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


October 17, 2011


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

Per curiam.


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.


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.


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 erred by failing to provide the jurors with a curative instruction.

Litigants are entitled to "an unbiased jury" and "a fair jury selection process." Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 40 (2009) (citing Catando v. Sheraton Poste Inn, 249 N.J. Super. 253, 259 (App. Div.), certif. denied, 127 N.J. 550 (1991)). The trial courts have the primary responsibility for ensuring that "the selection of jurors is conducted in a manner that will effectuate these rights." Ibid. In doing so, the trial courts have the discretion to determine whether to question a prospective juror "in open court, while the prospective juror is seated in the jury box, or to conduct the examinations of each of them, or any of them, separately at sidebar." Id. at 41.

This aspect of the jury selection process "requires great sensitivity to the issues in the dispute, the questions likely to be presented to the jury, the interests of the parties, and the legitimate privacy concerns" of the prospective jurors. Id. at 42. In exercising this function, the trial courts must be mindful that any lack of sensitivity in the voir dire process may result in the expression of a previously held belief or of a strong view based on the life experience that, simply by its expression in open court, will affect the thinking of the others in the venire. In such a case, the very real risk remains that a remark might infect the thinking of others who hear it and that exercising challenges for cause or peremptorily will not suffice to cure the defect. This is particularly true if the fact or opinion expressed is stated with force or emotion, if it evokes sympathy, or if it casts blame on any of the parties, those they represent, or the trade or professional groups to which they belong.

Although a stray, unanticipated remark or two may be cured by a cautionary admonition to those who overhear it, the impact of repeated expressions likely cannot be undone. [Id. at 42-43.]

There is nothing in the record which indicates that Juror No. 5's comments regarding tort reform affected the thinking of the other prospective jurors. Indeed, after the juror made those remarks, other potential jurors were questioned on the subject of tort reform in open court and there is no indication that their views were in any way affected by Juror No. 5's comments. Furthermore, it appears that Juror No. 5 did not voice his comments with force or emotion. Moreover, the juror's comments were not of the sort likely to evoke sympathy, and the juror did not cast blame on any party or group.

We recognize that when plaintiffs' attorney moved for a mistrial, the court erroneously stated that Juror No. 5 had merely answered "Yes" when asked in open court whether he had an opinion regarding tort reform. Moreover, the court did not issue an instruction to the prospective jurors, telling them to disregard any opinion regarding tort reform that Juror No. 5 had expressed.

Nevertheless, we are convinced that plaintiffs' rights to an unbiased jury and a fair jury selection process were not compromised in this case. We note that plaintiffs' attorney never asked the court to question any prospective juror as to whether his or her ability to serve had been compromised by Juror No. 5's remarks. In addition, plaintiffs' attorney did not exhaust his peremptory challenges and never challenged any particular juror on the ground that Juror No. 5's comments rendered that juror incapable of serving fairly and impartially.

Moreover, the jurors were all asked whether there was any reason they could not be fair and impartial. The jurors did not respond, thereby indicating that nothing Juror No. 5 said regarding tort reform had affected their ability to serve. Furthermore, as we have indicated, plaintiffs' attorney stated that he was satisfied with the jury as constituted.

We are satisfied that the trial court did not err by denying plaintiffs' first motion for a mistrial.


Next, plaintiffs argue that the trial court erred by denying their second motion for a mistrial because defense counsel allegedly "mischaracterized" the opening remarks by plaintiffs' attorney.

In his opening statement, plaintiffs' attorney made the following statements:

There are two issues that you are chiefly going to decide here at this trial over the course of the next four or five trial days and into the next week. The first is - - and this is an important one - - is Michael Zeman, my client, a liar, a fraud and a fake? And if he's not, then you must decide what is full and fair compensation for him for a brain injury that he sustained in a car crash that occurred on February 21, 2005. Those are the two reasons why you're here. At the end of the case you will decide that. And the reason why I couched the issue in the first place was because the defense claimed that there's nothing wrong with Mike. That's what his car looked like after the car crash. But they claim there's nothing wrong. They claim he doesn't have a brain injury. They claim he's fine. We say he's not.

Defense counsel responded to these remarks by stating:

So, counsel says [the] defense calls Mr. Zeman a liar. We've never called Mr. Zeman a liar. We've said prove it to us that you're hurt as you say. So we get his medical records in 2005. We get his medical records from 2006 and nothing is [sic] coming out.

It is negative, normal . . . Again, we've looked at this case. We've evaluated what we could obtain about Mr. Zeman's condition.

And again, I'm not calling him a liar. I'm saying prove it and it's up to them. He did not prove it.

Later in his opening, defendants' attorney again said that he was not calling Zeman a liar, noting that those were "very harsh words from plaintiff's counsel." Defendants' attorney said that, throughout his handling of the case, he never called Zeman a liar. Defendants' attorney added that Zeman must prove his case "and he hasn't."

At sidebar, plaintiffs' attorney moved for a mistrial. He argued that defendants' attorney had misinterpreted his remarks. Defense counsel responded by stating that his comments were fair because throughout the litigation, he had never called Zeman a "liar." The court denied the motion.

We are satisfied that there was nothing improper about defense counsel's remarks. The statements were an appropriate response to the assertions by plaintiffs' attorney, who implied that the defense had called Zeman a liar, fake or fraud. Defense counsel made clear to the jury that he had not referred to Zeman in that manner. The trial court correctly determined that a mistrial was not warranted.


Plaintiffs also argue that the trial court erred by denying their motions for a directed verdict on the issue of liability and for judgment notwithstanding the verdict. Again, we disagree.

The standard that applies to these motions is the same as that which applies to a motion for involuntary dismissal pursuant to Rule 4:37-2(b). Pressler & Verniero, Current N.J. Court Rules, Comment 1 to R. 4:40-2 (2012). The court must accept as true all of the evidence that supports the party opposing the motion and give that party the benefit of all favorable inferences that can be drawn from that evidence. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003) (citing Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 108 (App. Div.), certif. denied, 156 N.J. 407 (1998)). The court must determine whether the evidence presents a sufficient disagreement to require submission of the issue for a decision by the jury or whether the evidence "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

At trial, Zeman testified that on the day of the accident, he was driving westbound on Old Route 24. He explained that it had snowed the previous evening but the roads had all been plowed. Zeman said that on Old Route 24 in Chester, as you pass Parker Road, there is a hill that goes up and bears to the right. Zeman testified he was "driving and looking ahead" when suddenly "a white truck just came flying in from the right."

Zeman further testified that the back end of the truck started to spin and was going sideways down the two-lane highway. He stated that the truck was sliding down. It was, he said, "going so fast." Zeman could not pull to the shoulder because snow had been plowed to the side of the road. Zeman tried to slow down but was unable to avoid the collision. In an answer to one of defendants' interrogatories, which was read into the record, Zeman said that the posted speed limit in the area was forty-five miles per hour.

Portions of Magi's deposition testimony also were read into the record. In his deposition, Magi had testified that, on the day of the accident, he was driving slowly because there was "ice on the road so you could slip easily[.]" Magi stated that he could not recall how the accident happened because it occurred so fast. He was asked whether he was driving carelessly and he replied, "Yes."

At trial, Magi testified that he could only remember hitting his brakes before the collision. He said he believed the speed limit where the accident occurred was forty-five miles per hour, although Andrew Hall testified that the suggested speed limit in that area was thirty-five miles per hour. Magi was asked whether he was driving safely before the accident and he replied, "Yeah."

We are satisfied that the trial court did not err by finding that the evidence on Magi's alleged negligence was not so "one-sided" as to warrant entry of a directed verdict in plaintiffs' favor on the issue of liability, or entry of a judgment notwithstanding the verdict for plaintiff. As the trial court noted, Magi made conflicting statements as to whether he had been driving carelessly. The court correctly found that it was for the jury to determine which statement to believe, in light of the evidence presented at trial.


Plaintiffs additionally argue that the trial court erred by refusing to permit Zeman to testify that defendants' truck was traveling at fifty miles per hour before the collision. We do not agree.

"The admissibility of opinion evidence rests within the discretion of the trial court." State v. Labrutto, 114 N.J. 187, 197 (1989). N.J.R.E. 701 provides that, if a witness is not testifying as an expert, the witness may testify in the form of an opinion if the opinion "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue."

Here, Zeman testified that he first observed Magi's truck one or two seconds before the truck collided with his car. He said that when he saw the truck, the vehicles were about two hundred feet apart. Zeman stated that he first saw Magi's truck when it was sliding down the hill. Zeman did not make any observation of the truck before it went into the skid.

The trial court observed that Zeman had testified based upon his observations, but he had no way of knowing the speed at which Magi was traveling. We agree. We therefore conclude that the trial court did not abuse its discretion by precluding Zeman from testifying that the Magi vehicle was traveling at fifty miles per hour.


Plaintiffs further argue that the trial court erred by denying their motion for a new trial. They contend that the jury's verdict constituted a miscarriage of justice. Again, we disagree.

A motion for a new trial is governed by Rule 4:49-1, which provides that the "trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." When deciding a motion for a new trial, the court should "take into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, and the intangible 'feel of the case' which it has gained by presiding over the trial." Kita v. Boro. of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997) (citing Dobson v. Anastasia, 55 N.J. 2, 5-6 (1969)).

In denying plaintiffs' motion for a new trial, the trial court found that there was no manifest injustice in the jury's verdict and "[t]he evidence clearly" supported the jury's verdict. We are satisfied that the record supports the court's determination. As we have explained, there was sufficient evidence from which a rational jury could conclude that Magi had not operated his truck in a negligent manner.



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