Opinion
DOCKET NO. A-1992-13T1
04-21-2015
GERADE C. DOORNBOS, Plaintiff-Respondent, v. PATRICIA A. WEHRLE, Defendant-Appellant.
Joseph G. Murray argued the cause for appellant (Zimmerer, Murray, Conyngham & Kunzier, attorneys; Mr. Murray, of counsel and on the briefs). Michael P. Cahill argued the cause for respondent (Rosenberg, Kirby, Cahill, Stankowitz & Richardson, attorneys; Mr. Cahill, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-245-11. Joseph G. Murray argued the cause for appellant (Zimmerer, Murray, Conyngham & Kunzier, attorneys; Mr. Murray, of counsel and on the briefs). Michael P. Cahill argued the cause for respondent (Rosenberg, Kirby, Cahill, Stankowitz & Richardson, attorneys; Mr. Cahill, of counsel and on the brief). PER CURIAM
Defendant Patricia A. Wehrle appeals the jury's award to plaintiff Gerade C. Doornbos of $2,679,410.85 in damages for personal injuries. At the time of the accident, plaintiff was riding a motorcycle westbound in the left lane of a four-lane highway, and defendant was attempting to exit a shopping center with a stop sign by crossing two westbound lanes of traffic to make a left-hand turn into the eastbound lane. We reverse and remand for a new trial as to liability only. We affirm the damage award.
I
Over the course of this four-day trial, the manner in which the accident occurred was vigorously disputed. Plaintiff claimed defendant failed to exercise reasonable care in crossing the roadway, striking him with the front of her vehicle as she attempted to turn left into the eastbound lane, while he was traveling in a straight direction in the inner westbound lane. Plaintiff also intended to make a left-hand turn, but approximately 900 yards further down the road, past the point of impact, and was in the left-hand lane for that reason.
Defendant claimed that plaintiff was negligent in that he was speeding, not exercising reasonable care, and had traveled into the center turn lane dividing the highway. In contrast with plaintiff's account that the accident occurred in the westbound lane, defendant asserted that the point of impact was in the center turn lane.
At trial, plaintiff produced three eyewitnesses, in addition to the investigating police officer. Plaintiff was extensively cross-examined. Defendant also testified and proffered a photograph she had taken with her cell phone of her automobile at its resting point in the center lane immediately after the impact.
When struck, plaintiff became airborne. He broke his back, hand, foot, and ankle, and required multiple difficult surgeries including a bone graft from one leg when bone tissue in the other leg became necrotic. He spent the year after the accident in a wheelchair, progressed to a walker and a cane, and is now able to walk unassisted although with a noticeable limp. During snowy or icy conditions, he resorts to a cane for his own safety. Plaintiff continues to suffer from chronic pain, varying in intensity.
Plaintiff was approximately sixty-one years old when the accident occurred on April 29, 2010. He had then been employed for fourteen years as a machinist at a highly specialized facility that produced medical devices. Plaintiff testified that he loved his job and had planned to work to age seventy. He currently subsists on Social Security disability benefits.
Plaintiff's expert testified that plaintiff's combined future and past lost earnings totaled $402,721 in present value. He further opined the value of past and future household services was between $63,690 and $95,534.
When examined at trial regarding the enlarged photograph of the accident, Brick Township Police Officer Robert Scelfo testified, over defense counsel's objection, that a dark straight line extending diagonally from the back of defendant's vehicle to the left westbound lane was antifreeze. He had not previously noted that information in his accident report nor mentioned it during his deposition.
Defense counsel was aware that Scelfo would be testifying regarding the antifreeze trail, as he mentioned it in his opening argument. He attacked the reliability of Scelfo's recollection, arguing that had the dark mark been antifreeze, the tow truck operators would have placed sand or some other substance intended to absorb fluids from the accident in the westbound lane, as they did in the eastbound lane. Scelfo was extensively cross-examined on the point.
The trial judge charged Model Jury Charge (Civil), 5:30C, "Left-Hand Turn" (1991), and Model Jury Charge (Civil), 5.30D, "Violation of Traffic Act" (1999), and included within the latter the statutory language found in N.J.S.A. 39:4-144 regarding stop signs. The judge did not give, nor was he requested to give, Model Jury Charge (Civil), 5.30G(4), "Duty of Automobile Driver to Make Observations—Where Vision Impaired" (1983). He did not include either the speeding statute, N.J.S.A. 39:4-98, or the "keep right" statute, N.J.S.A. 39:4-82, in his "Violation of the Traffic Act" instruction. Defendant objected to the "Left-Hand Turn" and "Violation of the Traffic Act" instructions, but did not object to the omission of the Model Jury Charge (Civil), 5.30D. That charge informs jurors that motor vehicle violations are not per se evidence of negligence, but only one of several factors to be weighed during deliberations on the question of negligence. We will set forth the relevant language in full as necessary to our discussion below.
The jury deliberations commenced the final day of trial at 1:40 p.m., and ended with the jury's unanimous eight-person verdict returned at 3:51 p.m. The jury awarded plaintiff $425,000 for past and future lost earnings, $114,000 for past and future household services, $1,836,000 for pain and suffering, and $304,410.85 for medical expenses. The judge adjusted these figures, which plaintiff does not challenge, to reach a combined verdict of $2,603,277.62.
Following the amended verdict, defendant filed a motion for a new trial, or in the alternative, a remittitur. After conducting oral argument, the trial judge denied defendant's motion. This appeal followed.
II
On appeal, defendant raises the following points for our consideration:
POINT I - THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IMPROPERLY CHARGING THE JURY ON THE LAW AND FOR FAILING TO INCLUDE CHARGES PERTINENT TO THE FACTS OF THE CASE.
(A) Standard of Review
(B) The "Standard of Care" Charge.
(C) Errors in the Charge (I).
(D) Errors in the Charge (II).
(a) Obstruction Charge.
(b) Violation of Speeding Statute.
(c) Violation of "Keep Right" Statute.
POINT II - THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IMPROPERLY ALLOWING OFFICER SCELFO'S LAY OPINION REGARDING A "FLUID TRAIL."
POINT III - THE DAMAGE AWARDS MADE BY THE JURY WERE THE RESULT OF UNDUE PARTIALITY, WHICH, IN COMBINATION WITH THE NOTED TRIAL ERRORS, REQUIRE A NEW TRIAL ON ALL ISSUES.
Loss of Earnings.
Loss of Household Services.
A.
"Where there is a failure to object, it may be presumed that the instructions were adequate" and "that trial counsel perceived no prejudice would result." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.) (citations omitted), certif. denied, 177 N.J. 572 (2003). Nonetheless, we must determine whether, when a charge is considered as a whole, it "adequately conveys the law and is unlikely to confuse or mislead the jury." Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 464 (2000) (citing Fischer v. Canario, 143 N.J. 235, 254 (1996)). Even if there was an error in the charge, so long as the charge as a whole adequately conveyed a clear and understandable exposition of the issues, error will not be found. Fischer, supra, 143 N.J. at 254.
Thus, we examine the charge in its entirety, assessing whether other portions of the charge adequately explained the principles found in the missing instruction. Neno v. Clinton, 167 N.J. 573, 589 (2001).
Having looked at this charge as a whole, we conclude that the motor vehicle statutes read by the trial judge misled the jury into believing that the precise manner in which defendant made her left-hand turn and proceeded through the stop sign determined her negligence. Instead, the jurors should have been instructed that the motor vehicle laws were only one element to factor into their determination of whether defendant was negligent.
We begin with defendant's first claim of error, the issue which compels reversal. At the charge conference after the judge distributed written copies of the instructions to counsel, defendant objected "to the left turn charge as to [defendant's] potential negligence and also to the stop sign charge." Nothing in the record indicated that defendant "ignored a stop sign," rather, plaintiff's theory was that defendant made an unsafe left-hand turn. Defense counsel also argued "that the left-hand turn charge should only apply when [there are] opposing vehicles in traffic." Nonetheless, the judge instructed the jury as follows:
Plaintiff contends that defendant made a left-hand turn before it was clear. Defendant contends that she had already completed the left-hand turn prior to the collision. The law imposes upon the driver of a motor vehicle the duty to exercise the care that a reasonably prudent person would use under all the circumstances confronting that person at the particular time in question. Failure to exercise such care constitutes negligence. Obviously the risk of harm will vary with the circumstances. In some settings the risk is greater than in others and when this is so a reasonably prudent person would exercise a greater amount of care in proportion to the increased risk.
With respect to a left-hand turn involving as it does a movement across the path of other traffic the risk of harm is ordinarily increased beyond that which exists when a motor vehicle is proceeding along a direct course. Hence, with respect to a left-hand turn a reasonably prudent person would seek an opportune moment for the turn and would exercise an increased amount of care in proportion to the increased danger. Accordingly, the law provides that a person seeking to do so has
the duty to seek an opportune moment and to exercise a degree of care in proportion to the increased danger involved in the turn. Therefore, it is for you to determine whether a reasonably prudent person charged with the duty would under the circumstances of this case have made the turn when and in the manner in which the defendant here did.
With regard to the stop sign statute, the judge said:
Motor vehicle laws set forth a standard of conduct to be exercised by the driver of a motor vehicle when approaching and proceeding through an intersection controlled by a stop sign. New Jersey Statute 39:4-144 provides in pertinent part:
"No driver of a vehicle shall enter upon or cross an intersecting street marked with a stop sign unless he has first brought his vehicle to a complete stop at a point within five feet of the nearest crosswalk or stop line marked upon the pavement at the near side of the intersecting street and shall proceed only after yielding the right-of-way to all traffic on the intersecting street which is so close as to constitute an immediate danger."
The above provision requires that the motorist stop and make observations while stopped before proceeding. It also requires the motorist to continue to make observations as the motorist enters and crosses the intersecting street as the circumstances at the particular intersection reasonably require. The presence of permanent or temporary obstructions to the view of the motorist such as buildings, billboards, parked cars, crowded sidewalks, et[ ]cetera does not obviate the duty of the motorist to make continual reasonable
observations as the driver proceeds through the intersection and is a factor for you to consider in determining whether the driver's conduct was negligent under these circumstances.The judge, however, did not read to the jury Model Jury Charge (Civil), 5:30D:
If you find that the defendant has violated [the standard of conduct for the users of our streets and highways], such violation is evidence to be considered by you in determining whether negligence, as I have defined that term to you, has been established. You may find that such violation constituted negligence on the part of the defendant, or you may find that it did not constitute such negligence. Your finding on this issue may be based on such violation alone, but in the event that there is other or additional evidence bearing upon that issue, you will consider such violation together with all such additional evidence in arriving at your ultimate decision as to defendant's negligence.
[Model Jury Charge (Civil), 5.30D, "Violation of Traffic Act" (1999).]
The omission of Model Jury Charge (Civil), 5:30D was not discussed. Otherwise, the judge generally followed the model charges. While instructing jurors as to the concept of negligence, he further charged that drivers "have the right to enjoy the streets and highways, but they must make proper and lawful use of this right." (emphasis added).
Defendant contends that the judge should also have read 5.30D to the jurors to ensure that they understood that even if they found a motor vehicle violation had occurred, it was merely "evidence of negligence and not determinative of the issue as a matter of law." Plaintiff responds that defendant waived her right to object to the omission by her silence. In examining defendant's argument, we employ the plain error standard of review.
Plain error occurs only if the omission was "clearly capable of producing an unjust result." See R. 2:10-2. In support of the notion that such conclusions should be reached "sparingly" in civil cases, plaintiff cites to Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 129 (1999). In this case, however, the likelihood is too great that an injustice occurred. Upon hearing the exact language of the traffic laws applicable to defendant's progression through a stop sign and completion of a left-hand turn, the jury could only conclude that the statutes were intended to provide them with a standard against which to measure defendant's conduct. Instead, they should have been informed that even if defendant failed to comply with the applicable motor vehicle laws, such failure was merely an element to factor into their decision as to whether she negligently operated her car.
Plaintiff argues that not only was defendant not prejudiced by the omission of 5:30D, she was actually advantaged by the judge's omission of another section, Model Jury Charge (Civil), 5.30D(2), "Violation of Traffic Act—Violation of Motor Vehicle Act is Negligence" (1971). The charge informs the jury that violations of motor vehicle laws are, in certain situations, negligence as a matter of law.
The stop sign statute states a driver "shall proceed only after yielding the right of way to all vehicular traffic on the intersecting street which is so close as to constitute an immediate hazard." N.J.S.A. 39:4-144. Hence plaintiff contends that defendant's conduct was negligence per se because she proceeded through the stop sign and into the roadway even though she could not make a safe left-hand turn.
Charge 5:30D(2), however, is designed for situations where a motorist violates common-law notions of negligence embodied in the motor vehicle laws. So, for example, "follow[ing] another vehicle more closely than is reasonable and prudent," now codified into N.J.S.A. 39:4-89, is also a violation of a common-law standard of care.
That is not the case with the stop sign statute. Although it includes language regarding the baseline common-law notion that a motorist must proceed in a safe manner, it adds that a driver must first bring his vehicle to a complete stop at a point within five feet of the nearest crosswalk or stop line. Since it does not solely incorporate common-law notions regarding the safe operation of a motor vehicle, it does not trigger the requirement that 5:30D(2) be given, making a violation of the motor vehicle law negligence per se.
Furthermore, the trial judge, in discussing each party's claim of the other's negligence, said that every motorist has "the right to enjoy the streets and highways, but [] must make proper and lawful use of this right." (emphasis added). The judge read the stop sign and left-hand turn statutes immediately following his reference to the "lawful use" of the roadways. This too could have caused the jury to believe that if defendant violated the motor vehicle laws, she did not make "lawful use" of the roadway and was therefore negligent.
The judge later touched upon the obligation of motorists to "driv[e] upon the highway so as not to negligently injure other persons lawfully upon the streets." (emphasis added). This language emphasized the wrong point. Three eyewitnesses testified that plaintiff was operating his motorcycle unremarkably. Additionally, no motor vehicle laws were read to the jury regarding plaintiff's use of the roadway, the only ones read related to defendant's operation of her vehicle. We do not mean to suggest any motor vehicle laws should be or could be read to the jury based on plaintiff's operation. The contrast in instructions, however, highlighted the potential that the jury would conclude defendant was negligent by virtue of the motor vehicle laws alone.
We therefore are constrained to reverse. Having examined the jury instructions as a whole, we are convinced that the omission of a clear explanation of the manner in which the jury was to employ the definitions of motor vehicle violations led it to a result it might not otherwise have reached. State v. Macon, 57 N.J. 325, 336 (1971).
B.
We now briefly address defendant's remaining points. Defendant contends that the court's failure to charge the jury as to obstruction, Model Jury Charge (Civil), 5.30G(4), "Duty of Automobile Driver to Make Observations—Where Vision Impaired" (1983); the speeding statute, N.J.S.A. 39:4-98; and the keep right statute, N.J.S.A. 39:4-82, were also errors. On this record, we think these claims warrant very limited discussion.
Model Jury Charge (Civil), 5.30G(4) is applicable where the view of the roadway is impaired by obstructions such as "darkness, fog, rain on glass," or such other impediment requiring a driver to operate his motor vehicle with the necessary care proportionate to the nature of the hazard. In this case, plaintiff agreed that his view may have been partially obstructed by the red pickup truck in front of him; however, that is not the kind of extraordinary obstruction that requires the instruction. The pickup truck was merely another motorist in the flow of normal traffic conditions.
Defendant also asserts that plaintiff's failure to reduce his speed below the posted limit, given traffic conditions in the area, constituted speeding. There is no merit to that argument.
Nor do we agree that the judge should have read the jury the "keep right" statute, as plaintiff testified that he intended to make a left-hand turn from the left lane in which he was traveling, approximately 900 yards beyond the point where the collision occurred. Given busy traffic conditions, his decision to remain in the left-hand lane as he approached his turn was also unremarkable.
C.
Defendant argues that the court should have barred Scelfo's testimony regarding the fluid trail. Based on this record, we do not think that the point warrants much discussion. Scelfo's testimony regarding the photograph was merely that although he did not initially remember it, he later recalled a fluid trail.
We agree with defendant that "a lay witness must have actual knowledge, acquired through his or her senses, of the matter to which he or she testifies." State v. LaBrutto, 114 N.J. 187, 198 (1989). But there is no reason why the investigating police officer should not be permitted, based on his observations, to testify regarding the scene. In LaBrutto, the officer described the point of impact of two motor vehicles based on his observations. The same was true here, the testimony was based on the officer's perceptions, albeit not included in his notes or his initial deposition. Defendant thoroughly cross-examined Scelfo, undoubtedly he will do so again on retrial. The testimony regarding the fluid trail's location was relevant, based on Scelfo's observations, and was therefore admissible.
D.
Finally, defendant challenges the jury's award of damages as the product "of undue partiality." The argument is premised on the fact that some aspects of the award were slightly higher than the figures testified to by plaintiff's expert. For example, the award for past and future earnings exceeded the expert's figure by $22,279. Plaintiff responds that these very same arguments failed before the trial judge on defendant's motion for a new trial because he did not find the award "wrong or shocking to the conscience" of the court. City of Long Branch v. Jui Yung Liu, 203 N.J. 464, 452 (2010). He also notes that the jury may have rejected some aspects of the expert's discount of his raw figures, and that in any event, juries have the right to accept all, none, or a portion of an expert's opinion.
In negligence cases, a new trial can be required on one issue which is separable from the others, while otherwise preserving the verdict. Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 491 (2014). When the jury's award of damages is not "tainted" by the error in its determination of negligence, retrial need not include the issue of damages. Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009). That is true in this case—the error in the trial judge's instructions regarding liability is entirely separable from the damage award.
We therefore consider defendant's claim that the award was excessive separately from the issue of liability. Defendant's argument that the award reflected "undue partiality" lacks sufficient merit to warrant much discussion in a written decision. R. 2:11-3(e)(1)(E). Nothing in the record supports the notion that the jury was improperly influenced. The record is replete, however, with the details of plaintiff's devastating injuries and the impact of the injuries on his life.
The power to grant remittitur, embodied in our rules and case law, should only be exercised where there is a miscarriage of justice. Ming Yu He v. Miller, 207 N.J. 230, 248 (2011). And we defer to the trial judge who has the most accurate feel for the case in deciding whether the jury was motivated by improper influences. Id. at 250.
The judge, when rendering his decision, relied on the medical descriptions of the injuries and their effect on plaintiff. He also observed that plaintiff's testimony "was impressive[,]" that the jury "believed him and I think they believed the other witnesses. And they had a right to do that. I don't have a right to second guess them. I don't think, therefore, the verdict was excessive." The verdict was supported by the evidence, was not a product of undue partiality, and no reduction would have been appropriate.
Reversed and remanded for a new trial as to liability, affirmed as to damages. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Model Jury Charge (Civil), 5:30D(2) "Violation of a Traffic Act—Violation of Motor Vehicle Act is Negligence" (1971).