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Rosinola v. Koehler


October 15, 2007


On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-312-04.

Per curiam.


Argued September 11, 2007

Before Judges Axelrad and Sapp-Peterson.

Plaintiff Anita Rosinola appeals from the order of judgment in favor of defendant Ralph Koehler after a jury returned a verdict finding that plaintiff's negligence was greater than defendant's negligence, and she also appeals from the subsequent order of the Law Division denying her motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. We affirm.

Plaintiff's complaint arises out of a motor vehicle accident that occurred on January 20, 2002. At trial, plaintiff testified that she was operating a Dodge Spirit on Cuthbert Boulevard in Cherry Hill Township and was attempting to merge onto Route 38 East. She described the weather conditions on that day as "cold, but it was sunny and dry." Plaintiff indicated that she was familiar with this point of the road, which was controlled by a yield sign, because she "went down that way at least once a week." Just before the impact, she observed that there were several cars in the merge lane. Because of this traffic, she could not merge onto Route 38 without first stopping. As she slowed to a stop at the yield sign, she was rear-ended by defendant's vehicle with such force that his vehicle bounced off of her vehicle and then struck it a second time, pushing her vehicle forward. Plaintiff claimed that she sustained permanent back and neck injuries as a result of the accident. Under cross-examination, plaintiff acknowledged that her vehicle sustained minor damage.

Defendant testified that he recalled seeing plaintiff's vehicle approximately 150 feet prior to the accident. As both he and plaintiff approached the yield sign, he was approximately three car lengths behind her. Defendant stated that despite the fact that "[t]here was considerable . . . distance to continue to move forward at a slow rate of speed while observing the left bound, the oncoming traffic on Route 38[,]" plaintiff unexpectedly came to a complete stop "a full 60 feet prior to the entrance to the merging lane." Additionally, defendant testified that when plaintiff came to the sudden stop, he was certain there were no cars on the shoulder and, as to the one car he saw in the right lane, "at it[]s rate of speed and our comparative rate of speed it would have passed by[.]"

Defendant testified further that after plaintiff came to an abrupt stop, he applied his brakes and his car began to skid and struck the rear bumper of plaintiff's vehicle. He believed the skidding was caused by "the snow and the sand and salt and whatnot." Following the impact, plaintiff exited her vehicle, checked the rear of her vehicle, and then approached defendant, who was still seated in his vehicle with the windows closed, and proceeded to yell and wave her fists "in the air." Defendant testified that he felt intimidated by plaintiff's actions.

Under cross-examination, defendant acknowledged that during his deposition he testified that he first noticed plaintiff's vehicle when it was 250 yards from Route 38. Additionally, during that deposition testimony, defendant first testified that the accident occurred on a weekday while he was en route to work, but later stated it occurred on a Sunday. Finally, defendant also admitted that during his deposition, when asked whether he spoke with plaintiff after the accident, his response was, "[m]inimally, I didn't get out of my vehicle[,]" and that he made no reference to plaintiff yelling or waving her fists at him.

At the conclusion of the testimonial stage of the trial, plaintiff moved for a directed verdict on liability and defendant moved for a directed verdict on damages. The court denied both motions, reasoning that the jury could reasonably find plaintiff "partially responsible for the accident" and that there was sufficient evidence before the jury to submit the question of damages to the jury as well.

In summation, defense counsel argued that given the length of the access road onto Route 38, the fact that it turns into an additional lane on Route 38, and the absence of any oncoming traffic in the right lane, there was no justifiable reason for plaintiff to have come to a sudden, abrupt stop at the yield sign and, therefore, she was more responsible for the accident. Plaintiff's counsel argued that after years of pretrial discovery, it was outrageous that defendant was "still blaming [his] client for rear-ending her because he wasn't paying attention and he was careless, and he was negligent, and you will hear that the law says when you rear-end somebody, it's your fault."

In the court's charge to the jury, the judge included an instruction on comparative negligence and likewise instructed the jury on the proper allocation of damages should it find liability against plaintiff. The jury returned a verdict finding plaintiff fifty-five percent negligent and defendant forty-five percent negligent. Plaintiff moved for a JNOV or, alternatively, a new trial. The court denied the motion, concluding that although it may have reached a different result, the jury's verdict was not a miscarriage of justice. The judge reasoned that "the jury obviously found [plaintiff's] version less credible than the defendant's version in regard to those key aspects as to the traffic conditions that she was confronted with." The present appeal followed.

On appeal, plaintiff urges (1) because she complied with N.J.S.A. 39:4-144 by stopping, as necessary, at the yield sign, resulting in the rear-end collision, no comparative negligence should have been assessed against her; (2) she is entitled to a new trial due to prejudicial testimony elicited from defendant and improper comments made by defense counsel during summation; and (3) the trial court erred in denying plaintiff's motion for a JNOV/new trial because the verdict was against the weight of the evidence.


Plaintiff first argues that because of the traffic conditions that existed on Route 38 as she proceeded down the merger lane, N.J.S.A. 39:4-144 required that she not simply yield to the oncoming traffic, but that she also stop. N.J.S.A. 39:4-144 provides in pertinent part that,

No driver of a vehicle or street car shall enter upon or cross an intersecting street marked with a "yield right of way" sign without first slowing to a reasonable speed for existing conditions and visibility, stopping if necessary, and the driver shall yield the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard[.]

Since she complied with this statute, plaintiff claims there was no basis to find her comparatively negligent and certainly no basis to find that any negligence on her part was greater than the negligence of defendant, who failed to maintain a reasonably safe distance behind her vehicle.

This argument, however, ignores the testimony of defendant that plaintiff inexplicably stopped her vehicle approximately sixty feet from the yield sign, well before the merger lane became the new third lane on Route 38 East, when there was no oncoming traffic for which she had to yield, much less come to a complete, abrupt stop, and that there was residual snow and sand on the roadway from a recent snowfall. This testimony, if accepted by the jury, would tend to negate plaintiff's testimony that it was necessary for her to stop as she did and would support defendant's contention that plaintiff's unexpected actions caused the accident. Thus, deferring to the jury's credibility determinations and considering the proofs as a whole, we are satisfied that "reasonable minds might accept the evidence as adequate to support the jury verdict." Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 377 (App. Div. 2001).


Plaintiff next complains that she was prejudiced by defendant's testimony that he was a minister on his way to perform ministerial duties and that after the impact she "leaped out of her vehicle, ran to the back of her vehicle very quickly, and was yelling. . . . [A]nd [then] stood about four feet from [his] driver's side window. . . . I remember she waved her fists in the air[,]" causing him to feel "menaced." Plaintiff contends, as was observed in Bishop v. Harski, 191 N.J. Super. 109, 113 (Law Div. 1983), "[p]erhaps these objectionable facts affected the jury's intelligent non-prejudicial evaluation of the relative negligence of these parties." Unlike in Bishop, here there was no objection to defendant's testimony. Consequently, on appeal, our standard of review is whether this testimony was plain error, namely, error that was "clearly capable of producing an unjust result." R. 2:10-2. We find no error that was capable of producing an unjust result by virtue of these two areas of defendant's testimony.

Defendant testified that he is a minister, provides inspirational comfort to the dying, and was on his way to perform ministerial duties on the day of the accident. We agree that this testimony tended to emphasize defendant's ministerial status. However, defense counsel made no reference to these facts in her closing, and the judge instructed the jury that it was to decide the case fairly and impartially, without sympathy, passion, bias or prejudice. We presume the jurors followed the court's instructions. State v. Marshall, 173 N.J. 343, 355 (2002) (citing State v. Simon, 161 N.J. 416, 477 (1999)).

As to plaintiff's behavior immediately after the accident, on cross-examination defendant admitted that when questioned about whether he spoke with plaintiff following the accident, he made no reference to plaintiff yelling at him or waving her fists at him. The jury was therefore presented with two opposing versions of what occurred immediately following the accident. Together with the factors the trial judge charged the jury to consider in evaluating credibility, it had to determine which, if any, of the two opposing versions to credit. State v. Frost, 158 N.J. 76, 87 (1999).

Plaintiff also contends that defense counsel's summation included facts that were not part of the record and that although he timely objected, a curative instruction could not undo the prejudice to plaintiff. Specifically, plaintiff points to remarks that (1) the merger lane is "one of the longest merging roads in New Jersey"; (2) plaintiff had previously sustained serious injuries in another car accident during which she struck a guardrail and hit another car; (3) plaintiff's car was repaired by a friend for $500; (4) characterized the accident as no big deal, and (5) plaintiff was using the most recent accident to recover money for lingering injuries associated with the previous accident for which plaintiff was precluded from recovering any further damages because she settled the case.

The question we must answer is whether defense counsel's summation was so wide of the mark of fair comment on the evidence that plaintiff was denied a fair trial. Frost, supra, 158 N.J. at 83. We reach that determination by considering the comments in relation to the evidence presented and the reasonable inferences that may be drawn from the evidence, the context in which the comments were made, whether objections were made, and whether curative instructions were given. Id. at 85. We also consider the potential impact of any improper statements on the outcome of the trial with a view of the entire trial record, rather than viewing the specific comments in isolation. State v. Timmendequas, 161 N.J. 515, 588 (1999).

Generally, attorneys are afforded broad latitude in summations. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001); Geler v. Akawie, 358 N.J. Super. 437, 467 (App. Div.), certif. denied, 177 N.J. 223 (2003). Thus, "counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd . . . ." Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). The broad leeway, however, is qualified by the requirement that the comments on the evidence "must be based in truth, and counsel may not 'misstate the evidence nor distort the factual picture.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci, supra, 326 N.J. Super. at 177). It is well settled that it is "improper to construct a summation that appeals to the emotions and sympathy of the jury." State v. Black, 380 N.J. Super. 581, 594 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006).

Nonetheless, even where comments go beyond fair comment or embrace facts not in evidence, "a clear and firm jury charge may cure any prejudice created by counsel's improper remarks during opening or closing argument." City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004). Moreover, juries are presumed to follow such instructions. State v. Winter, 96 N.J. 640, 649 (1984). On the other hand, "[w]hen summation commentary transgresses the boundaries of the broad latitude otherwise afforded to counsel, a trial court must grant a party's motion for a new trial if the comments are so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Bender, supra, 187 N.J. at 431 (quoting R. 4:49-1(a)); see also Priolo v. Compacker, Inc., 321 N.J. Super. 21, 29 (App. Div. 1999) (wrong to suggest that anything jury hears can be remedied by instruction); Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 37 (App. Div. 1998) (new trial warranted if counsel's misconduct in the aggregate rendered the trial unfair).

Applying these principles, we conclude that although certain comments were improper, those comments, either individually or in the aggregate, do not warrant reversal and a new trial. Following defense counsel's comments related to the circumstances surrounding the prior accident, the trial judge responded to plaintiff's objection by instructing the jury to disregard the comment if the jurors did not recall such testimony. Further, the court reminded the jurors, as it did in the context of opening statements that "just because an attorney says that something happens . . . doesn't mean it's true at all."

Likewise, defense counsel's comment that plaintiff paid $500 to repair her car could not have caused an unjust result. State v. Smith, 167 N.J. 158, 179 (2001). There was no dispute that plaintiff's vehicle sustained minor damage. On direct examination, she testified that her vehicle sustained scratches and a dent.

Moreover, we find no reversible error occasioned by defense counsel's comments related to the earlier accident. We agree that defense counsel should not have commented on the fact that plaintiff settled the earlier lawsuit. However, in the context of the record, this comment was not so prejudicial as to have deprived plaintiff of a fair trial. Ibid. Plaintiff testified that she had been involved in an accident in 1997 and for that accident she was represented by her current attorney. Thus, although there was no testimony relative to the outcome of the earlier action, common sense dictates that if plaintiff retained counsel, she at the very least was considering legal action. Consequently, defense counsel's reference to the settlement and plaintiff's possible motive for seeking damages in the present action, although improper, did not transgress the boundaries of fair comment.

Finally, in his charge to the jury, the judge instructed the jury that the attorneys were advocates, that their comments reflected their views on the evidence and their arguments in favor of their client's position, and that "nothing that the attorneys say is evidence, and their comments [were] not binding upon [the jury]." We are satisfied that the judge's instructions clearly explained the role of counsel as well as what was evidential and appropriate for the jury to consider.


Plaintiff's final argument is that the trial judge erred in not granting her motion for a JNOV/new trial because the verdict was against the weight of the evidence. We disagree and find the verdict amply supported by the evidence.

A jury verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). A jury's evaluation of factual issues must be afforded "the utmost regard. . . ." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). Nonetheless, "inconsistent and irreconcilable verdicts are fatally defective and should normally be set aside." Mercedes-Benz Credit Corp. v. Lotito, 328 N.J. Super. 491, 508 (App. Div.) (quoting Brendel v. Pub. Serv. Elec. & Gas Co., 28 N.J. Super. 500, 507 (App. Div. 1953)), certif. denied, 165 N.J. 137 (2000). The underlying reason for vacating the verdict in such instances is usually that the jury failed to comprehend the issues involved in the trial and demonstrated, through the verdict, their unfitness to decide the rights and obligations of the parties. Mercedes-Benz Credit Corp., supra, 328 N.J. Super. at 508. See Zuidema v. Pedicano, 373 N.J. Super. 135, 148 (App. Div. 2004) (claim was of an intentional act and thus jury verdict finding "medical negligence" was fatally inconsistent), certif. denied, 183 N.J. 215 (2005); JMB Enters. v. Atl. Employers Ins. Co., 228 N.J. Super. 610, 616 (App. Div. 1988) (inconsistency indicates jury mistake or confusion).

Here, we discern no irreconcilable inconsistency in the verdict returned. The question of how the accident occurred boiled down to resolving which version of the accident the jury chose to credit. Frost, supra, 158 N.J. at 87. The verdict reflects the jury's conclusion that defendant's version was the more credible version. There was sufficient evidence in the record from which the jury could have found that defendant failed to maintain a reasonably safe distance behind plaintiff's vehicle but that plaintiff's inexplicable stopping, in a long merger lane sixty feet before the yield sign and before the merger lane actually merged onto Route 38 eastbound, evidenced a greater degree of negligence on her part.

Indeed, in denying plaintiff's motion for a new trial and a JNOV, the trial court reasoned,

[I]t seems to me that it is not clearly and convincingly a manifest denial of justice that given the facts of this case, and that Rosinola stopped when she clearly didn't have to stop, that she had a long merge lane[,] that she could have and should have, and she knew -- she said she knew the intersection. This is where it cuts against the plaintiff -- she wasn't from Iowa and this wasn't the first time she was confronted with this intersection. She said she knew all of this. She had a long merge lane to safely keep traveling into and she knew that to the left there was a shoulder, not a traveled road where she had to worry about vehicles hitting her unless they were traveling on the shoulder.

Now, as I say, for one last time, the jury obviously found her version less credible than the defendant's version in regard to those key aspects as to the traffic conditions that she was confronted with. And even though I disagree with it, I don't think that the jury . . . deciding that the plaintiff was a little bit more negligent than the defendant is clearly and convincing[ly] a manifest denial of justice.

Accordingly, we find no inconsistency in the jury's determination that plaintiff's negligence was greater than defendant's negligence.



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