Opinion
DOCKET NO. A-4834-10T3
06-18-2012
BARBARA E. JONES and ROBERT JONES, her husband, Plaintiffs-Respondents, v. ALBERT S. PANICCI, Defendant-Appellant, and ALLSTATE INSURANCE COMPANY, Defendant/Intervenor-Respondent.
Joseph F. Trinity argued the cause for appellant (Gebhardt & Kiefer, P.C., attorneys; Mr. Trinity, on the brief). Walter A. Risi argued the cause for respondents Barbara E. and Robert Jones (Plick & Risi, L.L.C., attorneys; Mr. Risi and Gregory Read, on the brief). Kevin A. Couch argued the cause for respondent Allstate Insurance Company (O'Toole & Couch, attorneys; Mr. Couch, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0270-07.
Joseph F. Trinity argued the cause for appellant (Gebhardt & Kiefer, P.C., attorneys; Mr. Trinity, on the brief).
Walter A. Risi argued the cause for respondents Barbara E. and Robert Jones (Plick & Risi, L.L.C., attorneys; Mr. Risi and Gregory Read, on the brief).
Kevin A. Couch argued the cause for respondent Allstate Insurance Company (O'Toole & Couch, attorneys; Mr. Couch, of counsel and on the brief). PER CURIAM
Plaintiffs Barbara E. and Robert Jones filed suit against defendant Albert S. Panicci alleging negligence in causing a motor vehicle accident in which Barbara was significantly injured. Defendant asserted a third-party claim against a phantom driver he alleged caused the accident. Plaintiff's insurer, Allstate Insurance Company (Allstate), intervened and participated in the trial. The jury returned a verdict in favor of plaintiffs as against defendant and apportioned the award $475,000 to Barbara, and $25,000 to Robert. The jury found no cause of action on defendant's third-party claim against the phantom vehicle. An appropriate order reflecting the jury's verdict was entered.
Robert Jones, Barbara's husband, asserted a per quod claim. Because Robert's claim was wholly-derivative, we use the singular, "plaintiff," throughout this opinion referring to Barbara.
Defendant subsequently moved for a new trial, or, alternatively, remittitur. The trial judge denied the motion. Defendant now appeals.
The testimony at trial revealed that plaintiff was driving southbound on Route 206 in Mount Olive Township on January 1, 2007. Defendant was proceeding northbound when his truck crossed over the double-yellow line and struck plaintiff's car. Defendant told police at the scene that an unknown vehicle crossed into his lane of travel causing him to swerve and enter the southbound lane. Defendant claimed the phantom vehicle never stopped at the scene of the accident.
Although the nature and extent of plaintiff's injuries were hotly-contested at trial by both defendant and Allstate, we focus mainly on the trial events that give rise to the issues raised on appeal.
In his opening statement, defense counsel told the jury that his client "spent . . . his professional career in law enforcement" as a Paterson police officer and Passaic County Sheriff's officer, retiring as "a captain." Allstate's counsel then delivered an opening statement in which he stated:
[Defendant] is a retired sheriff's officer. I'm not saying he's lying. I am saying he's a very street smart individual. I am saying that after this accident occurred[,] he was also conscious and he had sustained some injuries. And when you see the photographs of the extent of the damage to these vehicles, if you were him[,] [you] would be very nervous about how injured the people in that other vehicle were.Allstate's counsel also referenced the diagram in the accident investigation report prepared by the police officer who responded to the scene. Counsel criticized defendant's anticipated testimony that he was proceeding at a speed of forty miles per hour, less than the posted speed limit. There was no objection to any of these remarks.
Plaintiff, who was sixty-eight years old at the time of the accident, testified regarding her daily activities before the accident, and the care she provided on occasion to her adult grandson, who was with her on the day of the accident. She described the impairments in her daily activities as a result of the accident. Plaintiff's memory of the accident was "spotty," but she recalled "something dark colored and looming" coming toward her. She thought "a truck is going to hit me" and remembered pulling to the right of the roadway. Plaintiff had to be extricated from the vehicle by emergency responders.
On cross-examination, plaintiff admitted testifying in her deposition that there may have been cars traveling in the southbound lanes of Route 206 ahead of her. However, in her deposition she also testified that she saw no cars in front of her for five seconds before being struck by defendant's vehicle.
Mount Olive police officer Paul Ottavinia testified that he received a call regarding the accident at 10:41 a.m. and responded within minutes. The road was damp with a posted speed limit of fifty miles per hour. Ottavinia prepared an accident investigation report based upon his observations at the scene.
Route 206 has one southbound and two northbound lanes of travel, and each side is flanked by a shoulder at the point where the accident occurred. Next to the shoulder of the southbound lane was a "banked, dirt embankment" and a dirt area was also next to the shoulder on the northbound lanes. Ottavinia found both vehicles at rest in the dirt portion of the southbound travel side. The "point of impact" was in the "center of the lane of travel southbound." Ottavinia also noted a "yaw mark," caused by tires moving sideways in a straight line, and a "gouge mark" in the dirt embankment on the south side of Route 206.
On cross-examination by defense counsel, Ottavinia testified that defendant told him he was traveling in the left-hand lane of Route 206 northbound when "a vehicle coming south came into his lane causing him to swerve hard to the right, and then . . . to swerve hard to the left to [avoid] going into the trees, because he had swerved right." Defendant, who was driving a Ford F150 truck, "then slid across 206, causing him to crash into the southbound side of the highway." Defendant provided a written statement to Ottavinia at police headquarters at 3:55 p.m. that was consistent with his earlier statement, although in the written statement, as opposed to the police report, defendant indicated he swerved right before swerving left.
During Allstate's counsel's cross-examination, Ottavinia was asked if defendant told him he was "either a police officer or a sheriff's officer." Ottavinia replied, "[t]hat's sounding familiar now that he was retired? Retired maybe?" There was no objection. Ottavinia also recalled that defendant "had been up . . . since 4:30 in the morning" hunting in the area of Route 22, some thirty to forty minutes from the accident scene.
Citing defendant's deposition testimony that he was traveling at forty-miles per hour, Allstate's counsel asked if defendant would "have traveled" "several hundred yards" from where he started to "slide to the point of impact." Defendant's objection to this "expert testimony" was overruled, but Ottavinia did not understand the question and never provided an answer. Ottavinia did state that his investigation required him to take measurements from the northbound side of Route 206. His report reflected no gouge marks or yaw marks on that side of the roadway or in the dirt next to it.
On re-cross, defense counsel asked Ottavinia if he "investigate[d] this accident any differently because [defendant] was a retired police officer . . . ?" Ottavinia replied, "Negative."
Defendant began his direct testimony by responding to a series of questions about his career in law enforcement. He had gone hunting on New Year's Day morning and had not consumed any alcohol the night before or that morning. Defendant described the accident in a manner consistent with his earlier statements to the police. He suffered some broken ribs in the accident and his recollection of what happened after impact was "vague."
Defendant did not recall if he identified himself as a retired officer at the scene, although in his deposition he indicated it was "possible" he told Ottavinia. Defendant was going forty-miles per hour in the left lane of northbound Route 206 when he saw a car approximately sixty to seventy yards away approaching in his lane of travel. He swerved right and his truck left the side of the roadway before he swerved again to the left. His truck became "airborne" but did not roll over when it impacted plaintiff's car.
Before summations, defense counsel "object[ed] to any argument that there's . . . evidence of [defendant's] speeding in this case." Allstate's counsel said he was not going to claim that defendant was traveling a certain speed, but he intended "to go into detail as to the alleged course of the vehicle as [defendant] testified to . . . [and] what the police officer testified to." Defense counsel stated he would object if it was argued "that because [defendant] went a certain distance one way and then the other, that therefore [the jury] shouldn't believe he was going [forty], he had to be going faster." Defense counsel argued that such testimony required an expert. The judge advised defense counsel to make an objection if counsel "goes outside of the testimony."
Allstate's counsel delivered the first summation. He directed the jury's attention to Ottavina's diagram and the lack of any "marks in the dirt on the northbound side," noting the lack of marks implicitly impeached defendant's testimony that he swerved right to avoid the phantom vehicle. Counsel also asked the jury to infer that defendant fell asleep or was distracted, having been up since 4:00 a.m. Describing the accident scene, and defendant's reaction, counsel then stated:
This is what he sees. And I'm sure when he saw this, the first thing that goes through his head is somebody died in this accident.Defense counsel did not object and proceeded to give his summation.
[It is] a natural reaction . . . not to want to be held responsible for injuries that you don't know how bad they are . . . . I may have asked the police officer, did he tell you that he was a retired sheriff's officer? He may have mentioned it. . . . That's all okay, I'm not calling him a liar either, but there's got to be some explanation for it, and that's certainly a logical explanation as to why you tell the police officer oh, I got cut off.
He immediately stated:
Counsel says to you on opening and now just again here I'm not calling [defendant] a liar, I'm not calling the police officer a liar, [defendant] is just street smart and he panicked when he gets out of his car or sees from his car that there's been an accident with a car that has some bad damage to it. And he panics and he makes up this story about another vehicle.Again referencing defendant's law enforcement background, defense counsel asked the jury, is "he[] going to risk that and give false information to a police officer?"
Well, where I come from, that's saying somebody is lying.
. . . .
[A]ll of a sudden [defendant is] engaged in a conspiracy, and Police Officer Ottavinia, he's in on it too. He gets to the scene of the accident, he sees a license plate that indicates [defendant] has a connection to law enforcement, and so now he's going to look the other way.
You saw Officer Ottavinia testify . . . . Did he look like the kind of officer who would have entered into some conspiracy or looked the other way if he thought there was speeding involved? If he thought he was being told a story about how this accident happened? I don't think so. He's the only witness, Officer Ottavinia, who has no interest in the outcome of this case.
During trial, the parties had agreed to a "high-low" settlement whereby, regardless of the verdict, plaintiff would receive no less than $75,000, no more than $500,000 and would waive any pre-judgment interest. The jury returned the verdicts referenced above.
Defendant moved for a new trial, or alternatively, for remittitur. He argued that Allstate's counsel's comments in opening, during the cross-examination of defendant and in summation led the jury to believe "something improper" occurred and defendant "wasn't being truthful." Defendant also cited Allstate's references to the accident report and its argument that the physical evidence did not support defendant's version. Defendant argued this was improper because Ottavinia was not qualified to, and did not, testify as an accident reconstruction expert. Defendant also contended that Allstate's characterization of him as a "villain" tainted the jury's consideration of damages, and resulted in a verdict that should be set aside or remitted.
The judge commented that defendant's appearance at trial was "rather sinister," like a person "that you see out and about on the streets of Clifton or Passaic or Paterson." In ruling on the motion, however, the judge concluded that defendant "told a version of the events that really didn't make sense." The judge further determined that Allstate's counsel's comments were not "unfair or outside the realm of the evidence." "[C]onsidering both the tangible evidence and the credibility factors," the judge concluded "there was no clear error or mistake or . . . that anything was done which would require a new trial." He also determined that the amount of award was supported by "sufficient credible evidence" and denied the motion.
Before us, defendant contends that Allstate's "inflammatory argument" that he "lied about the accident circumstances" and conspired with the "investigating officer," together with the admission of "inadmissible 'expert' testimony," requires reversal and a new trial. We have considered these arguments in light of the record and applicable legal standards. We affirm.
Regarding the comments of Allstate's counsel in opening and summation, and the cross-examination of defendant and Ottavinia about defendant's law enforcement experience, no objection was ever made at trial. Thus, to warrant reversal, we would have to conclude that they represent plain error in the first instance, R. 2:10-2, or, that when raised during the post-verdict motion, they presented grounds for a new trial.
As to defendant's argument that Allstate's counsel transformed Ottavinia's testimony into "expert" testimony, we note that only one objection was lodged during the cross-examination, and, although overruled, Ottavinia was unable to directly answer the question posed. Defendant's cautionary objection before the summations began also focused solely upon the anticipated argument that Allstate's counsel would use the measurements in Ottavinia's diagram to argue defendant was not driving at forty-miles an hour; that point was never raised in summation. Instead, Allstate's counsel focused on the lack of any marks in the dirt adjacent to the northbound lanes of travel, a place where defendant claimed he originally veered to avoid the phantom car.
We glean from defendant's brief and argument that the claim more accurately is that the accumulation of these comments and the references to Ottavinia's accident report, when taken together, resulted in a miscarriage of justice that required the grant of a new trial.
Pursuant to Rule 4:49-1(a), the trial judge shall grant a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." "A jury verdict is entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Automotive Group, Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). The Court has also stated "that the cumulative effect of small errors may be so great as to work prejudice" that requires a new trial. Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53 (2009).
"The standard of review on appeal from decisions on motions for a new trial is the same as that governing the trial judge -- whether there was a miscarriage of justice under the law." Risko, supra, 206 N.J. at 522. "[I]n deciding that issue, an appellate court must give due deference to the trial court's feel of the case." Ibid. (internal quotation marks omitted). Having carefully reviewed the trial transcript, we conclude that these claimed errors, considered singly or cumulatively, did not result in a miscarriage of justice.
First, it was defense counsel who introduced his client to the jury as a retired law enforcement officer. Allstate's counsel certainly implied that defendant made that fact known to Ottavinia at the accident scene, but there was no claim that the two men "conspired" to alter the evidence. The fact of defendant's law enforcement experience was irrelevant, but, having presented that issue to the jury in the first instance, and never objecting thereafter, we are hard-pressed to agree with defendant's claim that this amounted to error so prejudicial as to require a new trial.
Although repeating on more than one occasion that defendant was not a liar, Allstate's counsel certainly implied that defendant concocted the story of a phantom vehicle out of concern given the severity of the crash. It was defense counsel, however, who referred to the argument as the rhetorical equivalent of calling defendant a liar. To be sure, Allstate's counsel vigorously challenged defendant's version of the events, but that was the essence of the case. In short, there was sufficient evidence for the jury to reject defendant's version of the accident.
Additionally, we reject any claim that Ottavinia's testimony was the equivalent of expert testimony or that Allstate's counsel transformed it into such during cross-examination or summation. The factual testimony -- the distances and markings or lack thereof -- was properly admitted based upon Ottavinia's own observations at the scene. It was undisputed that defendant's car struck plaintiff's in the southbound lane of Route 206. That conclusion -- where the point of impact was -- was essentially the only opinion that Ottavinia offered at trial.
"A miscarriage of justice has been described as a pervading sense of 'wrongness' needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or undervaluation of crucial evidence, [or] a clearly unjust result." Risko, supra, 206 N.J. at 522 (alterations in original) (internal quotation marks omitted). There is nothing in this case that approximates legal error of that magnitude.
For the sake of completeness, we also agree with the trial judge that the amount of the jury verdict was appropriate. "The trial court should not disturb the jury's award unless it is so disproportionate to the injury and resulting disability as to shock the conscience and [convince the court] that to sustain the award would be manifestly unjust." He v. Miller, 207 N.J. 230, 249 (2011) (alteration in original) (internal quotation marks omitted). Here, the extent and cause of plaintiff's injuries -- although hotly disputed -- were supported by sufficient evidence in the record, including the testimony of plaintiff's physicians. Additionally, the verdict fell within the parameters of a high-low agreement defendant negotiated before trial. The amount of the jury award does not shock our conscience.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION