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Brimmer v. Melendez


January 10, 2008


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-2016-01.

Per curiam.


Argued December 18, 2007

Before Judges Winkelstein and Yannotti.

Following a jury's defense verdict, plaintiff, Cynthia Brimmer, appeals from the court's March 30, 2007 order denying her motion for a new trial. We affirm.

On October 24, 1999, at approximately 10:30 a.m., plaintiff and defendant were in an automobile accident in the intersection of Liberty Street and South Olden Avenue*fn1 in Trenton. They have different accounts as to how the accident occurred. According to the police report, plaintiff told the investigating officer that she was driving east on Liberty Street when she stopped for a red light at the South Olden Avenue intersection. When the light turned green, the car behind her sounded its horn; plaintiff then went around the car in front of her, which was signaling to turn left, and her car was struck by defendant's van.

Plaintiff testified at trial that the light was green when she entered the intersection. She testified that as the car in front of her was stopped and signaling to turn left at the intersection, she "was going around it" and was moving "forward," presumably to continue straight across the intersection. She saw "out of the side of [her] eye . . . this huge, big, white thing coming" before defendant's vehicle struck her rear driver's side panel, causing her vehicle to spin around twice. She testified that she was "[r]ight in the middle" of the intersection when she was hit by defendant's van.

Plaintiff's friend, Theresa Moran, was in the vehicle with her. Moran testified that after the light at the intersection turned green, plaintiff drove forward into the intersection when the vehicle was hit from the left and spun around.

A witness, Sandra Kantor, told the police officer that she was walking north on Olden Avenue when she observed that the light was red for the cars on Olden Avenue and green for cars on Liberty Street. She told the officer that defendant's vehicle "came through the red light, and struck [plaintiff's vehicle]." Kantor testified at trial that as she was jogging and approaching the intersection, the light for cars on Olden Avenue, which included defendant's van, was red when she witnessed the collision.

Defendant told the police that he was driving south on Olden Avenue and that the light for him, at the intersection with Liberty Street, was green. He told the police that he was going through the intersection when plaintiff's vehicle ran a red light and entered the intersection in front of his vehicle; he tried to stop but could not. He similarly testified at trial that he entered the intersection at a speed of "about twenty-five miles per hour" because his light was green, and that when he reached the intersection he saw plaintiff's car and he hit it on the rear driver's side.

Another witness, Marie Kelly, told the investigating officer that she was driving west on Liberty Street and was stopped at a red light at the South Olden Avenue intersection when plaintiff's vehicle entered the intersection through a red light and was struck by defendant's van. Kelly was traveling on Liberty Street in the direction opposite plaintiff, and she was situated across the intersection from plaintiff. Portions of her deposition were read to the jury at trial because she died before the trial began. Kelly testified at deposition that plaintiff's car went through the red light, stopped in the middle of the intersection, and that plaintiff's hands "went up." Kelly then saw defendant's van, which was traveling on South Olden, unsuccessfully try to stop before hitting plaintiff's car.

Plaintiff called Robert Diszler, the investigating officer, as a witness. Diszler testified that the speed limit on Olden Avenue was twenty-five miles per hour. He observed defendant's vehicle's tire marks*fn2 at the scene of the accident leading "right up to the rear of [defendant's] vehicle." He measured one mark to be seventy feet on the driver's side of defendant's vehicle and another to be thirty feet on the passenger side. He also testified that his sketch of the intersection in his police report shows the positions of the vehicles as he found them after the accident occurred.

Plaintiff offered Lloyd Patton, a traffic accident reconstruction consultant, as an expert witness. Patton, using the police report's description of the tire marks, found that defendant was traveling through the intersection at a speed of at least thirty to thirty-four miles per hour. He made this finding using the average distance of the tire marks, which was fifty feet, and plugging that distance into a "speed formula," the "accepted way of doing skid mark analysis." He also noted that by utilizing only the seventy-foot mark in the formula, he calculated that plaintiff's speed would have been thirty-five to forty miles per hour.

On cross-examination, Patton acknowledged that if he were to calculate defendant's speed based only on the thirty-foot skid mark, it "would be approximately 25 [miles per hour] or it could be more." Plaintiff's counsel's objection to defense counsel's question was overruled, and the court told plaintiff that he "may redirect on the reason why that can or cannot be done." On cross-examination, Patton added that "it's not proper" to make the speed calculation based only on the thirty-foot skid mark.

Defendant presented Steven Schorr, a professional engineer who reconstructs traffic accidents, as an expert witness. Schorr testified that the evidence available was not conclusive that the tire marks were left by defendant's vehicle. He testified that a braking or skidding vehicle does not always leave skid marks, and that such a vehicle could also leave only one skid mark. He testified that no definitive conclusions can be drawn regarding the speed of the van without confirmation that the tire marks came from defendant's van.

Plaintiff asserts in her brief that the trial court ruled, in an unrecorded in camera conference, that neither party could offer the shorter of the two skid marks, which measured thirty feet, in isolation as a basis for the calculation of defendant's speed.*fn3 Defendant argues that at this in camera conference, the court ruled that the tire marks could not be used to assess the witnesses' credibility as to who had the green light. The issue was raised on the record when, during Schorr's testimony, defense counsel asked him:

Q: I want you to assume that Mr. Patton testified using a coefficient of friction of .76 and drew calculations regarding speed. If we assume those factors can we make an assumption as to the speed of the vehicle if that vehicle left the 30-foot tire mark?

A: Yes.

Q: And what would that --THE COURT: Whoa, whoa --A sidebar ensued, at which the court stated: "I believe - going against what I said in chambers regarding my involvement in the case, but there can't be testimony of 30-foot - there can't be conclusions reached on a 30-foot skid mark alone . . . ." Nevertheless, the court ultimately permitted defense counsel to ask his question in the form of a hypothetical.

Thus, after the sidebar, defense counsel asked Schorr "to assume hypothetically that the thirty-foot mark is a skid mark and it was made by [defendant's] vehicle and the 70-foot skid mark was not made simultaneously with the 30-foot mark. . . . Could that occur?" Schorr testified that it could occur, and that based on those facts, he estimated defendant's speed to be "[a]bout 25 miles an hour." He testified that given the sight lines of defendant driving on South Olden Avenue approaching the intersection, a driver in defendant's position would not have seen a car entering the intersection from Liberty Street until reaching the crosswalk area. Schorr also testified that assuming that defendant was traveling at twenty-five miles per hour when he applied his brakes, and assuming that defendant first perceived plaintiff's car at the crosswalk, defendant would have taken about 1.5 seconds, in which his vehicle would have traveled fifty-five feet, to perceive and react to plaintiff's car, and that this would be consistent with the thirty-foot mark left on the road.

During summation, defense counsel remarked on the length of the skid marks. He stated:

A vehicle that leaves tire marks or skids could leave one mark, could leave two marks, could leave three marks, could leave four marks, could leave any type of marks. It just as easily could have left both marks as it could have left either one of the marks, 70 or 30. And [plaintiff's expert] knew that. Do you remember when I started my cross examination and I asked him . . . if you accept the 30 and do the -- I knew you were going to ask me, he said, yeah, I did that. Well, now, wait a minute. If he's being a fair and honest and objective expert and he knew I was going to ask him that, well, why did he only offer you the 70, which suited his purpose and the 50, the average between the two? Why wouldn't the fair expert offer you all the possibilities?

But you know what does fit? . . . [Defendant] says, I'm taking my boy to his football game traveling 25 miles an hour. I'm doing the speed limit, and, boom, this car comes right out in front of him. By the time I see it I'm right in the intersection. And his perception of the moving dynamics of both cars coming across are right in the intersection. And what do you get?

Perception reaction right? . . . And then you've got to brake. And if it's only 30 feet, no surprise why it isn't heard. And, boom, there's your impact, right in the intersection, right where she came across in front of him.

But to take this drawing alone and exclude all other facts, and exclude the glaring lack of information that a credible accident reconstruction expert would want and would need to make a conclusion is inappropriate.

Plaintiff's counsel objected. Following an indiscernible sidebar conference, the judge permitted counsel to continue with his closing.

The jury reached a verdict for defendant. On March 20, 2007, the court addressed plaintiff's motions to set aside the verdict and for a new trial. The thrust of plaintiff's argument was that defendant violated the court's prohibition against Schorr testifying that the thirty-foot skid mark could be used in isolation to calculate defendant's speed. The court ultimately determined that the jury's decision rested on which party went through the red light, not on the speed of the parties' vehicles. In other words, the court concluded that Schorr's testimony about the thirty-foot skid mark and defense counsel's closing comments on that testimony did not constitute a miscarriage of justice under Rule 4:49-1. Accordingly, the court denied plaintiff's motions.

Plaintiff argues on appeal that the trial court abused its discretion by permitting defendant to introduce expert testimony on defendant's speed based only on the thirty-foot skid mark in isolation from the seventy-foot skid mark, thereby violating the court's prior evidentiary ruling in chambers. Defendant argues that the testimony of defense expert Schorr was properly admitted to cast doubt on the investigating police officer's testimony that defendant's vehicle made the marks and on plaintiff's expert's testimony as to the speed of defendant's vehicle. We agree with defendant.

All relevant evidence is admissible, unless otherwise provided by the Rules of Evidence or by law. N.J.R.E. 402. "Unless the opponent of the proffered evidence can point to a specific rule of exclusion, or the judge exercises discretion to exclude the evidence based on countervailing concerns pursuant to N.J.R.E. 403, relevant evidence is admissible. Reinhart v. E.I. Dupont De Nemours, 147 N.J. 156, 164 (1996); see also Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 402 (2007). A trial court is granted broad discretion in determining the relevance of evidence. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). A trial court's determination on the admissibility of evidence is generally entitled to deference unless it is "wide of the mark." State v. Fortin, 189 N.J. 579, 597 (2007).

Though the court's in camera ruling as to the use of the thirty-foot skid mark is unclear, we find no reason to disturb the verdict. During the trial, plaintiff endeavored to demonstrate that defendant was operating his vehicle at an excessive speed. In that regard, Schorr's testimony concerning the thirty-foot skid mark was properly admitted. The testimony was offered to rebut the opinion of plaintiff's expert, Patton, that defendant was traveling between thirty and forty miles per hour based on the skid marks. Schorr explained why the skid marks, as presented by the police report, were inconclusive. He testified that a braking vehicle can make no skid marks or one skid mark. He testified that the police report did not include enough information for him to conclusively say that either or both skid marks were attributable to defendant's van, and that hypothetically, if only the thirty-foot mark belonged to defendant's van, this would suggest that defendant was traveling at about twenty-five miles per hour. The testimony was therefore relevant to cast doubt on plaintiff's expert's conclusions as to when defendant began braking. Schorr's testimony bore directly upon the process the experts used to determine the speed of a vehicle, raising doubts as to plaintiff's argument that defendant was speeding. Thus, neither Schorr's testimony, nor defense counsel's comments upon that testimony, warrant a new trial.

We also agree with the trial judge's conclusion that while there was substantial discussion with regard to the speed of defendant's vehicle, the jury's decision was ultimately dependent upon which party ran the red light, and the speed of defendant's vehicle had little effect on that determination. The judge found that after giving due regard to the opportunity of the jury to pass upon the witnesses' credibility, the evidence was not clear and convincing that a miscarriage of justice had occurred as to that issue. We agree that the evidence was sufficient to support that conclusion. Defendant testified that he had the green light when he entered the intersection; his testimony was supported by that of an independent witness, Marie Kelly. Although another witness, Sandra Kantor, who was jogging on the sidewalk at the time of the accident, testified that plaintiff had the green light, the jury could reasonably have concluded that it was plaintiff who entered the intersection against the light. Plaintiff's remaining arguments to the contrary are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(E).


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