JOLENE GREMBOWIEC v. CHARLES C. GEISLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3100-09T1

JOLENE GREMBOWIEC,

Plaintiff-Respondent,

v.

CHARLES C. GEISLER and

GOVERNMENT EMPLOYEES

INSURANCE COMPANY (GEICO),

Defendant,

and

NEW JERSEY RE-INSURANCE

COMPANY,

Defendant-Appellant.

________________________________________________________________

November 30, 2010

Argued October 19, 2010 - Decided

Before Judges Payne, Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-523-05.

Daniel J. Pomeroy argued the cause for appellant (Mortenson and Pomeroy, attorneys; Mr. Pomeroy and Karen E. Heller, on the brief).

Jeffrey W. Warden argued the cause for respondent (Bongiovanni, Collins & Warden, attorneys; Mr. Warden, on the brief).

PER CURIAM

New Jersey Manufacturers Insurance Company (NJM), here doing business as New Jersey Re-Insurance Company, appeals from a unanimous jury verdict finding, where a deer crashed through the vehicle's windshield, the negligence of the driver was a proximate cause of injury to his passenger. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff Jolene Grembowiec brought this action to recover damages including compensation for severe facial injuries she sustained as a passenger in a vehicle that collided with a deer on the evening of October 28, 2004, in Bridgewater Township. Plaintiff filed suit against the driver, Charles Geisler, for his negligence, his mother who owned the car and John Doe, who was named as the driver of the "phantom" car that may have been involved in the accident. She settled claims against Geisler and his mother for the full amount of their policy, $100,000. She also received $100,000 in uninsured motorist benefits for the negligence of the driver of the "phantom" car. Plaintiff also brought a claim against her carrier, NJM, for underinsured motorist benefits1 to recover the excess damages, which were stipulated as $350,000. The trial of this action went forward against NJM on the sole issue of liability.

Plaintiff has no recollection of the accident due to her injuries. Many of the facts are undisputed: The roadway was lit with a full moon and was unobstructed; the weather was clear and dry; and Geisler was driving a 2001 Infiniti QX-4 sport utility vehicle at 30 miles-per-hour (in a 45 mile-per-hour zone) with the xenon headlights turned on. The police officer who responded to the accident testified that he had visibility of 500 feet that night. The photographs of the accident scene also show a white fence as being visible at a distance of more than 500 feet.

Although Geisler did not testify at trial, his earlier inconsistent versions of the incident were provided to the jury. He told the police officer who responded immediately after the accident that he was traveling north on Routes 202-206 when he observed a deer enter the southbound side of the roadway and run east across the road. He said he then saw a white "phantom" car, traveling southbound, hit the deer. He said, upon impact, the deer was thrown into his windshield, crashing through it, severely injuring his passenger.

At his deposition, Geisler said he did not see the deer. He said it was just "a flash out of [his] eye," and that he did not know whether or not another car hit the deer first. He said he remembered another car approaching and thought he heard a screech from that car. He testified that he had seen deer by the side of that road hundreds of times and knew to slow down and proceed with caution in that area.

NJM raises the following issues on appeal:

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND WAS THE PRODUCT OF PREJUDICIAL ERROR, REQUIRING A NEW TRIAL ON ALL ISSUES.

POINT I

THE TRIAL COURT'S REFUSAL TO BAR THE EXPERT TESTIMONY OF JOHN DESCH, P.E., WAS ERRONEOUS AND LED TO A VERDICT AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II

THE ERRORS IN THE CHARGE TO THE JURY HAD AN UNDENIABLE IMPACT ON THE OUTCOME OF THIS ACTION.

THE CHARGE REGARDING THE DUTY TO ANTICIPATE AND AVOID STRIKING ANIMALS DOES NOT REPRESENT THE LAW OF NEW JERSEY.

THE JURY WAS NOT PROPERLY INSTRUCTED REGARDING NEGLIGENCE.

POINT III

ADDITIONAL ERRORS DURING THE TRIAL OF THIS MATTER FURTHER PREJUDICED DEFENDANT, CONTRIBUTING TO THE VERDICT UNSUPPORTED BY ANY ADMISSIBLE EVIDENCE.

THE TRIAL COURT'S ADMISSION OF HEARSAY STATEMENTS WAS ERRONEOUS.

PLAINTIFF'S SUMMATION WAS HIGHLY IMPROPER.

THIS COURT MUST INTERVENE WHERE MULTIPLE TRIAL ERRORS HAD A CUMULATIVE PREJUDICIAL EFFECT.

I

NJM argues that the trial court erroneously allowed the plaintiff's accident reconstruction expert to testify. John A. Desch, P.E., plaintiff's expert, in his report on November 7, 2007, relied on Geisler's statement at the time of the accident, as Desch thought it was likely to be the most reliable. In that statement, Geisler admitted seeing the deer run into the roadway. He also claimed that another car hit the deer first. Although no roadside debris was found to confirm that part of the story, a glancing blow by the other car may have been sufficient to send the deer into Geisler's windshield. Desch concluded that Geisler would have had the two seconds required to make an evasive maneuver, and his failure to do so was a substantial factor in causing the accident. NJM argues that this opinion lacked a factual basis and was therefore an impermissible net opinion.

Without objection from NJM, the judge found Desch qualified as an expert in accident reconstruction. In forming his opinions, he considered the police accident report, party and police officer depositions, Geisler's statements, accident and aerial photos, two site inspections, weather and lunar records and measurements of the accident scene. He took daytime photographs, made a scaled diagram, performed a site analysis, made visibility measurements, calculated stopping distances and made a DVD for demonstrative purposes depicting the probable lighting conditions. He opined that drivers need approximately two seconds at night to take evasive action. He stated that, including perception reaction time, a driver of a car going 30 miles-per-hour could stop in a span of 128 feet. Desch found that the moon was 99% full on the night of the accident. He indicated that the lighting conditions at the time were such that a driver could see an object the size of a deer from 150 to 200 feet away.

The trial judge found Desch's opinion was "supported by sufficient articulable facts to warrant it being presented for the jury's consideration." We find Desch's expertise was useful to report on the visibility that night and calculate the time needed to take evasive action given the speed of the car.

We review admission of expert testimony under an abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). When conducting a N.J.R.E. 104(a) hearing, the trial judge's role is "to act as [a] gatekeeper[]" to ensure that the threshold for the admission of expert testimony is satisfied. Id. at 16. The New Jersey Rules of Evidence permit expert opinion testimony where "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. We are mindful of the three basic prerequisites for expert testimony, which our Supreme Court has repeatedly expressed in case law, both under current N.J.R.E. 702 and former Evid. R. 56(2). Hisenaj, supra, 194 N.J. at 15; see State v. Kelly, 97 N.J. 178, 208 (1984) (distilling these requirements from former Evid. R. 56(2)). First, "the intended testimony must concern a subject matter that is beyond the ken of the average juror." Hisenaj, supra, 194 N.J. at 15. Second, "the field testified to must be at a state of the art such that an expert's testimony could be sufficiency reliable." Ibid. Third, the witness "must have sufficient expertise to offer the intended testimony." Ibid. See State v. Jenewicz, 193 N.J. 440, 454 (2008). Due to "Rule 702's tilt in favor of admissibility," those requirements are construed liberally. Hisenaj, supra, 194 N.J. at 25.

In addition to determining whether a witness is qualified to testify as an expert, the trial court must also decide whether the expert's opinion is admissible under N.J.R.E. 703. "N.J.R.E. 703 requires that an expert opinion be supported by facts or data either in the record or of a type usually relied on by experts in the field. The net opinion rule reflects the well-established notion 'that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible.'" Scully v. Fitzgerald, 179 N.J. 114, 129 (2004) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).

NJM maintains that Desch's testimony included an opinion that Geisler had sufficient time to take evasive action, yet there was no evidence in the record to support that conclusion. NJM argues that Desch was unable to specify the location or movements of the deer prior to the accident, and thus he had no way of knowing when Geisler saw the deer. NJM argues that the demonstration DVD, showing a stuffed deer standing at the side of the roadway as the car with the camera drove towards it, was misleading and purely speculative. Geisler, however, in his report to the police right after the accident, claimed to have seen the deer enter the roadway from the other side of the road going east across the road. The jurors knew of the different versions of the accident related by Geisler. Desch was effectively cross-examined about the uncertainty of the position of the deer, and how fast the deer could travel across the road. The jurors knew that the stationary stuffed deer was simply a marker used to demonstrate visibility, and that its use did not purport to indicate that the actual deer was immobile the night of the accident or located as depicted.

The judge also cautioned the jury: "The weight of the expert's opinion depends on the facts on which the expert bases his opinion, and as jurors, you must decide whether the facts relied upon [by] the expert actually exist." The fact that Geisler was driving 30 miles-per-hour, the good visibility on the night of the accident, and Geisler's initial statement that he saw the deer at the side of the road support Desch's opinion that Geisler had time to take evasive action to avoid hitting the deer. The jury was aware of the strength of the facts supporting the expert's opinion and made its decision accordingly.

II

NJM argues that the trial court erred in two respects in its jury charge. In this case, the trial court used the Model Charge entitled "Duty of Automobile Driver To Make Observations." The pertinent subsection outlines the duties of drivers where vision is "impaired":

Where the view of the roadway ahead is impaired by obstructions to view caused by darkness, fog, rain on glass or other such obstruction, there is a duty to exercise care commensurate with the risk of the hazard presented. The operator of a motor vehicle in such a situation is required to exercise reasonable care, that is, such care as the existing conditions require, to have his/her vehicle under such control as to be able to stop, if necessary, to avoid harm to others on the highway. In addition, while operating a vehicle in the night time, the operator is required to anticipate that other vehicles and persons may be on the highway and must use reasonable care to so adjust his/her lights that he/she can observe vehicles or pedestrians at a sufficient distance to avoid contact with them at the speed he/she is traveling.

[Model Charge (Civil), 5.30G, "Where Vision Impaired" (approved before 1983).]

The trial court altered the model charge by adding language that requires the driver to be aware of the presence of wildlife on New Jersey roads:

Where the view of the roadway ahead is impaired by obstructions to view caused by darkness, there is a duty to exercise care commensurate with the risk of the hazard presented. The operator of a motor vehicle in such a situation is required to exercise reasonable care, that is, such care as the existing conditions require, to have his vehicle under such control as to be able to stop, if necessary, to avoid harm to others on the roadway.

In addition, while operating a vehicle at night time, the operator is required to anticipate that other vehicles and persons or animals or other objects may be on the highway and must use reasonable care to adjust his lights so that he can observe vehicles or pedestrians, objects or animals at a sufficient distance to avoid contact with them at the speed with which they're traveling.

[Emphasis added.]

The trial court explained that it did not make this change to protect the animals, but rather to prevent harm to people and property when an animal is hit, as in this instance.

Trial courts are charged with molding jury instructions to meet the facts of the case. Toto v. Ensuar, 196 N.J. 134, 144 (2008) (The charge must constitute "a road map that explains the applicable legal principles, outlines the jury's function, and spells out 'how the jury should apply the legal principles charged to the facts of the case at hand.'") (quoting Viscik v. Fowler Equip. Co.,173 N.J.1, 18 (2002)); see also Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002) (holding that where necessary for the jury's understanding, the court must tailor the charge to the theories of the parties to enable review of the evidence in that context). Indeed, "failure to tailor a jury charge to the given facts of a case constitutes reversible error where a different outcome might have prevailed had the jury been correctly charged." Reynolds, supra, 172 N.J. at 289 (citations omitted). A driver has "a duty to exercise reasonable care 'under all the circumstances confronting [him or her] at [a] particular time.'" McGowan v. Barry, 210 N.J. Super. 469, 473 (App. Div. 1986) (quoting Ambrose v. Cyphers, 29 N.J.138, 149 (1959)). Geisler admitted that he had often seen deer in that area before. The trial court properly tailored the charge to include animals because Geisler should have anticipated the risk of encountering a deer on the night of the accident.

NJM also argues for the first time on appeal that the trial court should have charged that "the mere happening of an accident does not indicate negligence." Had NJM requested such a charge timely, the court may well have complied. In light of the entirety of the instruction, the lack of this charge does not meet the plain error standard as it was not "clearly capable of producing an unjust result." R. 2:10-2.

In the context of civil jury charges, we have characterized plain error as failure to focus the jury s attention on the single critical issue of a case. Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 388-89 (App. Div. 2001). However, an erroneous jury charge not objected to at trial will be upheld if it is incapable of producing an unjust result and does not prejudice any substantial rights. Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).

The trial court charged the jury that the plaintiff had the duty to prove that Geisler's negligence was a proximate cause of the accident, stating:

It is the duty of the plaintiff to establish by a preponderance of the evidence that the negligence of the particular defendant was a proximate cause of the accident, incident or event that is alleged to have caused her - - the injury[,] loss or harm that resulted from that negligence.

The basic question for you here is to resolve whether the plaintiff s injury[,] loss or harm is so connected with the negligent actions or inactions of the defendant . . . that you decide that it is reasonable and in accordance with the instructions that I ll give you that the defendant or defendants should be held wholly or partially responsible for the injury, loss or harm sustained by the - - by the plaintiff.

Again, in this case, the narrow issue that you will be deciding [is] whether or not each of the operators of these vehicles was negligent and whether or not such negligence caused the accident to occur that s complained of here in this case.

The court clearly instructed the jury that they must find actual negligence and proximate cause, and not merely assign blame for the accident. We thus reject both claims NJM advances in Point II.

III

In Point III, NJM argues that the trial court should not have admitted into evidence Geisler's hearsay statement in the police report and that plaintiff's summation was improper.

Geisler s statement contained in the police report is clearly hearsay and therefore, absent an applicable exception, is inadmissible. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c).

Geisler's hearsay statement, however, fits within the excited utterance exception to the hearsay rule. N.J.R.E. 803(c)(2). To be admitted under the excited utterance exception, hearsay evidence must be: 1) related to a startling event, 2) made under the stress of excitement caused by the event, and 3) made without opportunity for the declarant to deliberate or fabricate. See State v. Branch, 182 N.J. 338, 365 (2005); State v. Cotto, 182 N.J. 316, 327-30 (2005); State v. Long, 173 N.J. 138, 159 (2002). "[A] spontaneous declaration will be admissible, even if not 'concomitant or coincident with the exciting stimulus,' provided that 'in the light of all the circumstances it may be said reasonably that the exciting influence had not lost its sway or had not been dissipated in the interval.'" Branch, supra, 182 N.J. at 361 (quoting Cestero v. Ferrara, 57 N.J. 497, 502 (1971)). The nature of Geisler s accident was clearly "startling." Moreover, in his deposition, Geisler claimed to be "frantic" when he spoke with the officer at the scene. As the Court has noted, the excitement and stress of the moment ensures the reliability of the statement. In re C.A., 146 N.J. 71, 98 (1996).

NJM also argues that plaintiff's summation was improper because counsel was permitted to read a portion of the judge's charge to the jury, and told the jury the charge mandated a verdict in favor of plaintiff. The general rule is that counsel is accorded broad latitude in summation. See Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001); McRae v. St. Michaels. Med. Ctr., 349 N.J. Super. 583, 596 (App. Div. 2002). Moreover, as we have noted, "a clear and firm jury charge may cure any prejudice created by counsel's improper remarks during opening or closing argument." Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div. 2004). "[A]lthough counsel has great latitude during closing arguments, 'comment must be restrained within the facts shown or reasonably suggested by the evidence adduced.'" Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128-29 (2008) (quoting State v. Bogen, 13 N.J. 137, 140 (1953)).

Here, without objection, plaintiff s counsel read portions of the court s modified jury charge to the jury, including the language requiring a driver "to anticipate that other vehicles or animals may be on the highway and must use reasonable care so as to adjust his lights to observe vehicles or animals at such a distance to avoid contact with them at the speed he is traveling." Defendant raises for the first time on appeal an objection to plaintiff's counsel "instruct[ing] the jury on the law." R. 2:10-2.

Defense counsel did object at trial to counsel's indication that the law mandated a verdict for plaintiff. Counsel told the jury that the facts and law favored his client asking them not to "ignore the law," stating: "The issue is was Mr. Geisler anticipating the deer. Was he driving slow enough to avoid the deer and the answer is absolutely not. The evidence is overwhelming. You must follow the law."

Defendant cites no case directly in support of his argument that the summation was improper on either ground. Even in a death penalty case, the Supreme Court did not find a prosecutor's comment that the jury might be guilty of violating their oaths if they did not impose a death sentence to be plain error. State v. Johnson, 31 N.J. 489, 512-13 (1960). Counsel's argument to the jury here is fair comment in a civil case. During summation "counsel may argue from the evidence any conclusion which a jury is free to arrive at . . . . [and] may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd . . . ." Spedick v. Murphy, 266 N.J. Super. 573, 591 (App. Div.), certif. denied, 134 N.J. 567 (1993).

NJM argues that the combination of errors cumulatively require reversal. Barber v. Shoprite of Englewood & Assocs.,Inc., 406 N.J. Super. 32, 52-53 (App. Div.), certif. denied, 200 N.J. 210 (2009). As we have found no error, we reject this argument.

NJM argues also that even if all of the evidence was properly admitted, the verdict was against the weight of the evidence. "In reviewing a jury's verdict, a judge must view the evidence in the light most favorable to the party opposing the motion for relief." Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325 (App. Div. 2010). Based on Geisler's initial statement to the police and the expert's opinion, the jury could have found that Geisler saw the deer and its path into the road clearly in sufficient time to take evasive action. We have an exceedingly narrow scope of review of jury verdicts, and we should not set them aside and order a new trial unless there clearly has been a manifest injustice. See R. 4:49-1; Boryszewski, supra, 380 N.J. Super. at 391; see also Kozma, supra, 412 N.J. Super. at 324-25. We find no clear indication that such an injustice occurred here.

Affirmed.

1 In order for plaintiff's carrier to pay such damages, there must be "a determination that the fault for the accident that caused [her] injuries . . . rests in whole or in part with a third party." Craig & Pomeroy, New Jersey Auto Insurance Law, 27:3 (2011).