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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...