March 11, 2009
EDWARD IARRAPINO, PLAINTIFF-RESPONDENT, AND DONNA IARRAPINO, HIS WIFE, PLAINTIFF,
PATRICIA DALLI, DEFENDANT-APPELLANT.
PATRICIA DALLI AND SALVATORE DALLI, PLAINTIFFS-APPELLANTS,
EDWARD IARRAPINO AND NORTHEAST DEVELOPERS, INC. DEFENDANTS-RESPONDENTS.
COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, INDIVIDUALLY AND AS SUBROGEE OF PATRICIA CASPER DALLI, PLAINTIFF,
NORTHEAST DEVELOPERS, INC., EDWARD S. IARRAPINO AND FARMERS INSURANCE COMPANY OF FLEMINGTON, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-4003-04, L-6425-04 and L-0279-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 10, 2009
Before Judges Parker, Yannotti and LeWinn.
This action arises from an automobile accident that occurred on January 2, 2004, when an automobile driven by Patricia Dalli (Dalli) collided with a truck being driven by Edward Iarrapino (Iarrapino). Dalli and her husband, Salvatore Dalli, appeal from a judgment entered by the trial court on January 25, 2008, following a trial on the issue of liability, which states that Dalli is liable for 70% of any damages awarded to Iarrapino and his wife, Donna Iarrapino. The Dallis also appeal from an order entered on February 15, 2008 which denied their motion for a new trial. For the reasons that follow, we affirm.
The subject accident occurred in Edison, New Jersey, on New Durham Road, near its intersection with Talmadge Road. Dalli was driving her automobile north on New Durham Road. She was in the right lane. Dalli stopped at a red light at the intersection with Talmadge Road. To her left, also stopped at the red light, was a tractor-trailer that was being driven by Robert Taylor (Taylor).
When the light turned green, Taylor proceeded north on New Durham Road. Taylor testified that he passed through the intersection at about ten miles per hour. To the north of the intersection, the right lane of traffic on New Durham Road merges into the left lane. Further north on New Durham Road is a driveway entrance to a shopping center. Dalli drove past Taylor on the right and merged in front of his truck.
At about the same time, Iarrapino was driving a pick-up truck south on New Durham Road. He slowed down, put on his turn signal and made a left turn to enter the shopping center. Dalli's car struck Iarrapino's truck on its right side and pushed it about fifteen feet. The front of Dalli's vehicle was wedged under Iarrapino's truck.
The Iarrapinos filed a personal injury action against Dalli, which was docketed as L-4003-04. The Dallis filed a separate complaint against Iarrapino and Northeast Developers, Inc. (Northeast), the owner of the truck that Iarrapino was driving. The Dallis' action was docketed as L-6425-04. The trial court entered an order on November 19, 2004, consolidating the lawsuits.
Thereafter, Commercial Insurance Company of Newark, New Jersey, individually and as Dalli's subrogee, filed a complaint against Northeast, Iarrapino and Farmers Insurance Company of Flemington (Farmers) as Northeast's subrogee. This action was docketed as L-0279-05. Farmers, in turn, filed a counterclaim against Dalli for property damage. By order entered on September 9, 2005, this action was consolidated with the Dalli and Iarrapino lawsuits.
The issue of liability was tried before a jury, which returned a verdict on January 10, 2008, apportioning 70% of the responsibility for the accident to Dalli and 30% to Iarrapino. On January 25, 2008, the trial court entered a judgment in accordance with the jury's verdict. The judgment dismissed the Dallis' complaint in L-6425-04 and Farmer's property damage claim in L-0279-05 with prejudice. The judgment further provided that Dalli would be responsible for 70% of the Iarrapinos' damages, which would be determined thereafter. On February 15, 2008, the trial court entered an order denying Dallis' motion for a new trial.
Thereafter, the damage phase of the case was tried before a jury, which returned a verdict on February 27, 2008, awarding Iarrapino $100,000.*fn1 On March 7, 2008, the trial court entered a judgment in favor of Iarrapino and against Dalli in the amount of $70,000, plus pre-judgment interest in the amount of $9,934.21. The Dallis filed their notice of appeal on March 10, 2008. On March 31, 2008, the trial court entered judgment against Dalli, awarding Northeast $26,266.80 on its counterclaim for property damage. No appeal was taken from the March 31, 2008 order.
In this appeal, the Dallis raise the following arguments for our consideration:
The Court below erred in failing to declare a mistrial after [Police Officer] Smith effectively informed the jury that he had found Dalli at fault, and in permitting the objectionable lay opinion evidence to be reemphasized during trial.
The Court erred in permitting [Police Officer] Smith to testify as to his opinion that New Durham Road North was one lane at the point where he found the respective vehicles at the Durham Center driveway entrance.
The Court erroneously permitted [Police Officer] Smith to testify that it was not appropriate for a vehicle to pass another vehicle on the right where this accident occurred.
The Court erred in denying requests for a Rule 104(a) hearing as to whether Iarrapino or non-party tractor-trailer driver Taylor should be permitted to testify that Dalli was speeding.
The Court erred in permitting Taylor to testify that he observed Dalli's vehicle being operated at a high rate of speed.
The Court erred in permitting Iarrapino to infer to the Jury that Dalli had been traveling in the shoulder of the roadway when she struck his left-turning vehicle.
The Court erred in permitting Iarrapino's accident reconstruction expert to offer an opinion as to the meaning and intent of [N.J.S.A.] 39:4-86.
The Court erred in permitting Iarrapino's accident reconstruction expert to opine that Iarrapino had correctly determined that he had sufficient time to complete his left turn, and/or that Dalli's decision to pass the tractor-trailer was the unsafe act that caused the accident.
The Court erred in permitting counsel for Iarrapino to display, read, and comment upon a blow-up poster of [N.J.S.A.] 39:4-85 during his summation.
The Court erred in rejecting the findings of the Edison Municipal Court that New Durham Road was still a merging roadway at the point of the collision, and that Dalli had not passed on the shoulder of the roadway. Point XI
The Court unfairly limited the movement of Dalli in the Courtroom and restricted her use of her cane.
The Court should have granted a mistrial after its intemperate remarks directed to Dalli's counsel in the presence of the jury, upon the ground that the same precluded a fair trial for Dalli.
We turn first to the Dallis' contention that the trial court erred by failing to declare a mistrial after Police Officer Philip Smith (Smith) suggested that he found Dalli at fault in the accident. The Dallis further contend that the court erred by permitting the Iarrapinos' attorney to reemphasize this allegedly objectionable testimony during the trial.
The following facts are relevant to our consideration of this issue. Smith testified that, when he arrived on the scene, he observed the two vehicles that were involved in the accident. He spoke to Dalli and she told him that she was passing the tractor-trailer on the right side when Iarrapino's vehicle attempted to make a left turn in front of her car and caused the accident.
Smith was asked whether he "typically" takes statements from individuals who are involved in accidents. He replied, "I will usually -- when a person is involved in a motor vehicle accident and [the person's] statement backs up my findings of who is at fault, I will have them sign."
The Dallis' counsel objected to Smith's statement and, in a discussion with the court outside the presence of the jury, moved for a mistrial, arguing that the officer had improperly indicated that he found Dalli at fault. The court denied the motion for a mistrial.
In its ruling, the court found that Smith made "some reference to fault." The court directed Smith not to refer thereafter "to fault in any way, shape or form." The court then instructed the jury that:
[d]uring the officer's testimony, there was some reference to the word "fault." Any reference by the officer to the fault in this accident during his testimony whether it's direct or indirect is to be disregarded by you. It is for you to determine the fault and who was at fault in this accident.
So you will disregard that statement as to fault, and you will not use it in your deliberations in the jury room.
The Dallis argue that a mistrial was required and the court's instruction was insufficient to cure the prejudice resulting from the officer's statement. We disagree.
A trial court's "decision to grant or deny a motion for a mistrial will not be reversed unless there is a showing of a mistaken exercise of discretion." Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 37 (App. Div. 1998) (citing State v. Mance, 300 N.J. Super. 37, 57 (App. Div. 1997); State v. Winter, 96 N.J. 640, 647 (1984)). We are satisfied that the curative instruction given to the jury was sufficient and a mistrial was not required.
We note initially that Smith's remark was ambiguous. Smith did not state that Dalli was at fault in the accident. He merely commented that her statement supported his finding as to the party who was at fault. As stated previously, Dalli told Smith that Iarrapino caused the accident.
In any event, Smith's remark could be interpreted as suggesting that Dalli was at fault. Nevertheless, the court instructed the jury to disregard Smith's remark. We must assume that the jury followed the court's instruction. McCrae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 598-599 (App. Div. 2002).
The Dallis argue, however, that the prejudice arising from Smith's remark was compounded when, after the trial court gave the jury the curative instruction, it permitted the Iarrapinos' counsel to question Smith about Dalli's statement. The Dallis also argue that the court erred by allowing the Iarrapinos' counsel to use an enlargement of Smith's accident report in his summation. The enlargement displayed Smith's account of Dalli's statement.
In our judgment, the trial court did not abuse its discretion by permitting the Iarrapinos' counsel to use the visual aid in his summation. Smith's report and Dalli's statement to him were evidence in the case. In a summation, an attorney is permitted to comment on any evidence admitted during the trial. Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). We are satisfied that the court did not abuse its discretion by allowing the Iarrapinos' counsel to display Smith's report to the jury and comment upon the statement that Dalli gave to Smith.
Next, the Dallis argue that the trial court erred by permitting Smith to testify that it was not appropriate for a motorist to pass a vehicle on the right in the area where the accident occurred.
As previously discussed, the accident occurred on New Durham Road, north of its intersection with Talmadge Road. On the south side of the intersection, before the traffic light, there are two lanes of travel on New Durham Road. On the north side of the intersection, there is a sign indicating that the right lane of travel merges into the left lane. To the north of that sign is a "no-turn" sign. Taylor testified that Dalli began to move ahead of his tractor-trailer about two or three feet beyond the "no-turn" sign.
The Iarrapinos' accident reconstruction expert, John A. D'Onofrio (D'Onofrio), testified that "Dalli's decision to pass the tractor-trailer on the right with obscured vision while approaching the entrance to the shopping center was the unsafe act that caused [the] collision." D'Onofrio testified that the accident occurred beyond the merge area.
Wayne F. Nolte (Nolte), the Dallis' accident reconstruction expert, testified that the transition area extended to a point two-hundred-fifty feet north of the driveway entrance to the shopping center. Nolte opined that the accident occurred "within the transition lane[.]" He maintained that Dalli's passing of the tractor-trailer on the right in that area was not an illegal maneuver. He asserted that Dalli's action of "moving ahead from the right is certainly expected in a transition area."
The Dallis therefore argue that Smith's testimony should not have been admitted because it was irrelevant. They maintain that the key question at issue in the trial was whether it was appropriate for Dalli to pass the tractor-trailer at the point where she passed that vehicle, not where the accident occurred. The Dallis also contend that there was no foundation for Smith's statement. They assert that it had not been established that Smith knew where Dalli's vehicle passed Taylor's tractor-trailer and there was no evidence that any person had reported to Smith where that occurred.
A trial court's decision to admit or exclude evidence is reviewed under an abuse-of-discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008). We are convinced that, notwithstanding the Dallis' arguments to the contrary, the trial court did not abuse its discretion by permitting Smith's testimony on this issue.
Although Smith's opinion was framed in terms of the area where the accident occurred, rather than the specific point that Dalli passed Taylor's tractor-trailer, his testimony reasonably could be interpreted to include the place on the roadway where Dalli passed the tractor-trailer. Thus, there is no merit to the Dallis' assertion that Smith's testimony on this issue was irrelevant.
There is also no merit to the Dallis' contention that a proper foundation was not laid for Smith's opinion. In our view, Smith had a sufficient factual basis for his opinion, specifically his personal knowledge of the roadway, his observations of the vehicles at the scene, and the statements given to him regarding the accident.
The Dallis also challenge various other evidentiary rulings made by the trial court. As we stated previously, the trial court's evidentiary rulings are subject to review for abuse of discretion. Hisenaj, supra, 194 N.J. at 16.
The Dallis contend that the trial court erred by permitting Taylor to testify about the speed of Dalli's vehicle. Taylor testified that, after the traffic light at the intersection of New Durham Road and Talmadge Road turned green, he proceeded north and was traveling at approximately ten miles an hour. He stated that he observed Dalli's vehicle pass him on the right. According to Taylor, Dalli's car was traveling faster than his vehicle. He said that he could not estimate the exact speed of Dalli's vehicle but he knew that it was traveling faster than he was because of "[t]he way it came flying by [him]."
Clearly, there was nothing objectionable about Taylor's testimony. His statement that she "came flying by" him was permissible lay opinion testimony under N.J.R.E. 701. The rule allows such an opinion to be admitted when it "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Ibid. Taylor's testimony regarding Dalli's speed was rationally based on his own observations and assisted the jury in determining a fact at issue in this case.
The Dallis further argue that the trial court erred by permitting Iarrapino to "infer" that Dalli had been traveling on the shoulder of the roadway when she struck his vehicle. The Dallis contend that there was no foundation for this testimony. They say that Iarrapino had only seen the Dalli vehicle a moment before impact and his statement was purportedly based solely on the location where the vehicles came to rest after the accident.
We are not persuaded by these contentions. Iarrapino's testimony as to the place of impact was admissible under N.J.R.E. 701. Iarrapino's testimony was rationally based on his own observations before and after the accident. Moreover, the testimony addressed an important factual issue in the case. Although the Dallis maintain that Iarrapino did not have sufficient time to form an opinion as to the spot where Dalli's vehicle struck his truck, their objection goes to the weight of his testimony, not its admissibility.
The Dallis additionally contend that the trial court erred by permitting D'Onofrio to testify as to the meaning and intent of N.J.S.A. 39:4-86. The statute provides in pertinent part that, in certain circumstances, a driver may not "drive to the left side of the center line of a highway[.]" Ibid.
D'Onofrio did not, however, offer an opinion regarding the meaning and intent of that statute. He testified that the Manual of Uniform Traffic Safety Control Devices (Traffic Manual) has certain regulations governing the making of turns, and said that there is nothing in the Traffic Manual that prohibits a driver from making a left turn over a double-yellow line. In our view, D'Onofrio's testimony about the Traffic Manual was proper.
The Dallis further argue that the trial court erred by permitting D'Onofrio to testify that Iarrapino correctly determined that he had enough time to complete his left turn and Dalli's decision to pass Taylor's tractor-trailer was the unsafe act that caused the accident. The Dallis argue that both of these assertions were "net opinions." Again, we disagree.
"The 'net opinion' rule renders inadmissible any opinion consisting of bare conclusions that are unsupported by factual evidence." Froom v. Perel, 377 N.J. Super. 298, 317 (App. Div.) (citing Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)), certif. denied, 185 N.J. 267 (2005). "An expert must 'give the why and wherefore' of his or her opinion, rather than a mere conclusion." Ibid. (quoting Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)).
We are convinced that D'Onofrio's opinions did not run afoul of the "net opinion" rule. His opinions were based on the parties' description of the accident, Taylor's observations of the accident, the layout of the road where the accident occurred, and his own measurements of the road. Again, the Dallis' objection goes to the weight of the testimony, not its admissibility.
In addition, the Dallis assert that the trial court erred by permitting the Iarrapinos' counsel to display, read and comment upon a portion of N.J.S.A. 39:4-85 during his closing argument to the jury. The relevant sections of this statute generally prohibit a driver from overtaking another vehicle that is proceeding in the same direction on the right. Ibid. Before the closing arguments, the Dallis' counsel told the judge that he had no objection to informing the jury about the statute but he objected to the use of a display depicting the relevant portion of the statute.
Generally, a trial court has considerable discretion in determining whether visual aids may be exhibited in court. Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 165 (App. Div. 2004). In our judgment, the court did not abuse its discretion by allowing the Iarrapinos' counsel to use the display during his summation. As we have pointed out, the Dallis' attorney had no objection to telling the jury about the statute. Indeed, in his final instructions to the jury, the court discussed the statute. We are satisfied that the court did not err by allowing the Iarrapinos' counsel to use the display.
We turn to the Dallis' contention that the trial court erred by failing to give collateral effect to the disposition by the municipal court of the summons issued to Dalli after the accident. It is undisputed that Dalli was charged with improper passing on the right, contrary to N.J.S.A. 39:4-85. The municipal court found that the State had not proven this charge beyond a reasonable doubt.
Notwithstanding the Dallis' argument to the contrary, the judgment of the municipal court was not entitled to preclusive effect in this action. Collateral estoppel applies when (1) the issue to be determined is "identical" to the issue previously decided; (2) the issue was "actually litigated in the prior proceeding[;]" (3) a final judgment on the merits was issued in the prior action; and (4) "the determination of the issue was essential to the prior judgment[.]" In re Estate of Dawson, 136 N.J. 1, 20 (1994).
Here, the issue decided by the municipal court was whether the State had proven beyond a reasonable doubt that Dalli violated N.J.S.A. 39:4-85 by passing a vehicle on the right. The issue in the civil action was whether Iarrapino had proven by a preponderance of the evidence that Dalli drove her vehicle negligently. The issues were not "identical."
Furthermore, the trial court charged the jury that N.J.S.A. 39:4-85 and certain other statutes established a standard of conduct for the use of our public roads. The court stated that if the jury found that either party violated that standard of conduct, the violation could be considered by the jury in determining whether negligence had been established. The court emphasized that the jury was free to find that any "such violation constituted negligence on the part of the violating party or . . . that it did not constitute such negligence." The court's instructions were consistent with Model Jury Charge (Civil), 5.30D, "Violation of Traffic Act" (1999).
The finding by the municipal court that the State had not proven a violation of N.J.S.A. 39:4-85 beyond a reasonable doubt did not preclude a finding by the jury in this case that Iarrapino had proven by a preponderance of the evidence that Dalli was negligent because she violated the standard of conduct established by that statute. We are therefore convinced that the trial court did not err by refusing to accord collateral effect to the findings of the municipal court.
We have considered the other issues raised by the Dallis in their appeal and find them to be of insufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(1)(E).