Opinion
DOCKET NO. A-4529-13T1
09-30-2015
DALIA RATZ, Plaintiff-Appellant, v. ADRIAN MICAYABAS, Defendant-Respondent, and MARLO T. MICAYABAS, Defendant.
Elliott Malone argued the cause for appellant. Emily S. Barnett argued the cause for respondent (Viscomi & Lyons, attorneys; Ms. Barnett, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7612-11. Elliott Malone argued the cause for appellant. Emily S. Barnett argued the cause for respondent (Viscomi & Lyons, attorneys; Ms. Barnett, on the brief). PER CURIAM
In this automobile negligence case, plaintiff Dalia Ratz appeals from an April 22, 2014 judgment of no cause of action entered after a jury trial, and a May 8, 2014 order denying her motion for a new trial. We affirm.
Plaintiff alleged that she sustained injuries as a result of a September 11, 2009 collision between her vehicle and a vehicle operated by Adrian Micayabas (hereinafter "defendant"). Prior to the collision, both vehicles were traveling on Plaza Road in Fair Lawn, which contained two lanes of traffic in each direction. Traffic was congested, and the roadway was damp due to light rain. Plaintiff, who was driving north, testified that she stopped for the red traffic signal at the intersection of Berdan Avenue. After the light turned green, she continued to travel north on Plaza Road, behind several cars that were in front of her. On cross-examination, plaintiff described the ensuing collision as follows:
Plaintiff's claims against the owner of the vehicle, defendant Marlo Micayabas, were dismissed on summary judgment on April 19, 2013. Plaintiff does not appeal that order. --------
Q. Okay. You then proceeded to drive into the intersection not looking left or right, when a second before the impact you saw my client's car. Would that be a pretty fair summary of . . . how the accident happened?
A. When I go to intersection, I just come to intersection on - - I - -
Q. And you saw my client's car at the last second?
A. I saw something, I don't know his car or no[t] and I put on my brakes.
Q. And you hit him?
A. I think so, I hit him.
Q. Right. You hit the rear of his car. Didn't you?
A. I don't remember, what place I hit, because I don't see him.
Q. Well the damage was to the front of your vehicle. Was it not?
A. Yes.
Defendant testified that he had just picked up his brother from school and was traveling southbound on Plaza Road. He was in the left lane, intending to turn left onto Berdan Avenue. When he arrived at the intersection the light was green, and he waited "for around five to ten seconds . . . for the traffic to stop." According to defendant, the light turned to yellow, and he began to make the turn because the oncoming traffic had stopped. It was only after defendant had nearly completed the turn that he first saw plaintiff's car approaching. Plaintiff's vehicle then struck the rear of defendant's vehicle, with the force of the impact propelling defendant's car into a traffic pole on the opposite side of Plaza Road.
By a five-to-one vote, the jury returned a verdict that plaintiff did not prove by a preponderance of the evidence that defendant was negligent. Plaintiff subsequently moved for a new trial, asserting that the jury verdict was against the weight of the evidence. Plaintiff also argued that she was prejudiced by defendant's untimely submission of his pretrial information exchange, and that the trial court erred in barring the use of the police accident report and the deposition testimony of defendant's brother.
The trial judge denied plaintiff's motion in a comprehensive oral opinion. The judge characterized plaintiff's trial testimony as "vague." He concluded that there was credible evidence in the record to support the verdict, and that a jury could find that the impact was caused by plaintiff's failure to make proper observations.
The judge also rejected plaintiff's argument that she was prejudiced because counsel did not receive defendant's pretrial information exchange until the day of trial. Plaintiff claimed to be surprised to discover that defendant was contesting liability. However, the court found no proof that defendant had ever conceded or stipulated to liability should the case proceed to trial. Moreover, plaintiff had not sought sanctions, a continuance, or other relief from the court.
The judge noted that plaintiff's proffered use of the police report was an improper attempt to elicit an expert opinion. Further, plaintiff failed to call either the police officer who prepared the report, or another officer who was familiar with it, to lay a proper foundation for its admission as a business record.
On appeal, plaintiff reiterates the arguments presented in her new trial motion. Additionally, she contends that the jury failed to follow the judge's instructions, and that the trial court erred in (1) limiting cross-examination; (2) making prejudicial comments about plaintiff's counsel; and (3) denying counsel's request for sidebar conferences.
After reviewing the record and the briefs, we affirm the denial of plaintiff's new trial motion substantially for the thoughtful reasons expressed by the trial judge. R. 2:11-3(e)(1)(A). We add the following remarks.
We recognize the fundamental principle that jury trials are a bedrock part of our system of civil justice and that the fact-finding functions of a jury deserve a high degree of respect and judicial deference. See, e.g., Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994). In terms of its assessment of the relative strength of the proofs, a jury verdict is "impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)) (internal quotation marks omitted).
Rule 4:49-1(a) provides that a 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." Jury verdicts are thus "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 Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)); see also Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (indicating that "[j]ury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice"), certif. denied, 186 N.J. 242 (2006).
In reviewing a trial judge's decision on a motion for a new trial, we view the evidence in the light most favorable to the party opposing the new trial motion. Caldwell, supra, 136 N.J. at 432. Moreover, we give substantial deference to the trial judge, who observed the same witnesses as the jurors, and who developed a "feel of the case." See, e.g., Carrino, supra, 78 N.J. at 361; Baxter, supra, 74 N.J. at 597-98; Dolson v. Anastasia, 55 N.J. 2, 7 (1969).
Applying these principles here, we are satisfied that the evidence was such that the jury could reasonably have found that plaintiff failed to establish that defendant was negligent in the operation of his vehicle. Although plaintiff, who was traveling behind several other vehicles, testified that the light was green, defendant indicated that it had turned to yellow before he proceeded to turn, at which point the other oncoming traffic had stopped. The trial judge, who had the opportunity to see and hear the witnesses, described plaintiff's testimony as "vague." Viewing the evidence in the light most favorable to defendant, the jury could reasonably have found that defendant made proper observations and that plaintiff failed to do so.
We next address plaintiff's contention that she was unduly prejudiced by defendant's failure to timely serve a pretrial information exchange. Defendant does not dispute that this information exchange was submitted on the day of trial and was thus untimely. See R. 4:25-7(b) (requiring the attorneys to confer and, seven days prior to the initial trial date, exchange the pretrial information prescribed by Appendix XXIII, which includes a list of all witnesses to be called; exhibits to be offered; proposed deposition or interrogatory readings; any in limine or trial motions to be made; and any anticipated evidence problems).
As a result of the late submission, plaintiff claims that she was unaware that defendant was contesting liability, or challenging the use and/or admission of the police accident report and the deposition testimony of defendant's brother. However, plaintiff's prejudice claims suffer from a fatal flaw in that they hinge on her contention that defendant had conceded liability, which defendant firmly denies. Contrary to plaintiff's argument, there is no indication in the record that defendant ever stipulated to liability, either verbally or in writing. While plaintiff points to a favorable result attained at an arbitration hearing conducted pursuant to Rule 4:21A-1(a)(1), the arbitration award contains no such stipulation. Moreover, defendant rejected the arbitration award, resulting in the scheduling of a trial de novo. See R. 4:21A-6(b)(1).
Rule 4:25-7(b) also provides that "[f]ailure to exchange and submit all the information required by this rule may result in sanctions as determined by the trial judge." Here, plaintiff did not ask the court to bar defendant's liability defense, or seek any other sanction that would afford the trial court the opportunity to cure any prejudice resulting from defendant's untimely submission. Moreover, faced with the alleged surprise change in defendant's stance on liability, plaintiff never requested an adjournment to subpoena the investigating police officer or defendant's brother, to whom defendant had allegedly made an inconsistent statement. While we do not condone defendant's late submission, under the facts presented we are unable to conclude that plaintiff was unfairly prejudiced.
We also reject as unpersuasive plaintiff's argument that the trial court erred by excluding the police accident report. "[A] routine report of an automobile accident, prepared by the investigating policeman in pursuance of his duty and duly filed in the regular course of business, where relevant and not otherwise inadmissible, may be received in evidence as a business record." Schneiderman v. Strelecki, 107 N.J. Super. 113, 118 (App. Div.), certif. denied, 55 N.J. 163 (1969). The "business records" exception to the hearsay rule is presently codified in N.J.R.E. 803(c)(6). In order to qualify under this exception, the proponent "must demonstrate that [1] the writing [was] made in the regular course of business, [2] the writing was prepared within a short time of the act, condition or event being described, and [3] the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 347 (2010) (internal quotation marks omitted).
Where, as here, the business record at issue is a police report, "[i]f the police officer who wrote the report is unavailable, any other police official who could state that the report was a record made in the regular course of the officer's duties and was made at or near the time of the event may establish the report's admissibility." Dalton v. Barone, 310 N.J. Super. 375, 378 (App. Div. 1998). Since plaintiff failed to call the investigating police officer or any other qualifying police official to lay the foundation for the admission of the report, we conclude that it was properly excluded as substantive evidence.
Additionally, the trial court properly sustained defendant's objection to plaintiff's proffered use of the police report. Plaintiff sought to have defendant "review the police report and see if it[] . . . accurately portrayed what happened at the accident and whether he agrees or disagrees." This line of questioning was not directed at eliciting any prior inconsistent statement defendant may have made to the police officer, but rather sought defendant's opinion as to the officer's findings and conclusions. Moreover, having reviewed the police report and defendant's trial testimony, we share the trial judge's recognition of an ambiguity between the two statements and his conclusion that this ambiguity does not equate to inconsistency. As such, even if defendant's purported statement in the police report was admitted, we are unable to conclude that this would likely have changed the result.
Defendant similarly claims error in the trial court's exclusion of defendant's brother's deposition testimony. During plaintiff's cross-examination of defendant, the following colloquy took place:
Q. Your brother was a passenger in the vehicle?The court then sustained defendant's hearsay objection.
A. Yes.
Q. Do you remember that he was deposed?
A. Yes, he was.
. . . .
Q. And do you recall him saying that - -
We agree that the question, as phrased, improperly attempted to elicit not an admission or a prior inconsistent statement purportedly made by defendant to his brother, but rather a hearsay statement made by defendant's brother at his deposition. Nor did plaintiff either argue or establish that defendant's brother was unavailable within the meaning of Rule 4:16-1(c) so as to allow the admission in evidence of the brother's deposition testimony.
Our scope of review of a trial judge's evidential rulings requires that we grant substantial deference to the judge's exercise of discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000). Rulings on evidence will not provide a basis for reversal unless they reflect an abuse of that discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Reversal is not warranted unless the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). Guided by this standard, we find no error in the trial court's evidentiary rulings that would warrant disturbing the jury's verdict.
Plaintiff argues that the trial court improperly refused to entertain evidentiary objections at sidebar conferences. We have previously "disapprove[d] of the practice of a blanket ban on all side-bar conferences." Priolo v. Compacker, Inc., 321 N.J. Super. 21, 30 (App. Div. 1999). Certainly, such a blanket prohibition should be discouraged. Ultimately, however, "the decision to hear matters at side-bar or in open court, in the presence of the jury, is one within the discretion of the trial court." Id. at 29 (citations omitted). Here, during breaks in the testimony, and outside the presence of the jury, the trial judge permitted counsel for the parties to make additional arguments on the record on matters on which sidebars had been requested but denied. While not ideal, in that it deprived counsel of the right to advance arguments contemporaneously with disputed evidentiary issues, this practice achieved the desired result in allowing counsel to fully flesh out their legal arguments outside the jury's presence. Accordingly, we do not see fit to disturb the jury's verdict on this basis.
To the extent that we have not specifically addressed defendant's remaining arguments, we conclude that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION