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Dutton v. Rando

Superior Court of New Jersey, Appellate Division

February 26, 2019

MARY C. DUTTON, as Administratrix Ad Prosequendum of the ESTATE OF PATRICK E DUTTON, Plaintiff-Respondent,
v.
STEPHEN V. RANDO, Defendant-Appellant.

          Argued December 4, 2018

          On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6051-13.

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

          Michael A. Gibson argued the cause for respondent (D'Arcy Johnson Day, attorneys; Michael A. Gibson, on the brief).

          Before Judges Sabatino, Haas and Mitterhoff.

          OPINION

          MITTERHOFF, J.S.C.

          This appeal arises from a tragic highway collision in which defendant Stephen Rando's sports utility vehicle ("SUV") fatally struck plaintiff's son, Patrick Dutton, as he was riding his bicycle. Following a trial, the jury found that defendant was sixty percent responsible for the accident while Patrick[1] was responsible for the remaining forty percent. The jury awarded plaintiff Mary Dutton, representing her son's estate, $500, 000 in wrongful death damages and $108, 000 in survivorship damages. The trial court entered judgment in the sum of $364, 800 in damages and additional interest, fees, and costs.

         Defendant appeals from the judgment memorializing the verdict and from the trial court's order denying his motion for a new trial. Among other things, defendant contends that the jury's award of wrongful death damages is unsupported by the evidence, particularly without any expert testimony to substantiate the pecuniary value of the loss of Patrick's advice, guidance, and companionship. We reject defendant's contention and reaffirm the longstanding principle, as expressed in Lesniak v. County of Bergen, 117 N.J. 12, 32-33 (1989), that expert testimony is not required to establish the pecuniary value of such services in claims for wrongful death. For the reasons that follow, we affirm.

         I.

         On October 2, 2013, plaintiff filed a civil action under the New Jersey Survivor's Act, N.J.S.A. 2A:15-3, and the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, alleging that defendant's negligent operation of his motor vehicle caused Patrick's death.

         On August 15, 2016, defendant filed a pretrial motion in limine, arguing that plaintiff's wrongful death claim was barred because plaintiff was not planning to introduce any evidence substantiating the replacement cost of Patrick's advice, guidance, and companionship. The trial court denied the motion, finding it premature to decide whether plaintiff had presented a factual basis for damages.

         A jury trial took place between August 16 and August 24, 2016. We recite the relevant facts from the testimony and evidence presented at trial.

         Liability-Related Proofs

         On the evening of February 26, 2012 defendant, an off-duty Atlantic City police officer, was driving his SUV in the left lane on the eastbound side of Black Horse Pike in Egg Harbor Township, with his wife, Jennifer Rando, sitting in the passenger seat. Black Horse Pike is a four-lane highway with two eastbound and two westbound lines that are divided by a concrete, grassy median. A two-foot space separates the median from the fog line of the left lane on the eastbound side of the road. The posted speed limit is fifty miles per hour. It was dark that night, ambient lighting was minimal, and the roads were damp and filled with puddles from an earlier thunderstorm.

         Indisputably, the Rando's SUV struck Patrick that night while the decedent was on his bicycle at or near an intersection between Black Horse Pike and Tower Avenue, where there is a forty-six-foot gap between the concrete medians dividing the highway. The impact sent Patrick several feet in the air until he came to rest on the westbound portion of Black Horse Pike where he bled to death on the road. Patrick was nineteen years old at the time of the accident. At trial, the nature of the collision and how it occurred was heavily disputed.

         When Officer Kevin Devlin, of the Egg Harbor Township Police Department, responded to investigate the collision that night, he observed Patrick laying on the westbound side of the road with the remains of the bicycle and other debris scattered throughout the left lane of the eastbound road. Officer Devlin concluded that defendant's SUV hit the bicycle while Patrick was traveling in a westerly direction in the left-hand travel lane of Black Horse Pike eastbound. In Devlin's view, the evidence did not support that the SUV had swerved prior to the collision. Based on the scuff marks on the road, Devlin determined the impact projected Patrick in a northeasterly direction until his body came to rest on the westbound side of the road.

         Plaintiff's expert, Dr. Steven Batterman, testified that the physical evidence did not support Officer Devlin's conclusion that a head-on collision occurred in the left lane of the eastbound road. Instead, he believed that the vehicles were perpendicular at the point of impact and that the collision occurred in the center of the intersection in the gap between the concrete medians. Batterman noted the projectile direction of debris from the collision was northeast and that the damage to the SUV was primarily relegated to the front left wheel, headlights, and fender. The lack of damage to the windshield of the SUV, in Batterman's opinion, also weighed against the possibility that the front of the vehicle hit Patrick head-on. Based on the braking distance of the SUV and the amount of damage caused, Batterman believed defendant was traveling between sixty and sixty-five miles per hour prior to impact in an area where the speed limit was fifty. Batterman concluded that defendant was inattentive, failed to observe Patrick, and that "for reasons unknown" the SUV swerved to the left, hitting both Patrick and the bicycle.

         William Meyer, the defense's accident reconstruction expert, disagreed with Batterman about the point of impact, believing, as Officer Devlin did, that the collision occurred in the left lane of Black Horse Pike eastbound. Because the damage to the bicycle was localized to the front section, Meyer disagreed with Batterman that the vehicles were perpendicular at the point of impact and concluded that Patrick had entered defendant's lane, traveling at a southwest angle. In Meyer's opinion, defendant did not have enough time to observe and react to Patrick to avoid the collision.

         Defendant testified that he never saw Patrick before he heard and felt the impact of the collision. Jennifer Rando testified that she did see Patrick but only in the moment immediately prior to impact when she had turned to speak to her husband. She attempted to yell to alert him, but it was too late to avoid impact.

         Apart from the Randos, the only testifying witness who directly observed the collision was Gary Maisano, who stated that he was driving on the eastbound side of Black Horse Pike and drove past Patrick as the latter stood on the median, "straddling" his bicycle with his feet on the ground, stationary. Maisano testified that Patrick was perpendicular to Maisano's vehicle, facing south. Immediately after passing Patrick, from his left side view mirror, Maisano observed Patrick's silhouette cross in front of a car just before a loud impact.

         April Roadside, with her passenger, Tamara Baum, was driving in the right lane of the eastbound side of the road behind defendant's SUV prior to the crash. Roadside and Baum both testified that the SUV suddenly swerved left and, immediately afterwards, sparks and debris flew towards them, forcing Roadside to maneuver their car to avoid being hit.

         Karen Carboni saw Patrick traveling on Black Horse Pike prior to the accident. Carboni testified that she was driving in the right lane of the eastbound side of the highway when part of Patrick's bicycle came into her lane of travel, causing her to quickly veer left to avoid striking him. Carboni did not see Patrick until she was a car length and a half behind him. Patrick had been dressed in dark clothing and had no visible reflectors on his bicycle, leading Carboni to comment to her ...


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