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Fred Buffaloe v. Chester Dubil

July 14, 2011

FRED BUFFALOE, PLAINTIFF-APPELLANT/CROSS-RESPONDENT, AND MARY BUFFALOE AND BRYANT BUFFALOE, PLAINTIFFS-APPELLANTS,
v.
CHESTER DUBIL, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1816-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 12, 2011

Before Judges Waugh and St. John.

Plaintiffs Fred Buffaloe, his wife Mary Buffaloe, and their adult son Bryant Buffaloe*fn1 appeal from an order of the Law Division dismissing their personal injury suit against defendant Chester Dubil, following a jury verdict of no cause of action.*fn2

On appeal, plaintiffs do not directly challenge the jury's verdict that each of them failed to prove a "permanent injury" for the purposes of satisfying the verbal threshold. N.J.S.A. 39:6A-8(a). Instead, they challenge several evidentiary rulings made by the judge during the trial, arguing that those errors warrant a new trial. Because we conclude that any error with respect to the evidentiary rulings was either moot or harmless, we affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On September 2, 2006, Fred was driving his wife and son to a family party in their Ford Taurus. Plaintiffs felt a sudden impact from behind. After they exited the Taurus, they observed that it had been hit from behind by Dubil's vehicle. Each of the plaintiffs received medical treatment for injuries they contend resulted from the accident.

Plaintiffs filed a personal injury action against Dubil, who filed an answer and a counterclaim in which he alleged that Fred had been at fault in causing the accident. The matter was tried to a jury in April 2010. At trial, Dubil claimed that Fred had pulled in front of him without signaling and then put on his breaks. His testimony was disputed by each of the plaintiffs. There were indications that Dubil had been drinking prior to the accident, but the trial judge precluded testimony on that issue.

The trial judge held that Dubil was negligent as a matter of law. The jury was asked to determine whether each of the plaintiffs satisfied the verbal threshold. The jury found against each of the plaintiffs on the verbal threshold.

This appeal followed.

II.

Plaintiffs challenge three evidentiary rulings by the trial judge. First, they contend that the judge erred in excluding testimony concerning Dubil's alleged intoxication and the fact that he received a citation for careless driving at the time of the accident. Second, they contend that the judge erred in preventing Mary from testifying that she experienced "tingling" and "numbness" in her arms. Third, they contend ...


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