VIRGINIA COCKERLINE, as Administratrix ad Prosequendum and General Administratrix of the ESTATE OF MARK COCKERLINE, Plaintiff-Appellant/ Cross-Respondent,
KEVIN CLARK and UNITED PARCEL SERVICE, INC., Defendants-Respondents/ Cross-Appellants, and ERIKA MENENDEZ, Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4172-04.
Elizabeth H. Hamlin argued the cause for appellant/cross-respondent (Garrity, Graham, Murphy, Garofalo & Flinn, attorneys; Ms. Hamlin, of counsel and on the briefs).
Michael J. O'Neill argued the cause for respondent/cross-appellant (Ansa Assuncao LLP, attorneys; Mr. O'Neill, James H. Gordon (Ansa Assuncao LLP) of the Pennsylvania bar, admitted pro hac vice, and Roman T. Galas, of counsel and on the briefs).
Before Judges Grall, Simonelli and Koblitz.
This wrongful death matter returns to this court after the reversal of a jury verdict in favor of plaintiff Virginia Cockerline and remand for further proceedings. Cockerline v. Menendez, 411 N.J.Super. 596 (App. Div.), certif. denied, 201 N.J. 499 (2010). In this appeal, plaintiff challenges the March 10, 2011 Law Division order, which dismissed the complaint with prejudice prior to the new trial, as well as several adverse pre-trial motion rulings. Defendants Kevin Clark (Clark) and United Parcel Service, Inc. (UPS) cross-appeal from the October 15, 2010 order, which denied their motion for summary judgment. We affirm in part, reverse in part and remand for further proceedings.
The facts are set forth more fully in this court's prior opinion and need not be repeated herein at length. We summarize the facts in that opinion that are pertinent to this appeal and add additional facts from our review of the record.
At approximately 8:00 p.m. on January 2, 2003, plaintiff's estranged husband, Mark Cockerline (Cockerline), and his girlfriend, Brigitte Nguyen (Nguyen), were traveling north on the eastern spur of the Turnpike near mile marker 110. Id. at 609. Freezing rain had made the road slick. Ibid. At some point, Cockerline's blue Audi was on the shoulder of the roadway. There was no direct testimony presented at the trial explaining what led the car to be there. Ibid. Prior to the trial, Nguyen had not been deposed and she did not testify at the trial.
Clark was driving his UPS tractor-trailer approximately fifty to fifty-five miles per hour in the northbound right lane and slowed down to between thirty and forty miles per hour because of the freezing rain. Ibid. As he drove toward a hill at milepost 110, he saw the lights of stopped vehicles some distance ahead and applied his brakes to slow down. Ibid. Another tractor-trailer to Clark's left slowed down as well, but slid to the right and sideswiped Clark's truck. Id. at 605-06. As Clark counter-steered to maintain control of his truck, the two tractor-trailers again came into contact. Id. at 606. Unable to stop, Clark's truck hit the rear of a vehicle driven by Erika Menendez (Menendez). Ibid.
Menendez was also driving north on the Turnpike. Ibid. Because of freezing rain, she was only traveling thirty miles per hour. Ibid. As she crested the hill near mile marker 110, she saw a car in her lane that was perpendicular to the roadway and a blue Audi on the shoulder next to a barrier. Ibid. Menendez thought the two vehicles had been involved in an accident and brought her car to a stop to avoid hitting the car blocking her lane. Ibid. She was then struck in the rear by Clark's UPS truck and pushed forward into the car that was blocking her lane. Ibid. Both the driver of the car she struck and the driver of the tractor-trailer that sideswiped Clark's UPS truck left the scene and were never identified. Id. at 607.
As Clark was checking on the people in Menendez's car, Nguyen came up to him and Joseph Fazio, a passing motorist who stopped to render assistance. Ibid. Nguyen was crying, appeared distraught and asked them to help her find her boyfriend. Ibid. Nguyen told Fazio that her boyfriend had jumped over the barrier. Ibid. Fazio looked over the barrier and saw what appeared to be a man's body. Ibid.
When New Jersey State Trooper Michael Rohrman arrived at the scene, a distraught Nguyen told him that she and Cockerline had been driving home in his blue Audi when they were involved in an accident and ended up on the shoulder. Ibid. She also said that Cockerline exited the car, stood near the left headlight, yelled at her to get out of the car, moved toward the barrier and then jumped over it. Ibid.
Trooper Rohrman examined the Audi and saw damage on the right and left sides. Ibid. He also examined the UPS truck, which had come to rest at an angle across two lanes of travel and the shoulder, and saw damage to the left side of the cab. Id. at 607-08. The trooper also indicated that the UPS truck stopped within one foot of the Audi, but there were no signs that the truck struck the Audi. Id. at 608. Trooper Rohrman looked over the barrier and saw Cockerline lying face up approximately eighty to one-hundred feet below the Turnpike, directly below where the UPS truck had come to rest. Ibid.
Trooper Rohrman examined Menendez's car and saw significant rear-end damage as well as damage to its right side. Ibid. Based on his observations, the trooper concluded that Menendez slid on ice and struck the Audi before the UPS truck struck Menendez. Ibid. The trooper did not believe there was any contact between the UPS truck and the Audi or any connection between the UPS truck and Cockerline's death. Ibid.
Due to the lack of physical evidence, plaintiff's expert engineer, Steven Schorr, was unable to reconstruct the circumstances of Cockerline's death. Ibid. He limited his testimony to Clark's sight distance as he approached the hill and the amount of time required for him to halt his truck after seeing Menendez's car ahead of him. Ibid. Schorr did not opine on whether Clark had been negligent in his operation of the UPS truck or whether the extent of the damage to Menendez's car, or the fact that its occupants evidently were not severely injured, was an indication of Clark's speed. Id. at 609.
Cockerline sustained multiple rib fractures, a crushed chest, punctured lungs, two fractured femurs, a completely ruptured aorta and a hematoma to one portion of his brain. Ibid. He died as the result of internal bleeding from the ruptured aorta. Ibid. Plaintiff's expert forensic pathologist, Haresh G. Mirchandani, M.D., opined that Cockerline's fall did not cause the femur fractures, and concluded that Cockerline's legs were fractured when he was struck from behind by a vehicle as he was walking. Ibid.
This court remanded the matter on February 4, 2010. On October 20, 2010, almost eight years after the accident, Nguyen testified at a de bene esse video deposition. She recalled that it was cold, icy and raining on the night of the accident and the road became slippery as she and Cockerline approached the hill at mile marker 110. They had to stop in their lane because cars ahead had hit each other and were blocking the lane. After they stopped, Cockerline saw a truck rapidly approaching from behind and screamed to her to get out of the car. She looked in the rearview mirror, saw the UPS truck approaching "too fast" and thought she was "going to die because the truck [was] going to crush [her]." As Cockerline exited the Audi, the UPS truck "violent[ly] hit" the car in the rear, pushing it onto the shoulder and against the barrier, blocking her exit from the passenger's side. In order to exit the car, she climbed over the driver's seat and crawled out and underneath the truck, which had come to rest to the left of the Audi.
Nguyen testified that she did not see where Cockerline went after he exited the Audi, nor did she see him go over the barrier. As she looked for him after exiting the car herself, someone told her that they saw "something white flying over the bridge." She looked over the ...