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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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