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Zavala v. Novak

January 5, 2010

RENE ZAVALA, PLAINTIFF-APPELLANT, AND DEBORAH LASSO, HIS WIFE, PLAINTIFF,
v.
PATRICIA M. NOVAK, DEFENDANT-RESPONDENT, AND JOHN R. NOVAK, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6342-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 12, 2009

Before Judges Stern, Sabatino and Newman.

This case arises out of a collision between a bicyclist and a sport utility vehicle ("SUV"). The bicyclist was injured and filed suit against the SUV driver. A jury found the bicyclist sixty-nine percent at fault in causing the accident and the driver only thirty-one percent at fault, thereby resulting in a "no-cause" judgment in favor of the defendant-driver.

The bicyclist now appeals, raising various allegations of trial error. We affirm.

I.

At about 5:10 p.m. on March 7, 2006, plaintiff*fn1 Rene Zavala was pedaling his Mongoose XR200 bicycle eastbound on Dutch Neck Road in East Windsor. Plaintiff intended to cross the intersection at U.S. Route 130 and continue east on Dutch Neck Road. The intersection is controlled by a traffic signal.

There are three lanes on Dutch Neck Road as it approaches the intersection in the opposite direction, from the east: a left-hand turn lane for vehicles turning onto Route 130 south; a middle lane for vehicles continuing straight; and a third lane for vehicles making right-hand turns onto Route 130 north.

It is undisputed that, upon changing from a red light, the traffic signal facing east on Dutch Neck Road temporarily displays an illuminated green arrow for vehicles turning left onto Route 130 south. When that green left-turn arrow times out, the signal changes first to an amber-colored arrow and then to a solid green light. It is also undisputed that drivers on Dutch Neck Road lawfully may turn left onto Route 130, even after the green arrow is replaced by the amber and then the solid green signals, provided that such left-turning drivers make appropriate observations. The same directional signals apply with respect to the traffic signal facing west.

As plaintiff was approaching the intersection on his bicycle on Dutch Neck Road from the west, defendant Patricia M. Novak*fn2 was approaching in her vehicle on Dutch Neck Road from the east. She was driving the SUV, a 2004 Nissan Pathfinder.

Defendant intended to make a left-hand turn onto Route 130 south.

Although the parties agree that the SUV collided with the bicycle within the intersection, they offered differing accounts about the mechanics of the accident. Their disparate narratives became the crux of the liability dispute at the ensuing trial.

According to plaintiff, who testified at depositions and at trial through a Spanish interpreter, his bicycle came to a full stop as he approached the intersection and he initially encountered a red light. He recalled being on the right side of Dutch Neck Road, and that he had been riding his bicycle on the pavement and not on the sidewalk. Plaintiff also recalled that he had rested one of his feet on the sidewalk and the other foot on his bicycle as he waited for the light to change.

Plaintiff contended that he waited for a few seconds after the light changed to a full green before starting through the intersection. As he pedaled forward, he heard a vehicle, which turned out to be defendant's SUV, accelerate. Plaintiff claimed that he tried to go around the SUV, but he was unsuccessful and the SUV struck his bicycle. The impact temporarily knocked plaintiff out. When he regained consciousness, plaintiff was on the ground, approximately forty-five feet from the point of the collision, feeling intense pain in his left ankle. His bicycle also was damaged.

The record suggests that, in approaching the intersection, plaintiff was under a misimpression about the propriety of vehicles continuing to turn left onto Route 130 south after the green left-turn arrow times out. At his deposition, plaintiff stated his belief that cars on Dutch Neck Road turning left onto Route 130 "cannot cross" once the green arrow "was already turned off." Plaintiff indicated that, in proceeding into the intersection, he had assumed that "no car was going to veer [into his path] because the arrow was already off so no car can cross." These deposition answers reflecting plaintiff's misunderstanding were read to the jury during plaintiff's cross-examination at trial. Plaintiff acknowledged that he has not held a driver's license and had not studied the traffic laws. On appeal, however, plaintiff does not dispute the legality of cars turning left onto Route 130 with a solid green light, provided that they make proper observations that the intersection is clear to do so.*fn3

Defendant, meanwhile, stated that she had stopped for a red light in the left-hand turn lane on Dutch Neck Road, facing west. She recalled being the fifth or sixth vehicle in line to turn left onto Route 130 south. She also recalled that after the arrow turned green, several vehicles ahead of her made the left-hand turn. However, the car immediately in front of her remained in the turning lane, as the signal changed from a green arrow to an amber arrow, and then finally to a solid green. After a brief pause to check oncoming traffic, the car directly in front of defendant turned left.

According to defendant, once the car ahead of her had made its left turn, she observed that no other vehicles were coming from the opposite direction and that the light was still a solid green. She then drove into the intersection and began turning left onto Route 130 south. At that point, she reportedly heard a loud "thumping" sound. She immediately pulled over to the side of the road, in front of a fast-food restaurant.

Another motorist, Daniel Mileaf, was near the intersection when the accident occurred. Mileaf became a key witness at trial. According to Mileaf, he was driving his own SUV, a Kia Sportage, on Dutch Neck Road, traveling in the same easterly direction as plaintiff. Mileaf was on his way home from work; and planned on turning right onto Route 130 south. He first saw plaintiff about 100 to 200 yards from the intersection. At that point, according to Mileaf, plaintiff was riding his bicycle on the sidewalk. Mileaf was then traveling at about thirty-five miles per hour. He observed that plaintiff, although he was not going as rapidly as Mileaf's SUV, was pedaling "very, very hard" and "very fast." Plaintiff appeared to be standing up and "the bike was going back and forth while he was leaning into it very hard." Mileaf estimated that plaintiff's speed was approximately twenty miles per hour.

Mileaf recalled initially passing plaintiff's bicycle. Mileaf then began to slow down, because the light at the Route 130 intersection was then red. As Mileaf slowed down, plaintiff's bicycle passed him, at a point about thirty feet from the intersection. Mileaf was unsure of the bicycle's speed at that point, but he believed that it was "still a good clip" of at least ten or fifteen miles per hour. The light then changed to green, but Mileaf came to a stop because there were other vehicles stopped in front of him.

Mileaf testified that he then looked away for a "matter of seconds" from the area of plaintiff's bicycle to the left, so as to be sure that no one was going to be coming towards Mileaf from that direction. Mileaf then "cut [his] wheel to look where [he] was going," and saw a bicycle "right on the ground directly in front of [him]." Mileaf stopped his vehicle and went over to provide assistance. Mileaf assumed that the bicyclist lying on the ground was the same bicyclist he had seen pedaling on the sidewalk, as he recalled "no other bikes there." Mileaf acknowledged that he did not witness the actual collision.

Detective Christopher Jackson of the East Windsor Police Department was dispatched to the scene of the accident. Detective Jackson was a member of the police department's traffic safety unit, having served in that unit since 1998. He had received extensive training and experience in accident investigation, and had completed numerous 80-hour and 40-hour formal courses on various topics in that field.

Upon arriving at the scene, Detective Jackson examined the physical evidence, including plaintiff's bicycle and defendant's SUV, and took photographs. He interviewed defendant but not plaintiff, whose injuries were too severe to make a statement at the scene. Plaintiff's statement was taken later, over the telephone, by an officer who spoke Spanish.

Detective Jackson noted that the SUV had damage to its bumper and its hood, which was "crumpled up." He also noted that the left pedal on the bicycle had become detached, and that there was a mark on the front of the SUV consistent with the SUV coming into contact with the bike pedal. These physical markings indicated to Detective Jackson that the front of the SUV had struck plaintiff's bicycle.

Detective Jackson also interviewed Mileaf at the accident scene. According to the police report, Mileaf told the detective that he had seen the bicycle involved in the accident "pass by at a rather fast speed while traveling on the sidewalk toward Route 130."

In his written report, Detective Jackson concluded, for the purposes of his own investigation, that both plaintiff and defendant were at fault in causing the collision. Detective Jackson criticized plaintiff for initially riding on the sidewalk and then entering the crosswalk as he approached Route 130. The detective wrote that defendant "could not have anticipated the bicycle emerging from that location." However, Detective Jackson also criticized defendant for failing to observe and yield to the bicycle attempting to cross the highway in the opposite direction, prior to making her left turn onto Route 130 south. Consequently, the detective did not issue a traffic summons to either party.

Plaintiff subsequently filed a personal injury action against defendant in the Law Division, alleging that defendant had been negligent in driving her SUV and colliding with his bicycle. Plaintiff sought compensatory damages for his pain and suffering, although he did not seek at trial past or prospective lost wages. Defendant denied liability, and contended that plaintiff's own comparative fault was the sole or predominant cause of the accident.

The case was tried before a jury over several days in October 2008. Plaintiff testified and recounted his version of the accident. Over the objection of defendant and following an admissibility hearing under N.J.R.E. 104, plaintiff also presented expert testimony from Detective Jackson. The detective's testimony corresponded to the observations about the accident that he had made in his police report. However, Detective Jackson was not asked at trial for his ultimate conclusions about who caused the accident. On cross-examination, Detective Jackson acknowledged that he had not made findings concerning either the respective speeds of the bicycle and the SUV prior to impact, or the distances that they had traveled.

Plaintiff also briefly called Donald Santora, a detective with the Mercer County Prosecutor's Office. Detective Santora had measured various objects at the collision scene and created a corresponding diagram. On cross-examination, Detective Santora agreed that the likely point of impact was about ten to twelve feet south of the crosswalk. However, he could not determine whether plaintiff's bicycle had been in the crosswalk originally and had swerved out of it in an effort to avoid defendant's oncoming SUV.

The defense presented factual testimony from defendant and Mileaf. The defense also called, over plaintiff's objection, William J. Martin, as an expert witness in accident reconstruction.*fn4 Martin opined that the accident was solely caused by plaintiff in apparently riding his bicycle on the sidewalk and then not slowing down as he veered into the intersection. Martin contended that plaintiff was not likely to have been visible to defendant, particularly given the time of day and the associated shadows created by the low sun in the southwest sky.

Based on Mileaf's eyewitness account that the bicycle was going about fifteen to twenty miles per hour and other variables, Martin calculated that it would have taken the bicycle 0.9 to 1.4 seconds from the point that it entered the street until it reached the point of impact. By comparison, Martin calculated that it would have taken defendant's SUV approximately 4.6 to 5.7 seconds from the time that it started its left turn to its arrival at the same point. Martin further determined that, at the time the bicycle came into the intersection, the SUV was only about thirty to forty-five feet from the point of impact and thus would have been visible to plaintiff.

Martin further opined that it is most likely that the bicycle collided with the front of defendant's SUV at an angle, and that it was not directly in front of the SUV at the time of collision. He deduced from the physical evidence that plaintiff's center of gravity on the bicycle was lower than the hood of the SUV. According to Martin, had the bicycle collided with the SUV while being ridden upright, the impact would have likely caused plaintiff to be catapulted onto the SUV's hood, and he would have landed at a different spot. These factors suggested to Martin that plaintiff had to be "going fast enough to lean hard to the right" on his bicycle at the time of impact. Martin further noted that the contact marks found on the SUV after the collision were consistent with his theories of causation.

Counsel also read into the record various deposition excerpts. The parties also admitted into evidence numerous photographs taken of the accident scene.

In addition to these proofs concerning liability, the parties also presented medical testimony and other evidence concerning plaintiff's injuries from the accident. By leave of this court, the parties have not supplied us with the portions of the transcript concerning damages, because the issues on appeal solely relate to liability matters.

By a vote of seven-to-one, the jury returned a verdict finding that both plaintiff and defendant were negligent, allocating 69% comparative fault to plaintiff and 31% fault to defendant. Pursuant to the "ultimate outcome" precepts of our comparative fault laws, see N.J.S.A. 2A:15-5.1, the trial court entered judgment in favor of defendant because the jury found her negligence was exceeded by that of plaintiff.

Plaintiff now raises several alleged trial errors on appeal. Specifically, he argues that: (1) the trial court improperly allowed Martin to testify as an expert, and his opinions were unreliable and contained inadmissible net opinions; (2) the judge should have issued a special instruction to the jury emphasizing the presumed accuracy of Martin's deposition transcript; (3) the judge improperly permitted defense counsel to ask defendant on cross-examination about false testimony that plaintiff previously gave at his deposition about how he had obtained his Social Security number; (4) the verdict was an improper "quotient" verdict; and (5) plaintiff was deprived of a fair trial because of the alleged partiality of the trial judge. Having carefully considered each of these arguments, we conclude that none of them have sufficient merit to warrant a new trial.

II.

Plaintiff challenges the trial court's determination, which was reached after a N.J.R.E. 104 hearing conducted outside of the jury's presence, that Martin is qualified as an expert in accident reconstruction. Plaintiff also complains that Martin's methodology was insufficiently reliable and scientific under N.J.R.E. 702 to allow him to present opinions in this case. Lastly, plaintiff argues that several portions of Martin's testimony contained inadmissible net opinion. These contentions are all unpersuasive.

Under N.J.R.E. 702 and the case law developed under that evidence rule, expert testimony is admissible in the courts of our State if it conveys "scientific, technical, or other specialized knowledge" and "will assist the trier of fact to understand the evidence or determine a fact in issue[.]" N.J.R.E. 702. Generally, our Supreme Court has applied a three-part test in reviewing such issues of expert admissibility:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that such an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[State v. Kelly, 97 N.J. 178, 208 (1984); see also Agha v. Feiner, 198 N.J. 50, 62 (2009) (applying this same three-part admissibility test in a civil context; Hisenaj v. Kuehnuer, 194 N.J. 6, 15-16 (2008) (same).]

The trial judge had a reasonable basis in this case to conclude that all three aspects of this admissibility standard were met. We reach that conclusion mindful that our scope of review of expert admissibility rulings by trial courts is limited, and that we should not disturb the trial court's decision unless the ruling demonstrably comprises an abuse of ...


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