May 9, 2008
JACK CASCIO, AN INFANT BY HIS GUARDIAN AD LITEM, JENNIFER CASCIO, AND JENNIFER CASCIO, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
GREGORY CORDES, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 21, 2008
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 before, and so I don't see . . . the state of mind being of issue in the case.
Defendant asserts that plaintiff's parents' instructions not to use the motorbike on the street and not to use it without his father's supervision were relevant. Defendant maintains that plaintiff's concerns, as expressed in depositions, that he would get into trouble if he got home after his parents arrived, were relevant to establish that he was in a hurry to get home and thus relevant to the evaluation of plaintiff's credibility respecting the different versions of the accident.
Relevant evidence is that which has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Though relevant evidence is generally admissible, N.J.R.E. 402, it "may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403. "Under N.J.R.E. 403, the trial court has broad discretion in determining whether the probative value of evidence is significantly outweighed by the risk of undue prejudice." State v. Scherzer, 301 N.J. Super. 363, 425 (App. Div.) (citing State v. Sands, 76 N.J. 127, 144 (1978)), certif. denied, 151 N.J. 466 (1997). "Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)). Where extrinsic evidence is utilized to impeach a witness, see N.J.R.E. 607, "its probative value as impeachment evidence must be assessed independently of its potential value as substantive evidence." Green, supra, 160 N.J. at 494.
The probative value of plaintiff's parents' prohibitions as bearing upon whether he was negligent in the operation of the motorbike because he was in a hurry to get home would have been marginal at best, given both plaintiff's and defendant's testimony concerning the speed at which plaintiff was operating the motorbike. By contrast, the risk of jury confusion or unjust prejudice would have been great, by essentially branding plaintiff as a disobedient child. The judge's ruling was unassailable.
Defendant next challenges the judge's decision to exclude testimony given by both defendant and Renda concerning their sighting of the motorbike, presumably driven by plaintiff, on Kendall Drive earlier that day.*fn5 Both defendant and Renda testified in their depositions that the same motorbike had been operated in the neighborhood earlier that day at a high rate of speed when children were in the street. Defendant also stated in his deposition that when he saw plaintiff on the motorbike later that day, he went out into the street to tell plaintiff to slow down because "there [were] a lot of people walking from house to house across the street with children, children on the lawns playing, and on the way down the street he came close to hitting some children by the ice cream truck and [he and Renda] just wanted him to slow down so nobody got hurt."
Excluding the testimony concerning the earlier sighting, the judge stated:
I'm going to grant the motion in limine. I find and I believe that the -- the testimony of Ms. Renda with regard to the actions by the plaintiff prior to the happening of the actual incident/accident are not relevant to being inquired before this jury which is whether -- is the negligence of the two parties with regard to that accident.
I just like -- I guess I would caution plaintiff to be careful that you don't open the door; if it is that you make that somehow relevant, then I certainly will reconsider that, but I don't think it's relevant up to that point where the plaintiff is coming down the road and the defendant steps out.
So I will grant that motion and bar the testimony of -- those portions of Kelly Renda's testimony regarding the happening --her observations prior to that actual portion of the accident.
In cross-examining defendant, plaintiff's attorney asked defendant if he went into the street after hearing the sound of the motorbike, but before seeing it. Defense counsel objected, arguing that plaintiff was challenging defendant's credibility about why he went out into the street upon hearing the bike rather than seeing it, thus opening the door as to what happened earlier that day. The judge allowed plaintiff's counsel to ask the question. Defendant responded that he was heading toward the street when he heard the motorbike but he did not know if he had actually made it to the street when he saw the bike.
In his summation, plaintiff's counsel emphasized that defendant ran into the street before even seeing the motorbike. The judge denied defendant's motion for a mistrial, instructing the jury that comments of counsel were not evidence and that it was its obligation to make the factual determination in the case.
Defendant argues on appeal that the exclusion of the evidence of the prior motorbike sighting resulted in prejudice, as that evidence was relevant to the issue of the reasonableness of defendant's actions under the circumstances. Without that evidence, defendant contends, the jury was uninformed of the actual circumstances of the collision and defendant was unable to present to the jury the context within which he decided to enter the street. Defendant asserts that the exclusion of the evidence, combined with plaintiff's closing argument referencing defendant's decision to run out into the road upon hearing the motorbike without first seeing it, unduly prejudiced his case, thus requiring a new trial.
Again, we agree with the trial judge's rulings. Although relevant to the reasons for defendant's actions in going out into the street, evidence of plaintiff's prior operation would, in our view, unduly prejudice and confuse the jury by diverting its attention from the manner in which plaintiff was operating the motorbike at the time of the accident to the description of the previous sightings. The prohibition in N.J.R.E. 404(b), which excludes evidence of other acts to prove when such evidence is offered to establish an inference of propensity or predisposition, is equally applicable to civil cases as well as criminal. See Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 277-278 (App. Div. 1998). Although such evidence is admissible "to prove some fact genuinely in issue," it nevertheless is subject to admission "if its probative worth outweighs its potential for causing confusion . . . or improper prejudice." Id. at 278. The significant issue was not the reason for defendant's entering the road, i.e., the presence of children and the belief that plaintiff was speeding, but what he did after he entered the roadway. We are satisfied that there was no error in precluding evidence of the prior incidents or allowing plaintiff's counsel's reference to defendant's reaction upon hearing the motorbike prior to seeing it.
Finally, defendant challenges remarks made by plaintiff's counsel during his closing argument. Defendant asserts that counsel's use of the words "recklessly" and "outrageously" and reference to "cock and bull story" to describe defendant's conduct amounted to a clear and convincing miscarriage of justice, requiring the trial judge to grant a new trial.
An appellate court will order a new trial if the errors caused by counsel's misconduct in the aggregate rendered the trial unfair. Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 37 (App. Div. 1998). The issue is whether counsel's misconduct had the capacity to deprive a party of a fair trial or to unfairly affect the outcome of the case. Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 483 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999); Demers v. Snyder, 282 N.J. Super. 50, 58 (App. Div. 1995).
"The scope of a new trial depends upon the nature of the injustice." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490 (2001). "To justify a new trial on all issues, what is required is trial error, attorney misconduct or some other indicia of bias, passion or prejudice impacting on the liability verdict." Id. at 499.
Plaintiff's counsel used the word "reckless" to describe defendant's attempt to "interfer[e with] and interrupt" plaintiff's operation of the motorbike. The term "outrageous" was used in a rhetorical question when counsel stated, "[w]hat is so unreasonable or outrageous" about a fourteen-year-old kid giving his cousin a ride for a couple of blocks. Attorneys are given broad latitude in summations. Those comments were clearly not out of bounds.
Plaintiff's counsel said the following in referencing "cock and bull story."
When I tried to -- to show you and this really deal[s] with Kelly Renda, you know, you can believe she was there or not believe she was there, but I suggest to you in her testimony that what had occurred and Mr. Cordes' testimony about the operation of these kids on a bike, how they're intentionally gearing up and speeding towards them to hit them is mathematically impossible, it is physically impossible and could never have happened. And it's a cock and bull story, flat out.
These two people -- remember -- they're in a six foot driveway talking, here's the bike -- went out in the road, Cordes is in the road and she claims that she's over by the curb. There is no way that a bike coming at that speed would be able to come over here, cause her to jump up on the curb, make a turn or veer out here because he's got to be pretty close to the road -- hit him, now all the force of the bike is going to be -- is going in that direction. Now suddenly turn around and come back over this way and hit a car. These houses are close -- together.
Physically it is impossible to happen that way. It cannot happen the way they said it happened. And that's -- what --that's common sense.
Comments made during summation that disparage the opposing party or opposing counsel may be found to be improper. See, e.g., Rodd v. Raritan Radiologic Assocs., 373 N.J. Super. 154, 171-72 (App. Div. 2004); Henker v. Preybylowski, 216 N.J. Super. 513, 518-20 (App. Div. 1987); Tabor v. O'Grady, 59 N.J. Super. 330, 341-42 (App. Div. 1960). In DeMary v. Rieker, 302 N.J. Super. 208 (App. Div. 1997), we reversed a damage award as excessive where the plaintiffs' counsel referred to the defendant bank as a "faceless defendant" and "weasel." Id. at 224-25 (where jury may have been led to believe that large verdict against bank would also punish co-defendants).
To be sure, the term "cock and bull story" is the type of disparaging remark generally deemed improper as attacking integrity. Here, it was used to describe the mathematical implausibility of defendant's and Renda's description of the event from the point of view of time, distance, and speed. It was an isolated, fleeting comment. The versions given by the two parties as to the happening of the accident were substantially different and hotly disputed. Moreover, defense counsel did not object to his adversary's use of the term during summation at trial. Accordingly, we are required to consider the challenged remark under the plain error standard, R. 2:10-2, that is, whether the remark "had the capacity to prejudice the jury so as to cause a miscarriage of justice." Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419, 424-25 (App. Div. 1996). Under the circumstances, we are satisfied that it did not meet that standard, and the trial judge correctly denied defendant's motion for new trial.