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Cristino Rios,*Fn1 v. Joseph J. Crowe and

June 27, 2012

CRISTINO RIOS,*FN1 PLAINTIFF-RESPONDENT,
v.
JOSEPH J. CROWE AND JAMES H. PAXSON & SONS, INC., DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4088-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 17, 2012

Before Judges Simonelli and Hayden.

In this motor vehicle accident matter, defendants John Crowe (Crowe) and James H. Paxson & Sons, Inc. (Paxson)*fn2 appeal from the August 19, 2011 final judgment entered against them following a jury verdict. On appeal, defendants contend that the trial judge erred in barring the use of Crowe's deposition testimony at trial, and directing a verdict as to liability. We disagree, and affirm.

Crowe, a Maryland resident, was an employee of Paxson on February 16, 2008. At approximately 8:00 a.m. that day, Crowe was driving a company-owned tractor-trailer in the southbound center lane on Routes 1 & 9 in Elizabeth. When he reached the intersection of Fairmount Avenue, which was marked with a "No Left Turn" sign, he began to make an illegal left-hand turn from the center lane. Plaintiff Cristino Rios, who was driving his vehicle behind Crowe in the southbound left lane, applied his brakes but was unable to avoid colliding with the tractor-trailer's rear tires and was dragged into the intersection. Crowe received a summons for making an illegal turn, N.J.S.A. 39:4-123, but subsequently pled guilty without civil reservation to driving or operating a motor vehicle in an unsafe manner, N.J.S.A. 39:4-97.2.*fn3

Plaintiff filed a complaint, seeking damages for the injuries he allegedly sustained as a result of the accident. Crowe and Paxson, represented by the same law firm, filed an answer. Counsel confirmed at oral argument of this appeal that Crowe, as Paxson's representative, certified defendants' answers to plaintiff's interrogatories. In addition, defense counsel had produced Crowe for his deposition in New Jersey.

Trial was scheduled for August 1, 2011. Prior thereto, plaintiff's counsel timely served a notice in lieu of subpoena demanding that defense counsel produce Crowe to testify at trial. Defense counsel responded that he would not produce Crowe because Crowe resided out-of-state, and Paxson would rely on Crowe's deposition testimony at trial.

On the day of trial, plaintiff moved in limine to bar the use of Crowe's deposition testimony at trial. Defendants cross-moved in limine to quash the subpoena and permit the use of Crowe's deposition. At oral argument on August 2, 2011, defense counsel stated for the first time that Crowe was no longer employed by Paxson, counsel's office had contacted Crowe, who advised that he would not appear because he had job interviews scheduled the week of the trial, and counsel's secretary had left Crowe a telephone message indicating that Crowe's expenses would be paid to appear for trial, but Crowe did not respond.

The trial judge granted plaintiff's motion, and denied defendants' cross-motion. The judge concluded that Crowe was absent but not unavailable to testify at trial, and had created his own unavailability.

Testimony began on August 2, 2011. Following the conclusion of his testimony, plaintiff moved for a directed verdict on liability pursuant to Rule 4:40-1. The judge granted the motion, holding that plaintiff's undisputed testimony established that Crowe was solely at fault in causing the accident. The trial continued on August 3, 4 and 8, 2011, for presentation of damages evidence. Crowe did not appear for trial.

The judge instructed the jury, without objection, that liability was not an issue for the jury to decide, Crowe had caused the accident, and the jury must determine whether defendants should be held wholly or partially responsible for plaintiff's injuries. The judge also instructed the jury that it was plaintiff's burden to prove that Crowe's negligence was a proximate cause of his injuries. Thereafter, the jury returned a verdict in plaintiff's favor in the amount of $75,000. The judge entered final judgment on August 19, 2011, reflecting the jury's verdict. This appeal followed.

I.

On appeal, defendants contend that the judge erred in barring the use of Crowe's deposition testimony at trial because Crowe was unavailable within the meaning of Rule 4:16-1(c), and Paxson had no control over him and ...


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