Opinion
DOCKET NO. A-2294-11T1
02-21-2013
MARK HENKLE, individually and Administrator ad Prosequendum of the Estate of ELLEN HENKLE, Plaintiff-Appellant, v. THOMAS K. HILL and NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Defendants-Respondents.
Dennis S. Brotman argued the cause for appellant (Fox Rothschild L.L.P., attorneys; Mr. Brotman, of counsel and on the brief). Michael J. Heron argued the cause for respondent Thomas K. Hill (Lenox, Socey, Formidoni, Giordano, Cooley, Lang and Casey, L.L.C., attorneys; Mr. Heron, on the brief). Kevin M. Shanahan, attorney for respondent New Jersey Manufacturers Insurance Company, joins in the brief of respondent Thomas K. Hill.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Haas.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2297-07.
Dennis S. Brotman argued the cause for appellant (Fox Rothschild L.L.P., attorneys; Mr. Brotman, of counsel and on the brief).
Michael J. Heron argued the cause for respondent Thomas K. Hill (Lenox, Socey, Formidoni, Giordano, Cooley, Lang and Casey, L.L.C., attorneys; Mr. Heron, on the brief).
Kevin M. Shanahan, attorney for respondent New Jersey Manufacturers Insurance Company, joins in the brief of respondent Thomas K. Hill. PER CURIAM
In this personal injury action, plaintiff Mark Henkle appeals from an October 6, 2011 judgment of no cause of action based on a jury verdict in favor of defendant Thomas Hill. Because the trial judge did not adequately instruct the jury on how it should consider evidence concerning decedent Ellen Henkle's consumption of alcohol both on the day of the accident and in the past, we reverse and remand for a new trial.
Decedent was plaintiff's wife.
I.
We begin with a summary of the relevant facts based on the evidence presented at trial. On March 9, 2006, decedent was at home, having left work earlier that day because she did not feel well. When plaintiff arrived home from his job around 5:00 p.m., he found decedent sleeping in their bedroom. He went into the living room to watch television.
Around 7:00 p.m., plaintiff testified that decedent awoke and asked him if he was "ready for dinner." Plaintiff said he "wasn't hungry at that point[.]" Decedent replied, "well, then I'm going across the street to get a beer." Plaintiff testified he did not "see any sign that [decedent] had been drinking or was under the influence of alcohol[.]"
Gray's Liquor Store was directly across the street from the couple's home. However, the marked crosswalk was farther down the street at the corner. The street is two lanes in each direction. A number of businesses line the street and it is lit by streetlights.
As plaintiff sat watching television, he testified he "heard a bang" and "jumped right up and ran to the front to see what was going on[.]" Concerned about his wife, plaintiff went outside and found that she had been struck by a car. Police and emergency personnel soon arrived and decedent was transported to the hospital.
Defendant drove the car that struck decedent. Before the accident, defendant testified he was driving in the left lane of the street at about forty miles per hour, which was the speed limit. Because he had to make a right turn, he began to move over to the right-hand lane. He testified he checked the traffic in his rearview mirror, which had a stuffed animal hanging from it. When defendant looked back to the front of the car to complete his lane change, he saw decedent directly in front of the car. He attempted to brake, but the car did not stop in time and he struck decedent.
Officer Richard Burnett of the Hamilton Township Police Department investigated the accident. He spoke to decedent at the emergency room "for a brief period." Hospital personnel told the officer that decedent had suffered multiple fractures throughout her body and a laceration to her head. However, her injuries were not deemed "life-threatening."
Decedent told the officer she did not remember whether she was crossing the street to get to the liquor store or on the way back when she was struck. She stated she was going to the liquor store to "to purchase a bottle of Richard's Wild Irish Rose white" wine. Because decedent "was in a lot of pain[,]" the officer decided not to "persist with any of the questioning." However, he testified he "did notice or detect an odor of an alcoholic beverage emitting from her breath[]" as he spoke to decedent. The officer reported that decedent also told him she "consumed a pint of Richard's Wild Irish Rose (white) approximately two (2) hours before the crash[.]"
A blood alcohol level test was not requested by Officer Burnett, otherwise conducted by the hospital, or introduced at trial.
After undergoing a course of treatment at the hospital, decedent was eventually transferred to a rehabilitation facility and was later admitted to a hospital for an operation. She then went into a different rehabilitation center, before finally being released to go home.
On September 10, 2007, plaintiff and decedent filed a complaint against defendant alleging negligence and claiming damages. Decedent died during the pendency of the litigation.
Prior to her death, decedent gave a deposition, parts of which were read to the jury at trial. At the deposition, decedent stated she went home ill on March 9, 2006 and stayed in bed until after her husband came home. She went to the liquor store to buy a single can of beer. All she had eaten that day was "a bowl of cereal and a cup of tea" for breakfast. She testified she went to the liquor store "[a] couple times a week." Decedent stated she drank Colt 45 beer and Richards Wild Irish Rose wine "in the 2006 time frame."
The matter was tried before a jury. The jury found defendant was negligent, but that he was not the proximate cause of the accident. The trial judge denied plaintiff's motion to set aside the verdict and for a new trial. This appeal followed.
II.
On appeal, plaintiff primarily contends he was denied a fair trial because the jury was permitted to hear about decedent's alcohol consumption both on the day of the accident and in the past and because the trial judge did not provide the jury with any instructions as to how it was to consider this evidence. Without now deciding whether evidence concerning decedent's alcohol consumption should have been admitted in evidence under the circumstances of this case, we agree that a reversal is required because the judge failed to adequately instruct the jury on the use of this evidence.
Two evidentiary rulings and how those rulings were handled at trial are the focus of our concern. The first occurred well before the trial began. The issue of decedent's alcohol consumption was originally not going to be part of this case. On July 31, 2009, a prior judge granted plaintiff's motion to "exclude evidence of [decedent's] statements made at the hospital regarding alcohol consumption and intent to purchase alcohol, as well as the testimony of defendant's alcohol expert, John Brick, which is based upon [decedent's] statements at the hospital[,] without prejudice, as the reliability of [decedent's] statements [are] questionable."
However, the judge then granted defendant's motion for reconsideration of this decision and scheduled a Rule 104 hearing. After hearing testimony provided by Officer Burnett and a physician, and reviewing the report of another doctor, the judge concluded decedent's statements to the officer at the hospital were sufficiently reliable to be admitted at trial. He also found that the possible prejudice inherent in the admission of evidence of a person's alcohol consumption did not outweigh its probative value. The judge explained:
I think the issue is not whether she was intoxicated at the time, but certainly there are issues in this case as to what she was doing, why she was doing it, where her attention was focused and things of that nature, which are quite different than intoxication in my mind and to preclude the defense from introducing that, I think would be highly prejudicial.
The judge continued:
Is there prejudice on the other side? Of course there is. There may have to be limiting instructions to the jury in this connection . . . [Officer Burnett] was in the position to make the observations that he made and he had the training to make the observations that he made and he made them. They should come before the jury. Consequently, his testimony with regard to odor of alcohol and the statements made by her to him at the hospital are admissible before the jury. There may have to be tailored instructions to the jury with regard to limitations that you will think through, I am sure, before the matter is presented.The judge's March 1, 2010 order stated that
[(Emphasis added).]
[Officer] Richard Burnett may testify at trial to statements that he heard made by [decedent] in the Emergency Room and to his detection of the odor of alcohol on her breath, but defendant, specifically, is restricted from seeking any inference that [decedent] was under the influence of alcohol, as no blood alcohol content testing was performed or produced[.]
At trial, this order was interpreted to permit either party to bring in evidence of decedent's use, or non-use, of alcohol on the date of the accident. However, defendant's attorneys were barred from specifically using the words "intoxicated," "drunk," or "under the influence" in making their arguments to the jury. This ruling, however, did not prevent the defense from forcefully arguing that decedent's possible consumption of a pint bottle of wine prior to the accident contributed to her negligence in crossing the street.
By the time of the trial, the judge who issued the ruling permitting evidence of decedent's alcohol consumption had retired. A second judge was assigned, but transferred to another assignment just prior to the beginning of the trial. Thus, the trial judge was the third judge assigned to the case.
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For example, in defendant's opening statement to the jury, defense counsel pointed to Officer Burnett's proposed testimony and argued:
Officer Burnett detected an odor of alcohol coming from [decedent's] breath as she spoke with [him]. And he asked [decedent] if she had consumed any alcohol prior to the crash. [Decedent] stated she consumed a pint, a pint of Richard's Wild Irish Rose, [white], approximately two hours before the crash and that she wanted to purchase another bottle.Defense counsel continued:
So this is the lady an hour and a half after the accident who indicates she already drank a bottle of, not a beer, a specific brand of wine, gave us the color, and she was going back to the liquor store or coming back from the liquor store, however we're not certain,
after purchasing another bottle of Wild Irish Rose.
So this case boils down to the conduct of [defendant] and the conduct of [decedent] on March 9th, 2006. [Defendant] who turns from Concord onto Nottingham required to stay in the left-hand lane, looks in his side view mirror, rearview mirror, and to the side before turning or [decedent] who drank a bottle of wine, going to the liquor store to buy another bottle of wine, doesn't utilize the crosswalk with the traffic light, walks in front of the vehicle.
Now you saw the photos. It was dark. Plaintiff's own expert will testify that [defendant] after looking from the side in the mirrors, in both mirrors, had less than a second to determine what to do. Less than a second.
We're going to use that conduct of [defendant], less than one second, versus [decedent] who drank a bottle of wine, crossed the street knowing she shouldn't cross where she was crossing. Again, a double yellow line, five lane road, 40 mile an hour speed limit at night.
On the other hand, plaintiff took the position that there was no credible evidence that decedent had consumed any alcohol that day, although she was on her way to purchase a can of beer when the accident occurred. Plaintiff's counsel argued:
So, ladies and gentlemen, again the fact is and the testimony you will hear was there was a statement taken by Patrolman Burnett and he offered his own observation and the defense is going to try to make some emphasis on that. There is no blood alcohol
content evidence whatsoever and there will not be.
. . . .
So for the defense they try to turn to the issue of comparative negligence and they're going to try to convince you that this accident was [decedent's] fault because she decided to cross the street to go to Gray's Liquors to buy a can a beer.
And you're the ones that are going to assess the relative judgment and the relative conduct of the two parties. The one who accelerates in the left lane approaching a pedestrian area with a large Garfield doll hanging from the rearview mirror and changes lanes at the last minute, never observing what's in front of him that was right before his face, that walked through his headlights, and was in a safe area unless he changed lanes. Compared to someone who judged whether they could get to that safe area as is often done.
The second evidentiary ruling concerning alcohol occurred toward the end of the trial, when defendant sought to read portions of decedent's deposition to the jury. The trial judge permitted the defense to read an excerpt where decedent talked about going to the liquor store to purchase a can of beer, because plaintiff had already discussed this in his testimony.
The judge also permitted defendant to present decedent's response to a question concerning what kind of liquor she was drinking in 2006 and how often she went to the liquor store each week. Because, in her response, decedent had named Richard's Wild Irish Rose, the judge ruled this corroborated what she told Officer Burnett in the emergency room after the accident. Therefore, the judge ruled this testimony was relevant in assisting the jury in assessing Officer Burnett's credibility. However, the deposition testimony was read to the jury without any accompanying limiting instruction that the jury was only to use the evidence to determine credibility and that it was not to be used to determine that decedent had a past or current problem with alcohol.
At the charge conference, plaintiff asked that the jury be given a definition of the term "under the influence" and instructed how it should consider the alcohol evidence in assessing whether decedent's alleged use of alcohol made her negligent. Defendant opposed these requests.
The trial judge determined to give the jury no specific instructions on plaintiff's alcohol consumption. The judge stated:
I'm not going to give the jury a legal definition of under the influence. We're going to use it as it was used in this trial, in kind of the vernacular, in the common [way], signs of drinking or being under the influence. People assume that means glassy eyes, you know, odor of alcohol, slurred speech, maybe unsteady on their feet, anything like that. Your client said, no she didn't exhibit any of those signs and that's fair. But I don't think [the defense] should be precluded now fromIn further explanation of her ruling, the trial judge stated she had listened to the tape of the pre-trial ruling made by the first judge, who stated that "whether or not any instruction would be given to the jury would be up to the trial court. So, I'm deciding not to give an instruction at this time."
using that phrase in that way, not as a legal term that she was over the legal limit or substantially impaired per the case law. Okay? I'm not saying they can argue that. They still can't argue that. There is no evidence of that.
Thus, both parties were permitted to make arguments to the jury concerning whether decedent's consumption of alcohol contributed to her negligence, even though neither was permitted to argue she was or was not "legally intoxicated." During his summation, defense counsel argued:
[Decedent] decided she was going to cross the street to a liquor store and get a can of beer. We know from Patrolman Burnett, the investigating police officer, that when he arrived at the scene a little after 7:15, after the accident had happened, that he subsequently went to the hospital and interviewed [decedent]. At the hospital, he could smell alcohol on her breath. She told him she had two hours before consumed a bottle of white wine and that she was on her way to get another. We know those are facts.
In response, plaintiff's counsel argued that defendant was raising
an alcohol defense and . . . requires you to give full weight and credibility to the statement elicited by Patrolman Burnett. Now, I think it's obvious why the defense would want alcohol to be an issue in the case. Whether it's fairly in the case is for you to judge on, because you can accept that statement, taken by Patrolman Burnett as meaningful or you can reject it based upon [other testimony in the case] as to what condition she was in. She was not in any condition to give a statement. Anything she said was not reliable.
After plaintiff's attorney completed his summation, defendant objected at sidebar and argued that plaintiff's attorney should not have told the jury that it could decide whether "alcohol was an issue in the case." The trial judge sustained the objection. The judge stated it was not up to the jury to "decide whether or not the issue should be fairly in this case. That's the judge of the law's job."
The judge then instructed the jury as follows:
Before I give you the final charge, after closing arguments there was an exception to something that plaintiff's counsel stated in closing arguments. This is regarding the issue of plaintiff's alleged alcohol consumption on the day of the accident and plaintiff's counsel and I remind you that anything that any of the attorneys say is not evidence. It's argument. It's not to be treated by you as evidence, okay, but plaintiff's counsel argued or stated whether that issue, whether it's fairly in the case, he said, is for you to decide. It is an issue fairly in this case. Whether or not there's credible evidence to support that allegation is for you, the finders of theNo further instruction was given to the jury during the trial judge's charge to assist them in considering this issue.
fact to decide. Okay? So, I just wanted to clear that up.
The judge's failure to provide the jury with any meaningful instructions on the issue of plaintiff's alcohol consumption requires that the October 6, 2011 judgment be reversed. Proper jury instructions are essential to a fair trial. Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div. 1999), aff'd, 164 N.J. 1 (2000). "A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations . . . [T]he court must explain the controlling legal principles and the questions the jury is to decide." State v. Martin, 119 N.J. 2, 15 (1990).
Evidence of intoxication can be relevant to the issue of negligence. Gustavson v. Gaynor, 206 N.J. Super. 540, 544 (1985). When considering the negligence of an individual who has consumed alcohol, the trier of fact must decide whether the individual was conducting himself or herself in a manner which created a heightened risk of physical injury. Black v. Seabrook Assocs., Ltd., 298 N.J. Super. 630, 636 (App. Div.), certif. denied, 149 N.J. 409 (1997).
However, the jury must be given a "roadmap" to assist it in making this determination. The jury must be carefully instructed that the mere fact that an individual has consumed some alcohol is by itself insufficient to warrant an inference that the individual was intoxicated and that the intoxication was of such a degree as to render the individual negligent. Gustavson, supra, 206 N.J. Super. at 545. Negligence need not be inferred merely from proof that an individual has consumed alcohol because even "'[a] drunken man may be careful.'" Petrone v. Margolis, 2 0 N.J. Super. 180, 188 (App. Div. 1952)(quoting Bageard v. Consolidated Traction Co., 64 N.J.L. 316, 322 (E. & A. 1900)).
Here, the jury was not provided any guidance on how it was supposed to consider the evidence presented by the parties concerning whether decedent drank alcohol on the day of the accident and whether this had any effect upon her decision to cross the street. Instead, the judge merely told the jury that alcohol "is an issue fairly in this case. Whether or not there's credible evidence to support that allegation is for you, the finders of the fact to decide." (Emphasis added). This "instruction" was plainly insufficient.
A trial judge is obliged to give a comprehensible explanation of the questions that the jury must resolve and must provide it with a clear explanation of the legal principles governing each issue. Vallejo ex rel. Morales v. Rahway Police Dep't, 292 N.J. Super. 333, 342 (App. Div.), certif. denied, 147 N.J. 262 (1996). This did not occur in this case. The judge did not review the evidence presented by either party; explain what the term "that allegation" meant; or provide the jury with the legal principles governing the consideration of evidence regarding alcohol consumption.
Model Civil Jury Charge 7.13, "Negligence — Intoxication (1991) suggests language which, if properly modified to fit the facts and allegations of this case, could have been used as a starting point to explain the alcohol issue to the jury. The Model Charge provides:
A person who voluntarily has become intoxicated is required to act with the same care as a person who is sober. So long as such a person who is voluntarily intoxicated acts with the same degree of care for her/his own safety which an ordinary careful and sober person would exercise under the same or similar circumstances then the intoxicated person is not comparatively negligent. But if you find that, by reason of her/his own voluntary abuse of intoxicating liquor, the plaintiff exposed herself/himself to a dangerous situation and sustained bodily injuries which a sober person in the exercise of ordinary foresight and care would have avoided, then you find that the voluntar[ily] intoxicated person has acted negligently.The judge could have also provided the jury with an instruction on the meaning of the term "intoxication" and she could have explained that the jury did not need to find decedent was "intoxicated" to find she was negligent and, conversely, that the mere fact that defendant had the smell of alcohol on her breath did not require the jury to find she negligently exposed herself to a dangerous situation. The judge erred, however, by saying nothing to the jury on this important issue.
Similarly, the judge should have given a limiting instruction to the jury explaining how it was supposed to consider evidence of decedent's past alcohol use. Decedent's deposition testimony that she preferred Colt 45 and Richard's Wild Irish Rose and that she went to the liquor store "a couple a times a week" was admitted solely to corroborate Officer Burnett's testimony. However, the jury was never told of this limited purpose and it was never instructed that this evidence could not be used to determine that decedent had a problem with alcohol.
A judge must give a limiting instruction where it is necessary to avoid an unjust result. Agha v. Feiner, 198 N.J. 50, 64 n. 7 (2009). However, the judge failed to give any instruction on this, or any other, aspect of the alcohol consumption issue. Therefore, a new trial is required.
Our conclusion that the judge's failure to provide adequate jury instructions related to decedent's consumption of alcoholic beverages constitutes reversible error renders it unnecessary to consider the other points advanced by plaintiff on appeal.
Reversed and remanded for a new trial on all issues.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION