July 6, 2007
MARY SMYTH AND LOUIS SMYTH, PLAINTIFFS-APPELLANTS,
SABRINA D. HOWARD AND TOWNSHIP OF WEST ORANGE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5093-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 22, 2007
Before Judges Coburn, Coleman and Gilroy.
Plaintiff Mary Smyth*fn1 appeals from: 1) the grant of partial summary judgment dismissing her non-economic claims against defendants, Township of West Orange and Police Officer Sabrina D. Howard; 2) trial rulings prohibiting the introduction of post-accident scene photographs and the Township Police Department's internal investigation reports concerning Howard's involvement in the accident; and 3) the jury's verdict on liability, determining plaintiff 58% negligent, and defendant Howard 42% negligent. We affirm.
On May 14, 1999, plaintiff filed a complaint against defendants for personal injuries and non-economic damages under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA), that arose out of a motor vehicle accident between plaintiff and Howard on November 19, 1997, at the intersection of Mt. Pleasant Avenue and Prospect Avenue in West Orange. On November 8, 2001, defendants filed a motion for partial summary judgment, seeking dismissal of plaintiff's non-economic claims, contending that plaintiff had not met the threshold for pain and suffering damages under the TCA, N.J.S.A. 59:9-2d. The motion was granted by order of May 15, 2002. The issue of liability was tried to a jury. The jury found plaintiff 58% negligent and Howard 42% negligent. A confirming judgment of no cause of action was entered on October 7, 2005. Plaintiff filed a motion for judgment notwithstanding the verdict, R. 4:40-2, or in the alternative, for a new trial, R. 4:49-1. The motion was denied by order of November 17, 2005.
On appeal, plaintiff argues:
THE COMPARATIVE NEGLIGENCE PERCENTAGES AS FIXED BY THE JURY ARE AGAINST THE WEIGHT OF THE EVIDENCE AND REFLECT AN ERRONEOUS, CONFUSING AND IMPROPER CHARGE.
THE VERDICT IS A "QUOTIENT VERDICT" WHICH CANNOT BE PERMITTED TO STAND.
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE[.]
THE COURT[']S EXCLUSION OF RELEVANT EVIDENCE WAS IN ERROR AND RESULTED IN A MISCARRIAGE OF JUSTICE UNDER THE LAW[.]
PLAINTIFF SUSTAINED THE BURDEN OF PROOF NECESSARY TO DEFEAT THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT UNDER THE TORT CLAIMS ACT SUCH THAT HER CLAIMS FOR NON-ECONOMIC LOSS SHOULD NOT HAVE BEEN DISMISSED.
We have reviewed plaintiff's arguments under Points I, II, III, and IV in light of the record and the applicable law. We are not persuaded by any of these arguments and affirm substantially for the reasons expressed by Judge Merkelbach in his comprehensive oral decision of November 17, 2005, denying plaintiff's post-trial motion. R. 2:11-3(e)(1)(A) and (C). Moreover, because we affirm the jury's determination that plaintiff was 58% negligent, we conclude that plaintiff's argument in Point V, that her claims for non-economic damages should not have been dismissed on summary judgment, is moot. Nevertheless, we add the following comments.
Plaintiff argues that the charge was erroneous, confusing, and improper. Plaintiff contends that the jury determined that Howard had not acted in good faith in the execution or enforcement of the law when operating her police vehicle, and that such determination could not have been reached by the jury unless it concluded that Howard had operated her vehicle recklessly at the time of the accident. Plaintiff asserts that if the jury found Howard reckless, there would have been no basis for the jury to have determined plaintiff 58% negligent for the accident. We disagree.
Prospect Avenue runs north/south; Mt. Pleasant Avenue runs east/west. Both roads have two lanes of travel in each direction. The intersection is controlled by a traffic light. At the intersection, each road has a designated left-turning lane and a designated right travel lane. Howard was operating a marked police vehicle, traveling southbound on Prospect Avenue. The traffic light was red for her direction of travel as she approached the intersection. Plaintiff was traveling eastbound on Mt. Pleasant Avenue and entered the intersection on a green light. Both drivers testified to the happening of the accident.
Howard testified as follows. While traveling on Route 280, Howard received a radio communication directing her to the scene of a domestic violence dispute. Howard activated her emergency lights and siren and exited from Route 280 onto Prospect Avenue southbound, traveling in the lane closest to the center line. As Howard approached the Mt. Pleasant intersection, she stopped her vehicle in order for traffic to move to the right, allowing her to pass through the intersection. While stopped, Howard observed that traffic in all directions had come to a stop. Not observing any vehicles entering the intersection, Howard accelerated, proceeding across the two westbound and the easterly left-turning lane on Mt. Pleasant Avenue. As Howard cleared the turning lane, she observed plaintiff's vehicle "coming up [Mt.] Pleasant Avenue striking her police vehicle on the passenger front wheel well." After the collision, Howard exited her vehicle, approached plaintiff, and asked if she was in need of assistance. Upon assurance that plaintiff was not in need of emergent medical attention, Howard returned to her motor vehicle, radioed police headquarters that there had been an accident, and requested assistance.
Plaintiff testified that she had been traveling easterly on Mt. Pleasant Avenue in the right-hand lane of travel. The traffic light was green for her direction of travel as she approached the intersection. As plaintiff approached the intersection, she noticed two stopped motor vehicles in the left-hand lane, waiting to turn left onto Prospect Avenue northbound. These stopped motor vehicles obstructed plaintiff's vision of vehicles traveling southbound on Prospect Avenue as they entered the intersection. Accordingly, plaintiff did not observe Howard's police vehicle until she passed the two stopped vehicles. Upon entering the intersection, plaintiff heard the police car's siren, turned to the left, and observed the police car coming towards her, striking the left front of her motor vehicle. Plaintiff denied that the police vehicle's emergency lights were operating when the collision occurred. Plaintiff's testimony that the police vehicle did not have its emergency lights activated was confirmed by two employees of the Public Service Electric and Gas Company who had been working in the vicinity of the intersection.
During the charge, the jury was instructed to answer the following questions: 1) "Did defendant Sabrina Howard act in good faith in the execution or enforcement of the law in operation of the police vehicle on November 19, 1997?"; 2) "Was defendant Sabrina Howard negligent in the operation of her vehicle on November 19, 1997?"; 3) "Was Sabrina Howard's negligence the proximate cause of the accident?"; 4) "Was plaintiff . . . negligent in the operation of her vehicle on November 19, 1997?"; and 5) "Was plaintiff['s] . . . negligence a proximate cause of the accident?" The jury was then instructed that if it answered Question No. 1 in the negative and Question Nos. 2 through 5 in the affirmative, that it was required to determine: "[W]hat percentage of each of the parties' negligence contributed to the happening of the accident in question[?]" The jury returned its verdict on the first day of its deliberations, determining that Howard had not acted in good faith in the execution or enforcement of the law; that both plaintiff and Howard were negligent in the operation of their motor vehicles, and each party's negligence was a proximate cause of the accident; and plaintiff was 58% negligent, and Howard 42% negligent.
"'When reviewing a trial court's instruction to the jury, an appellate court must read the charge as a whole' and should not reverse 'when the charge adequately conveys the law and does not confuse or mislead the jury.'" Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 487 (App. Div.) (quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997)), certif. denied, 165 N.J. 607 (2000). "There is no reversible error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 464 (2000) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).
Because Howard was on duty as a police officer and was acting in the execution or enforcement of the law at the time of the accident, she was entitled to assert the defense of qualified immunity under N.J.S.A. 59:3-3: "A public employee is not liable if he acts in good faith in the execution or enforcement of any law." Howard could prove that she acted in good faith by showing that her actions were objectively reasonable, or that she was acting with subjective good faith. Alston v. City of Camden, 168 N.J. 170, 186 (2001). "[T]he question of 'good faith' under N.J.S.A. 59:3-3 is generally a fact question to be resolved by a jury." Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 19 (App. Div.), certif. denied, 188 N.J. 489 (2006). The burden of proof in establishing immunity under the statute rests upon the public employee. Alston, supra, 168 N.J. at 186 ("A public employee need prove only one component. Immunity attaches if the employee can show either objective or subjective good faith."). Although "mere negligence on the part of a public employee is generally not sufficient to defeat the good-faith immunity," Dunlea v. Twp. of Belleville, 349 N.J. Super. 506, 509 (App. Div.), certif. denied, 174 N.J. 189 (2002), the claim of good-faith immunity may be defeated by "plaintiff show[ing] defendant acted recklessly." Id. at 512.
Plaintiff asserts that because the jury determined Howard had not acted in "good faith," it must have also found that she had acted recklessly in the operation of the motor vehicle at the time of the accident. There is no legal basis upon which to make that assumption. Throughout the charge, the judge explained to the jury that they had to first determine whether Howard acted in good faith, and if she had, then plaintiff had to prove that Howard acted recklessly in the operation of her vehicle for the immunity not to apply. The jury charge was clear and gave an adequate description of the law. Because the jury was not asked why it found that Howard had not acted in good faith, and because there was at least one alternate reason for the jury to have reached that determination, plaintiff's argument is rejected.
Such alternate reason may have been that the jury found Howard had not met her burden of persuasion in establishing that she had acted objectively reasonable or with subjective good faith. Howard's testimony that her emergency lights had been working at the time of the accident was contradicted by plaintiff and the two independent witnesses. Moreover, Gianotto Marucci, one of the two Public Service Electric and Gas Company employees, testified that Howard had failed to stop before entering the intersection. The jury was free to disregard Howard's testimony. D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997). As noted by the trial judge on the post-trial motion.
First, the jury did not necessarily find that defendant Howard was reckless. Defendant Howard had the burden to prove by a preponderance of the evidence that she acted with subjective good faith or that her conduct was objectively reasonable. The jury could have concluded that she was not truthful in recounting how the accident occurred. In other words, the jury could have found that Officer Howard subjectively believed she did not act in good faith on the day of the accident.
Moreover, there was conflicting testimony as to whether defendant Howard had her overhead lights on when she entered the intersection. Based upon this evidence, the jury could have found that defendant's conduct was not objectively reasonable. As such, the jury could have concluded that defendant Howard was merely negligent, but that she was not entitled to qualified immunity.
Because we agree, we will not disturb the jury's verdict. "The prevailing party is entitled to 'the benefit of all reasonable inferences' from the proofs and 'if reasonable minds could differ,' the verdict must stand." Doe v. Arts, 360 N.J. Super. 492, 503 (App. Div. 2003) (quoting Johnson v. Salem Corp., 97 N.J. 78, 92 (1984)).
Plaintiff argues in Point II that the jury returned an illegal "quotient verdict." This argument is meritless. A quotient verdict occurs when "'the jury take[s] the sum of each estimate submitted by the jurors and divide[s] it by the number of jurors . . . .'" Cavallo v. Hughes, 235 N.J. Super. 393, 397 (App. Div. 1989) (quoting Pushcart v. N.Y. Shipbuilding Co., 85 N.J.L. 525, 527 (S.Ct. 1914)). "In New Jersey, to prove that a quotient verdict has been rendered, the aggrieved party must establish that through a 'positive prior agreement, the jurors bound themselves to abide by the results of the quotient process.'" Cavallo, supra, 235 N.J. Super. at 397-98 (quoting Pushcart, supra, 85 N.J.L. at 527). The prior agreement by the jury is the key to an illegal verdict because it forecloses a meaningful discussion and evaluation of both the issues and each juror's position on those issues. Cavallo, supra, 235 N.J. Super. at 398.
When a party fears that a jury has rendered a quotient verdict, "prompt follow-up questioning should be requested by counsel and provided by the trial court." Shankman v. N.J. Dept. of Transp., 184 N.J. 187, 202 (2005). Upon the request of counsel, a trial court must inquire further if, after polling the jurors, "enough [information] was uncovered to raise the specter of a prior agreement among the jurors . . . ." Id. at 203. "[T]he trial court [is] duty bound to engage in a further inquiry and to remove doubt about an illegal quotient verdict from the record for a reviewing court." Ibid.
Here, after the jury was polled, plaintiff did not request that the court make a further inquiry into the matter. Plaintiff's argument that the jury had commenced its deliberations on a Friday and returned a verdict that afternoon, in order not to return on Monday for further deliberations, is not enough to prove that a quotient verdict existed. Had plaintiff been troubled by the speed at which the jury returned its verdict, she was obligated to request that the court investigate the matter. No such request was made.
Plaintiff argues next that the trial judge erred in denying her motion for a new trial because the verdict was against the weight of the evidence. We are satisfied the judge properly denied the motion.
The verdict of a jury should not be set aside unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law. Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). See also R. 2:10-1. "The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court[,] except that due deference should be made to its 'feel of the case' including credibility." Feldman v. Lederly Laboratories, 97 N.J. 429, 463 (1984). "[A] jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge as to manifest with utmost certainty a plain miscarriage of justice." Carrino v. Novotny, 78 N.J. 355, 360 (1979). "[T]he judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror." Dolson, supra, 55 N.J. at 6.
This case revolved exclusively around the credibility of the witnesses. Howard testified that her emergency lights and siren were operating at the time of the accident. Plaintiff testified that Howard's emergency lights were not operating. Two eyewitnesses testified that they heard sirens before the accident, but that Howard did not have her emergency lights on at the time of the accident. Plaintiff also testified that she had entered the intersection, notwithstanding that her line of sight for vehicles traveling southbound on Prospect Avenue was obstructed by two motor vehicles that had stopped in the left-hand turning lane on Mt. Pleasant Avenue. Based on the testimony presented at trial, the jury found both Howard and plaintiff negligent in the operation of their motor vehicles, and that plaintiff was 58% negligent for the accident. We are satisfied that the jury was free to determine plaintiff more negligent for the happening of the accident than Howard. We do not serve as "a thirteenth and decisive juror." Dolson, supra, 55 N.J. at 6.