Opinion
DOCKET NO. A-5261-14T3
11-30-2016
CHARLES S. RICHARDS, JR., Plaintiff-Appellant, v. HEATHER A. DEFEO, Defendant-Respondent.
Vincent A. Campo argued the cause for appellant (Legome & Associates, L.L.C., attorneys; Mr. Campo, on the brief). Sanford D. Kaplan argued the cause for respondent (Muscio, Kaplan & Helfrich, L.L.C., and Benedetti & Lowe, attorneys; Joseph A. Lowe, of counsel; Mr. Kaplan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2326-12. Vincent A. Campo argued the cause for appellant (Legome & Associates, L.L.C., attorneys; Mr. Campo, on the brief). Sanford D. Kaplan argued the cause for respondent (Muscio, Kaplan & Helfrich, L.L.C., and Benedetti & Lowe, attorneys; Joseph A. Lowe, of counsel; Mr. Kaplan, on the brief). PER CURIAM
In the afternoon of July 29, 2011, plaintiff Charles S. Richards, Jr., was riding his motorcycle in the southbound lane of Corson Tavern Road, directly behind a car driven by defendant, Heather DeFeo, with defendant's mother, Barbara, seated in the front-passenger seat. Corson Tavern Road is a two-lane road, with the southbound and northbound lanes demarcated by a broken yellow line.
Claiming that defendant activated her left-turn signal, and believing she was slowing down to make a left-hand turn, plaintiff accelerated and began to pass on the right side of the car, maintaining his position in the southbound land. Defendant, who denied ever signaling a left turn, turned right, causing defendant's motorcycle to crash into the right rear panel of the car. Plaintiff suffered injuries and filed suit.
After trial, the jury concluded plaintiff was 49% negligent, defendant was 51% negligent, and plaintiff's non-economic damages were $20,000. The jury also awarded plaintiff $20,000 for past medical expenses, but made no award for future medical expenses. After determining that plaintiff was barred from recovering past medical expenses pursuant to N.J.S.A. 2A:15-97, the judge molded the verdict and entered judgment for plaintiff in the amount of $10,200, plus prejudgment interest of $93.77.
N.J.S.A. 2A:15-97, the collateral source rule, prohibits recovery of damages that duplicate benefits received from another source, such as a motor vehicle insurance policy.
Plaintiff appeals. Having considered his arguments in light of the record and applicable legal standards, we affirm.
During the charge conference, plaintiff cited N.J.S.A. 39:4-85 and submitted the following proposed charge to the judge: "[m]otor vehicles moving in the same direction shall not be prohibited from overtaking and passing upon the right of another vehicle which is making or about to make a left-hand turn." He also proposed the following instruction: "[a] driver of a motor vehicle may drive to the left side of the center of a highway in overtaking and passing another vehicle proceeding in the same direction if the left side is clearly visible and free of oncoming traffic." See N.J.S.A. 39:4-86. Defense counsel did not object to the first charge, but agreed with the judge that since there was no testimony that plaintiff ever entered the northbound lane in order to pass defendant on the left, N.J.S.A. 39:4-86 was inapplicable.
Later, in rendering his decision, the judge noted there was an objection to the charge, but none was placed on the record.
The judge denied both requests. As to N.J.S.A. 39:4-85, he stated, "when you read the whole statute . . . it's really talking about overtaking another vehicle [that was] proceeding." Because "that wasn't the testimony," the judge determined the statute was not "applicable." As to N.J.S.A. 39:4-86, the judge concluded it was unsupported by the facts.
Plaintiff contends that the judge erred by refusing to charge these two specific provisions of Title 39. As to N.J.S.A 39:4-85, he argues the proposed charge was necessary to counteract the common misunderstanding that a driver may only legally pass on the left. Regarding N.J.S.A. 39:4-86, plaintiff contends the jury needed to understand he could lawfully pass defendant on the left by going into the northbound lane, thereby lending credence to plaintiff's factual assertion that he did not do so because defendant was signaling a left-hand turn. We are unpersuaded by the arguments.
"The motor vehicle statutes establish standards of conduct for motorists on our highways and, under usual circumstances, the violation of motor vehicle statutes is evidence of negligence." Ewing v. Burke, 316 N.J. Super. 287, 293-94 (App. Div. 1998) (citing Paiva v. Pfeiffer, 229 N.J. Super. 276, 280 (App. Div. 1988)). "Ordinarily, therefore, if there is evidence tending to establish that a vehicle was operated in violation of a motor vehicle statute, the statutory duty should be charged to the jury in order to assist the jury in arriving at the appropriate result." Ewing, supra, 316 N.J. Super. at 294. For purposes of this appeal, we accept the converse, i.e., that operation of a motor vehicle in conformance with Title 39 implies non-negligent operation.
N.J.S.A. 39:4-85 provides:
The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle. If vehicles on the roadway are moving in two or more substantially continuous lines, the provisions of this paragraph and [N. J.S.A.] 39:4-87. . . shall not be considered as prohibiting the vehicles in one line overtaking and passing the vehicles in another line either upon the right or left, nor shall those provisions be construed to prohibit drivers overtaking and passing upon the right another vehicle which is making or about to make a left turn.In Kendall v. Kendall, 218 N.J. Super. 199, 204 (App. Div.), certif. denied, 109 N.J. 55 (1987), a case involving a multi-lane highway, interpreting the statute as a whole, we concluded passing on the right was prohibited unless "the lines of traffic in each lane" were "substantially continuous lines." Whether "the traffic has become so dense that lines of traffic have become 'substantially continuous' is an issue of fact." Ibid.
The driver of a vehicle may overtake and pass another vehicle upon the right as provided in this section only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway.
N.J.S.A. 39:4-87 provides: "The driver of a vehicle on a highway, about to be overtaken and passed by another vehicle, approaching from the rear, shall give way to the right in favor of the overtaking vehicle, and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle."
After argument, plaintiff brought to our attention our earlier decision in April v. Collings Lakes Ambulance Ass'n, 109 N.J. Super. 392 (App. Div. 1970). There, the road configuration was similar to Corson Tavern Road, i.e., one lane in each direction. Id. at 395. The plaintiff attempted to pass a left-turning vehicle on the right and struck an ambulance proceeding through the intersection from the left. Id. at 395-96. The defendant asked the judge to charge the last paragraph of N.J.S.A. 39:4-85, which prohibits using the shoulder to pass, but the judge refused because the facts "did not involve an attempt to pass a vehicle proceeding in the same direction." Id. at 397.
We concluded the judge should have given the requested charge and reversed. Id. at 400. We held that
[t]he statute contains an exception to the general rule that an overtaking vehicle shall pass to the left of the vehicle being overtaken. The Legislature in its wisdom has prescribed the conditions under which a motorist may pass to the right of a vehicle which is about to make a left-hand turn.
[Ibid.]
Plaintiff asserts that April held N.J.S.A. 39:4-85 applies to single-lane roads, like Corson Tavern Road. We acknowledge the argument but remain unpersuaded. Read in its entirety, N.J.S.A. 39:4-85 prohibits passing on the right. It provides for an exception "[i]f vehicles on the roadway are moving in two or more substantially continuous lines," in which case a vehicle may "overtak[e] and pass[] the vehicle[] in another line" of traffic on the right, or "overtak[e] and pass[] upon the right another vehicle which is making or about to make a left turn." We agree with the judge that, when read in its entirety, the statute did not apply to the facts of this case.
N.J.S.A. 39:4-86 prohibits crossing to the left side of a center line to pass a vehicle unless there is sufficient visibility and distance from oncoming cars to do so safely. Operators may not cross over the center line in a marked no passing zone unless their lane is "obstructed or impassable." Ibid. However, there was no dispute that plaintiff was permitted to pass on the left by crossing the broken midline, nor did the jury need explanation of this commonly recognized rule of the road. More importantly, there was no evidence that plaintiff ever attempted to go into the northbound lane of travel. The judge correctly determined the statute had no application to the facts of the case.
Defendant and her mother both filed suit against plaintiff; Barbara named her daughter as a co-defendant, and all three cases were consolidated. Defendant and Barbara settled their cases before trial. Before openings and outside the presence of the jury, plaintiff sought an in limine ruling permitting him to confront Barbara with her complaint if she testified. The complaint alleged that defendant operated her car negligently and carelessly, thereby causing the accident. Defendant objected, and the judge initially reserved decision but denied the motion the next day before testimony began. He reasoned: "the allegations made by a party, who's actually not a party to this particular case, but to a consolidated case, . . . represent conclusions or opinions that are not facts." The judge also expressed "concern[] about the prejudicial effect of the allegation . . . ."
The terms of the settlements are not disclosed by the record. --------
Barbara testified and corroborated defendant's testimony that she was making a right turn when plaintiff's motorcycle struck the car. During cross-examination, the following took place:
Q: Now, [defense counsel] said, and I'm going to try to quote, "[t]here was nothing that -- that [defendant] could have done to prevent this accident."
A: Correct.
Q: Did [defendant] drive her car in any way as to cause the collision?
A: No.
Q: Nothing at all she did to cause this collision?
A: No.At sidebar, plaintiff's counsel renewed his request to confront Barbara with the complaint as a prior inconsistent statement, arguing that the complaint factually asserted that defendant's operation of her car was a cause of the accident. Relying on his previous ruling, the judge denied the request.
Before us, plaintiff argues this line of cross-examination was permitted pursuant to N.J.R.E. 613 and N.J.R.E. 803, and the probative value of the evidence outweighed any potential for prejudice. N.J.R.E. 403. We disagree.
"In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We must consider whether the evidentiary ruling "was so wide off the mark that a manifest denial of justice resulted." Brenman v. Demello, 191 N.J. 18, 31 (2007) (quotation and citation omitted). "However, [w]hen the trial court fails to apply the proper test in analyzing the admissibility of proffered evidence, our review is de novo." Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012) (alteration in original) (internal quotation marks omitted).
Clearly, our evidence rules permit the use of prior inconsistent statements to impeach a witness, N.J.R.E. 613, and they may be admitted as substantive evidence under an exception to the hearsay rule. N.J.R.E. 803(a)(1). Plaintiff presumes the pleading is an adoptive admission, pursuant to N.J.R.E. 803(b)(3). However, that Rule provides an exception to the hearsay rule for "[a] statement offered against a party which is . . . a statement by a person authorized by the party to make a statement concerning the subject . . . ." Ibid. (emphasis added). The cases cited by plaintiff, pre- and post-argument, all involve admissions by parties. Barbara was no longer a party to this lawsuit. N.J.R.E. 803(a), permitting the admission of prior inconsistent statements made by witnesses, contains no provision for adoptive admissions.
More importantly, our case law has recognized special concerns associated with the use of pleadings as prior inconsistent statements. We said many years ago that "the pleader's conclusions of law are not admissions of facts." Van Sickell v. Margolis, 109 N.J. Super. 14, 18 (App. Div. 1969). Furthermore,
[a]gainst the backdrop of our liberal joinder practice that sanctions pleading in the alternative, it would be entirely discordant were we to permit factual assertions, which have been made by a pleader in one count against one party, to be used as an "admission" against that pleader in an issue in another alternative or inconsistent count in the same cause of action.
[Shankman v. State, 184 N.J. 187, 205-06 (2005). See also Higgins v. Thurber, 413 N.J. Super. 1, 24 n.22 (App. Div.) (citing Shankman, supra, 184 N.J. at 205-06) ("[O]ur pleading practices, which permit the assertion
of alternative claims, render problematic the use of a particular statement in a complaint — particularly one that is equivocal or that consists of a mixture of both facts and legal conclusions."), aff'd., 205 N.J. 227 (2010).]For these reasons, the judge properly prohibited this line of cross-examination.
Lastly, plaintiff argues the judge should have ordered a new trial on damages because the award was "against the weight of the evidence and so disproportionate to the injuries he sustained that a miscarriage of justice occurred." We conclude the argument is procedurally-barred and otherwise lacks merit.
Pursuant to Rule 2:10-1,
[i]n both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.When a party fails to move for a new trial before the trial court, "the weight of the evidence argument is not properly before us." Beasley v. Passaic Cnty., 37 7 N.J. Super. 585, 611 (App. Div. 2005) (citing R. 2:10-1 and St. Joseph's Hosp. and Med. Ctr. v. Muirfield Constr. Co., 362 N.J. Super. 540, 547 (App. Div. 2003)).
Rule 4:49-1(b) requires a motion for a new trial to be filed within twenty days of the jury's verdict. Neither the parties nor the judge may enlarge the time. R. 1:3-4(c). It is undisputed that plaintiff did not move for a new trial within twenty days of the verdict.
Instead, on June 8, 2015, forty-seven days after the verdict, plaintiff's counsel wrote to the trial judge and enclosed a proposed order for judgment. Citing "a miscommunication in [his] office," counsel asked the judge to grant a new trial pursuant to Rule 4:49-1(c), which permits the court "on its own motion" to "order a new trial for any reason for which it might have granted a new trial on motion of a party" within twenty days of judgment. Citing the legal arguments raised before us, counsel also contended the jury award on damages was "clearly disproportionate relative to plaintiff's injuries and the expenses incurred to treat his injuries." Defendant opposed the request.
The judge responded by letter. He concluded that after reviewing the evidence, and "giving due regard to the opportunity of the jury to pass upon the credibility of the witnesses," it did not "clearly and convincingly" appear that there was a miscarriage of justice. R. 4:49-1(a). He did not enter an order because plaintiff had not submitted a motion.
The decision to grant a new trial on its own motion is committed to the court's sound discretion, and we "will not substitute our opinion for the trial court's . . . ." Baumann v. Marinaro, 95 N.J. 380, 389 (1984). We have said that the "jury's damage assessment is entitled to a presumption of correctness and should stand 'unless it is so disproportionate to the injury and resulting disability shown as to shock the conscience and to convince [the trial court] that to sustain the award would be manifestly unjust.'" Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325-26 (App. Div. 2010) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977)) (alteration in original).
Here, plaintiff incurred more than $150,000 in medical bills, which were fully paid by insurance. He contends, however, that the amount augurs a conclusion that his physical injuries, pain and suffering should have commanded an award in excess of $20,000. This overlooks the fact that the jury heard contradictory testimony from plaintiff's and defendant's medical experts regarding the nature and extent of plaintiff's injuries.
In short, the judge did not mistakenly exercise his discretion by refusing to grant a new trial on damages on his own motion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION