February 22, 2010
MARIA D. RICCA, PLAINTIFF-RESPONDENT,
RICHARD J. CRAVELLO AND TERESA WINTERS-CRAVELLO, DEFENDANTS-APPELLANTS, AND MAGDALENA L. MENDIVAR AND MIGUEL A. MENDIVAR, DEFENDANTS.
JOHN S. CASEY, PLAINTIFF-RESPONDENT,
RICHARD J. CRAVELLO AND TERESA WINTERS-CRAVELLO, DEFENDANTS-APPELLANTS, AND MAGDALENA L. MENDIVAR, MIGUEL A. MENDIVAR AND MARIA D. RICCA, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-3133-06 and L-4572-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Rodríguez, Reisner and Chambers.
In this consolidated personal injury action, defendant Richard J. Cravello appeals from the judgments dated November 12, and November 14, 2008, entered in favor of plaintiffs Maria D. Ricca and John Casey. While defendant had conceded liability, the issues of compensatory damages and punitive damages were tried to a jury. We reverse because the proofs did not sustain a finding of punitive damages and because the inclusion of the punitive damage issue in the trial on compensatory damages prejudiced defendant.
The lawsuit arises out of a three-vehicle motor vehicle accident that took place just after midnight on the morning of July 24, 2004. Defendant, traveling westward in the right lane on Route 46, struck a vehicle traveling in the left lane. His vehicle then veered into plaintiffs' vehicle which was stopped at a red light on an intersecting street. Defendant's vehicle struck a lamppost causing it to hit plaintiffs' vehicle, and came to rest facing oncoming traffic. Casey testified that defendant was driving "at a high rate of speed" at the time of the accident, although defendant testified at his deposition that he was traveling thirty-five to forty miles per hour.
At the accident scene, defendant accepted responsibility for the happening of the accident, and liability was conceded in the litigation. Two police officers who responded to the accident scene testified that defendant appeared to be intoxicated, and the observation of both the officers and Casey taken together include such things as the smell of an alcoholic beverage on defendant's breath, bloodshot eyes, slurred speech, and swaying. Defendant admitted to the officer that he had two pints of beer that evening, although at another point he said that he had four beers and a glass of sangria that evening. One police officer also testified that defendant said that he did not go out drinking a lot.
Due to a head injury, defendant was immediately taken to the hospital. After his release from the hospital, defendant was transported to the police station where, two hours after the accident, he was given the breathalyzer test. The reading indicated that he had a blood alcohol concentration of 0.06% by weight of alcohol which is below the legal limit of 0.08%. See N.J.S.A. 39:4-50. One officer testified that defendant did not pass the field tests administered at the police station.
Ricca and Casey sued defendant for personal injuries sustained in the accident. Defendant conceded liability, and the court scheduled the case for trial on damages, including Ricca's claim for punitive damages.
At a Rule 104 hearing, the trial court determined that Ricca had sufficient proofs to present a claim for punitive damages to the jury. Those proofs consisted of testimony from witnesses that defendant appeared to be intoxicated at the time of the accident, that he had been speeding, and that he was passing on the right. The trial judge also found, as an aggravating condition, that the night was foggy. However, at trial, Casey testified that it was not foggy, and Ricca testified, when asked about the weather, that the roads were not wet and the night was "clear." She also said that traffic was "medium."
The trial was bifurcated in the following manner. In the first phase of the trial, the issues of compensatory damages and defendant's liability for punitive damages were presented to the jury. In the second phase, once the jury found liability for punitive damages, the jury was asked to fix the amount of punitive damages.
As a result, in the first phase of the trial, in addition to the usual proofs involving claims for personal injuries, plaintiffs presented proofs relevant to the question of punitive damages, including evidence of how the accident happened, the alleged speeding, and defendant's appearance of intoxication. The jury awarded Ricca a total of $555,160 in compensatory damages. Casey received a net award of $91,000*fn1 in compensatory damages. The jury also found that Ricca was entitled to punitive damages, answering in the affirmative to the following question:
Did the plaintiff Maria Ricca Casey prove, by clear and convincing evidence, that the defendant Richard Cravello was driving under the influence of intoxicating liquor, that his intoxication was a cause of the accident, and that one or more separate aggravating circumstances were present to establish that defendant's conduct was accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by his conduct?
In the second phase of the trial the jury awarded Ricca punitive damages in the sum of $15,000.
Defendant appeals, contending that the evidence of his alcohol consumption should have been barred because there was no evidence that his drinking affected the safe operation of his vehicle and admission of that evidence was unduly prejudicial. Defendant asserts that the facts were insufficient to support Ricca's punitive damage claim and that the claim should have been dismissed as a matter of law. Defendant also contends that the trial court erred in allowing a police officer to testify to the burn off rate of alcohol based on his training at the police academy because the officer had not been named as an expert witness nor was this expert testimony revealed in discovery. Finally, defendant maintains that the jury charge failed to properly advise the jury that Casey was not entitled to a recovery for permanent injuries to his neck and wrist.
We first address the question of whether the issue of punitive damages should have been submitted to the jury. After a careful review of the record, we conclude that the proofs were insufficient to support Ricca's claim for punitive damages.
The Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17, which essentially codifies the common law, allows an award of punitive damages for harm that is suffered due to defendant's "actual malice" or due to acts or omissions "accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts and omissions." N.J.S.A. 2A:15-5.12(a); Dong v. Alape, 361 N.J. Super. 106, 117 (App. Div. 2003). The statute expressly provides that "gross negligence" is not sufficient to support an award of punitive damages. N.J.S.A. 2A:15-5.12(a). The claim for punitive damages must be proven by clear and convincing evidence. Ibid.
The statute further provides that the following factors, along with other relevant evidence, shall be considered when determining whether to award punitive damages:
(1) The likelihood, at the relevant time, that serious harm would arise from the defendant's conduct;
(2) The defendant's awareness of reckless disregard of the likelihood that the serious harm at issue would arise from the defendant's conduct;
(3) The conduct of the defendant upon learning that its initial conduct would likely cause harm; and
(4) The duration of the conduct or any concealment of it by the defendant. [N.J.S.A. 2A:15-5.12(b).]
The fact that a driver who caused an accident was intoxicated is not by itself sufficient to support a claim of punitive damages against that driver. Dong v. Alape, supra, 361 N.J. Super. at 118. Driving while intoxicated, however, when coupled with other aggravating factors may meet the standard of willful and wanton conduct. Id. at 119-20. In Dong v. Alape, supra, we adopted Judge Conley's rationale set forth in McMahon v. Chryssikos, 218 N.J. Super. 571 (Law Div. 1986) and determined that:
[T]o be entitled to punitive damages, plaintiff must establish, by clear and convincing evidence, that defendant was intoxicated, that his intoxication was a cause of the accident, and that one or more separate aggravating circumstances were present to establish that defendant's conduct was accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by his conduct.
[Dong v. Alape, supra, 361 N.J. Super. at 119-20.]
This principle stems from the recognition that gross negligence is distinct from the willful and wanton conduct necessary to support a claim of punitive damages. Id. at 116. Further, this approach is consistent with the Legislature's intent in the Punitive Damages Act "to curb rather than expand, the availability of punitive damages." Id. at 118.
For conduct to be willful and wanton it must meet the following standard:
[I]n order to establish willful or wanton misconduct "it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produce the injurious result."
[McMahon v. Chryssikos, supra, 218 N.J. Super. at 579 (quoting Staub v. Pub. Serv. Ry. Co., 97 N.J.L. 297, 300 (E. & A. 1922)).]
Whether factors are sufficient to meet this standard must be decided on a case-by-case basis. Id. at 580. The aggravating factors must be sufficient, when combined with the intoxication, to establish that the person has acted deliberately, "with knowledge of a high degree of probability of harm and reckless indifference to the consequences of his conduct." Dong v. Alape, supra, 361 N.J. Super. at 121.
Here, Ricca presented proofs that could support a finding that defendant was intoxicated at the time of the accident. Due to the delay in administering the breathalyzer test, the fact that defendant passed the breathalyzer test does not necessarily mean that he was not intoxicated at the time of the accident. A finding of intoxication may be based on observations of police officers at the scene. See State v. Kent, 391 N.J. Super. 352, 383-84 (App. Div. 2007) (officer's field observations of intoxication were sufficient to support finding of driving while under the influence); see also N.J.S.A. 39:4-50(a) (providing that the statute is violated where a person "operates a motor vehicle while under the influence of intoxicating liquor" or with a "blood alcohol concentration of 0.08% or more by weight of alcohol").
The only additional aggravating factors, however, that Ricca presented to the jury were evidence defendant had been traveling above the speed limit and passing on the right. These common traffic violations when combined with intoxication will not support a claim for punitive damages under the circumstances here.
A good example of the kinds of aggravating factors that will warrant punitive damages against an intoxicated driver are presented in the case of Dong v. Alape, supra, 361 N.J. Super. 106. In Dong, the intoxicated driver, who had hit a pedestrian and left the scene of the accident, had a serious history of alcoholism. Id. at 112-15. He had been admitted to the Carrier Clinic twice for alcoholism and depression. Id. at 114. Prior to the accident, he had been told by his doctor that he was self-medicating with alcohol. Id. at 115. He had experienced blackouts from alcohol, admitting that he would drink himself "into oblivion." Ibid. With these proofs, we concluded that submission of a claim of punitive damages to the jury was warranted. Id. at 122.
No aggravating factors relating to the use of alcohol, such as those set forth in Dong, are present in this case. While the evidence may be sufficient to support a factual finding that defendant was intoxicated at the time of the accident, nothing in the record suggests that he is an alcoholic or regularly abuses alcohol or that he has any prior history of driving while intoxicated.
Speeding when driving while intoxicated may support a claim for punitive damages only if other egregious circumstances are present. McMahon v. Chryssikos, supra, provides in a footnote two examples, based on out-of-state cases, where punitive damages could be imposed for speeding and driving while intoxicated, provided additional egregious factors are present. 218 N.J. Super. at 580 n.2. In one, although a passenger had requested the defendant to stop speeding, defendant drank more and continued to speed; in the other, the court suggested punitive damages may be warranted where an intoxicated driver drove at an excessive rate of speed down a thoroughfare crowded with pedestrians. Ibid. No such additional aggravating factors are present here.
Accordingly, the order of November 12, 2008, entering a judgment for punitive damages in the sum of $15,000 in favor of Ricca is reversed, and the punitive damage claim shall be dismissed with prejudice. In light of this ruling, we need not reach the evidentiary question of whether the trial court erred in allowing the police officer to testify to the burn off rate of alcohol in human beings.
We now turn to consideration of the verdicts for compensatory damages. As noted above, the evidence regarding defendant's responsibility for punitive damages, including evidence of his intoxication, was presented to the jury in the trial for compensatory damages. We note that this prejudice would have been avoided if defendant had requested a bifurcated trial as permitted by N.J.S.A. 2A:15-5.13. In a bifurcated trial under the statute, the issues of liability for compensatory damages and their amount are tried first, and if compensatory damages are awarded, then the trial proceeds to the second phase on the issue of punitive damages. Ibid. The statute expressly states that "[e]vidence relevant only to the issues of punitive damages shall not be admissible in this [first] stage." N.J.S.A. 2A:15-5.13(b). This procedure was not followed in this case.
Ricca's evidence seeking to justify an award of punitive damages, including evidence of defendant's intoxication at the time of the accident, was not relevant on the question of compensatory damages. See N.J.R.E. 401 (defining "relevant evidence" as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action"). Allowing the punitive damage evidence, including evidence of intoxication, in the trial on compensatory damages was prejudicial to defendant. Punitive damage evidence is designed to paint defendant as a bad person, as one who engaged in "willful and wanton" conduct with "reckless indifference," knowing that someone was likely to be harmed. McMahon v. Chryssikos, supra, 218 N.J. Super. at 579 (quoting Staub v. Pub. Serv. Ry. Co., supra, 97 N.J.L. at 300). Evidence of drinking has "inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue in the case." Gustavson v. Gaynor, 206 N.J. Super. 540, 547 (App. Div. 1985), certif. denied, 103 N.J. 476 (1986). As a result, the punitive damage evidence was highly prejudicial to defendant and carried a high risk that it would color the jury's determination on compensatory damages to the detriment of the defense. Accordingly, we reverse the compensatory damage verdicts and remand for retrial.
Defendant contends that Casey was not entitled to compensation for any permanent injuries to his neck and wrist because he did not have objective credible evidence to support those injuries. Since this question may arise again on remand, we will address it now. See Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 123 (2005) (addressing a moot issue to provide guidance upon remand).
Casey's claim was governed by the "limitation on lawsuit option," also known as the verbal threshold, set forth in the Automobile Insurance Cost Reduction Act ("AICRA"), N.J.S.A. 39:6A-8(a). A person injured in an automobile accident whose claim is governed by AICRA may not recover for non-economic loss unless the claim meets one of the six statutory categories. Ibid. One of those statutory categories is a "permanent injury," defined as an injury that occurs "when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment."
Ibid. In addition, the qualifying injury must be supported by "objective credible evidence." DiProspero v. Penn, 183 N.J. 477, 495 (2005). Thus, to recover damages, Casey must prove with objective, credible evidence that he sustained a permanent injury.
In this case, Casey alleged injuries to his back, neck, and wrist. Defendant concedes that Casey came forward with objective medical evidence to support his back injury. If a jury accepts these proofs and finds a permanent injury to his back, then Casey is vaulted past the threshold. Once the threshold is met by even one injury, then a plaintiff may recover for all of his injuries sustained as a proximate cause of the accident. Espinal v. Arias, 391 N.J. Super. 49, 64 (App. Div.), certif. denied, 192 N.J. 482 (2007).
Defendant argues, nonetheless, that Casey may only recover for temporary, not permanent, injuries to his neck and wrist because he has no objective credible evidence to support those findings of injury. We find no support for this position. So long as Casey's back injury satisfies the verbal threshold, he may recover for injuries to his neck and wrist whether or not they are permanent injuries or are supported by objective medical evidence. See id. at 65 (stating "that once the threshold is met, an injured plaintiff may recover non-economic damages based on all of the injuries the plaintiff suffered in the accident" (emphasis added)). Of course, to recover compensatory damages for permanent injuries to his neck and wrist, such as future pain and suffering, and loss of future enjoyment of life, Casey must present medical testimony that the injuries to his neck and wrist are permanent. See McDonough v. Jorda, 214 N.J. Super. 338, 348 (App. Div. 1986) (overturning a compensatory damages award because plaintiff did not prove the injuries were permanent and did not provide medical evidence as to the scope and nature of his injuries), certif. denied, 110 N.J. 302 (1988), cert. denied, Jorda v. City of New Brunswick, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed. 2d 809 (1989). The jury charge should differentiate between temporary and permanent injuries so that the jury can properly assess damages for the different types of injuries.
The verdict on punitive damages is reversed, and the punitive damage claim shall be dismissed with prejudice. The verdicts on compensatory damages for Ricca and Casey are reversed, and the case is remanded for retrial on the question of compensatory damages.