MARIA C. MANATA, Plaintiff-Respondent,
FRANCISCO A. PEREIRA, Defendant-Appellant, and STATE FARM INSURANCE COMPANY, Defendant
Argued November 19, 2013
Approved for Publication June 20, 2014.
[Copyrighted Material Omitted]
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5822-10.
David Della-Badia argued the cause for appellant ( Sellar Richardson, P.C., attorneys; John M. Kearney, of counsel; Christopher W. Ferraro, on the briefs).
John J. Megjugorac argued the cause for respondent ( Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP, attorneys; Michael A. Gallardo and Mr. Megjugorac, of counsel and on the brief).
Before Judges REISNER, OSTRER and CARROLL.
[436 N.J.Super. 334] OSTRER, J.A.D.
This appeal arises out of an automobile-pedestrian collision. It requires us to chart limits on the use of impeachment by omission when a cross-examiner references a third-party report to discredit a witness, without seeking to introduce the report into evidence.
Defendant Francisco A. Pereira, the driver, appeals from a $350,000 judgment after a jury found him solely liable in negligence [436 N.J.Super. 335] for causing plaintiff Maria C. Manata permanent injury. Defendant also appeals from the trial court's order denying his motion for a new trial, and remittitur. In addition, he challenges the award of attorney's fees under the offer of judgment rule. R. 4:58-2. Defendant argues that the trial court committed evidentiary errors pertaining to both liability, and the nature and permanence of plaintiff's injury.
We agree that a new trial is required because of evidentiary errors pertaining to the issue of liability. In particular, plaintiff's counsel engaged in improper cross-examination when he confronted defendant with a police report that counsel did not offer in evidence, but whose substance he communicated to the jury. The report did not contain any statements from defendant conveying his version of the accident. Yet, counsel attempted to demonstrate that defendant, in discussions with police, omitted the version of the collision that he later asserted at trial. This improper attempt to impeach by omission was capable of producing an unjust result.
Defendant's car struck plaintiff as she attempted to cross Ferry Street near Christie Street in Newark around 6:45 a.m. on August 8, 2008. Ferry Street is one-way at that point, with two lanes of traffic traveling east-bound.
Only plaintiff and defendant testified about the circumstances of the accident. Plaintiff maintained she was struck while walking in the crosswalk. Defendant asserted that plaintiff had darted out from
between two buses, attempting to cross in the middle of the block.
Plaintiff testified that she exited a bus that stopped at the southwest corner. With the Ferry Street traffic facing a red light, she proceeded in the crosswalk in front of the stopped bus, attempting to cross Ferry on her way to work. She asserted she saw defendant turn left, onto Ferry. As she crossed in front of the lanes of traffic, she saw defendant again proceeding toward the [436 N.J.Super. 336] crosswalk. Fearful he was not going to stop in time, she turned around, and tried to return to the corner. Defendant's vehicle struck plaintiff on the right side of her body, knocking her down.
Plaintiff testified that she was not rushing, as she had arrived with ample time before she was due at work. She said that defendant offered to take her to a hospital. She declined, asking him to take her home. She then went to the hospital with her adult daughter. Plaintiff testified that defendant apologized, both at the scene and a few days later when he visited her at home with his mother. Plaintiff also asserted that defendant stated he could not see plaintiff cross the street because of sun glare. Plaintiff's daughter testified about defendant's visit to their home, and confirmed his apology and reference to sun glare.
Defendant agreed that he made a left turn onto Ferry Street and shifted into the right lane. He was on his way home from work after a late-night shift as a truck driver. Defendant insisted that two buses had stopped on the right side of the street. There were also two cars between him and the corner in the right lane. He testified that as he slowed for the stopped traffic, plaintiff darted out from behind the first bus, and in front of the second bus. Defendant was unable to avoid her. Defendant conceded that there was some sun glare, but he denied that caused the accident.
Plaintiff's main effort to discredit defendant's version of events was based on a police report that was not introduced into evidence. It also was not marked for identification although, as we discuss below, plaintiff's counsel made liberal use of the document. However, without objection, the report is included in the record before us.
[436 N.J.Super. 337] The police did not respond to the scene of the accident. Defendant testified that he went to the police station later that day and provided the police with his version of events. He stated that when he arrived at the police station, plaintiff was already present. Plaintiff did not address her visit to the police station or her interview with an officer. In response to the judge's inquiry, defendant testified that he believed he spoke to the officer who prepared the report. The undated police report did not include defendant's version of the accident. Defendant contended that after he received a copy, he asked the police to correct it, to no avail.
The police report was made on the standard form NJTR-1. See N.J.S.A . 39:4-131 (directing the Motor Vehicle Commission (MVC) to prepare standard forms for motor vehicle accident reports). The " Crash Description" section of the report referred only to the victim's version of events:
Event #291668 Victim states she was crossing the street on Ferry St/Christie, on her way to work when Veh (2) made a stop on a Traffic Light, but strucked [sic] the Pedestrian, causing minor, bruises on her right hip, and right thighs [sic]. The victim[']s daughter was notified, and transported the victim to St. Michaels Medical Center for further treatment. No EMS was notified, No Police Pursuits conducted at this time.
The report included a crash diagram consistent with plaintiff's version of events. It depicted defendant's car at the head of the line of cars in the right lane, with the front of the car touching the crosswalk, and a stick figure of a pedestrian within the crosswalk. According to the codes inserted in various boxes, the report indicated in the " pre-crash action" section that the pedestrian was " Crossing At 'Marked' Crosswalk" and the vehicle was " Slowing or Stopping."  " Apparent contributing circumstances" [436 N.J.Super. 338] of the crash were " Driver Inattention" and " None" for defendant, and " Other Pedestrian Factors" for plaintiff. The report did not reference such other possible circumstances as " Failed To Yield Right of Way to Vehicle/Pedestrian" and " Sun Glare," to support plaintiff's version, or " Crossing where prohibited" to support defendant's version. The report indicated " No visible injury noted, but victim complains of pain," although, as noted, under " Crash Description," the report stated that plaintiff suffered minor bruises on her right side. Also, the form left blank box 15, where the officer could have indicated the accident occurred at the intersection.
The report did not explicitly indicate that the officer spoke to defendant. No reference is made to the version of events to which defendant testified at trial. Nor does the report attribute to defendant a version of events consistent with plaintiff's.
Plaintiff's counsel attempted to impeach defendant by demonstrating that defendant's claim that plaintiff darted out from between two buses was a recent fabrication. Counsel relied on the absence of defendant's version of events in the police report. However, plaintiff's counsel made no effort to introduce the police report into evidence, and did not call the police officer who prepared the report. Questioning about the police report formed [436 N.J.Super. 339] a major part of the cross-examination of defendant. We quote it at length:
Q And when you went to the Police Station and you told them your . . . version of the accident, did you tell them that Ms. Manata darted out from between
two buses and that she want [sic] in the crosswalk?
A I -- I told them that -- that she darted out. Exactly.
Counsel also attempted to elicit that there was no language barrier between defendant and the officer, apparently because defendant had previously testified that he spoke to plaintiff in Portuguese, but he also spoke English. Defense counsel objected that the police report was hearsay.
Q And you understand [sic] him well and he understand [sic] you well; right?
A I -- I don't think he understood me well because when I got the -- the report -- excuse me. When I got the report, the report states --
[DEFENSE COUNSEL]: Objection. The Police report is hear say [sic]. The Police Officer's not coming in.
THE COURT: Well, understood but, I mean --
[PLAINTIFF'S COUNSEL]: -- I'm not going to admit it into evidence. Ask him what -- and --.
THE COURT: Yea. I -- I didn't stop you.
[PLAINTIFF'S COUNSEL]: Okay. ...