November 3, 2010
ROBERT SHOEMAKER AND KERRY SHOEMAKER, PLAINTIFFS-APPELLANTS,
ANTHONY CHINAPPI T/A CHINAPPIS LAWN SERVICE AND RAPHAEL G. VILLALOBOS, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-862-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 4, 2010
Before Judges Lisa and Sabatino.
Plaintiffs appeal from the November 19, 2009 judgment, entered pursuant to a jury verdict, of no cause of action. The claim was for personal injuries suffered by Robert Shoemaker (plaintiff) in a vehicular accident that occurred on June 6, 2007 in Vineland.*fn1 Defendant Raphael Villalobos was the driver of the vehicle with which plaintiff's vehicle collided. The jury found plaintiff seventy percent at fault and defendant thirty percent at fault for the happening of the accident. The judge molded the verdict to a no cause of action. Plaintiff raises the following arguments on appeal:
I. THE JURY CHARGE WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT OR PREJUDICING A SUBSTANTIAL RIGHT.
II. PLAINTIFF WAS UNFAIRLY PREJUDICED BY THE INAPPROPRIATE COMMENT OF THE TRIAL JUDGE WHICH QUESTIONED THE CREDIBILITY OF PLAINTIFF'S COUNSEL.
III. THE COURT ERRED IN ALLOWING DEFENSE COUNSEL TO MAKE REFERENCE TO PURPORTED GOVERNMENT DRIVING STANDARDS.
We reject these arguments and affirm.
On the afternoon of June 6, 2007, under clear and dry weather conditions, plaintiff was riding his motorcycle westbound on Chestnut Avenue. He was following a landscaping truck driven by Villalobos. Chestnut Avenue is a four-lane roadway, with two lanes in each direction. Villalobos and plaintiff were proceeding in the far right lane. The posted speed limit was 40 mph. The two vehicles were proceeding at a pace of about 30 to 35 mph. Plaintiff contended he was following at a distance of about one-and-one-half car lengths, or twenty-five feet.
Villalobos activated his right turn signal, as he intended to turn into a driveway on the right side of the road. Villalobos slowed down in preparation for the turn. Upon seeing the turn signal, plaintiff decided to pass the truck, using the left westbound lane. He shifted to the left lane and slightly increased his speed. Villalobos swerved his vehicle at least partially into the left lane because it was necessary to make a wide turn into a very narrow driveway. According to plaintiff, the truck crossed into the left westbound lane by at least three to four feet. Villalobos contended he entered the left lane by only one to one-and-one-half feet. When Villalobos entered the left lane, plaintiff slammed on his bakes and lost control of his motorcycle, sliding into the rear end of the truck. Plaintiff suffered personal injuries as a result of the collision.
In Point I, plaintiff takes issue with the manner in which the judge read the jury instructions to the jury. Plaintiff does not contend under this point that any portion of the charge was legally erroneous or insufficient. It is plaintiff's contention that the judge read the instructions too rapidly, which deprived the jurors of their ability to adequately comprehend the instructions. At no point during the jury instructions did plaintiff's counsel ask the judge to slow down, nor did any juror make such a request. Plaintiff's counsel did not request that the judge submit the instructions to the jury in writing. See R. 1:8-8(a).
Objections to a charge must be made before the jury begins deliberations. Gaido v. Weiser, 227 N.J. Super. 175, 198 (App. Div. 1988), aff'd, 115 N.J. 310 (1989). Any objection beyond that point implicates the plain error rule, ibid., under which we will not reverse unless it is shown that the error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice; it must be shown that the possibility is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In the context of a jury charge, plain error is legal impropriety in the charge prejudicially affecting the substantial rights of [a party] and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. [State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970)].
We have been provided with the audiotape of the jury charge, and we have listened to it in its entirety. We are satisfied that the judge delivered the instructions at an understandable pace, in a manner that rendered the instructions intelligible by an ordinary listener. There was no error in the manner in which the charge was delivered in this case, let alone plain error.
In Point II, plaintiff makes a threefold argument regarding the portion of the jury instructions dealing with plaintiff's time-unit rule argument made in summation. The issue arose because plaintiff's counsel characterized the time-unit rule as "rather scientific." More particularly, plaintiff's counsel said the following during summation:
Now, eight hours of each day he's sleeping. So in all fairness, let's consider a day to be 16 hours. Sixteen hours times [plaintiff's life expectancy] is 278,568 hours. What is each one of those hours worth? And whatever it is, multiply it by that figure, and that is one way of arriving at a fair and reasonable amount, and a rather scientific way, I might suggest to you, of arriving at a fair and reasonable amount for every hour that [t]his man has to live for the rest of his life. [Emphasis added.]
In the course of his instructions to the jury, the judge said the following:
In addition, [plaintiff's counsel] made reference to a suggestion of his. And I'm required by law to let you know it is only a lawyer's suggestion. It is only an argument to be made.
But recall at the time interval where he asked you to consider an hour's worth of pain, multiply it by 16 hours a day, by some days in a year, times a number of years. And he suggested that to you as a way of computing damages.
It is only a suggestion. It is not a requirement in any fashion whatsoever.
He commented that it was a rather scientific way of doing it. I would tell you that it is not a scientific approach.
It is merely an argument to be made. He has a right to make that argument. He has the right to utilize that approach or not utilize that approach. [Emphasis added.]
At the conclusion of the charge, plaintiff's counsel noted his exception to "the Court's injecting the Court's personal opinion" into the charge. The jury was sent to its deliberations, and further colloquy ensued on the record. Plaintiff's counsel now stated for the first time that the judge's charge was too "rapid." He also complained that the judge, who had been reading from the written charge, looked up and spoke directly to the jury when he discussed his disagreement with plaintiff's counsel's characterization of the time-unit rule as "scientific." Counsel argued that the judge's actions in this regard prejudiced plaintiff.
The judge responded that he did not believe his statements showed "any personal disfavor" to plaintiff's counsel's arguments. He further stated that the court rule allowing the use of the time-unit rule argument makes clear that the argument is only a suggestion, which the jury may or may not employ. The judge was of the view that elevating the time-unit approach to a "scientific" method had the capacity of misleading the jury into attributing more weight to it than our court rules permit.
On appeal, plaintiff first contends that the judge slowed down the pace in which he was delivering his instruction and looked at the jurors as he expressed his disagreement with the "scientific" comment, thus placing particularized emphasis on the issue. Second, plaintiff argues that by "scientific" he merely meant to convey to the jury that the time-unit rule is a "logical" way of calculating damages for permanent injuries. Therefore, he argues that the judge should have said nothing at all on the subject because his argument was proper. Third, plaintiff argues that by impugning the credibility of his attorney, plaintiff's credibility and his case were prejudiced in the eyes of the jury.
Plaintiff's first argument is belied by the audio recording. We perceive no change in the pace in which the judge made the disputed comments about the time-unit rule as compared with the remainder of the charge. Of course the audio recording does not reveal the manner in which the judge looked at the jurors while making these comments. In a letter submitted by the judge to this court after the appeal was filed, see R. 2:5-1(b), he described the manner in which he delivered the entire charge to the jury, including the following: "And I make an effort to look up and make eye-contact with the jury as I read the charge." We find no basis for error on this point.
Plaintiff's second argument relates to the substantive issue. The rule allows during the closing statement in civil cases that "any party may suggest to the trier of fact . . . that unliquidated damages [may] be calculated on a time-unit basis without reference to a specific sum." R. 1:7-1(b). If counsel makes such statements to the jury, "the judge shall instruct the jury that they are argument only and do not constitute evidence." Ibid. This rule requires the judge to instruct the jury that any suggestion of a time-unit calculation of damages is not evidential. See Henker v. Preybylowski, 216 N.J. Super. 513, 520 (App. Div. 1987).
We find no impropriety in the judge's clarification to the jury that plaintiff's time-unit argument could rise to no higher level than an argument or suggestion by counsel. The judge acted within his discretion in admonishing the jury that they should not deem the time-unit principle a "scientific" method of calculating damages. As the judge told plaintiff's counsel during the colloquy after the conclusion of the charge, had counsel referred to the time-unit method as a "logical" way of quantifying unliquidated damages, the judge would not have commented on it to the jury. However, we do not find a mistaken exercise of discretion by the judge in concluding that characterization of the method as "scientific," as opposed to "logical," was a "major stretching of the time unit rule," which required correction for the jury.
Finally, we reject plaintiff's third argument, that the judge's instruction on this point undermined plaintiff's counsel's credibility, and thus prejudiced plaintiff's credibility and plaintiff's case. Nothing the judge said was disparaging or humiliating to counsel. The judge rendered an appropriate correction of an isolated point made by counsel. Doing so was not error.
We next address plaintiff's argument that the judge erred by allowing defense counsel to refer to the New Jersey Driver's Manual while cross-examining plaintiff. Some context is helpful in our analysis of this issue.
During direct examination, plaintiff's counsel elicited testimony from plaintiff establishing that he was a professional driver, that he had undergone training as such, that he was experienced in driving trucks and tractor trailers in various employment capacities, and that he held a commercial driver's license. After establishing that plaintiff was following the truck at a speed of 30 to 35 mph by a distance of about twenty-five feet, plaintiff's counsel asked plaintiff: "And did you feel comfortable in the distance you were keeping behind that vehicle?" Plaintiff answered in the affirmative.
On cross-examination, defense counsel questioned plaintiff about his following distance:
Q: And a car and a half length, you said a carlength is about 17 feet. So you're about 25 feet behind him, correct?
Q: And you're traveling 35 miles an hour.
Q: And was there any way on earth that if something happened right 25 feet in front of you going 35 miles an hour that you could avoid and stop and prevent that accident from happening?
Q: Because there's not enough time or distance to do so, correct?
Q: Now, you're a professional driver, right?
Q: And you've been a professional driver for quite some time?
Q: You have to take commercial driver's license tests?
Q: And that's required for all people that are driving commercial vehicles, right?
Q: You're familiar with the concept of a short, clear distance, correct?
Q: And that's basically saying you've got to give yourself enough distance between you and whatever is in front of you so that you have the time and the distance to anticipate both something ordinary or something out of the ordinary, correct?
Q: That's your obligation. When you're driving that tractor-trailer down the road, you got to figure out what you're doing and you've got to watch what everybody else is doing, right?
Q: Are there standards, sir, are there common distance measures that you try to adhere to in your capacity as a professional driver in terms of keeping a safe distance from the vehicle in front of you?
A: We tend to use the one pole length.
Q: What's that?
A: We tend to use the one pole length approach.
Q: What's the one pole length approach?
A: That the vehicle in front of me passes a pole, and I can count one, two, three seconds --
A: -- until I reach that same spot. Then I'm at a safe following distance.
Immediately following that line of questioning, defense counsel began asking plaintiff whether he ever heard of "the one about for every 10 miles per hour you're going . . . you should keep . . . ." Plaintiff's counsel objected. Apparently, as defense counsel was asking that question, he was holding a book in his hand. When the attorneys went to sidebar, defense counsel acknowledged that the book he was holding was the New Jersey Driver's Manual. The judge overruled plaintiff's counsel's objection to the questioning, which then continued as follows:
Q: Sir, are you familiar with the New Jersey Driver's Manual?
Q: Are you familiar with the Commercial Driver's Manual?
A: A little.
Q: You said you never took any professional training to be a truck driver?
Q: Did you ever hear the suggestion that you should maintain a carlength distance between yourself and the vehicle in front of you for every 10 miles per hour you're traveling?
Q: Never heard that?
Q: So you never heard if you were going 20 miles an hour, you should stay two vehicles behind. If you're going 30 miles an hour, you should stay three vehicles behind. If you're going 60, you should stay six vehicles behind?
We assume for purposes of our analysis that as defense counsel was asking these questions he was holding a New Jersey Driver's Manual. After defendant answered "No" to each of the questions about his familiarity with the Driver's Manual (except "[a] little" familiarity with the Commercial Driver's Manual) and with the ten-mile-per-hour approach, plaintiff's counsel did not ask for a curative instruction, telling the jury to disregard any suggestion of what the Driver's Manual might contain with respect to suggested following distances.
During summations, defense counsel did not mention the ten-mile-per-hour approach as a method of determining safe following distance. However, plaintiff's counsel did mention it and made an argument as to why any such approach should not be applied, particularly in the context of one vehicle overtaking another. Plaintiff's counsel followed that argument with his proximate cause argument, as follows:
I'm going to show you something else that's just a red herring in this case. Smok[e and] mirrors.
Let's assume that they were on Chestnut Avenue all the way back to Lincoln Avenue and he was following that whole period of time. And at times he was two feet behind the vehicle. And at times he was ten feet behind the vehicle? Was he negligent? You better believe two feet behind that vehicle is negligence. That's definitely too risky.
What's that got to do with the happening of this accident if it happened three miles back? Absolutely nothing. Because once he moves into the passing lane of travel, it doesn't make any difference how far you are behind the vehicle in the lane to your right. You could have moved in the passing lane of travel 200 feet. You could have been in the passing lane of travel. At some point in time you're going to be within one and a half carlengths of the car in front of you.
Now, what right has that car in front of you that's signaling a right-hand turn to swerve into your lane? Absolutely none.
So that argument makes no sense. And there is clearly, clearly no negligence on the part of [plaintiff] in anything he did up to that point in time.
In his final charge, the judge told the jurors that their decision "must be based solely on the evidence presented and [his] instructions on the law." The judge continued by explaining that "the evidence in this case has consisted of testimony that you heard from witnesses, . . . ." (emphasis added).
Plaintiff argues that the judge erred in allowing the line of questioning pertaining to the ten-mile-per-hour approach with implied reference to the Driver's Manual. Plaintiff contends that opinions as to safe following distance are a subject of expert testimony, with particular reference to the facts in a given case. Plaintiff argues that, without prior notice, without the opportunity to meet such adverse opinions, and without the opportunity to cross-examine any expert, the defense was allowed to get before the jury through the back door that which it could not produce through the front door without an expert. Plaintiff argues that this allowed the jury to be misled and it denied him of a fair trial.
Plaintiff relies on McDonald v. Mulvihill, 84 N.J. Super. 382 (App. Div. 1964), as authority barring reference to the "one car length" approach found in the Driver's Manual. In McDonald we disallowed a "braking distance chart" found in the Driver's Manual from being received in evidence as affirmative proof of the exact braking distance of a particular vehicle being driven at a known speed. Id. at 388. We noted that the braking distances were averages, determined by extensive testing, and the figures were subject to a number of variable factors. Ibid.
That is not what happened here. The Driver's Manual was not admitted in evidence. When asked about the ten-mile-per-hour approach, plaintiff denied knowledge of it. The judge instructed the jury that evidence consisted only of testimony from witnesses. Therefore, the questions posed by counsel were not evidence. Further, defense counsel did not attempt in summation to make an argument based upon facts not in evidence or reasonably inferable from the evidence. He did not argue an unsafe following distance based upon the ten-mile-per-hour approach. Plaintiff's counsel made such an argument as to why any such approach would not be applicable in circumstances such as these. He followed that with an effective proximate cause argument.
It is further noteworthy that in his direct testimony, plaintiff's counsel elicited from plaintiff his following distance and, through further questioning, elicited that a general standard by which a driver should "feel comfortable" was appropriate to determine a safe following distance. In his summation, plaintiff's counsel reiterated the point. After pointing out to the jurors that the distance between the front row of the jury box and a particular wall in the courtroom was twenty-five feet, counsel argued:
Now that's 25 feet and you're sitting on a motorcycle, a bicycle. The vehicle in front of you is going 30 miles per hour. You feel comfortable at that distance. I submit that daily day in and day out at 30 miles an hour we all feel comfortable at that distance.
And I question maybe some of you on the way home yesterday or on the way to court that it didn't cross your mind as to how far you were from another vehicle in front of you and how slow that vehicle was going and how comfortable you felt at that distance.
We also note that on cross-examination, before defense counsel broached the subject of the ten-mile-per-hour approach, plaintiff volunteered his own method for gauging a safe following distance, based upon his training and experience as a professional driver, namely the "one pole length approach." Thus, the jury had before it two methods proffered by plaintiff himself. And, of course, jurors bring with them their own personal driving experience to assist in their evaluation of what constitutes a safe following distance under particular circumstances.
Any suggestion through the method of questioning by defense counsel while holding in his hand a Driver's Manual that the manual contained a ten-mile-per-hour method did not prejudice plaintiff in the overall context of this trial. Defendant denied knowledge of any such method contained in that manual. Neither the manual nor any of its particular contents were admitted in evidence. Plaintiff's counsel made effective arguments regarding following distance and its lack of relevance when assessing proximate cause in the circumstances of this accident. Both drivers testified and were cross-examined extensively about the happening of the accident. If there was any error in allowing the disputed cross-examination, in the overall context of this trial, it did not have the clear capacity to produce an unjust result and would not rise to the level of reversible error.