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Kiss v. Defendant-Respondent/Cross-Appellant

Decided: November 5, 1993.


On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Petrella, Baime and Villanueva. The opinion of the court was delivered by Villanueva, J.A.D.


[268 NJSuper Page 237] On January 13, 1988, Joszef Kiss ("plaintiff"), was the owner and operator of a motor vehicle which was stopped on Route # 18 in East Brunswick, New Jersey, behind three other vehicles when struck in the rear by a motor vehicle operated by Ziv Jacob ("defendant") and owned by his wife, Elvira Yakov. Behind the Jacob vehicle and involved in an impact with the Jacob vehicle prior to the impact between the Jacob and Kiss vehicles were automobiles of the defendants, Warnebold and Marold. Plaintiffs*fn2

instituted suit against the operators of the three succeeding vehicles. A third party complaint was later filed against the operators of the three vehicles, Palacios, Patel, and Agaba which were proceeding in front of the Kiss vehicle. Plaintiffs' complaint was also amended to name the operators of these three vehicles. Defendants Marold, Patel, Agaba, and Palacios successfully moved for summary judgment to dismiss the claims against them.

Immediately prior to trial, plaintiffs settled with defendant Warnebold for her $100,000 insurance policy. At a liability trial against defendant Jacob, the issue of the alleged negligence of both Jacob and Warnebold was submitted to the jury. The jury concluded that Warnebold was negligent, but that her negligence was not a proximate cause of the accident which caused plaintiff's injury. The jury found Jacob 100% at fault for the accident.

Early in the course of discovery, plaintiffs served interrogatories on Jacob's attorney. Interrogatory # 35 requested information whether photographs existed relevant to this case. Initially, Jacob's response was "no." Thereafter, in October and November 1991, representatives of Jacob obtained photographs and videotapes depicting plaintiff engaging in certain activities. By letter of November 22, 1991, Jacob amended his interrogatories to update his answers, including supplemental answers to the questions dealing with, among other matters, any persons with relevant knowledge and photographs. As part of that amendment, Jacob supplied the names and addresses of three individuals (employees of Interprobe, Inc., who had been involved in surveillance of the plaintiff). Interrogatory # 35, dealing with photographs, read as follows:

Do you or does anyone on your behalf have any photographs of the scene of the accident or the persons involved or of any object involved? If so, state: (a) name and address of person taking such photographs; (b) date photographs were taken; (c) name and address of the person, firm or corporation in whose possession the photographs are at the present time; and (d) description of what each photograph shows.

The supplemental response supplied in the November 22, 1991 letter stated:

Photographs of the vehicles involved in the accident, defendant Warnebold's vehicle, and plaintiff are in the possession of defendant Jacob's attorney, and on information and belief, additional photographs are contained in the file of the attorney of the defendant Warnebold. The photographs were taken at various times after the accident. All photographs are available for inspection in the offices of defendant Jacob's attorney or defendant Warnebold's attorney on reasonable notice.

For five months between November 22, 1991, and the date of the trial on damages, plaintiffs' attorney never made any request to see the "photographs," nor did he make any inquiry as to the nature of the knowledge possessed by the persons named with relevant knowledge who took the photographs and videotapes. Interrogatory # 35 was the only interrogatory served by plaintiff which, arguably, asked Jacob to provide any information related to photographs. No interrogatory, or other discovery request, made specific reference to videotapes.

After the plaintiffs presented their proofs in the trial on damages, Jacob offered into evidence the testimony of two of the photographers and videographers who took photographs and videotapes of the plaintiff, Joszef Kiss. Plaintiffs' attorney objected to the testimony of these individuals as well as the introduction into evidence of approximately sixty photographs (marked as a package) and the videotapes, but the trial Judge permitted this evidence. The Judge ruled that the letter dated November 22, 1991, specifically alerted plaintiffs' attorney to the fact that photographs and/or videotapes of the plaintiff, Joszef Kiss were in the possession of the attorneys for Jacob.

The jury rendered a verdict in favor of both plaintiffs, against Jacob in the aggregate of $45,000. Joszef Kiss was awarded $37,500 for lost earnings and $5,000 for his injuries. Edith Kiss was awarded $2,500 for her per quod claim. Following the jury's verdict, Jacob moved to reduce the award based upon personal injury protection ("PIP") benefits received by Joszef Kiss and

collateral source set-offs. The Judge reduced plaintiffs' award to $11,500 (the net lost income claim) plus pre-judgment interest of $3,102.29. Plaintiffs then moved for a new trial and/or an additur, which was denied.

Upon appeal, plaintiffs have elected not to order a transcript of the motion for a new trial, nor of any of the trial testimony by plaintiffs, their doctors and other witnesses. Plaintiffs do not appeal from that aspect of the order denying a new trial, but appeal only with respect to the order molding the verdict, and with respect to the trial court's decision to allow the jury to hear the testimony of the surveillance witnesses and to view the photographs and videotapes. Defendant Jacob cross-appeals from that part of the order molding the jury verdict which allowed some of the lost income award to stand despite N.J.S.A. 2A:15-97.

-- I --

Both plaintiffs' depositions were taken originally on September 6, 1989. At the request of defendant Jacob, plaintiff's activities on October 23, 24, and 25, and November 8 and 20, 1991, were videotaped by Robert Andrews and Robert Higgins of Interprobe, Inc. By letter of November 6, 1991, in preparation for the upcoming damages trial, Jacob's attorney requested that plaintiffs be produced for re-deposition regarding developments since their first deposition. That re-deposition took place on November 20, 1991. By letter of November 22, 1991, Jacob amended his interrogatories to include Higgins and Andrews as witnesses and to amend his answer to # 35 advising plaintiffs that photographs existed of defendant Warnebold's vehicle and plaintiff.

The genesis of a party's obligation to provide discovery to his adversary inheres not in any general obligation to expose the defenses available to a ...

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