On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7824-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and Grall.
Defendant's appeal in this matter requires that we consider whether the trial judge erred in excluding photographs that depicted the condition of defendant's vehicle following the accident in question and in refusing to instruct the jury regarding the absence of an interpreter at plaintiff's deposition. Because we find that the judge mistakenly exercised his discretion in making both these rulings, we reverse and remand for a new trial.
Plaintiff commenced this action claiming that she sustained personal injuries. The complaint alleged that defendant negligently caused her vehicle to collide with the rear end of plaintiff's vehicle in Absecon on September 11, 2004. Defendant conceded liability.
A trial on the issue of damages took place on October 9 and 10, 2007. At the trial's commencement, plaintiff moved to bar defendant from making use of photographs of defendant's vehicle. In response, defendant argued that the photographs were admissible so long as they were properly authenticated and so long as there was testimony that they accurately depicted the condition of the vehicle following its impact with plaintiff's vehicle. The judge granted plaintiff's application and rejected defendant's argument that the photographs were admissible:
I'm going to deny the use of the photographs in this case. I believe that the mere admittance of photographs without more runs afoul of [Brenman v. Demello, 191 N.J. 18 (2007), a] case wherein the [C]court required that there be a nexus or a connection between the photographs and the proofs elicited. In other words, you've got to come in with a biomechanical expert or someone -- some expert that can draw a distinction in -- or draw a connection, if you will, between the damage suffered by the vehicle and the injuries suffered by the plaintiff, and we simply don't have that in this case.
The issue resurfaced at the conclusion of plaintiff's testimony, when the judge inquired whether the jury had any questions for plaintiff. The jury suggested a few questions, which were discussed by the judge and counsel at sidebar. One of the jury's questions sought information regarding "how much damage [was done] to car?" With that, defendant again argued that the judge had mistakenly barred his use of photographs of his client's vehicle. Defense counsel correctly argued that the Court in Brenman held that a party does not need an expert to get in photographs of the property damage. You don't need a biomechanical expert. It's not required as a condition precedent when the cause and extent of plaintiff's injuries are at issue.
After additional discussion, the judge indicated that he would allow the question to be posed to plaintiff regarding property damage. Defense counsel again persisted that since the judge had deemed the extent of property damage to the vehicle to be relevant the photographs must also be relevant. In response, the judge only stated: "I'm not going to allow the photographs, no. She can testify as to what [the impact and monetary cost of repair] was, but I'm not going to allow the photographs."
Following the sidebar, some of the jury's questions were put to plaintiff, including the jury's question regarding damage to her car, which prompted the following testimony:
Q: How much damage to car?
A: Thousand dollar I think, close to a thousand dollar.
Q: What was the force of impact at the moment of ...