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Frank Lawyer, As Executor of the Estate of Monica Lawyer, Deceased v. Mary G. Gastrich

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 4, 2012

FRANK LAWYER, AS EXECUTOR OF THE ESTATE OF MONICA LAWYER, DECEASED; AND FRANK LAWYER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
MARY G. GASTRICH, THE WESTFIELD GROUP, INC., WESTFIELD GROUP, INC., AND THE WESTFIELD GARDEN STATE PLAZA, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1840-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2011

Before Judges Fuentes, J. N. Harris and Koblitz.

On December 11, 2007, seventy-four-year-old Monica Lawyer was struck and killed by a car driven by defendant Mary G. Gastrich. The accident occurred while decedent was crossing Ring Road, a private roadway that surrounds the Garden State Plaza Shopping Mall in the Borough of Paramus.*fn1 The location where decedent traversed is not designated for pedestrian crossing and does not have a crosswalk.

Plaintiff Frank Lawyer, individually and as executor of his late wife's estate, filed a complaint alleging negligence, wrongful death, and a survival action against Gastrich and The Westfield Group, Inc., Westfield Group, Inc., The Westfield Group Garden State Plaza (collectively Westfield), the owners and operators of the shopping mall. Gastrich and Westfield both filed responsive pleadings and cross-claims.

The case was tried before a civil jury over a period of nine days. The jury deliberated for approximately five hours before returning a "no cause" verdict, finding Gastrich ten percent negligent, Westfield thirty-nine percent negligent, and decedent fifty-one percent negligent. The court thereafter denied plaintiff's motion for a new trial pursuant to Rule 4:49-1.

Plaintiff now appeals, arguing the jury's verdict is against the weight of the evidence and constitutes a clear miscarriage of justice. Plaintiff also challenges a number of evidentiary rulings made by the court in the course of the trial that, in plaintiff's view, individually or cumulatively denied him his right to a fair trial and prevented the jury from considering evidence that bore upon the reasonableness of decedent's conduct immediately before she was struck by Gastrich's car.

After considering the record before us, and mindful of the deferential standard of review applicable to jury verdicts, we affirm. Because we conclude the jury's verdict on liability was proper, we will focus our recitation of the facts to those sections of the record that relate primarily to the question of liability.

I

At approximately one o'clock in the afternoon on an overcast day in December 2007, Gastrich placed her one-year-old grandson in the backseat of her 2006 Jeep Liberty, and drove south on Ring Road to exit the Garden State Plaza Mall and proceed toward Route 17 south. Gastrich, a retired research scientist, was generally familiar with the shopping mall's layout, traffic patterns, and vehicular ingress and egress points. At trial, Gastrich described herself as a generally prudent driver. She testified that she was especially cautious that day because her infant grandson was with her.

Around that same time, Mrs. Lawyer, who had also been at the mall, began walking toward her car that was parked in an exterior parking lot across Ring Road. Although there was a designated, clearly marked pedestrian crosswalk located 240 feet to the north, Mrs. Lawyer decided to cross Ring Road at a point where pedestrian traffic is not permitted. This part of Ring Road was sixty-nine feet wide, consisting of six lanes of traffic, with three lanes in each direction.

Gastrich gave the following description of how the accident occurred:

I was coming toward the light and I had the brake on. I was going slowly. And I saw the light was red. I knew that I had to stop and I was really paying attention, trying to stop at the light. Like I said, I had my grandson in the car. I was super cautious. And at that -- out of the blue I heard a clomp and in a second -- I don't know. A thought crossed my mind, maybe that car next to me hit me or something. Then I saw the woman. It happened so fast it was like a shock.

Q. When you [saw] the woman, where was she in relation to your vehicle?

A. Over in the far right side of the car, passenger side.

Q. Was it on the front corner, or was it more to the side, or more to the front?

A. It wasn't near the front -- so much the front, it was over in the corner of the car. It was like on the corner at that point. I was absolutely shocked.

Q. And at the time that you made that observation, you heard that sound, did you have any expectation that there would be a pedestrian crossing Ring Road at that location?

A. No. I saw nothing.

Rachel Yorke, an intensive care registered nurse, was driving her car in the opposite direction on Ring Road when the accident occurred.*fn2 She was the first medically trained person to attend to decedent. When she reached the scene, decedent "was lying on her back facing up . . . [; h]er eyes were open and bright red blood was [pouring] out of her mouth" obstructing her ability to breath. Yorke confirmed that she was sill alive by checking her carotid artery for a pulse. Assisted by another good Samaritan, Yorke was able to roll decedent onto her side to open up her air passages. Decedent immediately responded by taking a "big gasp of air." Decedent did not have a pulse by the time emergency medical personnel arrived at the scene a short time later.

According to Yorke, decedent was unconscious and non-responsive to repeated attempts at communicating with her. In response to counsel's question, Yorke gave the following account of the efforts she made to illicit a response from decedent:

My training tells me when you see something happen the first thing you do is to assess their responsiveness. So I ran to her and was shouting are you okay, can you hear me.

She made no effort to respond. And at that point you can -- we're taught to do something more aggressive to see if it stimulates pain, the body will still have certain reflexes if it feels the pain. So what I did was called a sternal rub where I took my knuckles and kind of dug on her chest bone and repeated can you hear me, you know, are you awake, are you there, and she didn't make any response.

A paramedic who arrived at the scene approximately ten minutes after the accident testified that decedent was in cardiac arrest and did not have a pulse. An electrocardiography (EKG) test performed at the scene indicated only "Pulseless Electrical Activity [(PEA)]," meaning that decedent could not generate a pulse sufficient to sustain life. Decedent was taken to the emergency room at Hackensack University Medical Center. Hospital records indicate that at all relevant times, decedent did not show any signs of consciousness; "there was no response to pain, no gag, no spontaneous breaths,[*fn3 ] no corneal."*fn4 Decedent was pronounced dead at 1:47 p.m., approximately thirty minutes after she arrived at the hospital.

II

At trial, plaintiff called Dr. Jacob H. Jacoby as an expert witness in the field of neuropsychiatry. In addition to his medical degree, Dr. Jacoby has a Ph.D. in neuropharmacology from Albert Einstein College of Medicine. He completed a postdoctoral fellowship in neurochemistry at Massachusetts Institute of Technology. Defendants did not object to his qualifying as an expert witness in the field of neuropsychiatry.

Dr. Jacoby was retained by plaintiff to determine whether decedent "experienced any pre-impact fear of impending injury or death, . . . and, also, cognitive awareness of pain and suffering post-impact." In responding to this charge, Dr. Jacoby noted that the collision occurred "on a clear day . . . straight over the highway that didn't seem to have a lot of traffic . . . ." Given these topographical features and weather conditions, Dr. Jacoby opined that "it's hard to depict the situation where [decedent] didn't see that car coming towards her, or where the driver didn't see [decedent] walking towards the highway or on the highway."

Thus, building on the premise that decedent must have seen Gastrich's car, Dr. Jacoby opined that this "visual communication had to have elicited . . . a very strong reaction" from decedent. Dr. Jacoby testified that decedent could have had two possible reactions: (1) the assumption that the car would slow down and stop because it saw her; or (2) the "realization that it wasn't slowing down, and the subsequent fight-or-flight reaction that ensued." (Emphasis added). According to Dr. Jacoby, a flight-or-fight reaction entails . . . a number of physiologic defense mechanisms of survival that are -- extend[ed] throughout the animal kingdom, not only human beings.

That is[,] any animal, including human beings, faced with a dangerous or potentially-life-threatening situation will, upon seeing let's say a predator approaching will become frightened, or will at least experience a surge in certain body chemicals, or hormones, or neuro-hormones, such as adrenaline, which really pump or prime up the body in preparation for either counteracting that threat or running away from that threat. And the reaction that happens is that one experiences a state of hyper-vigilance, as increased awareness, increased consciousness . . . towards . . . the situation at hand[.]

[In this state of hyper-vigilance] whether she tried to run away or froze one cannot say, but certainly she was primed . . . .

That's what in all likelihood happened, and then she was hurt and damaged. . . . Subsequently she did suffer fatal injuries.

It's not that clear how rapidly the injuries took its [sic] toll on her. [(Emphasis added).]

Asked by plaintiff's counsel to elaborate on what could cause someone "to freeze," Dr. Jacoby indicated that it was part of the "fight-or-flight reaction." He analogized the situation to a deer standing in the middle of a road facing oncoming traffic:

The lucky deer runs and the unlucky one freezes. It's hard to tell what a human being is going to do, who is not an animal in the woods and not so accustomed to being prey, so to speak, which is what the situation is about. It's a survival mechanism, and . . . wild animals are better at responding to . . . situations where their survival is threatened than are human beings not trained.

Plaintiff called Westfield's Director of Security Michael Reid to testify as part of his case in chief. Reid described the general layout of the area, the surveillance systems in place at the mall, and how they are monitored by security personnel. On cross-examination, defense counsel asked Reid: "Why is there a crosswalk to the north where it's located and no crosswalk down to the light?" Plaintiff's counsel objected, arguing that the question was improper because it solicited expert testimony that only a transportation engineer or similarly qualified individual could provide. The court overruled the objection, permitting Reid to testify as follows:

[A]. The crosswalk is placed over there because that's where the road is the narrowest from that point down to the traffic light.

Q: At the traffic light it's more lanes than at the crosswalk in the photo?

A: That's correct.

Q: And so why wouldn't you want a crosswalk down by the light?

A: You wouldn't want a crosswalk down by the traffic light or in the area of the traffic light because there will be too many obstructions for drivers and they wouldn't be able to see the pedestrians.

Q: And when I say the traffic light, the traffic light is in the area of where I'm pointing the intersection from Route 4 onto Ring Road, correct?

A: Excuse me, the traffic light is --

Q: In the area where I'm circling on Ring Road where people are coming off of Route 4, correct?

Plaintiff also called Robert T. Hintersteiner, a retired licensed transportation, traffic, and forensic engineer, to determine: (1) the safety of the roadway where the accident occurred; and (2) the extent Gastrich's conduct contributed to the accident. In preparing to respond to this charge, Hintersteiner reviewed photographs of the accident site (including aerial photographs of the parking lot), the police accident report, the pleadings, the medical examiner's report, and the video record.

With respect to the safety of the roadway, Hintersteiner opined that the Ring Road is not designed for a pedestrian to cross properly, and also, [decedent] crossed at an unmarked crosswalk at an intersection into the parking lot, which was in clear view of everything, but there was not enough time with the traffic to proceed safely across because pedestrians had to walk within the roadway to get to an unmarked crosswalk to cross the roadway into the parking area from one parking area into another. And it was not conducive for pedestrian operation.

According to Hintersteiner, this configuration was "a causative factor" in the accident because "[c]rossing the roadway [decedent] had to walk across[,] observe traffic and cross from one parking area to another. The satellite parking area was away from the store [(presumably Macy's)] and you had to get to it by crossing the Ring Road, which had no pedestrian safety features . . . ."

With respect to Gastrich's conduct, Hintersteiner opined that, assuming she was traveling at a speed of fifteen miles per hour, she had "plenty of time to stop for a pedestrian to cross." All of the opinions expressed by Hintersteiner were within a reasonable degree of engineering probability.

III

At the conclusion of plaintiff's case, counsel for Gastrich moved pursuant to Rule 4:37-2 to dismiss plaintiff's claims for damages based on conscious pain and suffering and pre-impact fright. Counsel for Westfield joined in the motion. Defendants argue that Dr. Jacoby's testimony concerning decedent's state of mind immediately before the impact was speculative. Defense counsel argued that Dr. Jacoby's conclusion, that decedent looked to her left at some point before she was struck, was a net opinion not supported by any competent evidence in the record.

Defendants also argued that the evidence showed that decedent did not suffer conscious pain preceding her death. Defendants maintain that all of the medical professionals who interacted or treated decedent after the accident were unanimous in their views that she was unresponsive, unaware, and incapable of consciously experiencing pain.

Plaintiff's counsel argued that the jury could infer that decedent saw the car before the impact. Counsel noted that based on the medical examiner's report, the jury was aware that decedent "suffered a multitude of blunt force trauma injuries." According to plaintiff, from this evidence the jury could infer that "the impact itself was a painful event."

In granting defendants' motions, the trial court noted that Dr. Jacoby's opinion, as reflected in the parts of his report that were read to the jury, was based on the assumption that decedent saw the car before the impact. Building on this assumption, the court noted that Dr. Jacoby then opined that "not only did she suffer the pain of impact, but also a psychological response to witness[ing] an oncoming vehicle no matter what speed."

The court found the opinions expressed by Dr. Jacoby were mere "conjecture," without factual support in the record. The court also found no evidentiary support for Dr. Jacoby's conclusion that decedent experienced "a clear sense of danger, if not doom, of a speeding vehicle coming upon her . . . ." Without this evidence, the court found Dr. Jacoby's opinion concerning the so-called "fight or flight response" inadmissible as a net opinion.

Westfield presented the testimony of Walter Suhaka, whom the court admitted as an expert witness in the field of accident reconstruction and traffic safety. Suhaka testified that the "average person walks about four to six feet [per] second." Given the width of the roadway, and the location of the accident, he opined that decedent traveled twenty-three feet from the curb line of the road to the point of impact. Thus, it took her approximately 3.8 to 5.75 seconds to walk from the point she left the curb to the point of impact. Suhaka characterized this as a "quite a long time when you're talking about traffic and safety."

Suhaka also testified about the responsibilities of both drivers and pedestrians. According to Suhaka, the driver of a motor vehicle must "watch out for everything . . . ." The driver must be alert for anything within the scope of her vision, direct and peripheral. With respect to pedestrians, Suhaka testified, without objection from plaintiff's counsel, that based on his experience, "people misjudge distances, especially older people." He elaborated on this point as follows: "People think, I can make it across -- there's a car coming, but I can make it across, and then they can't. That's been the biggest thing that I've seen in investigating pedestrian accidents."

When asked to opine on the placement of the crosswalk in this accident, Suhaka indicated that it was "consistent with what [he] would expect to see in a shopping center area." After noting the crosswalk 240 feet north of the accident site, Suhaka opined that the placement of the crosswalk at this location was appropriate. Of particular note in terms of proximate cause, Suhaka testified that even if a crosswalk had been located at the location where decedent crossed, the accident may have occurred nonetheless.

When asked to opine as to relative fault between decedent and the driver, Suhaka testified that Gastrich had "a clear line of sight for at least 300 feet ahead to observe [decedent] crossing the Ring Road from right to left directly in her travel path." Conversely, decedent, despite the availability of duly designated crosswalks, decided to cross this six-lane roadway at a point not intended for pedestrian crossing. Decedent also "failed to make proper observation of the position and speed of the approaching Gastrich vehicle before attempting to cross the left southbound travel lane."

Suhaka ultimately opined that both Gastrich as driver and decedent as pedestrian were responsible for the accident. He gave the following explanation in support of this opinion.

Monica Lawyer was initially struck by the right front bumper of the Gastrich's Jeep Liberty and rotated up onto the hood, up as far as the windshield. As the vehicle braked to a stop, Ms. Lawyer slid forward off the hood, falling onto the roadway and coming to final rest on the skip line between the center and left southbound lanes, approximately 12 feet in front of the stopped Jeep Liberty.

In the area of the crash the Ring Road was straight and fairly level. There were no sight obstructions for pedestrians to observe approaching north or southbound traffic for at least 300 feet in each direction. Approaching southbound motorists had a clear line of sight for -- pedestrians crossing the roadway for at least 300 feet ahead. The posted speed limit was only 15 miles per hour and it was daylight.

The roadway design[] provided a safe environment for both pedestrians and motorists provid[ed] they made proper observations of traffic conditions. Had there been a crosswalk where Monica Lawyer was crossing the Ring Road and had she crossed within the crosswalk, everything else being equal, this crash still would have occurred.

The proximate cause of this crash was the failure of Mary Gastrich to make proper observation of traffic conditions ahead of her vehicle and scan the area for pedestrians, and the failure of Monica Lawyer to make proper observation of approaching southbound traffic as she attempted to cross the roadway from west to east.

As was the case with all the expert witnesses, Suhaka indicated that his views were within a reasonable degree of certainty in his field of accident reconstruction and traffic safety.

IV

The jury deliberated for approximately five hours. In the course of deliberations, the jurors requested additional instructions on the "legal definition" of an unmarked crosswalk, and to be recharged on proximate cause and the law governing the responsibility of pedestrians. With respect to the first question, the judge responded by reminding the jurors that there was no "legal definition" of an unmarked crosswalk. He told the jurors to rely on the expert testimony presented by both sides on this question. The court then recharged the jurors on proximate cause, and read them the standards applicable to pedestrians in N.J.S.A. 39:4-36 and N.J.S.A. 39:4-34.

Later in the deliberations, the jury sent out another note asking the judge: "What would percentages need to equal [sic] in order to compensate or not compensate?" After conferring with counsel, the judge instructed the jurors on comparative negligence, and emphasized that "[i]n order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct or fault must be 50 percent or less. If the plaintiff's percentage is more than 50 percent he will not recover damages at all, and your deliberations are concluded."

The jury thereafter returned a "no cause" verdict finding Gastrich's level of negligence to be ten percent, Westfield's thirty-nine percent, and decedent's comparative negligence to be fifty-one percent. The court denied plaintiff's motion for a new trial pursuant to Rule 4:49-1(a).

V

Against this record, plaintiff now argues that the court erred in denying his motion for a new trial because the jury's verdict was against the weight of the evidence. Plaintiff also argues that the court erred in granting defendants' motions dismissing the survivor claims pursuant to Rule 4:37-2, and ruling inadmissible Dr. Jacoby's opinion concerning decedent's state of mind immediately before she was struck by Gastrich's car. We reject these arguments and affirm.

A

In a case tried before a jury, the trial court shall grant a motion for a new trial "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." R. 4:49-1(a). This rule is derived from the standard articulated by our Supreme Court in the seminal case of Dolson v. Anastasia, 55 N.J. 2 (1969). Writing for a unanimous Court in Dolson, Justice Hall explained that, in reviewing the jury's verdict, the trial judge is obligated to weigh the evidence without substituting the judge's "judgment for that of the jury merely because [the judge] would have reached the opposite conclusion[. The judge] is not a thirteenth[, or in this case a ninth,] and decisive juror." Id. at 6.

This process of weighing the evidence "is not a pro forma exercise." Ibid. It requires "a high degree of conscientious effort and diligent scrutiny. The object is to correct clear error or mistake by the jury." Ibid. Thus, the judge must canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict . . . . [I]n ruling on a motion for a new trial, the trial judge takes 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, so-called "demeanor evidence", and the intangible "feel of the case" which [the judge] has gained by presiding over the trial. . . . [T]he question is whether the result strikes the judicial mind as a miscarriage of justice . . . . [Ibid. (internal quotation marks and citations omitted).]

In reviewing a decision to grant or deny a motion by for a new trial, we apply "essentially the same" standard that controls the trial judge, with one important distinction. Id. at 7. We will defer to the trial judge's assessment of "witness credibility, 'demeanor', 'feel of the case', or other criteria which are not transmitted by the written record . . . ." Ibid.

The Supreme Court has reaffirmed and refined the Dolson standard over the past forty-three years. In Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977), Chief Justice Hughes emphasized that a jury verdict is entitled to considerable deference and "should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice." The "manifest injustice" standard articulated by the Court in Baxter was recently reaffirmed by the Court in He v. Miller, 207 N.J. 230, 249 (2011).*fn5

Applying the standard in Dolson and its progeny to the record before us, we are convinced the trial court correctly denied plaintiff's motion for a new trial. The first question before the jury was whether Gastrich's negligence in colliding with decedent exceeded decedent's ill-fated, negligent decision to cross Ring Road at a point where pedestrian crossing was neither indicated nor authorized. Plaintiff argued that the video record showed that Gastrich had both an unobstructed view of decedent and adequate time to avoid the accident.

In rejecting this line of reasoning, the trial judge noted that the videotape showed that both Gastrich and decedent had unobstructed views "for at least 200 feet or more . . . ." The judge emphasized, however, that the tape also showed decedent crossing Ring Road as Gastrich's car was closing in. From this evidence, and based on the testimony of Westfield's expert witness on accident reconstruction, the jury could have found that decedent's negligence was a greater factor in bringing about her own demise than Gastrich's failure to see her in time to avoid the accident.

The legal principles governing pedestrian conduct on the road also support the jury's verdict. As explained by the judge as part of his charge to the jury, every pedestrian in a roadway not within a marked crosswalk or unmarked crosswalk "shall yield the right of way to all vehicles upon the roadway." N.J.S.A. 39:4-36(a)(4). Furthermore, "where sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway." N.J.S.A. 39:4-34.

Although the court also informed the jury that Gastrich had a commensurate duty to drive her car in a reasonable manner, be alert to traffic and road conditions, and exercise sound judgment to avoid collision or injury to others on the roadways, as a reasonably prudent person would under similar circumstances, the ultimate allocation of fault was left for the jury to determine. In the course of deliberations, the jury requested the judge to re-read the instructions regarding the statutes pertaining to the conduct of pedestrians. It also requested a re-reading of the ultimate outcome charge. This suggests that the jurors took their responsibilities seriously and carefully considered the evidence before reaching a verdict.

Finally, plaintiff argues that Gastrich's demeanor while she testified may have biased the jury against him. Although not entirely clear from the written record, it appears that Gastrich was emotional during parts of her testimony, and may have even cried while expressing remorse for her role in causing Mrs. Lawyer's death. We are satisfied there is no basis to conclude Gastrich's demeanor, while testifying, undermined the jury's impartiality or otherwise prejudiced plaintiff's right to a fair trial. This was a tragic case. To cause the death of a fellow human being under these circumstances is an emotionally traumatic experience, no matter how the question of civil liability is ultimately decided. That being said, we discern no legal basis to disturb the jury's verdict on this ground.

B

We next address the court's ruling excluding Dr. Jacoby's testimony concerning decedent's pre-impact state of mind. We reject plaintiff's argument substantially for the reasons expressed by the trial judge.

To be admissible, expert testimony must concern subject matter beyond the average juror's understanding, be sufficiently reliable, and be offered by a sufficiently qualified expert. DeHanes v. Rothman, 158 N.J. 90, 100 (1999) (citing State v. Kelly, 97 N.J. 178, 208 (1984)); N.J.R.E. 702. The expert must be able to explain the basis for his or her opinion. State v. Moore, 122 N.J. 420, 458-59 (1991). "'[E]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.'" Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.) (quoting Clearwater Corp. v. City of Lincoln, 277 N.W.2d 236, 241 (1979)), certif. denied, 122 N.J. 333 (1990).

The "net opinion rule" precludes an expert witness from offering an opinion that is unsupported by relevant facts usually relied on by experts in the witness's field of expertise. Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); see also N.J.R.E. 703. Particularly as it relates to medical causation, an expert must be able to present the rationale for his or her conclusions. See Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996).

We have previously upheld the preclusion of expert testimony based on speculation and lacking reasonable medical certainty. Vuocolo, supra, 240 N.J. Super. at 300-01. Here, the trial court correctly precluded Dr. Jacoby's testimony regarding pre-impact fright as a net opinion because the opinion was based on the speculative assumption that decedent saw Gastrich's car before impact. Dr. Jacoby himself characterized the premise of his opinion as an assumption. Dr. Jacoby used this unsupported assumption to theorize and speculate on decedent's state of mind. His "opinion" as to "fright or flight response" was merely a description of generic human behavior under conditions of extreme stress. Dr. Jacoby's ultimate conclusion was untethered to what decedent actually or probably experienced fractions of a second before the violent collision that caused her death. The trial court thus properly excluded this testimony as a net opinion.

Because the jury's verdict did not reach the question of damages, we need not address plaintiff's argument with respect to the court's decision to dismiss the survivor claims.

C

The remainder of plaintiff's arguments concerning the trial court's evidentiary rulings lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments. Assuming, arguendo, that the trial court erred in overruling plaintiff's counsel's objection to Reid's testimony concerning the location of the crosswalk, this did not have the capacity to irrevocably taint the jury's verdict. The principal evidence concerning the liability of the Westfield defendants came from the testimony of the experts. More importantly, crossing roadways to reach a parking lot in a shopping mall is an experience readily familiar to the average person. Absent evidence showing: (1) a specific legal obligation to locate crosswalks at a particular point; or (2) similar pedestrian accidents had occurred at this location, the average juror is capable of determining the reasonableness of the mall's configuration in this case.

The thirty-nine percent allocation of fault to Westfield is indicative that the jury found the mall operators partially responsible for the accident, based perhaps on the location of the parking lot and the lack of a more convenient crosswalk. By its verdict, however, the jury indicated that decedent's decision to cross under these circumstances constituted the more negligent conduct. This allocation of fault is well-supported by the evidence, particularly the expert testimony presented by Westfield.

Affirmed.


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