May 26, 2010
VICTORIA TINEN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF THOMAS A. TINEN, AND VICTORIA TINEN, ADMINISTRATRIX OF THE ESTATE OF THOMAS A. TINEN, PLAINTIFF-APPELLANT,
ELAINE LEDERER, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 26, 2009
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, which provided more visibility. The headlights were turned off to prevent them from impacting the illumination readings. Additionally, the video recording did not contain a time stamp.
Regarding the results of the visibility test, Desch testified that because Lederer was not expecting decedent to be in her path of travel, the total stopping distance was between fifty and seventy-five feet. Desch relied on the police report and the location of the footprints to determine that the collision occurred within the northbound lane. Desch concluded that Lederer could not have avoided the collision.
Following Kuipers's testimony, plaintiff objected to Lederer's attempt to introduce photographs six through twenty-two into evidence. These photographs depicted Kuipers visibility test conducted three weeks after the accident, which attempted to replicate the lighting conditions at the time of accident. Plaintiff contends that the photographs had no probative value on the issue of the lighting conditions. Further, the objection was grounded on the fact that witnesses and experts placed the accident between 5:17 p.m. and 5:20 p.m., approximately thirty-six minutes after sunset. Plaintiff further argued that pursuant to N.J.R.E. 403, any probative value of the photographs were substantially outweighed by the undue prejudice and confusion to the jury because the photographs did not represent the actual conditions at the time of the accident.
Judge Toskos ruled that, pursuant to N.J.R.E. 401, the photographs were probative. He reasoned that the time Kuipers used to conduct the test is a credibility issue for the jury to decide. As to the N.J.R.E. 403 objection, the judge ruled that, although the photographs might depict the lighting conditions at a different time, this fact did not substantially outweigh their probative value. Thus, the photographs were admitted into evidence.
Plaintiff also objected to the admissibility of the DVD simulation used by Desch. Specifically, regarding the narration, plaintiff argued that because Desch had not conducted the test or narrated the DVD, he could not verify the times of the lighting conditions. Plaintiff relied on Persley v. N.J. Transit Bus, 357 N.J. Super. 1 (App. Div. 2003), for the proposition that the narration constituted inadmissible evidence because Desch was not the person who conducted the test and therefore could not authenticate the DVD.
Plaintiff also argued that the headlights were not turned on during the test when the light candles readings were determined, rendering the readings inaccurate. Plaintiff noted other discrepancies contained in the report and DVD simulation, including that: there was no indication when the sunset occurred; the headlights were not used during the test; there was no reference of the speed of the vehicle; plaintiff was not advised when the test was going to be conducted; there were gaps in the recreation of the time; and there was no reference of the time when the vehicle was within fifty feet of the object.
Judge Toskos conducted a N.J.R.E. 104 hearing to determine the admissibility of the DVD simulation. The judge found that the DVD was an accurate representation of the conditions of the night of the accident. The DVD was subsequently admitted into evidence with the following limitations: defendant could not play the accompanying narration and Desch could not read from the transcript. Instead, Desch was permitted to describe the methods of the test as the DVD played. The jury was shown the DVD simulation with Desch providing a narration of the test.
The jury returned a verdict of no cause of action. Plaintiff moved for a new trial. Judge Toskos denied the motion for a new trial.
On appeal, plaintiff contends that Judge Toskos improperly admitted the DVD simulation and police photographs into evidence and that the judge erred in denying plaintiff's motion for a new trial. We disagree.
Plaintiff contends that Judge Toskos erred in allowing defendant to play the DVD simulation during the testimony of defendant's expert, Desch. Plaintiff argues that the DVD simulation possessed no probative value because it did not accurately recreate the lighting conditions and visibility at the time of the accident. Ibid. Plaintiff asserts that the inaccurate test confused and mislead the jury. These contentions lack merit.
Evidentiary rulings are reviewed pursuant to the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991). Issues of admitted evidence on appeal is an example of discretion exercised by trial courts pursuant to N.J.R.E. 403, which provides that a judge may exclude evidence otherwise admissible if the judge determines that certain circumstances exist. Our Supreme Court has established that, "[o]n appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). Thus, Judge Toskos's decision to admit the police photographs and defendant's accident reconstruction DVD is reviewed pursuant to the abuse of discretion standard.
A trial court generally is provided deference in "admitting such replicas, illustrations and demonstrations and in controlling the manner of presentation and whether or not particular items are merely exhibited in court or actually received into evidence." Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 165 (App. Div. 2004). The admissibility of such evidence is dependant upon whether the reconstruction sufficiently duplicates the original event as described by witnesses or participants. Balian v. Gen. Motors, 121 N.J. Super. 118, 126 (App. Div. 1972), certif. denied, 62 N.J. 195 (1973).
A video of a reconstruction of an accident may be admitted into evidence if it is relevant and its probative value is not outweighed by undue prejudice, unfair surprise, unwarranted consumption of trial time or confusion of issues. Id. at 127. Undue prejudice occurs when the jury places excessive weight on the video due to its dramatic effect and the fact that the video is cumulative evidence to the expert's testimony regarding the test results. Id. at 128-29. This mirrors the standard set forth in N.J.R.E. 403.
A party seeking to exclude relevant evidence on the grounds of undue prejudice must demonstrate that the evidence's "'probative value is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Furthermore, "[t]he mere possibility that evidence could be prejudicial does not justify its exclusion." Ibid.
In Balian, supra, we set forth factors for a court to consider when deciding whether to admit a video reconstruction into evidence. 121 N.J. Super. at 126. These factors include: whether there is a substantial similarity between the conditions at the time of the accident and those when the test is conducted; the existence of identical conditions is not required; and dissimilarity, when not so marked as to confuse or mislead the jury, should be considered in determining the weight instead of the admissibility of the evidence. Ibid.
Applying this standard in Persley, we held that the video in question was substantially similar to the underlying accident. Persley, supra, 357 N.J. Super. at 17. There, the plaintiff argued that the video "failed to recreate all the variables of the accident and left the prejudicial impression that the accident happened exactly the way it was depicted in the video." Id. at 14. The expert acknowledged that the simulation would have been different if he relied on other evidence contained in the record which indicated that the defendant was traveling at a speed greater than forty mph. Ibid.
We rejected plaintiff's contention and found that the video was based upon virtually all the evidence surrounding the underlying accident. Id. at 17. We noted that plaintiff's counsel was able to effectively cross-examine defendant's expert concerning the differences. Id. at 17-18. Moreover, we rested this decision on the fact that the video was simple and straight forward and did not mislead the jury. Id. at 18.
Further, we have rejected video simulations where the probative value is outweighed by its potential for undue prejudice. For example, in Crispin v. Volkswagenwerk AG, 248 N.J. Super. 540, 556-57 (App. Div.), certif. denied, 126 N.J. 385 (1991), we affirmed the trial court's finding that there existed too many variations between the videos and the evidence presented regarding the motor vehicle accident, which rendered them not probative on the issues raised. The videos were a simulation of a high speed rear-end vehicle collision at thirty-five mph and their effect upon dummies who were restrained by seat belts. Id. at 556. The vehicles used in the simulations, however, were newer and heavier than the vehicle involved in the underlying accident. Ibid. We held that the trial court did not abuse its discretion in not admitting the videos into evidence because of the wide variations contained in the test vehicles and the seat belt systems used in the newer vehicles. Id. at 556-57.
Similarly, in Suanez v. Egeland, 330 N.J. Super. 190, 195 (App. Div. 2000), we held that a video reconstruction of the underlying accident should have been excluded on the grounds that its depiction of "extreme slow motion" did not constitute a simulation of the actual accident. The disputed video was not offered as substantive evidence since defendant's expert utilized the video to make his testimony more understandable for the jury. Id. at 194. The jury was not advised of the limited purpose for which this evidence was introduced. Ibid. Importantly, we noted that the discrepancies between the simulation and the actual accident were numerous and the slow motion simulation of the accident may have influenced the jury to find that the impact could not have caused plaintiff's injuries. Id. at 195. Consequently, we held that the jury might have placed inordinate weight on the expert's video and prejudiced the plaintiff. Id. at 195-96.
Here, Judge Toskos found that the lighting test contained in the DVD was an accurate representation of the conditions on the night of the accident. Whether the simulation would have been different if other times were relied upon was an issue of credibility for the jury to decide. Moreover, the judge agreed that there would be undue prejudice if the narrative was played and the judge therefore held that the DVD could not be played with the accompanying sound. The judge instead permitted defendant's expert, Desch, to explain the lighting test conducted on the DVD while testifying.
Here, we conclude that the judge's decision to admit defendant's simulation DVD into evidence was not "so wide of the mark" as to result in a manifest denial of justice. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Both sides presented the testimony of reconstruction experts. These experts reached opposite conclusions as a result of their reliance on different facts contained in the record. The DVD simulation reflected Desch's assumption that the accident occurred thirty-six minutes after sunset, despite actually showing the lighting conditions at thirty-eight minutes after sunset. This discrepancy, as the judge noted, was a credibility issue for the jury to consider when deciding how much weight to give to the evidence.
Likewise, plaintiff's contention that the DVD simulation does not duplicate the original event as described by the witnesses lacks merit. As previously explained, the record reflects discrepancies concerning the actual time of the accident. Witnesses testified that the accident occurred anywhere from 5:17 p.m. to 5:27 p.m. The issue of what time the accident occurred was a question of fact for the jury to decide. The jury therefore was responsible for determining how much weight to place in the DVD simulation.
Plaintiff also contends that the judge erred in admitting the police photographs depicting the lighting condition on the night of the accident because the photographs possessed no probative value. Plaintiff argues that the photographs were taken eight minutes after the accident occurred and therefore did not constitute a "substantially correct representation" of the amount of visibility at the time of the accident. Again, we disagree.
A photograph is an admissible type of writing, composed of pictures or data compilations. N.J.R.E. 801(e). Photographs must be relevant to be admitted into evidence and must demonstrate a "tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Even if relevant, the photographs "may be excluded if [their] probative value is substantially outweighed by the risk of undue prejudice, confusion of issues, or misleading the jury or undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403.
Moreover, the admissibility of any relevant photograph rests on whether the photograph fairly and accurately depicts what it purports to represent. N.J.R.E. 901; see also Saldana v. Michael Weinig, Inc., 337 N.J. Super. 35, 46 (2001). This showing of authenticity is required because of the persuasive representational nature of photographs. Brenman v. Demello, 191 N.J. 18, 30 (2007). The question of whether a photograph is a sufficiently accurate representation is a preliminary issue for the court. State v. Wilson, 135 N.J. 4, 15 (1994).
Any witness with knowledge of the facts represented by the photograph may authenticate the photograph. Id. at 14-15. To authenticate a photograph, the testimony of a witness must establish that:
(1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or, in the alternative, the scene has not changed between the time of the incident in question and the time of the taking of the photograph. [Id. at 15.].
Here, Judge Toskos found that the photographs were relevant and probative. He noted that Kuipers's determination of when the accident occurred was based on the 911 records. In the judge's opinion, this was a credibility issue for the jury to decide. Regarding the N.J.R.E. 403 objection, Judge Toskos ruled that the prejudicial effects of the photographs, even if they do not depict the actual time, did not substantially outweigh their probative value. The judge found that if the photographs depict a different time than the actual accident, it was a credibility issue for the jury. Ibid.
Applying the abuse of discretion standard, we conclude that Judge Toskos's decision to admit the photographs into evidence cannot be characterized as resulting in a manifest denial of justice. The parties presented conflicting evidence and testimony regarding the time of the accident. The time of the accident was a disputed fact and consequently a factual issue for the jury to resolve. Moreover, plaintiff was provided an opportunity on cross-examination to challenge the accuracy of Kuipers's visibility test.
Plaintiff's reliance on Wilson, supra, 135 N.J. at 4, is misplaced. There, the Supreme Court established that a photograph entered into evidence must consist of a substantially correct representation of the matters offered into evidence, accompanied with identification of what the photograph shows.
Id. at 14-15. Here, Kuipers testified that the photographs depicted the lighting conditions forty-six minutes after sunset. This time was based on Kuipers's assumption that the accident occurred at 5:27 p.m. as reflected in the 911 records. Despite plaintiff's contentions, Kuipers did not testify that the photos depicted the lighting conditions at the time of the actual accident. The pictures therefore constituted a fair and accurate representation of the lighting conditions at the time of Kuipers's visibility test. Whether the conditions at forty-six minutes after sunset were similar to the conditions that prevailed when plaintiff said the accident occurred was a matter to be resolved by the jury. Thus, the judge did not abuse his discretion.
Plaintiff contends that the judge erred in denying plaintiff's motion for a new trial pursuant to Rule 4:49-1(a). Plaintiff asserts that the verdict was clearly against the weight of the evidence resulting in a miscarriage of justice. Plaintiff argues that the judge's decisions to admit the DVD simulation of defendant's expert and the police photographs into evidence constituted evidentiary errors and merit a new trial. We disagree.
Whether the motion for a new trial was granted or denied, the standard of review on appeal is that "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law."
R. 2:10-1. "Further, our standard of reviewing the trial judge's ruling is essentially the same as that which governs the trial judge's disposition." Dolson v. Anastasia, 55 N.J. 2, 6-9 (1969). To decide whether there was a miscarriage of justice, the appellate court defers to the trial court with respect to "intangibles" not transmitted by the record, but otherwise makes its own independent determination whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 n.2 (1979); Baxter v. Fairmont Food. Co., 74 N.J. 588, 597-98 (1977). It therefore follows that the appellate court must accept as true the evidence supporting the jury's verdict and all permissible inferences therefrom. Bell Atl. Network Servs. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.), certif. denied, 162 N.J. 130 (1999).
Here, Judge Toskos held that the fact that the jury did not accept plaintiff's theory of the case did not provide grounds for granting the motion for a new trial. The judge noted that the parties' experts provided different assessments of where the decedent was struck. Moreover, regarding the admission of the police photographs and the DVD simulation, the judge found that the witnesses at trial opined that accident occurred at three different times and it was in the province of the jury to decide which testimony to give weight. Thus, the judge held that plaintiff did not meet the high bar for setting aside a jury verdict.
Plaintiff's contention that the jury's unanimous verdict was against the weight of the evidence lacks merit. First, Judge Toskos's evidentiary decisions to admit the police photographs and DVD simulation did not result in a miscarriage of justice. Despite plaintiff's contentions, the actual time of the accident was a disputed fact at trial. The discrepancy concerning the time of the accident was an issue for the jury to determine. The jury was responsible for determining how much weight to place in the conflicting testimony of the witnesses. The determination of credibility constitutes an "intangible feel of the case." Dolson, supra, 55 N.J. at 6. Consequently, the fact that the jury concluded that the testimony and evidence presented by defendant was the accurate account of the underlying accident is not grounds for granting a new trial.
Second, plaintiff's contention that it was uncontroverted that defendant drove on the night of the accident without lights is not supported by the record. The headlights were in the "park" position when the police arrived. Plaintiff's witness, Jason Moodie, testified that he turned off plaintiff's car but did not touch the lights. Further, defendant testified that she used her headlights because it was dark outside. This testimony demonstrates that it was not uncontroverted that defendant's headlights were turned off. The jury's verdict reflects that the jury rejected plaintiff's theory that defendant was driving without headlights. This finding that defendant was not negligent is supported by the record.
Finally, the jury's unanimous verdict indicates that the jury did not accept plaintiff's allegation that defendant acted negligently by not paying attention after observing decedent. The parties' experts presented different theories as to how the collision occurred. Plaintiff's expert, Natoli, concluded that defendant was most likely not paying attention and hit decedent on the shoulder of the road. Natoli acknowledged that he relied on defendant's deposition testimony, in which she allegedly states that she saw decedent twenty-feet to her right. However, defendant testified that after initially losing sight of decedent, she did not see him until the collision. Moreover, defendant's expert, Desch, testified that based on the lighting conditions and stopping distance, defendant could not have avoided the collision. The conflicting testimony created a credibility issue for the jury to decide.