BRIAN J. RICE, Plaintiff-Appellant,
CHRISTINA M. MILLER and RICHARD H. MILLER, IV, Defendants-Respondents.
May 14, 2018
appeal from Superior Court of New Jersey, Law Division,
Camden County, Docket No. L-0451-14.
F. Piserchia argued the cause for appellant (Flynn &
Associates, PC, attorneys; Gary F. Piserchia and Stephen L.
Slavoff, on the briefs).
M. Kaplan argued the cause for respondents (Margolis
Edelstein, attorneys; Robert M. Kaplan, of counsel and on the
Judges Sabatino, Rose and Firko.
to a jury, this negligence case arose out of a motor vehicle
accident in which the defendant driver struck plaintiff, a
pedestrian, as he was attempting to walk one February evening
across an eight-lane state highway. Plaintiff alleged that he
acted reasonably while crossing the highway, and that
defendant was negligent because she was not using her
headlights and had failed to observe him in the road until it
was too late for her to stop. Defendant asserted that
plaintiff unreasonably failed to use a crosswalk and insisted
her headlights were on and she was attentive to the road. The
jury found plaintiff was seventy-five percent at fault in
causing the accident and defendant was twenty-five percent at
fault. Given that finding, the trial court entered a judgment
in defendant's favor pursuant to the Comparative
Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8.
appeals, contending that the trial court erred with respect
to several evidentiary rulings concerning opinion testimony
from a police officer, hearsay, and other subjects. Plaintiff
further argues the court issued inappropriate instructions to
the jury concerning the traffic laws governing pedestrian
crossings and should have taken judicial notice concerning
the asserted legality of his attempted crossing. Plaintiff
argues he is entitled to a new trial because of these claimed
affirm the judgment in defendant's favor. The trial
court's jury instructions were proper, as were several of
its challenged evidentiary rulings. We agree with plaintiff
that the court misapplied its discretion in allowing a police
officer, who was not designated as an expert witness, to
provide opinion testimony calculating the range of
defendant's speed and also in allowing a police officer
to relay to the jury hearsay statements of other declarants.
However, upon reviewing the record as a whole and
counsel's summations, we conclude these discrete errors
were harmless and are insufficient to require a new trial.
around 8:00 p.m. on February 8, 2012, plaintiff Brian J. Rice
was at a pub located on the westbound side of State Highway
70 in Cherry Hill, when he decided to purchase a
"Powerball" lottery ticket from a gas station on
the eastbound side of the highway. Plaintiff left his
freshly-ordered drink at the bar and, without putting on his
coat, began to walk toward the gas station. It was dark and
lightly snowing, although no snow had accumulated on the road
plaintiff walked from the pub toward Greentree Road, which
crosses Route 70 at an intersection controlled by a traffic
light. Although plaintiff claims he was unaware of it at the
time, there is a pedestrian crosswalk for Route 70 at
Greentree Road. In order to reach that crosswalk, plaintiff
would have needed to cross Greentree itself in two places
without a crosswalk: first, going across a turning lane for
vehicles merging from Greentree onto Route 70 west, and,
second, across one or more lanes for vehicles going onto or
from Greentree across Route 70.
of heading across Greentree, because it appeared to be too
dangerous, plaintiff decided to cross Route 70 at a point
further to the west. At that location, the posted speed limit
on Route 70 is forty-five miles per hour, and the road
surface is straight and level. Route 70 is eight lanes wide
at that point (including a fourth westbound lane emanating
from Greentree for merging vehicles). The lanes are divided
by a grassy center median about thirty feet wide, which
separates westbound traffic from eastbound traffic. As
plaintiff described it in his trial testimony:
As I walked up [to Greentree], there was an Escalade
[vehicle] come up Greentree Road onto Route 70. And at that
point, I thought it was too dangerous. So, I wanted to put
some space between myself and the intersection, to an area
where I can see that intersection, Route 70, and on the other
side of Greentree Road. So, that's why I positioned
myself where I did.
stated that he chose to cross underneath, or within a few
feet from, a streetlight rather than crossing Greentree Road.
to plaintiff, once he got to the point where he began to
cross Route 70, he waited for a period of time, and did not
immediately cross the highway. When asked why he had waited,
plaintiff responded, "[T]here were two cars that had
passed me on Route 70 while I was standing on the side of the
road on the - I guess it's still part of [the pub's]
parking lot." Plaintiff testified the two cars that
passed him were heading westbound.
recalled that he could see "particularly far down Route
70, " about "three football fields" to his
left, and beyond the Route 70 and Greentree intersection.
However, plaintiff testified he did not see the car defendant
was driving until "maybe a couple of seconds"
contended he had been "scanning the area" before
crossing Route 70. He stated that he looked down Route 70 for
car lights. In this regard, he testified:
But I just started across the street. And as I crossed the
street, I kept looking down Route 70, because I know
nobody's coming from this way. And I kept scanning the
roadway between that intersection and Greentree Road on the
other side of the street next to the BP Gas Station, and
Route 70 coming from east going west.
claimed that he did not see any cars coming at that point
when he crossed the highway. He further testified that, at
the time of the accident, the parking lot for the pub was
illuminated, as was the gas station across the highway.
to plaintiff, just before getting hit by defendant's car,
he "turned and looked, and all [he] s[aw] was a little
girl in the back seat, and her face . . . ." Plaintiff
recalled he was able to "see in the [defendant's]
vehicle, " stating that was the reason he knew that the
car's headlights were not on when it hit him.
contends that after he landed in the road, he "used
[his] arms to pull [him]self out onto the grass, so - because
[he] knew [his] leg was broke. And [he] made it to the
grass." According to plaintiff, he sat up on the grass
and saw defendant get out of her car crying, with her hands
over her mouth. He further recalled that defendant's
passenger "was out of the passenger side [of the car],
[he] believe[s] on the phone, looking around." It was
estimated that plaintiff's body was thrown eighty-five
feet from the point of impact.
plaintiff gave the following testimony at trial concerning
whether defendant's headlights were on:
I don't - I don't remember seeing [the headlights]
come on . . . I think right when all - right when the cops
started to come - or not the cops started to come - more cars
started to show up, that's ...