March 25, 2008
LOUIS J. BRAMANTE, JR., PLAINTIFF-RESPONDENT,
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-208-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 4, 2008
Before Judges Parrillo, Gilroy and Baxter.
In this first-party automobile accident litigation, defendant New Jersey Manufacturers Insurance Company (NJM) appeals from a March 30, 2007 order that denied its motion for judgment notwithstanding the verdict, a new trial or remittitur. We affirm.
On October 13, 2001, plaintiff Louis J. Bramante, Jr., was involved in an automobile accident with Trina Pierce on Lebanon Road at its intersection with Rogers Road in Deerfield Township.*fn1
Lebanon Road is a main road that runs in an east-west direction with a double yellow line divider and a speed limit of 50 m.p.h. Rogers Road is a side road that intersects Lebanon Road at an angle. Motorists seeking to cross Lebanon Road from Rogers Road must first yield to vehicles on Lebanon Road by stopping at a stop sign.
Plaintiff testified that he looked to the left, to the right, and back to the left before beginning to cross Lebanon Road. According to plaintiff's testimony, a driver who stops at the stop sign on Rogers Road and looks to the left on Lebanon Road is only able to "see down the road for a ways" because the road rises up and then dips down out of sight. Seeing no approaching vehicles, he made a left onto Lebanon Road, with the intention of turning right on Woodruff Road. Woodruff Road is the name of Rogers Road once it reaches the other side of the intersection. Woodruff Road, like Rogers Road, intersects Lebanon at an angle.
As plaintiff was midway through the intersection, he heard the racing of a car engine, looked to his left and observed Pierce's tan Saturn vehicle approaching him traveling east. As Pierce continued to approach, her vehicle accelerated, crossed over the center lines and into the westbound lane. Pierce's vehicle struck the front of plaintiff's truck on the westbound shoulder of Lebanon Road.
Over the objection of NJM, plaintiff was permitted to testify that after the accident he returned to the scene to measure the amount of time it takes to drive from the stop sign on Rogers Road to the point of impact and the amount of time that it takes for a driver to reach the intersection when traveling eastbound from the rise on Lebanon Road to its intersection with Rogers Road. He testified that both take from four to five seconds. Plaintiff also testified that Pierce could have avoided the accident by staying in her own lane and veering to the right onto the eastbound shoulder of Lebanon Road, rather than crossing over into the westbound side of the road. Pierce did not testify at trial because she had no recollection of the accident.
An independent witness, Oscar Pierce, who was not related to Trina Pierce, was traveling on Rogers Road behind plaintiff's vehicle at the time of the accident. Pierce testified that he did not see plaintiff's or Trina Pierce's vehicle prior to the point of impact because he had been "looking in [his] two directions." According to Pierce, the impact between plaintiff's truck and Pierce's Saturn occurred when the rear wheels of plaintiff's truck were near the center double lines on Lebanon Road. Pierce testified that the Saturn seemed to be "doing evasive action" to try to get around plaintiff's truck. According to his testimony, if Pierce had remained in her eastbound lane and dropped to the shoulder on her side of the road, she would have been able to duck around behind the rear of plaintiff's truck without striking it.
After the crash, plaintiff was airlifted to a hospital in Cumberland County. We will describe plaintiff's injuries only briefly because NJM has not challenged on appeal the size of the jury's damages award. Suffice it to say, plaintiff underwent five separate surgeries, which included: the insertion of a large metal plate to repair comminuted fractures to his leg; the later removal of the three screws that held his ankle together; carpal tunnel surgery on both wrists; and surgical repair of shoulder ligaments and removal of a portion of the bone near the shoulder. Chronic pain and migraine headaches led his family doctor to prescribe anti-depressants. For six months following the accident, plaintiff was unable to walk without the use of a wheelchair, crutches or a cane.
At the close of the evidence, the court charged the jury on: a driver's duty to stop or yield the right-of-way before entering an intersection, N.J.S.A. 39:4-144; rates of speed, N.J.S.A. 39:4-98; keeping to the right side of a double yellow line, N.J.S.A. 39:4-82; and keeping to the right at intersections, N.J.S.A. 39:4-83. The judge also instructed the jury on negligence and damages. NJM did not object to any of those instructions.
After deliberating, the jury returned the following verdict: by a vote of eight to zero, Pierce was negligent; by a vote of seven to one, plaintiff was negligent; by a vote of eight to zero, Pierce was eighty-percent responsible for the happening of the accident and plaintiff twenty-percent responsible; and by a vote of seven to one, plaintiff's damages were $400,000. After molding the verdict to reflect plaintiff's liability and prejudgment interest, the judge entered judgment against NJM on March 2, 2007, in the amount of $337,173.
NJM moved for a new trial or in the alternative for remittitur. During the March 30, 2007 argument on its motion for a new trial, NJM argued as plain error warranting a new trial two comments it claimed were made by plaintiff's counsel in his closing argument: that Pierce was speeding and that Pierce intentionally ran her vehicle into plaintiff's. NJM's argument was limited to those two contentions.
In denying NJM's motion for a new trial, the judge observed that plaintiff never argued that Pierce was speeding, but instead merely argued that plaintiff heard the Saturn accelerating. The judge also disagreed with NJM's contention that plaintiff argued to the jury that Pierce intentionally drove her vehicle into plaintiff's. During the argument on NJM's motion for a new trial, the judge commented that he was surprised by the 80/20 liability split in plaintiff's favor and might not have been surprised by an 80/20 split the other way. He nonetheless denied the motion because it did not clearly and convincingly appear that a miscarriage of justice had occurred.
As to the damages award, the judge observed that plaintiff had undergone five different surgical procedures as a result of the accident. The judge also observed that the defense never disputed plaintiff's claim that his injuries were permanent. In denying the motion for remittitur, the judge stated, "I recognize it's in the jury's province . . . and when I compare [the amount of the verdict] to some other verdicts that I've seen, . . . I find . . . nothing wrong in reference to the dollar amount that would cause me [to] think there's passion or prejudice . . . in that amount and in that award." The judge accordingly denied NJM's motion for remittitur and for a new trial.
On appeal, NJM argues: (1) the liability verdict was against the weight of the evidence because plaintiff had the duty to avoid entering the intersection until he could be sure that it was safe to do so and defendant had the right-of-way;
(2) it was plain error to admit plaintiff's post-accident reconstruction testimony and his opinion that Pierce could have avoided the accident had she stayed in her own lane; (3) it was plain error for the judge to charge statutory motor vehicle violations against defendant, including keeping to the right and speeding; (4) it was plain error for the judge to fail to halt the inflammatory closing argument by plaintiff's counsel; and
(5) accepting and recording the verdict when there was no clear record as to the jury's vote on each of the questions presented to them was plain error.
A motion for a new trial should be granted only if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was miscarriage of justice under the law."
R. 4:49-1(a). On appeal from the denial of a motion for a new trial, we apply the same standard the trial judge did in determining whether such motion should be granted. The judge's decision is not entitled to any special deference. Dolson v. Anastasia, 55 N.J. 2, 7 (1969); R. 2:10-1.
Although NJM argued in the Law Division that the verdict was excessive and therefore warranted a new trial, NJM has raised no argument on appeal respecting the quantum of damages. NJM has not included a point heading on the issue of damages, see R. 2:6-2(a)(1), nor has it briefed the issue, see R. 2:6-2(a)(5). Accordingly, we deem the issues of excessive damages and denial of NJM's motion for remittitur abandoned. See In re Freshwater Wetlands, 372 N.J. Super. 578, 580 n.1 (App. Div. 2004) (declining to address an issue not briefed on appeal).
We begin our analysis with NJM's claim that the 80/20 liability split in plaintiff's favor was against the weight of the evidence and was the result of passion or prejudice, thereby requiring a new trial. NJM argues that plaintiff's negligence was the cause of the accident because he failed to make adequate observations before entering the intersection. NJM also argues that there was no credible evidence that Pierce herself failed to keep to the right as she approached the intersection.
Accordingly, NJM argues that the verdict holding Trina Pierce eighty-percent responsible for the accident "can only be explained by the jury having been improperly swayed by sympathy and bias toward plaintiff." We have carefully considered NJM's arguments on this point in light of the record and applicable law and conclude that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
The jury had the opportunity to hear and consider plaintiff's testimony that Pierce's vehicle accelerated as it approached him. The jury also considered plaintiff's testimony, which was supported by the testimony of the independent witness Oscar Pierce, that rather than stay in her own lane and avoid the accident, Pierce inexplicably crossed onto the other side of the road in front of plaintiff's vehicle and struck him. The jury heard all of the trial testimony and was free to weigh that testimony as it saw fit. The jury could have decided plaintiff was not credible and could have discounted his testimony by concluding that Pierce had no choice but to cross over into plaintiff's lane. Alternatively, the jury was entitled to credit plaintiff's testimony and that of Oscar Pierce, and determine that there was enough room for Trina Pierce to go around plaintiff's vehicle in the eastbound lane and avoid the accident. The evidence presented to the jury was susceptible of both interpretations. The jury accepted plaintiff's arguments and rejected those of NJM based upon the evidence that it heard. We agree with plaintiff's argument that there was sufficient evidence in the record for the jury to have reached the verdict it did.
In light of the record as a whole, we are unable to conclude that a miscarriage of justice occurred when the jury found Pierce eighty-percent responsible for the happening of the accident. Under such circumstances, the trial judge's denial of NJM's motion for a new trial was not error. See R. 2:10-1.
Next, NJM argues that the trial judge committed plain error when he admitted the post-accident reconstruction opinion testimony of plaintiff that there was enough room for Pierce's vehicle to go around behind his truck and thereby avoid the accident had she remained in the eastbound lane of Lebanon Road. NJM also argues that the court erred in permitting plaintiff to testify to the amount of time it takes to travel the various distances we have described.
NJM objected to this testimony. Unfortunately, the side bar discussion during which NJM explained its objection and the court made its ruling was not transcribed. We are therefore unable to determine the exact objection NJM raised.
A judge's decision to admit or bar evidence is reviewed for an abuse of discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). NJM argues that the trial court abused its discretion when it permitted plaintiff to describe for the jury observations and measurements he made years after the accident when he revisited the scene to record and measure various aspects of the crash scene. NJM argues that N.J.R.E. 701 permits the court to admit lay opinion testimony "in the form of opinions or inferences . . . [when such testimony] (a) is rationally based on the perception of the witness and (b) will assist [the jury] in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. NJM argues, however, that the testimony provided by plaintiff was "not based on his perception at the time of the accident" and was "nothing more than self-serving conclusions masquerading as fact." NJM further maintains that the harm that resulted from this improper testimony was exacerbated by plaintiff's counsel's use of this testimony as a basis for arguing in summation that Pierce was speeding.
Plaintiff urges us to reject NJM's contentions and instead conclude that he never offered any opinions, but merely provided factual testimony. He further argues that: NJM's "true objection to this testimony is that [NJM] was unable to offer any contradictory evidence by way of accident reconstructionist or lay witness [testimony]"; defense counsel had ample opportunity to cross-examine plaintiff about his testimony and did so at great length; it is irrelevant whether plaintiff made those observations at the time of the accident or at some later point; and allowing the testimony was not plain error clearly capable of producing an unjust result.
We begin our analysis by observing that the testimony plaintiff provided concerning the times and distances involved is similar to testimony frequently offered by parties in automobile negligence actions. The fact that plaintiff did not make these observations until he later returned to the scene does not render the evidence in question inadmissible. N.J.R.E. 701 does not require that the perceptions of the witness be made at the time of the accident.
Moreover, contrary to NJM's argument, plaintiff's testimony concerning the time it takes to travel from one point to another and the number of feet between one location and another is not opinion evidence. Instead, those are facts. While we agree with NJM that the testimony in question was self-serving, it is certainly not unusual for testimony offered by a party to advance his own position.
The only portion of plaintiff's testimony that could reasonably be characterized as an opinion was his conclusion that Pierce had sufficient time to have avoided the accident had she remained in her own lane. We view such opinion as a "matter of common knowledge and observation." See State v. LaBrutto, 114 N.J. 187, 197 (1989). The admission of such evidence is well within the judge's discretion. NJM's objections to this testimony go to the weight of the testimony, not to its admissibility. The judge did not abuse his discretion when he admitted this evidence. See Benevenga, supra, 325 N.J. Super. at 32.
NJM argues in Point III that the judge's decision to charge three Title 39 violations against Pierce was plain error requiring a new trial. In particular, NJM argues that there was insufficient evidence in the record to support the jury charges on speeding, keeping to the right portion of the roadway and keeping to the right at an intersection.
"[C]lear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain error." Das v. Thani, 171 N.J. 518, 527 (2002). The jury charge is a road map which sets out "the controlling legal principles and the questions the jury is to decide." Ibid. (quoting State v. Martin, 119 N.J. 2, 15 (1990)). A jury charge must be based on competent evidence presented at trial and reasonable inferences therefrom. Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 13-14 (2000). If there is not sufficient evidence to warrant the giving of a jury charge, then the instruction is error. Ibid.
Erroneous jury instructions "are ordinarily presumed to be reversible error." Das, supra, 171 N.J. at 527 (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). However, "[t]here 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. C.B. Commercial Real Estate Group, Inc., 162 N.J. 449, 464 (2000) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).
Moreover, pursuant to Rule 1:7-2, "no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict." When no objection is made to the jury charge at the time it was given, a reviewing court scrutinizes a trial judge's decision under a plain error standard to determine whether any such error was "capable of producing an unjust result." Mogull, supra, 162 N.J. at 463; R. 2:10-2. Defendant did not object to the jury charge. Therefore, we review defendant's allegations under the plain error standard.
NJM's argues that there was insufficient evidence in the record to justify the giving of the three jury charges we have described. Here, the jury heard plaintiff's testimony that the Saturn was traveling completely in the westbound lane when the collision occurred, rather than keeping to the right and proceeding in the eastbound lane. Under those circumstances, we discern no error in charging keeping to the right, N.J.S.A. 39:4-82, or keeping to the right at intersections, N.J.S.A. 39:4-83.
In addition to arguing that the judge erred by charging the jury on speeding, NJM argues that the judge incorrectly stated the law. The judge charged the jury as follows:
In this case, there has been reference to motor vehicle statutes. And, I'm going to refer to four of them, and then I'm going to tell you -- in this case, there have been charges of negligence made, and assertions that there are violations of the provisions of the Traffic Act. There statutes in question have set up a standard of conduct for the users of our streets and highways. If you find that a party has violated that standard of conduct, such violation is evidenced to be considered by you in determining whether negligence, as I have defined that term to you, has been established. You may find that such violation constitute[s] negligence on the part of the . . . plaintiff or the defendant, or you may find that it did not constitute such negligence. Your finding on this issue must be based on such violation alone, but in the event that there is other or additional evidence bearing upon that issue, you would consider such violation together with all such additional evidence in your arriving at your ultimate decision as to a party's negligence. [(emphasis added).]
NJM argues that in the portion reading "[y]our finding on this issue must be based on such violation alone," the judge should have said "may" rather than "must." We agree with NJM that the judge did misspeak when he substituted the word "must" for "may." However, three other portions of the same charge properly explained to the jury that evidence of speeding should be considered along with all of the other evidence in the case to determine if Pierce operated her vehicle negligently. This single and isolated misstatement, when the jury charge is considered as a whole, could not have led the jury astray.
Our conclusion that the jury charge on speeding was not error is buttressed by the judge's careful molding of the charge to fit the facts in the record. The judge did not charge the per se violation portion of N.J.S.A. 39:4-98(c), which provides that a driver may not exceed the fifty mile per hour speed limit. Instead, the judge properly limited his instruction when he directed the jury to the specific portion of the statute that obligates a driver to "drive at an appropriate reduced speed when approaching and crossing an intersection . . . ." That instruction was a correct statement of law that was based on competent evidence presented at trial. See Dynasty, supra, 165 N.J. at 13.
In Point IV, NJM argues that comments in plaintiff's closing argument were inflammatory and misstated the facts and the law, thereby constituting plain error that requires a new trial. In particular, NJM argues that plaintiff's counsel improperly argued in summation that Pierce was speeding and that she intentionally struck plaintiff's vehicle. NJM further argues that plaintiff's summation mischaracterized the obligations of a driver traveling on a roadway controlled by a stop sign. NJM did not object to any of these comments at the time they were made. Accordingly, we evaluate them under the plain error standard. We will not reverse unless such comments have the "clear capacity for producing an unjust result." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 493 (2001); R. 2:10-2.
We disagree with NJM's contention that plaintiff's counsel argued in summation that Pierce was speeding. Plaintiff's counsel stated:
Now, you heard [defense counsel] say over and over again, she wasn't speeding, she wasn't speeding. We don't know that. We have no idea if she was speeding. She might have been going 50 miles an hour, she might have been going 70 miles an hour. I don't know. She doesn't know. She could have been going 30. I don't know that. But, what we don't know, contrary to what Mr. Young told you, is we don't know she wasn't speeding. We don't know how fast she was going.
We do not perceive these remarks as intimating that Pierce was speeding; however, even if we were to accept that argument, we do not conclude that such argument led the jury to a result that it would not otherwise have reached. The undisputed testimony that Pierce crossed the double yellow line and struck plaintiff's vehicle--rather than slowing down, remaining in her own lane of travel and passing behind plaintiff's truck--could easily have led the jury to apportion liability as it did even without any suggestion that Pierce was speeding. Accordingly, the remarks of plaintiff's counsel were not clearly capable of producing an unjust result. See R. 2:10-2.
As to NJM's contention that Pierce deliberately struck plaintiff's vehicle, the record does not support that claim. Plaintiff's counsel argued in summation:
Unfortunately, what we don't know is why Ms. Pierce was on the wrong side of the road accelerating and smashed into the front of his truck all the way on the westbound shoulder.
The accident is Ms. Pierce's fault because she didn't stay where she was supposed to be. She sped up going over a hill, and coming up on an intersection, and went out of her way and caused the accident.
Those remarks do not support the interpretation NJM urges. Nor are they clearly capable of producing an unjust result. Plaintiff simply argued that the accident was Pierce's fault because she did not stay in her lane, and instead crossed out of her lane by going "out of her way" and thereby "caused the accident." We discern nothing improper in those remarks.
NJM further argues that the damage cause by the improper comments in plaintiff's closing about Pierce speeding and intentionally striking his vehicle were compounded by an inflammatory remark in plaintiff's closing in which counsel analogized plaintiff's chronic pain to "water torture." While it would have been preferable for plaintiff to have avoided such an emotionally-charged term, we conclude that in the overall context of the closing, defense counsel did not perceive those remarks to be improper or inflammatory because he did not object to them. We presume that when a lawyer "concludes that the gist of the evidence [presented on summation] has been unfairly characterized, an objection will be advanced." Fertile, supra, 169 N.J. at 495. Because we disagree with NJM's argument that plaintiff's closing suggested that Pierce was speeding and intentionally struck his vehicle, the "water torture" remark, although improper, was not clearly capable of producing an unjust result. See R. 2:10-2.
NJM also argues that plaintiff's counsel misstated the law on a driver's obligation at a stop sign. Such argument lacks sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
In Point V, NJM argues that reversal is required because the record does not include clear evidence of the jury's vote and jurors' responses when the jury was polled. We disagree. The record clearly demonstrates that the jury's answers to the questions posed on the verdict sheet were asserted to by votes of seven to one and eight to zero. NJM's own appendix contains a copy of the verdict sheet with handwritten notations recording those very numbers. We presume that those handwritten notations were made by defense counsel at the time the verdicts were rendered. NJM's arguments concerning the jury's vote lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).