MARIO ALBERTO NAVARRO v. RUFINA G. LOUDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0496-08T10496-08T1

MARIO ALBERTO NAVARRO,

Plaintiff-Appellant,

v.

RUFINA G. LOUDER

and LAURIE L. LOUDER,

Defendants-Respondents.

___________________________________________________

 

Argued September 1, 2009 - Decided

Before Judges Messano and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2072-05.

William R. Di Pietro argued the cause for appellant (Fox Rothschild, LLP, attorneys; Mr. Di Pietro, on the brief).

Elaine Brennan argued the cause for respondents (Law Offices of William P. Larosa, attorneys; Ms. Brennan, on the brief).

PER CURIAM

On December 17, 2004, plaintiff Mario Alberto Navarro and defendant Rufina G. Louder were involved in a two-car motor vehicle accident in Hamilton Township on the northbound entrance ramp onto Route 29 from Interstate Route 295. At the conclusion of trial, the jury found defendant not negligent. The trial judge entered an order of judgment in favor of defendant, and subsequently denied plaintiff's motion for a new trial.

On appeal, plaintiff contends that the no cause verdict was "contrary to the weight of the evidence and . . . [and] a gross miscarriage of justice[.]" He also argues that the trial judge erred in admitting into evidence, over his objection, a diagram of the accident scene prepared by the New Jersey State Police. We have considered these arguments in light of the record and applicable legal standards. We affirm.

We need not detail the medical evidence adduced at trial in light of the challenged verdict. It suffices to say that plaintiff was seriously injured when his car was struck by defendant's vehicle, overturned onto its side, and skidded more than one hundred feet with plaintiff's arm trapped between the car body and the road. Plaintiff was immediately removed from the scene, transported to the hospital, and subsequently interviewed by Trooper Stone Colleton either later that night or the next day. Plaintiff claimed that he was in the right lane of the two-lane access ramp leading from Route 295 onto Route 29. Defendant was in the left lane and slightly behind him. Plaintiff heard a squeal of brakes and saw defendant's car in his driver's side mirror. He thought her car was going to impact his, so he sped up, but was unsuccessful in avoiding the collision. Defendant's right passenger side struck plaintiff's car and spun it around, causing it to overturn. Plaintiff denied that he ever crossed from his lane into defendant's lane on the entrance ramp. At trial, plaintiff essentially repeated for the jury this version of how the accident occurred.

Defendant was relatively uninjured at the scene and spoke to Colleton, who was one of several troopers dispatched to the accident scene, along with Department of Transportation personnel and emergency medical responders. She did not testify at trial.

Colleton testified via videotaped deposition which was played for the jury by plaintiff. We have been supplied with a digital video disc of the deposition as seen by the jury. During Colleton's testimony, plaintiff's counsel asked him to identify a four-page police report, the first two pages of which were authored by Colleton and contained a narrative of his investigation and the versions of the accident given to him by the two drivers. Pages three and four of the report contained a diagram of the accident scene, prepared by another trooper, but acknowledged by Colleton to have been made with his "input." It is this diagram that is the focus of plaintiff's second point on appeal.

Plaintiff referred Colleton to the accident report and diagram during his testimony. The diagram frequently was the focus of the videographer's camera, and Colleton used a pointer to display the roadway and the positions of the vehicles post-accident. Colleton confirmed, in response to plaintiff's counsel's question, that the diagram was "consistent" with his observations upon arriving at the scene.

Colleton testified that defendant's statements about how the accident occurred were "scattered." He thought "[t]hey weren't plausible or able to really coincide with the observation of the accident scene." He testified that defendant "gave more than one rendition of what had happened."

Eventually, Colleton placed defendant in the rear of his trooper car which was equipped with a dashboard videotaping system. During Colleton's videotaped deposition, the videotape of defendant and her responses to Colleton's questions as she sat in the back of the trooper car were also played for the jury. Defendant was clearly distraught and broke down into tears several times as Colleton struggled to obtain her version of events. Ultimately, she alleged that plaintiff drifted over from the right lane of the access ramp into her lane, and that she attempted to veer left, but panicked because she feared oncoming traffic to her left. She steered the vehicle to her right, but overcompensated, striking plaintiff's van, and setting into motion the series of impacts and collisions that followed. Colleton testified that defendant's "final statement indicates basically in a nutshell what happened[.]" Still on direct examination, he referred to the diagram in detail, utilizing a pointer to show the jury how the events unfolded.

On cross-examination, defense counsel directed Colleton's attention to the diagram which was, once again, fully displayed on the screen for the jury's consideration. Colleton confirmed that the diagram "depicts . . . where the contact [between the vehicles] occurred." Referring specifically to the diagram, and demonstrating for the jury, Colleton confirmed that the initial point of impact between the two cars "took place to the left of [the right] lane."

At the conclusion of all the testimony, defendant sought to introduce the diagram, and plaintiff objected. He argued it was inadmissible because Colleton had not prepared it, was not present when it was "constructed," and "the extent of [Colleton's] involvement . . . [wa]s unclear." The judge overruled the objection, finding Colleton had "input into the preparation of that report[.]" He cited, at length, the many references to the diagram by Colleton during his testimony. After summations and charge, the jury returned its verdict in defendant's favor.

We view plaintiff's first argument on appeal, i.e., that the jury's verdict was against the weight of the evidence, to be of insufficient merit as to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). We add only these brief comments.

Rule 4:49-1(a) requires the trial judge grant a motion for 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." We will not reverse a trial court's ruling on a new trial motion "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We defer to the trial court with respect to "intangibles" not transmitted by the record, such as credibility, demeanor, and "feel of the case," but otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360, 396 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

In denying plaintiff's motion for a new trial on this ground, the trial judge properly pointed out that "[t]here was evidence presented from which the jury could base a reasonable conclusion that . . . plaintiff's vehicle entered . . . defendant's lane of traffic." The judge concluded this was a reasonable inference to be drawn from plaintiff's own testimony regarding the screeching of defendant's brakes, which was "consistent with the videotaped . . . statement that . . . defendant had given . . . [to] Colleton." We find no basis to reverse the trial judge's conclusion and we do not independently conclude that the verdict represents a "miscarriage of justice" because it was against the weight of the evidence.

Plaintiff argues that the judge committed prejudicial error in permitting the diagram to be admitted into evidence because it was hearsay, not properly authenticated by Colleton, and, because the jurors were permitted to view it during deliberations, the diagram improperly influenced their verdict because "the weight of the evidence otherwise supported a favorable liability decision towards [plaintiff]." We reject the argument.

From plaintiff's perspective, the critical information on the diagram is the point of impact between the two cars, displayed as being predominantly in defendant's lane of travel. This, of course, supports defendant's claim that plaintiff's vehicle began to veer into her lane, causing her to take evasive action that ultimately failed to avoid the collision.

"Because the determination made by the trial court concerned the admissibility of evidence, we gauge that action against the palpable abuse of discretion standard." Brenman v. Demello, 191 N.J. 18, 31 (2007) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). "[T]he trial court enjoys wide latitude in admitting or rejecting . . . replicas, illustrations and demonstrations and in controlling the manner of presentation and whether or not particular items are merely exhibited in court or actually received in evidence." Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 165 (App. Div. 2004).

Since this matter was orally argued, we have had the opportunity to view the digital video recording of Colleton's deposition. Despite what may appear as inconsistencies in his testimony in the cold transcript of the deposition, it is clear from the actual video recording that Colleton had input in the diagram's creation by supplying information to the trooper who actually created it, that Colleton never disaffirmed the accuracy of the diagram, but rather, to the contrary, essentially adopted it as an accurate portrayal of defendant's version of the events and the results of his investigation. In our opinion, it was properly admitted into evidence as a demonstrative tool for the jury to understand both the physical condition of the scene, and Colleton's conclusions.

Even if we are mistaken as to the inherent admissibility of the diagram, we are hard-pressed to conclude the judge's decision to permit its admission was prejudicial error. Plaintiff produced the diagram and requested Colleton refer to it during his testimony. The diagram was extensively used by the trooper as he testified, and, at times, it was the only thing visible to the jury as Colleton used a pointer to clarify his testimony.

Seen in this context, plaintiff's extensive use of what he now characterizes as "inadmissible hearsay" certainly opened the door to permit defendant to use the very same evidence to explain Colleton's observations and conclusions. As we recently noted,

"The 'opening the door doctrine' is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." State v. James, 144 N.J. 538, 554 (1996). Similar to the 'completeness' doctrine, the 'open door' doctrine provides an adverse party the opportunity to place evidence into its proper context. Ibid.

[Alves v. Rosenberg, 400 N.J. Super. 553, 564 (App. Div. 2008) (emphasis omitted).]

"The doctrine 'allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence.'" State v. Vandeweaghe, 177 N.J. 229, 237-38 (2003) (quoting James, supra, 144 N.J. at 554). Similarly, the doctrine of "curative admissibility" "provides that 'when inadmissible evidence has been allowed, when that evidence was prejudicial, and when the proffered testimony would counter that prejudice,' the opposing party thereafter 'may introduce otherwise inadmissible evidence to rebut or explain the prior evidence.'" Vandeweaghe, supra, 177 N.J. at 238 (quoting James, supra, 144 N.J. at 555).

Although defendant never objected to Colleton's use of the diagram, we believe the basic tenets of these two doctrines of expanded admissibility permitted the judge to admit the diagram into evidence for the jury's consideration during deliberations. Given the jury's extensive opportunity to view the diagram during plaintiff's direct examination of Colleton, the judge's decision to admit the diagram was not "clearly capable of producing an unjust result." R. 2:10-2.

Affirmed.

We note that Colleton was amply qualified to provide expert opinion in this regard given his training and experience in accident investigations and reconstructions.

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A-0496-08T1

September 28, 2009