On appeal from the Superior Court of New Jersey, Law Division, Cape May County, CPML-182-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...