JANE T. AVERSA v. KEVIN M. PASSARO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1254-07T21254-07T2

JANE T. AVERSA,

Plaintiff-Appellant,

v.

KEVIN M. PASSARO,

Defendant-Respondent.

____________________________

TINA L. MILLER,

Plaintiff,

v.

JANE AVERSA, KEVIN PASSARO,

USAA CASUALTY INSURANCE CO.,

Defendants.

_____________________________________________________

 

Submitted March 3, 2009 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket Nos.

L-8787-04 and L-35-05.

McCullough and Joseph, attorneys for appellant (Robert S. Joseph, on the brief).

Green, Lundgren & Ryan, attorneys for respondent (Francis X. Ryan and Alexa J. Nasta, on the brief).

PER CURIAM

This is an appeal from a judgment in defendant's favor in an automobile negligence action based on a jury verdict of no cause of action.

The accident upon which the action was based occurred around 6 p.m. on January 3, 2003, at the intersection of Washington Avenue and Route 73 in the Borough of Berlin. According to plaintiff, she stopped at a stop sign on Washington Avenue, looked to her left for any oncoming traffic, saw nothing, and then proceeded into the intersection. Her car was struck almost immediately by a pick-up truck being driven by defendant. Plaintiff testified that defendant's headlights must have been off at the time of the accident because she did not see defendant's truck before he struck her despite looking carefully down the road for incoming traffic. As a result of the accident, plaintiff suffered a broken collar bone and a head injury.

Plaintiff's version of the accident was corroborated by the passenger in her car, Tina Miller, who testified that she also looked in the direction of oncoming traffic on Route 73 before plaintiff entered the intersection and saw no headlights approaching plaintiff's car.

Plaintiff's version of the accident was also corroborated by the testimony of an accident reconstruction expert, Jeffrey Grey, who examined the headlights on defendant's truck, which were in the custody of the Berlin Police Department. Both headlights were broken in the accident. Grey testified that the condition of the bulbs inside the headlights showed that the headlights were off at the time of the accident. The details of Grey's expert opinion testimony are not relevant to the issue presented by this appeal.

Defendant testified that he was driving at 40 to 45 m.p.h. at the time of the accident because it was rainy and dark, even though the speed limit on Route 73 is 50 to 55 m.p.h. According to defendant, plaintiff's car suddenly drove into him as he was passing through the intersection. Defendant also testified that his headlights were on at the time of the accident. Defendant did not present any expert opinion testimony disputing the opinions rendered by plaintiff's accident reconstruction expert.

The case was submitted to the jury by jury interrogatories regarding liability only. The first jury interrogatory asked: "Was Defendant, KEVIN PASSARO, negligent, which negligence was a proximate cause of the accident?"

In instructing the jury regarding defendant's negligence in allegedly driving without his headlights, the trial court stated:

In this case in support of the charge of negligence made it is asserted that the defendant violated a provision of the Traffic Act. That provision is known as [N.J.S.A.] 39:3-47, which reads as follows: "No person shall drive, move, park or gain custody of any vehicle or combination of vehicles on any street or highway during the times when lighted lamps are required unless such vehicle or combination of vehicles displays lighted lamps and illuminating devices as here and after in this article required."

. . . .

Now, the statutes I've just read have set up a standard of conduct for the users of our streets and highways. If you find that the plaintiff or the defendant has violated those standards of conduct such violation is evidence to be considered by you in determining whether negligence, as I have defined that term to you, has been established.

You may find that such violation or violations constituted negligence on the part of the plaintiff or the defendant or you may find that it did not constitute such negligence. Your findings on this issue may be based on such violations alone, but in the event that there is other or additional evidence bearing upon that issue you will consider such violations together with all such additional evidence in arriving at your ultimate decision as to a defendants neg -- defendant's or plaintiff's negligence.

During its deliberations, the jury asked the court a question: "Does question 1 mean only that Mr. Passaro had his lights on or off[?]" Following discussions with counsel, the trial court simply wrote the word "no" at the bottom of a piece of paper on which the jury foreman had written this question and sent it back to the jury room. Shortly thereafter, the jury returned a verdict that responded negatively to jury interrogatory number one.

Plaintiff filed a motion for a new trial. One of her primary arguments in support of the motion was that the court's simple "no" answer to the jury's question about jury interrogatory one had not provided the jury adequate guidance. The trial court denied plaintiff's motion for a new trial.

Plaintiff appeals.

"When a jury requests clarification [during its deliberations], the trial judge is obligated to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984). "So, too, when the jury's question is ambiguous, the judge is obliged to clear the confusion by asking the jury the meaning of its request." State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995). The court should not just assume that an ambiguous question by the jury has a particular meaning. Ibid. If the court fails to properly discharge this responsibility, a new trial may be required. See Fayer v. Keene Corp., 311 N.J. Super. 200, 207 (App. Div. 1998).

Initially, the trial court appeared confused about the meaning of the jury's question and suggested the need for clarification:

THE COURT: The question -- I could bring them out, because I'll never be able to write it so that they understand it and I don't know that I could write it so I could understand it, but --

[Defendant's counsel:] Judge, --

THE COURT: -- that's part of -- if he had them off it would mean he would be negligent. If he had them on does that mean that he's not negligent, no. Because just because you have the right-of-way doesn't mean you can run over people.

However, in the ensuing colloquy with counsel, the court appeared to conclude that the jury must be asking whether the sole basis upon which it could find defendant negligent was that defendant's headlights were off at the time of the accident and that the proper response to this question would be a simple "no."

We conclude that the trial court erred in failing to seek clarification from the jury as to the intent of its question and source of its confusion. It is possible, as the court concluded, that the jury was uncertain about whether defendant's alleged failure to have his headlights on was the sole basis upon which defendant could be found negligent. However, we consider it as likely, if not more likely, that the jury was confused about the court's instruction that a finding defendant had violated N.J.S.A. 39:3-47, which requires a motor vehicle's headlights to be on "during the times when lighted lamps are required," was only evidence of negligence. This is a somewhat subtle concept, and it is easy to see how it could be confusing to a jury. We of course have no way of knowing whether the jury's question was directed at this part of the court's instructions. However, the court should have undertaken to find out the source of the jury's confusion by inquiry of the jury rather than itself resolving the ambiguity in the jury's question and providing an answer that may or may not have been responsive.

We are unable to conclude that the court's failure to undertake to resolve the jury's confusion regarding its instructions was only harmless error. Plaintiff presented a strong case on liability, consisting not only of her testimony and that of her passenger but also an accident reconstruction expert who testified that a scientific analysis of the remnants of defendant's headlights showed that they had not been on at the time of the accident. Therefore, the court's failure to clarify the meaning of the jury's ambiguous question during its deliberations may have led to an unjust result.

Accordingly, the judgment of no cause of action is reversed and the case is remanded to the trial court for a new trial.

 

The court also read to the jury N.J.S.A. 39:4-144 relating to plaintiff's alleged contributory negligence.

The trial court's opinion denying the motion was not trans-cribed, apparently because the sound recording equipment was not working.

(continued)

(continued)

8

A-1254-07T2

March 26, 2009