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Monahan v. Duggan


August 28, 2008


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-193-04.

Per curiam.


Argued May 20, 2008

Before Judges Skillman, Yannotti and LeWinn.

Defendant Mary J. Grasberger appeals from a judgment, entered after a bifurcated trial, upon a jury verdict finding her 70% liable to plaintiff Dennis Monahan for injuries he sustained in an automobile accident on July 5, 2002, and a second verdict requiring her to pay plaintiff $450,994 in damages.*fn1 Grasberger raises several claims of error in the liability trial and two claims of error in the damages trial. For the reasons that follow, we conclude that none of these contentions warrants reversal of the jury verdict and, therefore, we affirm.


On July 5, 2002, Monahan accompanied Diana Perks to a Honda dealership on Route 88 in Lakewood, New Jersey, where Perks was to leave her car for service. The dealership had arranged for Perks to have a rental car provided by defendant Elrac, Inc. (Enterprise), while her car was being serviced. An Enterprise employee, defendant Alex Duggan, picked up Monahan and Perks at the Honda dealership to transport them to the nearby Enterprise rental office. Perks sat in the front passenger seat and Monahan sat directly behind her. In order to turn left onto Route 88 towards the Enterprise location, Duggan had to cross a lane of westbound traffic.

In the liability trial, Monahan and Duggan described the accident as follows. Traffic had backed up from a traffic light past the dealership exit. A driver in the line of traffic stopped to allow Duggan to cross in front of him to make the left turn. As Duggan began exiting the dealership parking lot, Grasberger, who was attempting to pass the line of traffic on the right shoulder of the highway, crashed into Duggan's car. Grasberger's car then careened into another vehicle.

Monahan testified that he was still buckling his seatbelt at the time of impact. He saw Grasberger approaching and yelled to Duggan to stop. Monahan then put his arms around Perks in the front seat. According to Monahan, the front of Duggan's car "disintegrated" upon impact with Grasberger's vehicle. Monahan testified that his legs crashed into the center console when the cars collided.

Grasberger testified that she was driving westbound on Route 88 at approximately forty miles per hour with no traffic when Duggan suddenly emerged from the Honda dealership driveway. Grasberger stated that she swerved but could not avoid hitting Duggan's car.

In the damages trial, Monahan testified that he declined medical attention at the accident scene. The following day, however, Monahan sought medical treatment at a hospital emergency room in Lakewood. He complained of injuries to his knee, neck and back. Monahan stated that he received "horrendous" care in the emergency room and went to see his family doctor in New York two days later.

Monahan had an MRI of his left knee pursuant to his family doctor's order on July 13, 2002. Monahan then brought the MRI film to his orthopedist, Dr. Gregory Charko, who examined his knee.

Monahan described the condition of his knee as "unstable," as it would "just give out" when he walked. Dr. Charko informed Monahan that the "anterior cruciate ligament [ACL] was torn and the knee [was] shot, [and it was necessary to] put in [an artificial] knee."

Monahan underwent knee replacement surgery in March 2003. Post-surgical complications arose and the prosthesis was later removed by Dr. Paul Lombardi in June 2004. At that time, Dr. Lombardi inserted a spacer for seven weeks to clear up infection; during this period Monahan was confined to a rehabilitation hospital. Dr. Lombardi then implanted a second prosthetic knee. Monahan suffered several complications with the second prosthetic device and underwent two additional surgeries, the last of which took place in June 2005.

Monahan also testified that he had suffered injuries while employed as a police officer in Newburgh, New York. As a result of those injuries, Monahan stated that he received a police pension upon his departure from the force in 1984.

Monahan further testified that he had injured his back while working for Continental Airlines and underwent three surgical procedures to treat that back injury. As result of the injury and surgeries, Monahan was declared eligible for Social Security Disability benefits in 1994.

Monahan acknowledged that he had undergone six surgeries on his left knee prior to the July 2002 car accident. He claimed that he had experienced improvement in his knee following the last surgery in 2000. However, he did acknowledge that in 2002 he continued to suffer from knee pain and tenderness. Monahan had been taking four different medications for pain prior to the accident.

Monahan testified that between the 2000 surgery and the July 2002 accident, he had been able to ice skate and play soccer occasionally. Both Monahan and his former girlfriend, Denise Novickij, testified that Monahan had fixed Novickij's roof and had done other work on her residence. Monahan stated that after the July 2002 accident he was no longer able to engage in such activities.

Because Monahan was seeking damages related only to his knee injury, he brought an in limine motion to preclude medical testimony on his prior back and neck injuries. The judge reserved decision and then granted the in limine motion during the testimony of plaintiff's first medical witness, Dr. Charko.

Dr. Charko had performed the initial post-accident surgery and testified that Monahan had suffered a torn ACL in the accident and required knee replacement surgery. Dr. Charko explained that when he had operated on Monahan's meniscus in 2000, Monahan's ACL had been intact. Dr. Charko opined that Monahan would have needed knee replacement surgery in approximately ten years had the accident not occurred in July 2002.

Monahan's second medical expert, Dr. David Lessing, testified that review of Monahan's left knee MRI's from March 1990 and March 2000, along with photographs taken during the June 2000 meniscus surgery, indicated that Monahan's ACL had remained healthy and intact through June 2000. However, according to Dr. Lessing, Monahan's MRI from July 13, 2002, eight days after the accident, showed that his ACL had torn. Dr. Lessing concluded that, based upon Monahan's medical history, his ACL was "fine until the accident[,]" and was injured when "his knee hit either the center console or the seatback in front of him."

Dr. Lessing also testified that abnormal bone growth, which had occurred after Monahan's second knee replacement surgery, was directly related to the accident. Dr. Lessing stated that the prognosis for Monahan's knee was poor, and opined that the injury will result in a permanent disability. Dr. Lessing further opined that the accident was a substantial factor in causing this permanent disability.

Dr. Ian Blair Fries, the medical expert for defendants Duggan and Enterprise, reviewed Monahan's left knee history and conducted a medical examination that revealed a limited range of motion and swelling of Monahan's left knee, as well as "atrophy of his quadriceps muscle." Dr. Fries opined that Monahan would have required a knee replacement even if the July 2002 accident had not occurred. Dr. Fries also concluded that Monahan's ACL had not been torn in the accident, based upon the following factors: (1) the position in which Monahan was seated in the automobile; (2) his lack of pain following the accident; (3) his ability to ambulate after the accident; and (4) his apparent lack of swelling of the knee.

Dr. Fries had reviewed Monahan's 1990 MRI and contended that that film indicated damage to the ACL. Dr. Fries acknowledged that when Dr. Charko performed meniscus surgery on Monahan's knee in 2000, Dr. Charko had observed and stated that the ACL was intact.

Dr. Fries testified that he did not "know a lot" about Monahan's prior level of physical activity. When asked whether it would be "important to know if he was able to do specific things such as ride a bike . . . within the two years prior to this accident[,]" Fries responded: "You're putting me in a very strange position here because I've been told not to discuss a large number of things about this gentlemen."

Dr. Joseph Corona, Grasberger's expert, also opined that the accident did not cause the tear in Monahan's ACL. Rather, Dr. Corona opined that the tear occurred over years of attrition, and that knee replacement surgery was required due to degenerative arthritis and not to an acute injury attributable to the accident. Dr. Corona testified that he had been provided no information on Monahan's condition between the June 21, 2000 meniscus surgery and the July 2002 accident.


We first address Grasberger's arguments relating to the judge's charge to the jury in the liability trial. Grasberger contends that the trial judge erred in failing to hold a charge conference prior to counsels' summations. Because the jury charges were discussed only after summations had been given, Grasberger argues, the charges given by the court undermined Grasberger's arguments in summation and unduly prejudiced the jury.

Grasberger finds fault with three parts of the jury charge. First, Grasberger claims that the court erred in not informing the jury that Duggan and Enterprise owed Monahan a higher duty of care based upon their status as a "common carrier[.]" Second, Grasberger argues that the court erred in failing to charge the jury that Duggan had a duty to yield to traffic on Route 88. Finally, Grasberger argues that the trial judge erred in failing to give the jury an "ultimate outcome" charge regarding Grasberger's liability.

The liability trial took place in a single day. None of the parties submitted requests to charge to the court. Furthermore, no party filed any motion concerning the duty of care owed by Duggan and Enterprise. The parties agreed to discuss the charge following summations in order to conclude trial on that day.

During the post-summations charge conference, the trial judge afforded the parties an opportunity to brief and argue any charge issues on the following day. All parties declined this offer. At the conclusion of that conference, all parties concurred in the proposed charge, which did not include "common carrier," "duty to yield," or "ultimate outcome" instructions.

Rule 1:8-7(a) provides that

. . . [B]efore the close of evidence, as to issues not anticipated prior to trial any party may submit written requests that the court instruct the jury on the law as set forth in the requests. . . . The court shall, on the record, rule on the requests prior to closing arguments to the jury. A verbatim record shall be made of any charge conference the court holds. . . .

Grasberger acknowledges that she neither submitted written requests to charge nor requested a charge conference prior to summations. Therefore, the inquiry here turns on whether the lack of a charge conference prior to closing arguments was "clearly capable of producing an unjust result[.]" R. 2:10-2.

In State v. Conway, 193 N.J. Super. 133 (App. Div.), certif. denied, 97 N.J. 650 (1984), we rejected essentially the same argument Grasberger raises here, namely that the prejudice resulting from this claimed error was her counsel's inability to conform his closing argument to the ultimate jury instructions:

We are not sure what is meant by permitting counsel to "conform his summation with what the actual charge will be." It is the function of the trial judge to instruct the jurors in the law applicable to a case. It is sufficient merely to state the time worn instruction that the judge is the judge of the law and that the jurors are the judges of the facts to support this observation. Trial counsel should not be permitted to instruct the jurors during their summations as to what the law to be applied in this case is in anticipation of the judge's charge. If what is meant by the argument advanced here that counsel were hindered in determining which facts to emphasize or which of the trial testimony to comment on, then we do not find that defendants were prejudiced. [Id. at 154.]

We reach the same conclusion here. Counsel would have been prudent to seek clarification from the court prior to advancing the "common carrier" proposition in summation. Nonetheless, we conclude that the lack of a pre-summation charge conference did not prejudice Grasberger in the manner she claims.

We turn next to Grasberger's argument that the court erred in failing to charge the jury that Duggan and Enterprise had a higher duty of care as "common carriers." Pursuant to Rule 1:7-2:

[e]xcept as otherwise provided by R. 1:7-5 and R. 2:10-2 . . . 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. . . . A party shall only be prejudiced by the absence of an objection if there was an opportunity to object to a ruling, order or charge.

At a sidebar conference following the jury charge, Grasberger noted her objection to the omission of a "common carrier" charge. Therefore, for the purpose of considering this argument, we deem Grasberger to have preserved this challenge according to Rule 1:7-2 with respect to the "common carrier" charge.

A "common carrier" is defined as a "commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee." Black's Law Dictionary, 226 (8th ed., 2004). Consistent with this definition, the pertinent New Jersey Model Civil Jury Charge describes a "common carrier" as an entity that "undertakes for pay to carry all persons who apply for passage, so long as there is room and there is no legal excuse for refusing." Model Jury Charge (Civil), 5.73(A) "General Duty of Common Carriers to Passengers" (1988).

Contrary to Grasberger's contentions, the evidence failed to establish that Duggan and Enterprise were acting as a "common carrier" when Duggan drove Monahan and Perks from the Honda dealership to the Enterprise rental location. There is no evidence that Enterprise held itself out to the public as offering passengers transportation from the dealership to its rental location for a fee. Therefore, the judge did not err by failing to charge the jury that Duggan and Enterprise were acting as a "common carrier" and, as such, were subject to the higher standard of care that is imposed upon such carriers.

Grasberger next contends that the trial judge erred in failing to instruct the jury as to Duggan's duty to yield to highway traffic when proceeding from a stop sign or emerging from a parking lot. The judge charged the jury:

Obviously the risk of harm will vary with the circumstances. In some settings that risk is greater than in others, and, when this is so, a reasonably prudent person will exercise a greater amount of care in proportion to the increased risk.

With respect to a left-hand turn, involving as it does a movement across the path of other traffic, the risk of harm is ordinarily increased beyond that which exists when a motor vehicle is proceeding along a direct course; hence, with respect to a left turn, a reasonably prudent person would seek an opportune moment for the turn and would exercise an increased amount of care in proportion to the increased danger. Accordingly, the law provides that a person seeking to do so has the duty to seek an opportune moment and to exercise a degree of care in proportion to the increased danger involved in the turn; therefore, it is for you to determine whether a reasonably prudent person charged with that duty would under the circumstances of this case, have made the turn when and in the manner in which the defendant Alex Duggan did here.

Grasberger contends that the trial judge should have charged the jury in accordance with N.J.S.A. 39:4-66(b), which states:

[T]he operator of a vehicle emerging from an alley, driveway, garage or private road or driveway, shall stop the vehicle immediately prior to entering or crossing a highway, and shall proceed to enter or cross the highway only after yielding the right of way to the traffic on the highway[.]

"Courts uphold even erroneous jury instructions when those instructions are incapable of producing an unjust result or prejudicing substantial rights." Fisch v. Bellshot, 135 N.J. 374, 392 (1994). Therefore, "[a]n appellate court should not reverse a trial court when the charge adequately conveys the law and does not confuse or mislead the jury." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997).

The jury instructions relating to Duggan's standard of care upon exiting the dealership parking lot "clearly and correctly state[d] the principles of law pertinent to the issues." Abramsky v. Felderbaum, 81 N.J. Super. 1, 7 (App. Div.), certif. denied sub nom. Abramsky v. Esso Standard Oil Co., 41 N.J. 246 (1963). The failure to use the specific term "yield" in the instructions did not prevent the jury from understanding Duggan's obligation under the heightened duty of care imposed upon one exiting a parking lot onto a roadway. The instruction that Duggan had the obligation to "seek an opportune moment for the turn and [to] exercise an increased amount of care in proportion to the increased danger[,]" conveyed a duty to yield to traffic on the highway. Therefore, considering the charge as a whole, we conclude that the jury charge was sufficient to convey the proper standard of care imposed upon Duggan.

Grasberger's third challenge to the jury charge, that the judge should have given an "ultimate outcome" charge, is raised for the first time on appeal. Therefore, once again we apply the "plain error" standard in Rule 2:10-2 and consider whether this "omission . . . is of such a nature as to have been clearly capable of producing an unjust result[.]"

Suffice it to say that the decision whether to include an "ultimate outcome" instruction is left to the sound discretion of the trial judge who may withhold the charge if it would tend to mislead or confuse the jury. Roman v. Mitchell, 82 N.J. 336, 346-47 (1980). We have recognized, in similar circumstances, that the omission of an "ultimate outcome" charge when a jury is assessing the negligence of two drivers is harmless. Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 610 (App. Div. 1984). We conclude that the absence of an "ultimate outcome" charge in this case was not plain error.


We next address Grasberger's contentions regarding the damages trial.

First, Grasberger argues that the trial judge erred in restricting the presentation of evidence of Monahan's pre-accident injuries and the impact of those injuries on his activity level and lifestyle. Grasberger argues that she was prejudiced by the inability to present the jury with an accurate depiction of Monahan's condition prior to the accident. In particular, Grasberger asserts that she had no opportunity to challenge the credibility of Monahan's claimed ability to engage in activities such as ice skating and performing home repairs prior to 2002.

"Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). Such a ruling "will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). To constitute an abuse of discretion warranting reversal, a challenged evidentiary ruling must be "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

We are convinced that the trial judge did not commit reversible error by limiting the evidence of Monahan's pre-accident injuries and the impact those injuries may have had on his activities and lifestyle. The record reveals that, notwithstanding that ruling, the jury heard extensive testimony about Monahan's medical history, including: injuries incurred while he was employed as a police officer in Newburgh, New York, resulting in his leaving that position on pension in 1984; injuries to his back while working for Continental Airlines, resulting in three surgical procedures; his receiving Social Security Disability benefits in 1994 as a result of those back injuries; and his six surgeries on his left knee prior to the 2002 accident.

Moreover, both of Monahan's medical experts, Drs. Charko and Lessing, testified that, as of March 2000, the ACL in Monahan's left knee was intact. Dr. Lessing testified that an MRI eight days after the accident showed a torn ACL, thus leading Dr. Lessing to opine that, based on Monahan's medical history, his ACL was intact until the accident and was injured when "his knee hit either the center console or the seatback in front of him."

We conclude that both the lay and expert medical testimony afforded Grasberger an adequate opportunity to challenge the credibility of Monahan's claimed ability to bike, ice skate and make home repairs prior to the accident. Monahan made it clear from the outset of the damages trial that he was seeking damages only for his left knee injury and not for any aggravation to prior back or neck injuries. The trial judge concurred with this tactical decision in granting the in limine motion. However, as noted, the jury still heard testimony about Monahan's prior neck and back injuries dating back to 1984. Grasberger's counsel was free to take note of this evidence when addressing the jury on Monahan's damages claim. Therefore, we conclude that, even if erroneous, this ruling was harmless error.

We also reject as without merit Grasberger's argument that comments made in summation by Monahan's counsel warrant a new trial. Specifically, Grasberger contends that Monahan's counsel misstated facts regarding the testimony of the defense medical experts, by stating:

None of these doctors, not Dr. Corona and not Dr. Fries had any information about the progress that Dennis [Monahan] was making after Dr. Charko did the surgery in June of '00. Why is that? Because they weren't sent that information by the defense, that's why. They were never supplied that information. They could never be cross-examined on the types of things that he was doing and the types of progress he was making.

We note that Grasberger did not object to these summation comments at trial. As the Supreme Court has stated, "[W]e presume that when a lawyer observes an adversary's summation and concludes that the gist of the evidence has been unfairly characterized, an objection will be advanced." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001). Therefore, to warrant a new trial, the comments in question must rise to the level of plain error. R. 2:10-2; Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 397 (App. Div.), certif. denied, 180 N.J. 356 (2004).

We are convinced that the challenged remarks constituted legitimate comment upon the proofs offered at trial. Monahan's counsel did not call into question the credibility of the defense medical experts. Rather, he argued to the jury the diminished value of those experts' opinions in light of the limited information made available to them. Counsel did not "grossly misstate[] and mischaracterize[] the testimony of the defense medical experts[,]" as Grasberger contends. We therefore conclude that these comments were based upon a reasonable characterization of the doctors' testimony and did not result in prejudice warranting a new trial.

Grasberger's reliance upon Bender v. Adelson, 187 N.J. 411 (2006), is misplaced. This is not a situation in which "summation commentary transgresse[d] the boundaries of the broad latitude otherwise afforded to counsel," thereby warranting "a new trial [because] the comments [were] so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Id. at 431 (quoting Rule 4:49-1(a)). Grasberger raised no objection to the summation comments at trial. Her argument that she was prejudiced by these remarks is entirely without merit.


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