Opinion
DOCKET NO. A-2393-12T2
03-17-2014
ALFONSO TORTORELLO, Plaintiff-Appellant, v. AMERICAN INTERNATIONAL INSURANCE COMPANY OF NEW JERSEY (AIG INSURANCE COMPANY) Defendant-Respondent.
Joel I. Rachmiel, attorney for appellant. Law Offices of Edward Hoagland, Jr., attorneys for respondent (Joseph M. DiCicco, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2013 - Decided March 17, 2014
Before Judges Grall, Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-775-11.
Joel I. Rachmiel, attorney for appellant.
Law Offices of Edward Hoagland, Jr., attorneys for respondent (Joseph M. DiCicco, on the brief). PER CURIAM
Plaintiff Alfonso Tortorello appeals from a jury verdict in a liability-only trial finding him fifty percent at fault for an accident involving a hit-and-run driver. Plaintiff contends that his actions played no part in the accident, the jury instructions on apportioning liability were confusing, and the judge should have either granted his motion for judgment notwithstanding the verdict or for remittitur of his allocation of fault. We disagree and affirm.
Plaintiff was the only witness in this half-day trial. He testified that he was double-parked on a one-way street in Newark when a hit-and-run driver sideswiped his car, breaking the side mirror and injuring the elbow he rested out his open window. According to plaintiff, the accident happened in December at about 5:45 p.m. Although parking was allowed on both sides of the street, and there were no cars parked on the left side of the block, plaintiff did not pull his car into a spot on the left. Instead, he double-parked next to cars parked along the right curb and put on his flashers.
Plaintiff testified that two cars passed safely on the left in the four minutes or so he and his passenger sat in the car before the driver sideswiped them. He estimated that the hit-and-run driver was traveling ten or fifteen miles faster than the twenty-five mile limit. Although plaintiff briefly gave chase, the driver was never apprehended.
Defendant contended that there never was any accident, and if plaintiff did get sideswiped, it was as much his fault as the other driver's.
On appeal, plaintiff argues that he cannot be considered negligent as a matter of law on the facts adduced at trial. He contends that the position of his car in the street was a condition and not a cause of the accident, relying on Lutz v. Westwood Transp. Co., 31 N.J. Super. 285, 291-92 (App. Div.), certif. denied, 16 N.J. 205 (1954) (holding there was no jury question as to bus driver's negligence when bus was struck from behind while taking on passengers, because bus's position was a mere condition, not a moving cause of the accident). We cannot agree.
Our Supreme Court disavowed the distinction between "condition" and "cause" in Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463, 483-84 (1969). In Ettin, a defendant obstructed the roadway while unloading its truck, which was struck by the plaintiff. Relying on Lutz, the defendant argued that the truck's position in the road constituted an obvious condition to be avoided by other drivers, not a contributing cause of the accident. Ettin, supra, 53 N.J. at 481-82. The Court disagreed, explaining that the question is not how a party characterizes its conduct, but whether the conduct was a substantial factor in bringing about the accident. Id. at 483. The Court distinguished Lutz, noting that, however characterized, the bus driver's conduct in Lutz was simply "not a substantial factor in bringing about [his passenger's] injuries." Id. at 484.
Here, there was ample evidence to support the jury's verdict that plaintiff's choice to stop his car in the middle of the street, at dusk, forcing other drivers to go around him, instead of pulling into an available parking spot on the left, was negligent and a substantial factor in bringing about the accident. Because N.J.S.A. 39:4-138m prohibits double-parking, the trial judge correctly charged the jurors that they could consider a violation of that statute as evidence of plaintiff's comparative negligence. See Eaton v. Eaton, 119 N.J. 628, 642 (1990); see also Formichella v. Layton, 25 N.J. Super. 1, 4-5 (App. Div. 1953). Accordingly, we reject defendant's arguments regarding his comparative negligence.
Defendant also argues that the jury charge on apportioning liability was confusing. Because the jury was not being asked to award damages, the judge determined not to give the ultimate outcome charge. Model Jury Charge (Civil) 7.31 "Comparative Negligence: Ultimate Outcome" (2000). Plaintiff did not request the charge and objected to its omission only after the judge had charged the jury. After hearing the party's positions, the judge agreed with plaintiff that the jury should be apprised of the effect of its apportionment of liability, even though they were not being told the amount of the agreed damages. The judge re-charged as follows:
If the percentage of the plaintiff's comparative negligence is more than 51 percent, there's no liability. If it's under 50 percent, you should be aware that, that percentage will be applied to any agreed monetary damages, that maybe you have nothing to do with, but which may be applicable to this case. So it does have that effect.
Because plaintiff expressed no objection to the judge's recharge, we review it for plain error, that is error clearly capable of producing an unjust result. R. 2:10-2. The rationale underlying the plain error rule is that a court should not countenance an unjust result because of the oversight of the advocate. Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591 (1966). Conversely, a reviewing court ought not be taken in by appellate counsel's efforts to exaggerate "[o]versights and inadvertencies of the court deemed to be harmless and unimportant" by trial counsel. Ibid.
Reviewing this charge as a whole, we find no basis for reversal. The judge explained to the jurors that they were not being asked to determine damages but only whether defendant was negligent. The judge carefully explained, in accordance with the model charge, how they were to assess and assign percentages of liability and that defendant would not be deemed liable if they assigned plaintiff a percentage of liability greater than fifty percent. The only thing omitted in the judge's original charge was that plaintiff's damages would be reduced by his percentage of liability in the event the jury determined it was fifty percent or less. The re-charge corrected that omission. Accordingly, plaintiff's contention that the jury's verdict should be reversed for such slight error is clearly without merit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION