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Kelly v. Walker-Grassi


January 24, 2007


On appeal from the Superior Court of New Jersey, Law Division, Cape May County, CPML-182-03.

Per curiam.


Argued December 6, 2006

Before Judges Winkelstein, Fuentes and Baxter.

As eight-year-old plaintiff*fn1 Sara Kelly stood in darkness on the double yellow lines dividing a four-lane roadway in North Wildwood, the driver of the vehicle in the inside left lane stopped his vehicle, and waved her across. After safely passing across the front of that vehicle, Sara Kelly stepped into the right lane, where she was struck by the vehicle driven by defendant Molly Walker-Grassi*fn2 and was seriously injured. The jury returned a verdict in favor of defendant, finding that she was not negligent. This appeal followed.*fn3

On appeal, plaintiff argues that the trial court committed reversible error of law: by refusing to bar the testimony of defendant's expert witness, and in permitting that witness to offer evidence and opine that defendant's line of sight was blocked by the vehicle in the inside lane, even though defendant in pretrial discovery had stated that her line of sight was not blocked; by charging the jury that any violation by defendant of N.J.S.A. 39:4-36, which requires a driver to yield to a pedestrian in a crosswalk, was evidence of negligence, rather than negligence per se; and by erroneously including in his charge another portion of that statute concerning a pedestrian's duty while in a crosswalk, when there were no facts in the record to justify that charge. We disagree, and affirm.


On the night of April 21, 2001, plaintiff Sara Kelly, her ten-year-old sister Jacqueline, and their friend Brittany Casile, age eleven, were playing in front of the Anglesea Pub in North Wildwood. The Anglesea Pub is located on the southbound side of New Jersey Avenue just south of its intersection with First Avenue. The intersection was not controlled by a traffic light. New Jersey Avenue is a four lane road, consisting of two northbound and two southbound lanes. While waiting for their parents to pay their bill at the Anglesea Pub, the three girls began throwing rocks across the four lanes of New Jersey Avenue. Plaintiff ran across the road to retrieve one of the rocks, and began to run back across New Jersey Avenue to rejoin her sister and Casile. At that point, Casile noticed a silver or white four-door car driving along New Jersey Avenue in the lane closest to the double yellow line. Casile called to plaintiff and told her to stop crossing the street, whereupon plaintiff remained on the double yellow lines separating the north and southbound lanes.

According to Casile's testimony, the unidentified driver must have noticed plaintiff coming across the street and standing on the double yellow lines because he stopped his vehicle. After he stopped, Casile saw the driver "wave" plaintiff across. Plaintiff acknowledged the driver's wave with a nod of her head, and continued to cross the street in front of the unidentified vehicle.

Casile testified that once the unidentified vehicle stopped, a red Honda Accord, which Casile said was behind the unidentified vehicle in the left lane, moved from the left lane into the right lane, passing the unidentified vehicle on its right. Once it was in the right lane, the Honda, driven by defendant Molly Walker-Grassi, struck plaintiff as she continued to cross the street. Plaintiff was thrown into the air, landing in the parking lot of the Anglesea Pub, forty-seven feet away from the point of impact. Plaintiff's sister Jacqueline testified, corroborating Casile's version of the happening of the accident. Plaintiff herself testified only briefly, principally describing the impact the injuries had had on her life. Notably, she testified that she had no memory of the accident, and that the "last thing [she] remember[ed] was being outside the Anglesea Pub with a lemon*fn4 in [her] hand." The next thing she remembered was "[b]eing on the sixth floor of Cooper Hospital."

Defendant was called as a witness by plaintiff. She testified that she saw plaintiff for the first time when plaintiff was on the hood of her car rolling into her windshield. After she struck plaintiff, defendant immediately applied her brakes and brought her car to a stop.

She testified that just prior to striking plaintiff with her vehicle, she was driving around a curve in the road and was going "at about the speed limit," which was twenty-five miles per hour. She explained that there were two lanes of traffic in her direction, and that she was in the right "curbside" lane. As she rounded the curve, she noticed another vehicle to her left, about half a car length ahead, which was beginning to drift toward her. She first noticed that car about two blocks before the scene of the accident. Although she noticed this car, she testified that her head was pointed directly in front of her at all times, and that she was just "keeping an eye" on the vehicle next to her. Later in her testimony, when defendant was asked whether the vehicle to her left had ever come to a stop in the left lane, she answered "no."

Defendant was also questioned by plaintiff about whether there was anything blocking her view as her vehicle approached the location where the accident occurred. In particular, defendant was asked about her answer to interrogatory question 7b and her subsequent deposition testimony concerning that answer. Question 7b asked, "[w]as there anything that blocked your view or prevented you from seeing the other vehicle(s) or person(s) prior to the accident?" In response to this question, defendant answered "no." Later, during her deposition, defendant was asked whether her answer to question 7b had been correct. She answered, "I believe it's correct. The way I understand the question, my answer is correct." When asked how she understood the question, she simply answered, "I understand the question as anything being in my vision that blocked my vision from something that could have been there and I don't think that there was."

During the trial she explained that she answered "no" to question 7b in the interrogatories because "the lane in front of [her] was clear and there was nothing directly in front of [her]," and, further, that she thought the question "meant [only] straight in front . . . of [her] car" not to the side. "[She] didn't realize when she answered that question at the time that it meant [her] line of sight in all directions, to [her] side, was there anything next to [her] . . . . [she] just thought it meant straight in front of her, right in front of [her] car."

Kenneth Calloway testified on behalf of defendant. His testimony contradicted that of Casile regarding the position of defendant's vehicle immediately before the accident. Calloway stated that he and his son were traveling on motorcycles about two or three car lengths behind defendant. Contrary to the testimony of Casile, he testified that defendant was in the curbside lane, in front of him, and was not in the center lane behind the phantom vehicle. He estimated that both he and defendant were traveling somewhere between twenty-three and twenty-eight miles per hour. He and his son were not direct eyewitnesses to the collision between plaintiff and defendant, but they did witness all events leading up to it.

Accident reconstruction experts testified for both plaintiff and defendant. Frank Costanzo, testifying on behalf of plaintiff, opined that from the time of impact with plaintiff until the time defendant's vehicle came to a stop, defendant's vehicle traveled approximately eighty feet. He noted that there were no skidmarks at the scene. Taking this information into account, Costanzo concluded that defendant must have been traveling in excess of the posted speed limit, at a rate of about forty-two miles per hour. On cross examination, Constanzo acknowledged that his estimate did not take a driver's reaction time into consideration, and if that factor were to be considered, defendant's speed would not have exceeded the speed limit.

George Widas testified as defendant's accident reconstruction expert. He testified that defendant was, at all times pertinent, traveling in the curbside lane of traffic; the phantom vehicle was in the left lane of traffic; the phantom vehicle had waved plaintiff in front of his car to allow her to cross the street; plaintiff ran directly in front of the phantom vehicle from the left hand side where the double yellow line was; and that after passing in front of the phantom vehicle, plaintiff ran in front of defendant's vehicle and was subsequently struck.

Importantly, Widas came to the additional conclusion that, with reasonable professional probability, defendant's line of sight was blocked at all times as defendant was approaching the point of impact, and that defendant first became aware of the presence of plaintiff when plaintiff struck her windshield. Based on the assumption that defendant's line of sight was blocked by the phantom vehicle to her left, Widas opined that defendant would not have had enough time to stop before striking plaintiff.

Widas further testified that defendant was traveling no faster than twenty-five miles per hour when she struck plaintiff. He used evidence of reaction times, the fact that there were no skidmarks, and other factors which are commonly relied upon by an expert when making his assessment. He also testified that plaintiff's running out into the path of defendant, as well as the phantom driver waving plaintiff through, were both proximate causes of the accident.

The jury returned a verdict finding no cause for action by answering "no" to the question of whether defendant had been negligent. This appeal followed.


We turn first to plaintiff's argument that the court erred in denying her motion in limine seeking to bar defendant from presenting any evidence that defendant's view was blocked by the phantom driver. In particular, plaintiff asserts that Judge Visalli erred when he declined to bar any testimony that differed from defendant's interrogatory and deposition answers that nothing blocked her view. The focus of plaintiff's motion in limine was her effort to bar defense expert Widas from opining, consistent with his expert report, that defendant's view being blocked by the phantom driver was a proximate cause of the accident. Judge Visalli denied the motion, finding that whether defendant's view was blocked was a jury question.

Plaintiff argues that defendant's interrogatory and deposition answers constitute "judicial admissions" binding upon her at trial. She relies on our decision in Skibinski v. Smith, 206 N.J. Super. 349 (App. Div. 1985) for the proposition that once a party answers an interrogatory or provides testimony at a deposition, that party is barred from changing that answer unless he or she has filed a motion for leave to amend the answer, pursuant to Rule 4:17-7, and the motion is granted.

We have carefully reviewed plaintiff's "judicial admission" argument arising under Skibinski, and we perceive no need to address her reading of that case. We so conclude because the interrogatory question at issue was so ambiguous that it would be unjust to deem defendant's answer a conclusive "judicial admission." Question 7b*fn5 asked defendant, "Was there anything that blocked your view or prevented you from seeing the other vehicle(s) or person(s) prior to the accident?" While that question is not objectively ambiguous or misleading, we find that, under the particular facts of this case, it is. The accident occurred in the right, or curbside, lane. Defendant testified that she had been driving in that lane continuously as she proceeded southbound on New Jersey Avenue. The accident happened in the curbside lane. Therefore, defendant had a clear and unobstructed line of view of what lay ahead of her in that lane in the seconds before the accident.

In contrast, had the question instead been worded: "If you claim that you were unable to see plaintiff before the moment of impact, explain why," defendant may have answered that the phantom vehicle prevented her from seeing the plaintiff. That type of question, unlike question 7b here, would not have been ambiguous.

Defendant testified at trial that she understood question 7b to only be asking whether anything blocked her view of the area directly in front of her, in her own lane of travel, immediately before the impact. That, she explained, is why she answered "no."

Because we determine that question 7b was misleading under the particular facts of this case, we conclude that Judge Visalli's denial of plaintiff's motion in limine, and his refusal to bar defendant from testifying in a manner at odds with her answer to question 7b, were not error. He properly held that a jury question was presented.

Moreover, plaintiff does not argue that she was prejudiced by having been misled by defendant's deposition answer. She does not argue that she was surprised at trial by Widas' testimony. Indeed, defendant provided Widas' expert report, which so concluded, a full eleven months before trial.


We turn to plaintiff's argument that Widas's opinion was a net opinion, and that Judge Visalli violated the teaching of Buckelew v. Grossbard, 87 N.J. 512 (1981), when he denied her motion to bar it. The "net opinion" rule "appears to be a mere restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible." Id. at 524. The rule "requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion." Jimenez v. Gnoc, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996).

Here, Widas relied on police reports, statements of witnesses, answers to interrogatories, deposition transcripts and the report of plaintiff's expert Costanzo. Widas's expert report was thirty-nine pages long. Plaintiff does not refute defendant's argument that the evidence Widas relied on was of the type reasonably relied upon by experts in the accident reconstruction field as required by N.J.R.E. 703. Instead, plaintiff maintains that Widas's opinion should not have been permitted to contradict defendant's interrogatory and deposition answers, and that by doing so, it constituted an impermissible "net opinion." Plaintiff offers no supporting authority for this proposition. Widas's trial testimony explained in considerable detail the basis for his expert opinion. He explained the "why and wherefore" of his opinion, and his testimony was far more than a "mere conclusion." Jimenez, 286 N.J. Super. at 540. As a result, the trial court properly denied plaintiff's motion to bar it as a "net opinion."


Plaintiff's next argument concerns a portion of the court's charge to the jury. The judge instructed the jurors that if they concluded that defendant had violated N.J.S.A. 39:4-36, they "may consider such violation of the traffic act as evidence of negligence." (emphasis added). Plaintiff claims for the first time on appeal, that the judge erred in limiting a violation of the statute to merely "evidence of" negligence. Because this error was not raised below, it must be judged by the "plain error" standard set forth in Rule 2:10-2. The Rule provides that:

[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

[R. 2:10-2.]

Accordingly, we must determine whether the trial court's decision was error "of such a nature as to have been clearly capable of producing an unjust result." Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 463-64 (2000).

The statute in question provides, in part, that:

[t]he driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within a marked crosswalk or within any unmarked crosswalk at an intersection. Whenever any vehicle is stopped to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.

[N.J.S.A. 39:4-36.]

Plaintiff relies on Eaton v. Eaton, 119 N.J. 628 (1990), as support for her contention that the judge's charge creates reversible error. We disagree. In Eaton, the Court addressed the issue of whether a violation of N.J.S.A. 39:4-97, the careless driving statute, was negligence, or instead merely evidence of negligence. Id. at 632. In determining that proof of a violation of N.J.S.A. 39:4-97 established negligence itself, the Court held that the very language of the careless driving statute prohibited negligent driving. Id. at 643. Therefore, anyone violating the statute by driving carelessly is, by definition, negligent because negligence is defined as the absence of due care. Dolson v. Anastasia, 55 N.J. 2, 10-11 (1960).

The Court was careful to note in Eaton, however, that rarely will a violation of a statute establish negligence per se. The Court observed:

Ordinarily, the determination that a party has violated a statutory duty of care is not conclusive on the issue of negligence, it is a circumstance which the jury should consider in assessing liability. . . . The reason is that statutes rarely define a standard of conduct in the language of common-law negligence. Hence, proof of a bare violation of a statutory duty ordinarily is not the same as proof of negligence.

[Eaton, supra, 119 N.J. at 642.]

The Court then articulated the standard to be used in differentiating those instances where a statutory violation constitutes merely evidence of negligence from those rare instances where the violation will constitute negligence itself. The Court explained that whenever "a statute specifically incorporates a common-law standard of care, a jury finding of a statutory violation constitutes a finding of negligence." Id. at 642-43. Thus, only where the statute "incorporates the common-law standard of care," should the judge instruct the jury that if it finds the driver violated the statute, negligence itself would be established. Ibid.

Unquestionably, N.J.S.A. 39:4-36 does not incorporate a common-law standard of care. Instead, the statute is but one of the many statutes in Title 39 to specify duties and obligations of a driver. Because the provisions of N.J.S.A. 39:4-36 are not co-extensive with a common law duty, the failure to charge negligence per se was not error, and certainly was not plain error. Mogull v. CB Commercial Real Estate Group, Inc., supra, 162 N.J. at 463-64.


Plaintiff further claims that it was error for the trial judge to instruct the jury regarding another portion of N.J.S.A. 39:4-36 because the instruction had no basis in fact in the record. We disagree.

The section of the statute at issue provides that: no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. Nothing contained herein shall relieve a pedestrian from using due care for his safety. [N.J.S.A. 39:4-36.]

Here, plaintiff argues that because there was no evidence in the record to support the contention that she may have violated this statutory section, the court committed reversible error when it permitted the jury to consider any such violation. We recognize that the jury's verdict that defendant was not negligent avoided any need for the jury to reach the question of whether plaintiff herself was negligent. Nonetheless, we address this argument because the jury could have relied on this particular instruction in reaching its conclusion that the defendant was not negligent.

Both Jacqueline Kelly and Brittany Casile testified that plaintiff was stopped on the center double-yellow lines after crossing two lanes of New Jersey Avenue, and that plaintiff stood there and waited until she was waved across by the phantom vehicle, and that she thereafter continued into the path of defendant's vehicle. Although it is not clear that the double-yellow line is a "place of safety," it is clear that a reasonable jury could find that it was. If the jury did find that plaintiff departed from her position on the double-yellow line, and if the jury considered that line a "place of safety," the jury could have found that plaintiff violated the statute, regardless of whether she was waved through or not. Accordingly, there was ample evidence in the record to justify charging the jury on the plaintiff's possible violation of that portion of N.J.S.A. 39:4-36. Plaintiff's argument to the contrary lacks merit.


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