MARY C. DUTTON, as Administratrix Ad Prosequendum of the ESTATE OF PATRICK E DUTTON, Plaintiff-Respondent,
STEPHEN V. RANDO, Defendant-Appellant.
December 4, 2018
appeal from Superior Court of New Jersey, Law Division,
Atlantic County, Docket No. L-6051-13.
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).
Judges Sabatino, Haas and Mitterhoff.
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 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.
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.
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.
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.
trial took place between August 16 and August 24, 2016. We
recite the relevant facts from the testimony and evidence
presented at trial.
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
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.
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.
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
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
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
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.
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.
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 ...