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Dong v. Alape

June 09, 2003

KAYHAN DONG, PLAINTIFF-APPELLANT,
v.
MICHAEL T. ALAPE, DEFENDANT-RESPONDENT.



Before Judges King, Lisa and Fuentes. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-4789-99.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 18, 2002

We consider in this appeal whether plaintiff, who was injured by an allegedly intoxicated hit-and-run driver, presented sufficient evidence to warrant submission of a punitive damages claim to the jury. After conducting a pre trial N.J.R.E. 104(a) hearing, the trial judge concluded that, although evidence existed that defendant consumed some alcohol prior to the accident, there was insufficient credible, admissible evidence from which a jury could find that defendant was intoxicated at the time of the accident. He further found an absence of aggravating factors which would justify submission to the jury of a punitive damages claim. The judge dismissed plaintiff's count for punitive damages.

We also address a discovery violation asserted by plaintiff. Defendant admitted liability, and the compensatory claim was tried as to damages only. Defendant was permitted to play, over plaintiff's objection, a surveillance videotape of plaintiff that had not been disclosed prior to trial despite plaintiff's discovery demand. The jury awarded plaintiff $70,000.*fn1 Plaintiff is dissatisfied with the compensatory award and claims he was prejudiced by the non-disclosure of the videotape prior to trial.

Plaintiff's motion for a new trial on both compensatory and punitive damages was denied, and he now appeals. We reverse on both issues and remand for a new trial.

I.

We first address the punitive damages issue. Our analysis is guided by summary judgment principles,*fn2 the ultimate issue being"whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On appeal, we apply the same standard as the trial court. Prudential Property & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). All legitimate inferences must be drawn in favor of the non-moving party. R. 4:46-2(c). In this context, we must determine whether plaintiff has made out a prima facie case of entitlement to punitive damages.

A.

Viewing the evidential materials most favorably to plaintiff, these are the facts. On January 12, 1998, at about 5:00 p.m., the seventeen-year-old plaintiff and his two friends were attempting to cross Woodbridge Avenue in Edison. They were not at an intersection. The area is residential. Rush hour traffic was heavy. Woodbridge Avenue has one lane in each direction, separated by a double yellow line at this location. A car stopped to allow the boys to cross, and they entered the roadway in front of that car from its right.

Defendant was driving behind the car that stopped. Defendant crossed the double yellow line, passed the stopped car, and cut back into the right lane. One of the boys successfully jumped back, and another boy also avoided being hit. Defendant struck plaintiff, however, with the right front portion of his car, propelling plaintiff into the air, striking and smashing the right side of defendant's windshield, and vaulting over the car.

Three eyewitnesses testified at the N.J.R.E. 104(a) hearing: Robert Ellmyer, who was standing on his front yard adjacent to the point of impact; Sherine Heikal, a limousine driver proceeding in the same direction as defendant and directly behind him at the time of impact; and Eugene Yu, the friend of plaintiff who successfully jumped out of defendant's path. These three witnesses, all of whom are independent of each other and two of whom are independent of plaintiff, estimated defendant's speed to be excessive at the time of impact. Heikal and Yu said defendant was going about fifty miles per hour, and Ellmyer estimated defendant's speed at forty to fifty miles per hour. The posted speed limit is thirty-five miles per hour.*fn3

After impact, defendant continued driving without immediately slowing down. He approached a red light, where several vehicles were stopped. Defendant stopped in this line of traffic. Heikal had stopped and exited his vehicle at the accident scene. He and plaintiff's other friend, Juan Andino, pursued defendant's vehicle on foot. They caught up to it while stopped in traffic at the red light. Defendant's windows were closed. Heikal went to the driver's side window and Andino to the passenger's side.

Heikal banged on the window, yelling to defendant more than once that he"just hit a kid." Andino was yelling from the passenger side,"You just hit my friend. You just hit my friend." Heikal described defendant's reaction: Defendant"just looked at me like, you know, it was like he was in a different world and he couldn't understand what I'm saying --""He just looked at me and smiled.""When I talked to him, sir, he seemed to me in a different world. He wasn't there. He wouldn't understand what I'm saying. All his cheeks were very, very red and his eyes was completely red. And his head was like, you know, moving around like it's not stable as a normal person driving a car." Defendant also looked at Andino, making no response.*fn4 When the light turned green and traffic began to move, defendant drove away. He left the scene. Heikal made note of defendant's license plate number and gave it to the police.

Heikal had observed defendant's driving for about a quarter of a mile before the accident. He described how defendant used a left-turn-only lane while approaching an intersection to pass a line of cars in the straight-only lane. Defendant's car"was skidding a little bit and then he just cut off in the front of us." Although the heavy rush hour traffic was moving along at about twenty-five to thirty miles per hour, defendant was passing other cars, reaching speeds of"at least 50" miles per hour. Heikal was directly behind defendant when he saw the car in front of defendant braking. Instead of slowing down and stopping behind that vehicle, defendant, traveling at about fifty miles per hour, completely crossed the double yellow line, passed the vehicle, and then, as he cut back into the right lane, struck plaintiff.

Defendant was identified through Division of Motor Vehicle records and located the next day at his home in Piscataway Township at about 1:00 p.m. Piscataway Officer Douglas Zuber went to defendant's home and observed the damaged car in front of the house. From his observations, Zuber believed defendant to be intoxicated at that time. Defendant admitted to drinking that morning. When Zuber informed defendant of the purpose of his visit, defendant said he did not remember having an accident or hitting anyone the previous day. Defendant told Zuber he sometimes blacks out. Zuber was concerned for defendant's safety, because defendant appeared intoxicated, was home alone, and stated he suffers from blackouts. At Zuber's direction the local ambulance squad was called and it transported defendant to a hospital. The Edison police arrived and had defendant's car towed.

Although defendant has steadfastly denied any recollection of the accident, he does not deny that he was the driver of his car which struck plaintiff. He pled guilty in municipal court to charges of careless driving, N.J.S.A. 39:4-97, and failure to report an accident, N.J.S.A. 39:4-130. These pleas were entered without a reservation that they could not be used against defendant in a civil action. R. 7:6-2(a)(1).

Defendant has a history of alcoholism, which predates the accident by at least three years. He was twice admitted to the Carrier Clinic before the accident for alcoholism and depression. On the day after the accident, defendant gave a statement to Edison Township Officer S. Miller:

He stated that he does not remember being in Edison or even driving his car.... He stated he has a drinking problem and drank from 11:00 AM till when he blacked out but does not remember when. He does not remember anything that happened during [January 12, 1998]. He stated that ...


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