On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-7253-03 and L-6205-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
This is a personal injury case arising from an accident in which plaintiff Paulino Candelario was hit by a utility truck while crossing a highway. By leave granted, Candelario appeals from a March 14, 2008 order remitting a jury verdict in his favor from $2 million to $600,000, and a March 28, 2008 order denying his motion for reconsideration. Defendants Richard T. Kost,*fn1 Jersey Central Power & Light Company (JCP&L) and First Energy Corporation appeal from the January 23, 2008 jury verdict finding defendants fifty percent liable for the accident, and from the portion of the March 14, 2008 order denying defendants' motion for a new trial or judgment notwithstanding the verdict (JNOV).
On this appeal, defendants contend that plaintiff's accident reconstruction expert rendered a net opinion; that plaintiff was more negligent than Kost, the defendant driver, as a matter of law; and that the liability verdict was against the weight of the evidence and was the product of passion and prejudice. Finding no merit in any of these contentions, we affirm the liability verdict in its entirety.
Plaintiff contends that the trial judge erred in remitting the verdict. We agree. Because the trial court's stated reasons for granting the remittitur do not satisfy the applicable standards, as recently highlighted by the Supreme Court in Jastram v. Kruse, 197 N.J. 216 (2008), and because the record presented to us on this appeal cannot support remittitur, we reverse and remand for entry of an order reinstating the $2 million verdict.
Based on our review of the record, these are the most pertinent facts. The accident giving rise to this matter occurred on Route 9 in Toms River, just after midnight on August 28, 2003. Plaintiff, then thirty-eight years old, attempted to cross Route 9 on foot in order to reach his place of work, Green Acres Nursing Center, which had an entrance on the northbound side of the highway. Plaintiff crossed over the southbound lane and was struck just after crossing the center line into the northbound lane by a company pick-up truck operated by Kost and owned by JCP&L. The point at which plaintiff crossed was not near a crosswalk or intersection, but was roughly three steps from a bus stop sign on the southbound side of Route 9. The area was illuminated by lights from Green Acres and other street lighting which was "a little distant" from the point of plaintiff's crossing. Plaintiff wore a white polo shirt, black pants, and black shoes.
Before crossing the highway, plaintiff saw one car pass in front of him going southbound. Plaintiff then looked to his right and then to his left. When he looked right, he observed a light in the distance traveling "fast" in the northbound lane, which he estimated to be going over fifty miles per hour and roughly half a kilometer away. Plaintiff testified that he was "just walking regularly" and took five "normal steps" into the highway before stopping*fn2 at the center line for about five seconds while looking left. Thinking that the car in the northbound lane was "still far," plaintiff then took one step into the northbound lane without looking again to his right. After taking that step into the northbound lane, plaintiff recalled seeing a Jeep "near [his] feet" and did not recall what happened after that. He conceded on cross-examination that, if he had looked to his right a second time, he "would - maybe have avoided the accident."
On August 27, 2003, Kost worked his regular shift from 7:00 a.m. to 3:30 p.m. as a lineman chief doing electrical work for JCP&L. At the end of his shift, instead of going home, he and at least eight or nine co-workers traveled from their regular work location in Old Bridge to another location in Berkeley, where they stayed for three-and-a-half to four hours. The group then proceeded to a nearby restaurant in Berkeley or Toms River, where they stayed for an hour and fifteen minutes. Having already eaten, Kost stayed in his truck as his co-workers ate.
Sometime just before midnight, the group left the restaurant and began their trip back to Old Bridge, traveling in a convoy northbound on Route 9. Four bucket trucks went first, and Kost followed alone in his white 1997 Chevrolet pick-up truck. He was unfamiliar with the area. Kost estimated that he drove roughly five miles or ten minutes from the restaurant to the point where the accident occurred. That stretch of Route 9 consists of one lane in each direction, with a posted speed limit of fifty miles per hour. It was a nice night with light, sporadic traffic, though there was "not much lighting," except for some halogen lights past the entranceway to the Green Acres complex on the northbound side of the highway. Kost traveled forty miles per hour with his low beams on. He testified that he could see the closest of the four trucks maybe 300 or 400 hundred feet ahead of him. However, on cross-examination he admitted it could have been 500 feet ahead.
On direct examination, Kost described the accident as follows:
I was traveling north on 9, and this - this person come running right in front of the pickup truck and I swerved the wheel to the right, applied my brakes, not standing on them with two feet. I just applied them, and I'm looking and I see this person he comes - hits the front . . . and hits the windshield, then the side of the truck and that was it.
Kost testified that plaintiff "appeared right there in front of [his truck]" such that he "had no time to - to do anything." According to Kost, the time between when he first saw plaintiff and when his truck hit plaintiff "was instantaneous." Kost pulled over and saw plaintiff lying in the road. When police arrived, Kost gave a signed written statement at the scene in which he wrote that plaintiff "walked" in front of his vehicle in the dark and he could not see him. In describing plaintiff's movement at trial, Kost remained adamant that "[i]t was a jog, a run, and that's it." When asked on cross-examination whether he would have seen plaintiff had he been walking rather than running, Kost responded, "Probably. If he was walking, I might have seen him. Might have seen him."
The defense called Toms River Police Officers Christopher Dudzik and Gary Flynn. Dudzik drew a diagram of the scene and testified that there were no skid marks in the area of the accident. Flynn, the primary investigator at the scene, took Kost's written statement. According to Flynn, the area was "pretty well" lit by lighting to the south from a twenty-four-hour Wawa store with a gas pump and other businesses.
Flynn confirmed that there was no evidence of skid marks or debris from the truck at the scene. He testified that the accident scene provided no physical evidence, nor did Kost tell him, that Kost had done anything to avoid the accident before hitting plaintiff, such as braking or swerving. He confirmed that, in the written statement Kost provided him, Kost wrote that he "could not see" the plaintiff. After the accident, Kost refused medical attention and was driven from the scene by one of his supervisors from JCP&L. There is no dispute that Kost's JCP&L supervisors debriefed him at some length before permitting him to go home.
Kost's friend and co-worker, Daniel Clare, was called as a defense witness. Clare testified that he was a passenger in one of the JCP&L trucks traveling ahead of Kost's truck. He claimed that as they traveled north on Route 9, he saw a man staggering down the road on the right hand side. However, on cross-examination, Clare admitted that he was not even sure he saw this person on Route 9, and admitted that after discussing his observations with Kost and another employee, Clare had concluded the man could not have been the plaintiff. On cross-examination, Clare also admitted that Kost had told him details about the accident, something Kost had denied in his testimony. Clare further testified on cross-examination that Kost told him plaintiff was walking, not running, across the road at the time of the accident.
At trial, plaintiff called James R. Eastmond, who was qualified over defense objection in the area of accident reconstruction. Eastmond had an associate go to the accident scene, but did the majority of reconstruction analysis and calculations based upon average numbers from various published reports of other experts in the field.*fn3 His colleagues who went to the scene measured that each lane of Route 9 was approximately eleven feet wide and had a ten foot wide paved shoulder on either side.
Eastmond explained to the jury that perception reaction time "is the actual time from when you first perceive a hazard to when you actually react to it." Perception reaction time involves four phases: detection, identification, decision, and response. Eastmond testified that, based upon studies in the field, the average perception reaction time for a motorist responding to an unexpected event is 1.5 seconds. In order to take into account the friction from the tires upon the road surface, he used an average coefficient of friction for dry, traveled asphalt of 0.7. Using these two figures, and assuming that Kost was traveling as he testified at forty miles per hour, Eastmond calculated that the total stopping distance for Kost to bring his vehicle to a halt before impact with someone or something in his lane would be 164 feet.
Based upon Kost's deposition and the testimony of the officers as to the absence of any skid marks, Eastmond concluded that Kost brought his vehicle to a "controlled stop," meaning he "didn't slam on his brakes and just scream to a stop, he drove it over to the side of the road." Eastmond then focused his testimony on whether Kost could have seen plaintiff prior to the 164-foot mark, which Eastmond characterized as the "point of no return" after which Kost could not have brought his vehicle safely to a stop before hitting plaintiff. He testified that, in his calculations, he also factored in plaintiff's conspicuity - that is, the ability to been seen or visible to others.
Working back from the point of impact, Eastmond attempted to estimate how far away Kost's vehicle was at the time plaintiff began to cross the highway. For the purposes of his analysis, Eastmond applied to plaintiff the average walking gait of a thirty-nine-year-old male pedestrian, which is 5.8 feet per second. He calculated that it took plaintiff 4.13 seconds to cross the ten-foot shoulder, cross the eleven-foot southbound lane, and enter the northbound lane, in which time plaintiff would have traveled twenty-four feet from the edge of the pavement. Multiplying this 4.13 seconds by forty miles per hour or 58.6 feet per second, Eastmond put Kost's vehicle at 242 feet from the point of ...