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O'Leary v. Moloney

December 8, 2008

JAMES O'LEARY, PLAINTIFF-APPELLANT,
v.
WILLIAM MOLONEY AND MARCIA J. MOLONEY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-39-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically October 30, 2008

Before Judges Winkelstein and Fuentes.

While riding his bicycle on February 4, 2001, plaintiff James O'Leary was struck by a car driven by defendant William Moloney. The jury found that defendant was negligent, but his negligence was not a proximate cause of the accident. The court denied plaintiff's motion for a new trial. On appeal, plaintiff claims that he is entitled to a new trial because the verdict was against the weight of the evidence; the court erred by failing to bifurcate the liability trial from the damages trial; and the court failed to charge the jury under the careless driving statute. We conclude that plaintiff's arguments are without merit and affirm.

The accident occurred as plaintiff traveled north on Fourth Avenue in Spring Lake. He reached the intersection with Church Street, stopped at a stop sign and noticed defendant's vehicle approaching westbound on Pitney Avenue. According to plaintiff, he turned right, riding on the north side of Church Street into oncoming traffic, "to allow [himself] as much view coming down [the] road because this is a pretty fast road."

As plaintiff approached defendant's vehicle, he noticed that the driver's head was turned toward the passenger seat. He tried to pedal to the curb on the other side of Church Street, which required that he cross the road in front of defendant's vehicle. Plaintiff testified that as he did so, when he looked at defendant's vehicle, defendant was still not looking at the road ahead. Plaintiff tried to get as close to the curb as possible; when he saw that defendant's car was going to hit him, he screamed. Defendant's vehicle then collided with him "head-on."

Defendant provided the jury with a different version of events. He testified that he turned from Pitney Avenue onto Church Street, and while driving twenty-five miles an hour, he encountered a glare from the sun when "instantaneously Mr. O'Leary appeared before [him]." He stated, "And at that point I was sort of just horrified at the fact that, you know, somebody on a bicycle was in front of me, and there was nothing that I can do other than put my brakes on." When he first saw plaintiff, he was "close enough that I realized that I was going to be in an accident, and would not be able to avoid that." At the time of impact, "O'Leary was traveling in the direction from the driver's side of [defendant's] car, towards the passenger side of the car, at [an] angle, not directly,... kind of cutting across the street."

Plaintiff's accident reconstruction expert, Tom Thiemann, testified that defendant "could have adjusted his sun visor to compensate for [the sun] glare," and the road was clear of any other obstructions to defendant's vision. Thiemann testified that defendant "should have seen and could have seen that bicycle." Both parties had a clear view in excess of 500 feet. He concluded, based on a lack of skidmarks at the accident scene, that defendant did not hit his brakes until he collided with plaintiff. Thiemann opined that defendant drove "recklessly," and "[he] was traveling too fast for the conditions." Thiemann did not offer an opinion as to where impact occurred.

Investigating Officer Timothy Moran testified that it was a "clear shot for both Mr. Moloney and Mr. O'Leary." By examining the damage to plaintiff's bicycle, Moran concluded that the accident "was probably a head-on collision." Defendant's accident reconstruction expert, John Desch, concluded that defendant's vehicle hit plaintiff at an angle while plaintiff was crossing defendant's path of travel.

The trial court denied plaintiff's motion to exclude testimony about his drug and alcohol use and marital difficulties. As a result, plaintiff's counsel initiated questioning about these areas during his direct examination of plaintiff's doctor, Dr. Jay Gordon. During defendant's cross-examination of a second doctor, Dr. Amos Katz, the jury learned that plaintiff falsely informed his treating physician, post-accident, that he had no history of alcohol or substance abuse. The jury was also presented with testimony that following the accident, sometime after March 16, 2002, plaintiff suffered a drug overdose for which he was hospitalized, and in July 2002, he was admitted to a twenty-eight-day rehabilitation program. These incidents occurred despite doctors' advice to plaintiff that his drug or alcohol use could impede recovery from the injuries he received from the accident.

During plaintiff's direct examination, he explained that he and his wife were separated at the time of the accident. He testified about his drug use, alcohol abuse, his history of DWIs,*fn1 and marital troubles. This line of questioning continued on cross examination, revealing that plaintiff's driver's license was suspended at the time of the accident and, for incidents that occurred subsequent to the accident, he pleaded guilty to possession of a controlled dangerous substance and criminal mischief.

On direct examination, plaintiff's wife, Jennifer O'Leary, testified that she had obtained a restraining order against plaintiff before the accident occurred. On cross-examination, she testified about the incident that led to the restraining order as follows:

Q: That was an incident in which he slapped cooking oil out of your hand and told you he was going to kill you?

A: Yes, but it's a little exaggerated that he was going to kill me. But there was an argument, and cooking oil was slapped out of my hand.

Q: And your daughter [] got pushed up against the kitchen counter and broke her finger?

A: Well that was filed in a divorce complaint. We also have a galley kitchen, and we have a 14 year-old daughter in a space. So she was pushing him, he shoved her, she hurt her finger. My lawyer was being a little aggressive with that. But the incident did occur as it is stated. It just seems like it was a little bit more aggressive stated in the complaint for divorce.

Q: Did you ever object to your lawyer being a little bit aggressive in the complaint?

A: No, I did not. No, I did not.

Q: So in the complaint for the divorce it's okay to be a little bit aggressive because that's really a ...


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