 2011 WL 2470596, at *3 (“reliance by the

dependent party is foreseeable, the risk of harm is serious, and the party assuming the

duty could reasonably prevent foreseeable harm by exercising reasonable care”). A

driver also assumes a duty when he waves to another driver in order to facilitate safe

passage. See Thorne v. Miller, 722 A.2d, 626, 628 (N.J. Super. Ct. L. Div. 1998).

Absent these efforts to aid others, an ordinary person would not otherwise owe another a

duty. Toribio requested that the District Court instruct the jury on this type of duty.

       Here, however, Pine Haven already owed John Toribio a duty because the

campground had a preexisting duty to exercise reasonable care to all guests. It was not

voluntary. Instead of giving the “duty voluntarily assumed” charge, the District Judge

instructed the jury on all of the elements of Toribio’s liability claim, including the duty

owed, how it could be breached, and how harm could be caused. He instructed the jury

that the “property owner owes a duty to exercise reasonable care . . . to persons who . . .

are allowed to have a right to be on the premises.” See Tr. at 1351. This was a correct

instruction.



                                              6
                              *      *      *      *         *

       In summary, the conduct of the District Judge did not prejudice Toribio and the

instruction to the jury was not incorrect. Thus we affirm.




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