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Rice v. Miller

Superior Court of New Jersey, Appellate Division

June 5, 2018

BRIAN J. RICE, Plaintiff-Appellant,
CHRISTINA M. MILLER and RICHARD H. MILLER, IV, Defendants-Respondents.

          Argued May 14, 2018

          On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0451-14.

          Gary F. Piserchia argued the cause for appellant (Flynn & Associates, PC, attorneys; Gary F. Piserchia and Stephen L. Slavoff, on the briefs).

          Robert M. Kaplan argued the cause for respondents (Margolis Edelstein, attorneys; Robert M. Kaplan, of counsel and on the briefs).

          Before Judges Sabatino, Rose and Firko.


          SABATINO, P.J.A.D.

         Tried 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.

         Plaintiff 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 errors.

         We 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.


         At 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 surface.

         Initially, 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.

         Instead 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.

         Plaintiff stated that he chose to cross underneath, or within a few feet from, a streetlight rather than crossing Greentree Road.

         According 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.

         Plaintiff 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" before impact.

         Plaintiff 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.

         Plaintiff 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.

         According 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.

         Plaintiff 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.

         Critically, 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 ...

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