On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-002941-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Yannotti.
Plaintiff Victoria Tinen sued defendant Elaine Lederer for the wrongful death of her husband Thomas A. Tinen (decedent) resulting from a motor vehicle accident. Plaintiff appeals from a jury verdict of no cause of action. We affirm.
The accident occurred while decedent was walking his dog in close proximity to the northbound lane of East Crescent Avenue in the vicinity of the golf course on January 6, 2006. It snowed a few days before but the roadways were clear. Lederer was driving her 1993 Chrysler Concord which possessed "manual" lights. She testified that she used her headlights because it was dark outside. Lederer was heading northbound on East Crescent Avenue. Near the Apple Ridge Country Club there are no sidewalks, but there is a fog line in order to enable drivers to recognize the edge of the road. There is a small amount of pavement to the right of the northbound lane. The speed limit in this area is forty miles per hour (mph). Lederer testified that she was traveling thirty-five mph at the time of the accident.
That night, decedent was wearing blue jeans and a black fleece. He habitually walked his dog along the northbound side because there was more room. Decedent also habitually walked his dog on his right side with the leash in his right hand.
According to Lederer, as she approached the golf course, she noticed a man about twenty feet ahead on the northbound side. The trees and bushes on the side of the road caused Lederer to lose sight of the man. Suddenly, Lederer felt a collision. The man hit the windshield. Lederer applied the brakes. Lederer believed that she hit the dog, but decedent fell forward. He was dragged and pinned underneath the car. It took Lederer approximately forty-five seconds to locate her cell phone. She called 911 for assistance and requested an ambulance and she also signaled a passing vehicle for help. The cell phone records did not corroborate her testimony. The phone records, however, did reflect that Lederer called her son at 5:20, thirty-seven minutes after sunset.
Decedent remained alive but unconscious underneath Lederer's car for fifteen minutes after the accident. He passed away before the police arrived at the scene.
Mahwah Officer Eric Larsen responded to a 911 call that was recorded at 5:27. On cross-examination, Larsen acknowledged that 5:27 may not constitute the actual time of the accident. According to him, it could take up to ten minutes to enter the call into the dispatch computer because the dispatcher will contact emergency units first. At the scene, Larsen noted that decedent had expired. Larsen could not recollect the lighting conditions but he stated that it was a clear night.
The testimony of lay and expert witnesses regarding the visibility conditions at the time of the accident was in conflict. It was stipulated at trial that on the day of the accident, sunset occurred at 4:43 p.m. and civil*fn1 twilight ended at 5:14 p.m. Plaintiff presented the testimony of several witnesses who arrived at the scene of the accident shortly after the collision. Melanie Hagopian testified that it was twilight when she arrived and it became darker after she left the scene fifteen or twenty minutes later. Lynda Burgess corroborated Hagopian's testimony. Burgess characterized the lighting conditions at the time she arrived at the accident scene as twilight. According to the Burgess's cell phone record, she called the police at 5:20 p.m.
Jason Moodie testified that the lighting condition was dusk when he arrived at the accident. After the police arrived, Moodie searched for decedent's dog on the golf course for approximately twenty minutes. Moodie recollected that it was light enough for him to see 50 to 100 feet ahead.
Mauro Mecca, a physician, testified that it was twilight and it was not completely dark when he arrived at the scene. He could see clearly without the assistance of lights.
Plaintiff's expert Michael Natoli, an engineer who specializes in accident reconstruction, opined that the accident occurred at 5:17 p.m. Natoli's visibility test consisted of taking photographs of the lighting conditions on the one year anniversary of the accident. His test revealed that at the time of accident, a driver could see at least 200 feet ahead. Moreover, Natoli opined that decedent could have been seen with natural lighting even though he wore dark clothing. He also opined that Lederer veered off the road and struck the decedent in the northbound shoulder. Natoli rejected Lederer's contention that the decedent walked in front of her vehicle. After reviewing the police photographs of decedent's body and the autopsy report, Natoli concluded that decedent was walking north and Lederer's negligence was the proximate cause of the accident.
Mahwah Police Lieutenant Bruce Kuipers conducted a visibility test on January 24, 2006, three weeks after the accident. The sunset occurred at 5:04 p.m. and the civil twilight ended at 5:33 p.m. The visibility test consisted of determining when an approaching driver can view a pedestrian at the same lighting conditions when the accident occurred. Kuipers took three photographs from 200, 150 and 50 feet away. The test was conducted pursuant to the assumption that the accident occurred at 5:27 p.m., as set forth in the police report. Kuipers acknowledged that the accident might have occurred at a different time. This test was conducted at 5:50 p.m., forty-six minutes after sunset and nine minutes later than when Lederer called her son following the accident.
Kuipers also conducted a time-distance analysis to determine the total stopping distance for a vehicle traveling at a particular speed in the same conditions. The test was based on the speed limit, forty mph, and the assumed stopping time, two seconds due to the lighting conditions. Kuipers concluded that it would have taken 176 feet to bring the car from forty mph to a complete stop. Based on this test, Kuipers concluded that the accident occurred within defendant's orderly travel lane. Kuipers did not find any evidence that the accident occurred in the shoulder of the northbound lane.
Defendant's expert, John Desch, was retained to reconstruct the accident. Desch's employees, Steven Immolo and John Karpovich, conducted the visibility test. Desch was not present during the visibility test. The visibility test, recorded on a DVD, sought to duplicate the lighting conditions at the time of the accident. Desch co-authored the report after viewing the DVD. Desch relied on telephone records provided from a witness who called 911 to assume that the accident occurred thirty-siX minutes after sunset. The DVD, however, displayed the lighting conditions thirty-eight minutes after sunset. On the night of the visibility test, Desch noted that there was more of an illuminated disk of the moon, ...