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Frenda v. McElrone Sales

June 26, 2008

MARLENE FRENDA AND FRANK FRENDA, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
MCELRONE SALES, INC. AND JOHN J. MCELRONE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-4703-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 27, 2008

Before Judges Lintner and Sabatino.

Plaintiffs, Marlene Frenda*fn1 and her husband, appeal from an adverse judgment and denial of her motions*fn2 for new trial or directed verdict following a jury's determination that defendant John J. McElrone*fn3 was negligent but not a proximate cause of the accident. On appeal, plaintiff asserts: (1) as there was no issue of proximate cause respecting defendant's*fn4 conduct, it should not have been submitted to jury and, thus, on retrial the only issue to be decided is allocation of damages; (2) the judge erred in precluding plaintiff from cross-examining defendant's accident reconstruction expert on whether defendant's conduct, if negligent, would have been a proximate cause of the accident; and (3) plaintiff was diligent in pursuing her discovery request to have defendant's vision examined.

We conclude that plaintiff should have been permitted to pursue, on cross-examination, defendant's expert's opinion concerning the issue of proximate cause for the accident as it related to defendant's conduct, and the preclusion represented a miscarriage of justice mandating a new trial on whether defendant's negligence was a proximate cause of the accident. Accordingly, we reverse the judgment and remand for a new trial on that issue.

On October 15, 2004, between 5:30 p.m. and 6:30 p.m., plaintiff was driving southbound on the Garden State Parkway in Paramus, when she got a flat tire. It was raining heavily. Realizing that she did not have her cell phone, she left her vehicle and walked down a grassy hill on the side of the Parkway to access a nearby hotel and call for help. In order to get to the hotel, plaintiff needed to cross Fromm Road, starting at the northbound side. She did so, first looking right then left, and then walking across the street, holding a yellow umbrella over her head. She did not look to her right again while crossing the street. Meanwhile, defendant, who was seventy-five years old, was driving southbound on Fromm Road. Defendant did not see plaintiff until he was approximately six feet away from her. Defendant applied his brakes but was unable to avoid hitting plaintiff.

The accident was witnessed by Melissa Mirrer and her mother, Laurie Mirrer. Melissa was a passenger in Laurie's car and was talking on her cell phone to her sister when she heard her mother say, "Oh, my God, that lady, she's going to get hit."

Upon witnessing the accident, Melissa ran from her mother's vehicle to help plaintiff. Plaintiff sustained a left open tibia fracture, a right segmental tibia fracture, and a fracture of her right clavicle and pelvis. Her tibia fractures required surgery.

Defendant called Ira S. Kuperstein, a licensed civil engineer, to testify as an accident reconstruction expert on his behalf.*fn5 Kuperstein testified that defendant should have seen plaintiff approximately 100 feet before the accident. In addition, Kuperstein stated that it would have taken approximately eighty-five feet for defendant to have stopped his car, given his speed and the weather conditions. He testified on direct, consistent with his report, that plaintiff's actions in failing to make observations to her right when she was crossing the roadway were a direct and proximate cause of the accident. At trial, plaintiff conceded that her action in crossing without looking was negligence and a proximate cause of the accident.

On appeal, plaintiff first asserts that there was no issue of proximate cause and, therefore, the jury should not have been asked to decide it. She maintains that because defendant failed to present any evidence that plaintiff's injuries were caused by anything other than the accident there was no need to have the jury decide proximate cause. The trial judge correctly found that, although defendant conceded that plaintiff's injuries resulted from the accident, he did not concede liability, i.e., that he was either negligent or his negligence was a proximate cause of the accident.

In routine tort cases where there is no issue of whether the injuries resulted from the accident, "[w]hen charging proximate cause on liability, use accident/incident/event, as appropriate." Model Jury Charge (Civil), § 6.11, "Proximate Cause -- Routine Tort Case Where No Issues Of Concurrent Or Intervening Causes, Or Foreseeability of Injury or Harm" n.1 (2007). It is only when there is a question of whether certain distinct injuries were sustained as a result of the accident that the jury should be given separate interrogatories and asked to decide whether the particular type of alleged injury was caused by the accident. See Ponzo v. Pelle, 166 N.J. 481, 491-92 (2001). Here, there was no such contest and, therefore, the jury was correctly instructed to determine whether defendant's negligence was a proximate cause of the accident. Model Jury Charge (Civil), § 7.30(D), "Comparative Negligence (Auto) -- All Issues" (2007).

In giving his opinion at trial, defendant's expert implicated a lack of proximate cause and negligence on the part of defendant. On direct, Kuperstein responded in the negative to defense counsel's question as to "whether . . . [defendant] performed any improper observations." He also testified that defendant did not have sufficient time to stop his vehicle because the perceptual reaction was so great as to preclude him from having [visibility] in the context of a violation of expectancies and the weather conditions to preclude him from seeing in enough time or [being] reasonably aware of a driver to conclude that there were not so reasonably alert and aware as to cause the accident. (Emphasis added).

It is in the light of this testimony that we consider plaintiff's contention that she should not have been precluded from cross-examining Kuperstein on the issue of whether defendant's conduct was a proximate cause of the accident. On cross-examination, plaintiff asked, "[n]ow, Doctor, if the jury finds [defendant] was negligent or (indiscernible) that would be a proximate cause of the accident, wouldn't it?" Objecting, defense counsel argued that the question asked embraced "a legal issue," and that "it's for the jury to decide." When plaintiff counsel pointed out that Kuperstein ...


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