On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-1070-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Graves.
On May 15, 2004, plaintiff, fourteen-year-old Jack Cascio, was operating a motorbike, with his fourteen-year-old cousin James Trevean riding as passenger, on Kendall Drive in Sayreville. At the time, defendant, Gregory Cordes, was standing in front of his home when he heard the motorbike on the roadway and stepped out into the street. Defendant made contact with the bike, which then crashed into a parked car owned by Kathleen Ahrens, injuring Cascio.*fn1 Cascio's mother, Jennifer, filed suit individually and as guardian ad litem on his behalf.*fn2
Following trial, a jury returned a verdict in favor of plaintiff in the amount of $150,000. Although it determined that both parties were negligent, it found only defendant's negligence a proximate cause of the accident. Defendant appeals, raising trial error, specifically, the judge's ruling excluding certain evidence, and challenging remarks made by plaintiff's counsel during closing argument. We now affirm the judgment and the trial judge's order denying defendant's motion for new trial.
We recite only those facts relevant to the disposition of this appeal. Plaintiff's father purchased the motorbike as a gift for plaintiff five months prior to the accident. It was designed for off-road use and for only one rider. It did not have a speedometer and had a loud exhaust. Although plaintiff had ridden it three or four times after receiving it, May 15 was the first time plaintiff drove it on a public street. He rode it alone that morning on his way to the nearby woods and later rode it on the way back from the woods, with Trevean as a passenger. The accident occurred at approximately 1:00 p.m. At the time, plaintiff and Trevean were headed back toward plaintiff's house, located around the corner from the location of the accident. Plaintiff had operated the bike on the road earlier that day while on his way to a park. Despite its design for one rider, plaintiff sat in front with Trevean sitting behind him. Trevean was holding onto plaintiff's hip with his right arm and holding a gas can in his left, with his feet dangling off the bike.
Defendant resided at 151 Kendall Drive, next door to the home of Kelly Renda's mother, who lived at 153 Kendall Drive. Defendant, Renda, and other Kendall Drive residents were having a yard sale on May 15. Upon hearing the loud noise of the motorbike coming down the street, defendant and Renda, who were standing in between 151 and 153 Kendall Drive, headed toward the street with the intention of telling plaintiff, whom they did not know, to slow down. Plaintiff was traveling approximately twenty-five miles per hour on Kendall Drive, where the posted speed limit is twenty-five miles per hour.*fn3
Plaintiff was riding in the middle of the road when he first saw defendant two to three houses away, at which time the motorbike was "at the top end of first gear." He observed defendant to his left, "[w]alking into the road quickly, waving his hands." Plaintiff knew that defendant wanted him to slow down. Plaintiff did not see Renda at the side of the road. As he approached defendant, plaintiff "held in the clutch," not wanting to brake because he was afraid braking would cause Trevean to lose his balance and fall off the bike. He acknowledged that he was traveling at a speed at which it would have been unsafe to brake with a passenger on the back. Plaintiff stated that, by holding the clutch, he was able to "com[e] to a coast" as he neared defendant. According to plaintiff, defendant shuffled left and right into his path as plaintiff tried to move out of defendant's way. As he approached defendant, at a speed of "maybe" ten miles per hour, plaintiff described defendant as getting into "a blocking stance," as if he was going to hit plaintiff with his left shoulder. Defendant then "sidestepped, hitting plaintiff with his left shoulder, knocking plaintiff's left hand off the handlebar, and causing the bike to veer to the left. As he tried to hold on to the bike with his right hand on the handle bar throttle, plaintiff began falling off the bike, causing his hand to pull back on the throttle, which caused the bike to pick up speed. It headed directly into a parked car. Plaintiff flew headfirst into the car's windshield and Trevean landed on the car's roof. Having suffered a number of cuts, plaintiff, along with Trevean, ran from Kendall Drive to plaintiff's house.
Trevean's testimony comported with that given by plaintiff. He first spotted defendant when he and plaintiff were about one or two houses away, watching defendant run into the middle of the street and prepare to push them with his shoulder. As plaintiff veered to the left to try to avoid defendant, defendant moved into plaintiff's path. When plaintiff then veered right, defendant again moved into his path. After contact with defendant, Trevean tried to hold on to plaintiff, causing plaintiff to pull the throttle and increase the speed of the motorbike before hitting the parked car.
Defendant's version differed significantly. Defendant was standing halfway between his driveway and 153 Kendall Drive when he heard the motorbike as it was coming down the street. He and Renda walked out towards the street to motion for plaintiff to slow down. With the motorbike about two houses away from defendant, he walked about five to eight feet past the curb in front of 151 Kendall Drive and pushed his hands down to signal plaintiff to slow down. Renda was about four or five feet closer to the approaching motorbike. According to defendant, the motorbike sped up and veered to its left towards Renda, who was also motioning for plaintiff to slow down. Renda moved back onto the curb while defendant moved further out into the street in order to avoid plaintiff veering toward the curb. Plaintiff then veered back out into the street toward where defendant was standing. Anticipating a collision, defendant put his hands up just before the front tire of the motorbike hit his right leg below the knee and the handlebars hit the left side of his rib cage. Defendant was knocked to the ground, landing about eight to ten feet away from the point of impact. He denied that he deliberately tried to hit Trevean or plaintiff.
Renda, who testified via her videotaped deposition, supported defendant's version. Upon hearing the motorbike, she went out into the street with the intention to motion it to slow down. There were children and an ice cream truck present in the street.*fn4 As the motorbike veered toward her, the throttle got louder and she jumped onto the curb. She then saw the motorbike strike defendant.
Prior to trial, plaintiff moved to exclude testimony that plaintiff's parents had instructed him not to operate the motorbike on the street and, thus, plaintiff left his home in contravention of those instructions. Defendant argued that the instructions were relevant to establish that plaintiff was in a hurry to get home before his parents arrived home from work and thus, when defendant came out into the street, plaintiff ignored his motions to slow down. Maintaining that plaintiff's disregard of his parents' instructions was "relevant to [plaintiff's] actions and whether or not he was exercising proper care," defense counsel argued, "[i]f [plaintiff is] willing to disregard the instructions of his parents, how much care is he really taking out there on the roadway." Granting plaintiff's in limine motion, the trial judge determined that the instructions were not relevant. He then added:
Even if [the instructions] were relevant . . . the probative value is outweighed by the risk of undue prejudice, confusion of [the] issues and misleading the jury. The issue really is the facts regarding the happening of the accident in this case, not what the parents might have told him ...