On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-523-05.
New Jersey Court of Appeals a3100_09.pdf
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 19, 2010 - Decided Before Judges Payne, Baxter and Koblitz.
New Jersey Manufacturers Insurance Company (NJM), here doing business as New Jersey Re-Insurance Company, appeals from a unanimous jury verdict finding, where a deer crashed through the vehicle's windshield, the negligence of the driver was a proximate cause of injury to his passenger. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff Jolene Grembowiec brought this action to recover damages including compensation for severe facial injuries she sustained as a passenger in a vehicle that collided with a deer on the evening of October 28, 2004, in Bridgewater Township. Plaintiff filed suit against the driver, Charles Geisler, for his negligence, his mother who owned the car and John Doe, who was named as the driver of the "phantom" car that may have been involved in the accident. She settled claims against Geisler and his mother for the full amount of their policy, $100,000. She also received $100,000 in uninsured motorist benefits for the negligence of the driver of the "phantom" car. Plaintiff also brought a claim against her carrier, NJM, for underinsured motorist benefits*fn1 to recover the excess damages, which were stipulated as $350,000. The trial of this action went forward against NJM on the sole issue of liability.
Plaintiff has no recollection of the accident due to her injuries. Many of the facts are undisputed: The roadway was lit with a full moon and was unobstructed; the weather was clear and dry; and Geisler was driving a 2001 Infiniti QX-4 sport utility vehicle at 30 miles-per-hour (in a 45 mile-per-hour zone) with the xenon headlights turned on. The police officer who responded to the accident testified that he had visibility of 500 feet that night. The photographs of the accident scene also show a white fence as being visible at a distance of more than 500 feet.
Although Geisler did not testify at trial, his earlier inconsistent versions of the incident were provided to the jury. He told the police officer who responded immediately after the accident that he was traveling north on Routes 202-206 when he observed a deer enter the southbound side of the roadway and run east across the road. He said he then saw a white "phantom" car, traveling southbound, hit the deer. He said, upon impact, the deer was thrown into his windshield, crashing through it, severely injuring his passenger.
At his deposition, Geisler said he did not see the deer. He said it was just "a flash out of [his] eye," and that he did not know whether or not another car hit the deer first. He said he remembered another car approaching and thought he heard a screech from that car. He testified that he had seen deer by the side of that road hundreds of times and knew to slow down and proceed with caution in that area.
NJM raises the following issues on appeal:
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND WAS THE PRODUCT OF PREJUDICIAL ERROR, REQUIRING A NEW TRIAL ON ALL ISSUES.
THE TRIAL COURT'S REFUSAL TO BAR THE EXPERT TESTIMONY OF JOHN DESCH, P.E., WAS ERRONEOUS AND LED TO A VERDICT AGAINST THE WEIGHT OF THE EVIDENCE.
THE ERRORS IN THE CHARGE TO THE JURY HAD AN UNDENIABLE IMPACT ON THE OUTCOME OF THIS ACTION.
THE CHARGE REGARDING THE DUTY TO ANTICIPATE AND AVOID STRIKING ANIMALS DOES NOT ...