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Michael Zeman and Kari Lewis-Zeman v. andrew E. Hall & Sons

October 17, 2011

MICHAEL ZEMAN AND KARI LEWIS-ZEMAN, PLAINTIFFS-APPELLANTS,
v.
ANDREW E. HALL & SONS, INC., AND QUINTO MAGI, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-336-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 20, 2011

Before Judges Messano and Yannotti.

Plaintiffs Michael Zeman (Zeman) and his wife Kari Lewis Zeman appeal from the judgment entered by the Law Division on February 1, 2010, in favor of defendants Andrew E. Hall & Sons, Inc. (Hall) and Qunito Magi (Magi). We affirm.

I.

This action arises from a two-vehicle accident that occurred on February 21, 2005, on Old Route 24 in Chester, New Jersey. On that date, Zeman was operating his vehicle traveling westbound. At the same time, Magi was traveling eastbound, operating a pick-up truck owned by Hall. Magi lost control of the truck on a snow-covered curve and slid sideways into the westbound lane, colliding with Zeman's car. Zeman allegedly sustained serious injuries in the collision.

Plaintiffs filed an action in the Law Division alleging, among other things, that Magi had operated his vehicle in a negligent manner and his negligence was a proximate cause of the accident. Before the case was submitted to the jury, plaintiffs sought a directed verdict on the issue of liability. The court denied the application. The jury then returned a verdict responding "No" to the question, "Were the defendants negligent, which negligence was the proximate cause of the accident?"

Plaintiffs then made a motion for judgment notwithstanding the verdict, which the trial court denied. On February 1, 2010, the court entered judgment for defendants. Thereafter, plaintiffs filed a motion for a new trial. The court considered the motion on September 16, 2010, and on that date entered an order denying the motion. This appeal followed.

II.

Plaintiffs first argue that the trial court erred by denying their motion for a mistrial during jury selection. We disagree.

The following facts are relevant to this issue. The prospective jurors in the jury box were asked whether they had an opinion, one way or another, on tort reform, which the trial court described as "laws that restrict the right to sue or limit the amount recovered." In response to the court's inquiry, Juror No. 5 stated, "Yeah Judge, I just believe that there should be tort reform and that they - - the settlements have gotten out of hand."

The court brought Juror No. 5 and the attorneys to sidebar, and the juror stated that "I feel that some of the - - the judgments for the pain and suffering [have] gotten out of hand and there should be tort reform. That's all I know." After further questioning, the juror returned to the jury box. Jury selection continued.

Thereafter, plaintiffs' attorney moved for a mistrial because Juror No. 5's initial statement on tort reform was not taken at sidebar. Plaintiffs' attorney argued that the whole panel heard the comments and he did not believe it was "fair." Defense counsel opposed the application. The court denied the motion. Plaintiffs' attorney later exercised a peremptory challenge as to Juror No. 5 and he was excused.

During jury selection, other prospective jurors were called to the jury box. They also were asked questions regarding tort reform in open court. Some of the jurors indicated that there was a need for such reform. There was no objection to having the jurors answer these questions in open court. Plaintiffs' attorney used four of his six peremptory challenges and then declared the jury to be satisfactory as constituted.

Plaintiffs argue that the trial court erred by denying his motion for a mistrial because the comments by Juror No. 5 were "inflammatory" and were uttered in open court. Plaintiffs contend that comments "tainted the trial process" and the court ...


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