VICTORIA TINEN v. ELAINE LEDERER
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6149-07T3
VICTORIA TINEN, Administratrix
ad Prosequendum of the ESTATE
OF THOMAS A. TINEN, and VICTORIA
TINEN, Administratrix of the
ESTATE OF THOMAS A. TINEN,
Plaintiff-Appellant,
v.
ELAINE LEDERER,
Defendant-Respondent.
___________________________________________
Argued October 26, 2009 Decided May 26, 2010
Before Judges Rodríguez and Yannotti.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-002941-06.
Nancy C. Ferro argued the cause for
appellant (Ferro and Ferro, attorneys; Ms.
Ferro, on the brief).
Andrew G. Toulas argued the cause for
respondent (Harwood Lloyd, attorneys;
Charles E. Powers, Jr., on the brief).
PER CURIAM
Plaintiff Victoria Tinen sued defendant Elaine Lederer for
the wrongful death of her husband Thomas A. Tinen (decedent)
resulting from a motor vehicle accident. Plaintiff appeals from
a jury verdict of no cause of action. We affirm.
The accident occurred while decedent was walking his dog in
close proximity to the northbound lane of East Crescent Avenue
in the vicinity of the golf course on January 6, 2006. It
snowed a few days before but the roadways were clear. Lederer
was driving her 1993 Chrysler Concord which possessed "manual"
lights. She testified that she used her headlights because it
was dark outside. Lederer was heading northbound on East
Crescent Avenue. Near the Apple Ridge Country Club there are no
sidewalks, but there is a fog line in order to enable drivers to
recognize the edge of the road. There is a small amount of
pavement to the right of the northbound lane. The speed limit
in this area is forty miles per hour (mph). Lederer testified
that she was traveling thirty-five mph at the time of the
accident.
That night, decedent was wearing blue jeans and a black
fleece. He habitually walked his dog along the northbound side
because there was more room. Decedent also habitually walked
his dog on his right side with the leash in his right hand.
According to Lederer, as she approached the golf course,
she noticed a man about twenty feet ahead on the northbound
side. The trees and bushes on the side of the road caused
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Lederer to lose sight of the man. Suddenly, Lederer felt a
collision. The man hit the windshield. Lederer applied the
brakes. Lederer believed that she hit the dog, but decedent
fell forward. He was dragged and pinned underneath the car. It
took Lederer approximately forty-five seconds to locate her cell
phone. She called 911 for assistance and requested an ambulance
and she also signaled a passing vehicle for help. The cell
phone records did not corroborate her testimony. The phone
records, however, did reflect that Lederer called her son at
5:20, thirty-seven minutes after sunset.
Decedent remained alive but unconscious underneath
Lederer's car for fifteen minutes after the accident. He passed
away before the police arrived at the scene.
Mahwah Officer Eric Larsen responded to a 911 call that was
recorded at 5:27. On cross-examination, Larsen acknowledged
that 5:27 may not constitute the actual time of the accident.
According to him, it could take up to ten minutes to enter the
call into the dispatch computer because the dispatcher will
contact emergency units first. At the scene, Larsen noted that
decedent had expired. Larsen could not recollect the lighting
conditions but he stated that it was a clear night.
The testimony of lay and expert witnesses regarding the
visibility conditions at the time of the accident was in
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conflict. It was stipulated at trial that on the day of the
accident, sunset occurred at 4:43 p.m. and civil1 twilight ended
at 5:14 p.m. Plaintiff presented the testimony of several
witnesses who arrived at the scene of the accident shortly after
the collision. Melanie Hagopian testified that it was twilight
when she arrived and it became darker after she left the scene
fifteen or twenty minutes later. Lynda Burgess corroborated
Hagopian's testimony. Burgess characterized the lighting
conditions at the time she arrived at the accident scene as
twilight. According to the Burgess's cell phone record, she
called the police at 5:20 p.m.
Jason Moodie testified that the lighting condition was dusk
when he arrived at the accident. After the police arrived,
Moodie searched for decedent's dog on the golf course for
approximately twenty minutes. Moodie recollected that it was
light enough for him to see 50 to 100 feet ahead.
Mauro Mecca, a physician, testified that it was twilight
and it was not completely dark when he arrived at the scene.
He could see clearly without the assistance of lights.
1
Civil twilight is the time after sunset or before sunrise
during which on clear days there is enough light for ordinary
outdoor occupations. Websters New International Dictionary (2d
ed. 1959). It ends or begins when the sun is six degrees below
the horizon. Ibid.
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Plaintiff's expert Michael Natoli, an engineer who
specializes in accident reconstruction, opined that the accident
occurred at 5:17 p.m. Natoli's visibility test consisted of
taking photographs of the lighting conditions on the one year
anniversary of the accident. His test revealed that at the time
of accident, a driver could see at least 200 feet ahead.
Moreover, Natoli opined that decedent could have been seen with
natural lighting even though he wore dark clothing. He also
opined that Lederer veered off the road and struck the decedent
in the northbound shoulder. Natoli rejected Lederer's
contention that the decedent walked in front of her vehicle.
After reviewing the police photographs of decedent's body and
the autopsy report, Natoli concluded that decedent was walking
north and Lederer's negligence was the proximate cause of the
accident.
Mahwah Police Lieutenant Bruce Kuipers conducted a
visibility test on January 24, 2006, three weeks after the
accident. The sunset occurred at 5:04 p.m. and the civil
twilight ended at 5:33 p.m. The visibility test consisted of
determining when an approaching driver can view a pedestrian at
the same lighting conditions when the accident occurred.
Kuipers took three photographs from 200, 150 and 50 feet away.
The test was conducted pursuant to the assumption that the
A-6149-07T3
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accident occurred at 5:27 p.m., as set forth in the police
report. Kuipers acknowledged that the accident might have
occurred at a different time. This test was conducted at 5:50
p.m., forty-six minutes after sunset and nine minutes later than
when Lederer called her son following the accident.
Kuipers also conducted a time-distance analysis to
determine the total stopping distance for a vehicle traveling at
a particular speed in the same conditions. The test was based
on the speed limit, forty mph, and the assumed stopping time,
two seconds due to the lighting conditions. Kuipers concluded
that it would have taken 176 feet to bring the car from forty
mph to a complete stop. Based on this test, Kuipers concluded
that the accident occurred within defendant's orderly travel
lane. Kuipers did not find any evidence that the accident
occurred in the shoulder of the northbound lane.
Defendant's expert, John Desch, was retained to reconstruct
the accident. Desch's employees, Steven Immolo and John
Karpovich, conducted the visibility test. Desch was not present
during the visibility test. The visibility test, recorded on a
DVD, sought to duplicate the lighting conditions at the time of
the accident. Desch co-authored the report after viewing the
DVD. Desch relied on telephone records provided from a witness
who called 911 to assume that the accident occurred thirty-six
A-6149-07T3
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minutes after sunset. The DVD, however, displayed the lighting
conditions thirty-eight minutes after sunset. On the night of
the visibility test, Desch noted that there was more of an
illuminated disk of the moon, which provided more visibility.
The headlights were turned off to prevent them from impacting
the illumination readings. Additionally, the video recording
did not contain a time stamp.
Regarding the results of the visibility test, Desch
testified that because Lederer was not expecting decedent to be
in her path of travel, the total stopping distance was between
fifty and seventy-five feet. Desch relied on the police report
and the location of the footprints to determine that the
collision occurred within the northbound lane. Desch concluded
that Lederer could not have avoided the collision.
Following Kuipers's testimony, plaintiff objected to
Lederer's attempt to introduce photographs six through twenty-
two into evidence. These photographs depicted Kuipers
visibility test conducted three weeks after the accident, which
attempted to replicate the lighting conditions at the time of
accident. Plaintiff contends that the photographs had no
probative value on the issue of the lighting conditions.
Further, the objection was grounded on the fact that witnesses
and experts placed the accident between 5:17 p.m. and 5:20 p.m.,
A-6149-07T3
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approximately thirty-six minutes after sunset. Plaintiff
further argued that pursuant to N.J.R.E. 403, any probative
value of the photographs were substantially outweighed by the
undue prejudice and confusion to the jury because the
photographs did not represent the actual conditions at the time
of the accident.
Judge Toskos ruled that, pursuant to N.J.R.E. 401, the
photographs were probative. He reasoned that the time Kuipers
used to conduct the test is a credibility issue for the jury to
decide. As to the N.J.R.E. 403 objection, the judge ruled that,
although the photographs might depict the lighting conditions at
a different time, this fact did not substantially outweigh their
probative value. Thus, the photographs were admitted into
evidence.
Plaintiff also objected to the admissibility of the DVD
simulation used by Desch. Specifically, regarding the
narration, plaintiff argued that because Desch had not conducted
the test or narrated the DVD, he could not verify the times of
the lighting conditions. Plaintiff relied on Persley v. N.J.
Transit Bus,
357 N.J. Super. 1 (App. Div. 2003), for the
proposition that the narration constituted inadmissible evidence
because Desch was not the person who conducted the test and
therefore could not authenticate the DVD.
A-6149-07T3
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Plaintiff also argued that the headlights were not turned
on during the test when the light candles readings were
determined, rendering the readings inaccurate. Plaintiff noted
other discrepancies contained in the report and DVD simulation,
including that: there was no indication when the sunset
occurred; the headlights were not used during the test; there
was no reference of the speed of the vehicle; plaintiff was not
advised when the test was going to be conducted; there were gaps
in the recreation of the time; and there was no reference of the
time when the vehicle was within fifty feet of the object.
Judge Toskos conducted a N.J.R.E. 104 hearing to determine
the admissibility of the DVD simulation. The judge found that
the DVD was an accurate representation of the conditions of the
night of the accident. The DVD was subsequently admitted into
evidence with the following limitations: defendant could not
play the accompanying narration and Desch could not read from
the transcript. Instead, Desch was permitted to describe the
methods of the test as the DVD played. The jury was shown the
DVD simulation with Desch providing a narration of the test.
The jury returned a verdict of no cause of action.
Plaintiff moved for a new trial. Judge Toskos denied the motion
for a new trial.
A-6149-07T3
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On appeal, plaintiff contends that Judge Toskos improperly
admitted the DVD simulation and police photographs into evidence
and that the judge erred in denying plaintiff's motion for a new
trial. We disagree.
I
Plaintiff contends that Judge Toskos erred in allowing
defendant to play the DVD simulation during the testimony of
defendant's expert, Desch. Plaintiff argues that the DVD
simulation possessed no probative value because it did not
accurately recreate the lighting conditions and visibility at
the time of the accident. Ibid. Plaintiff asserts that the
inaccurate test confused and mislead the jury. These
contentions lack merit.
Evidentiary rulings are reviewed pursuant to the abuse of
discretion standard. State v. Erazo,
126 N.J. 112, 131 (1991).
Issues of admitted evidence on appeal is an example of
discretion exercised by trial courts pursuant to N.J.R.E. 403,
which provides that a judge may exclude evidence otherwise
admissible if the judge determines that certain circumstances
exist. Our Supreme Court has established that, "[o]n appellate
review, the decision of the trial court must stand unless it can
be shown that the trial court palpably abused its discretion,
that is, that its finding was so wide of the mark that a
A-6149-07T3
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manifest denial of justice resulted." State v. Carter,
91 N.J.
86, 106 (1982). Thus, Judge Toskos's decision to admit the
police photographs and defendant's accident reconstruction DVD
is reviewed pursuant to the abuse of discretion standard.
A trial court generally is provided deference in "admitting
such 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 into evidence." Rodd v. Raritan Radiologic Assocs.,
P.A.,
373 N.J. Super. 154, 165 (App. Div. 2004). The
admissibility of such evidence is dependant upon whether the
reconstruction sufficiently duplicates the original event as
described by witnesses or participants. Balian v. Gen. Motors,
121 N.J. Super. 118, 126 (App. Div. 1972), certif. denied,
62 N.J. 195 (1973).
A video of a reconstruction of an accident may be admitted
into evidence if it is relevant and its probative value is not
outweighed by undue prejudice, unfair surprise, unwarranted
consumption of trial time or confusion of issues. Id. at 127.
Undue prejudice occurs when the jury places excessive weight on
the video due to its dramatic effect and the fact that the video
is cumulative evidence to the expert's testimony regarding the
A-6149-07T3
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test results. Id. at 128-29. This mirrors the standard set
forth in N.J.R.E. 403.
A party seeking to exclude relevant evidence on the grounds
of undue prejudice must demonstrate that the evidence's
"'probative value is so significantly outweighed by its
inherently inflammatory potential as to have a probable capacity
to divert the minds of the jurors from a reasonable and fair
evaluation' of the issues in the case." State v. Koskovich,
168 N.J. 448, 486 (2001) (quoting State v. Thompson,
59 N.J. 396,
421 (1971)). Furthermore, "[t]he mere possibility that evidence
could be prejudicial does not justify its exclusion." Ibid.
In Balian, supra, we set forth factors for a court to
consider when deciding whether to admit a video reconstruction
into evidence.
121 N.J. Super. at 126. These factors include:
whether there is a substantial similarity between the conditions
at the time of the accident and those when the test is
conducted; the existence of identical conditions is not
required; and dissimilarity, when not so marked as to confuse or
mislead the jury, should be considered in determining the weight
instead of the admissibility of the evidence. Ibid.
Applying this standard in Persley, we held that the video
in question was substantially similar to the underlying
Persley, supra,
357 N.J. Super. at 17. There, the
accident.
A-6149-07T3
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plaintiff argued that the video "failed to recreate all the
variables of the accident and left the prejudicial impression
that the accident happened exactly the way it was depicted in
the video." Id. at 14. The expert acknowledged that the
simulation would have been different if he relied on other
evidence contained in the record which indicated that the
defendant was traveling at a speed greater than forty mph.
Ibid.
We rejected plaintiff's contention and found that the video
was based upon virtually all the evidence surrounding the
underlying accident. Id. at 17. We noted that plaintiff's
counsel was able to effectively cross-examine defendant's expert
concerning the differences. Id. at 17-18. Moreover, we rested
this decision on the fact that the video was simple and straight
forward and did not mislead the jury. Id. at 18.
Further, we have rejected video simulations where the
probative value is outweighed by its potential for undue
For example, in Crispin v. Volkswagenwerk AG, 248
prejudice.
N.J. Super. 540, 556-57 (App. Div.), certif. denied,
126 N.J.
385 (1991), we affirmed the trial court's finding that there
existed too many variations between the videos and the evidence
presented regarding the motor vehicle accident, which rendered
them not probative on the issues raised. The videos were a
A-6149-07T3
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simulation of a high speed rear-end vehicle collision at thirty-
five mph and their effect upon dummies who were restrained by
Id. at 556. The vehicles used in the simulations,
seat belts.
however, were newer and heavier than the vehicle involved in the
underlying accident. Ibid. We held that the trial court did
not abuse its discretion in not admitting the videos into
evidence because of the wide variations contained in the test
vehicles and the seat belt systems used in the newer vehicles.
Id. at 556-57.
Similarly, in Suanez v. Egeland,
330 N.J. Super. 190, 195
(App. Div. 2000), we held that a video reconstruction of the
underlying accident should have been excluded on the grounds
that its depiction of "extreme slow motion" did not constitute a
simulation of the actual accident. The disputed video was not
offered as substantive evidence since defendant's expert
utilized the video to make his testimony more understandable for
Id. at 194. The jury was not advised of the limited
the jury.
purpose for which this evidence was introduced. Ibid.
Importantly, we noted that the discrepancies between the
simulation and the actual accident were numerous and the slow
motion simulation of the accident may have influenced the jury
to find that the impact could not have caused plaintiff's
injuries. Id. at 195. Consequently, we held that the jury
A-6149-07T3
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might have placed inordinate weight on the expert's video and
prejudiced the plaintiff. Id. at 195-96.
Here, Judge Toskos found that the lighting test contained
in the DVD was an accurate representation of the conditions on
the night of the accident. Whether the simulation would have
been different if other times were relied upon was an issue of
credibility for the jury to decide. Moreover, the judge agreed
that there would be undue prejudice if the narrative was played
and the judge therefore held that the DVD could not be played
with the accompanying sound. The judge instead permitted
defendant's expert, Desch, to explain the lighting test
conducted on the DVD while testifying.
Here, we conclude that the judge's decision to admit
defendant's simulation DVD into evidence was not "so wide of the
mark" as to result in a manifest denial of justice. Green v.
N.J. Mfrs. Ins. Co.,
160 N.J. 480, 492 (1999). Both sides
presented the testimony of reconstruction experts. These
experts reached opposite conclusions as a result of their
reliance on different facts contained in the record. The DVD
simulation reflected Desch's assumption that the accident
occurred thirty-six minutes after sunset, despite actually
showing the lighting conditions at thirty-eight minutes after
sunset. This discrepancy, as the judge noted, was a credibility
A-6149-07T3
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issue for the jury to consider when deciding how much weight to
give to the evidence.
Likewise, plaintiff's contention that the DVD simulation
does not duplicate the original event as described by the
witnesses lacks merit. As previously explained, the record
reflects discrepancies concerning the actual time of the
accident. Witnesses testified that the accident occurred
anywhere from 5:17 p.m. to 5:27 p.m. The issue of what time the
accident occurred was a question of fact for the jury to decide.
The jury therefore was responsible for determining how much
weight to place in the DVD simulation.
II
Plaintiff also contends that the judge erred in admitting
the police photographs depicting the lighting condition on the
night of the accident because the photographs possessed no
probative value. Plaintiff argues that the photographs were
taken eight minutes after the accident occurred and therefore
did not constitute a "substantially correct representation" of
the amount of visibility at the time of the accident. Again, we
disagree.
A photograph is an admissible type of writing, composed of
N.J.R.E. 801(e). Photographs
pictures or data compilations.
must be relevant to be admitted into evidence and must
A-6149-07T3
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demonstrate a "tendency in reason to prove or disprove any fact
of consequence to the determination of the action." N.J.R.E.
401. Even if relevant, the photographs "may be excluded if
[their] probative value is substantially outweighed by the risk
of undue prejudice, confusion of issues, or misleading the jury
or undue delay, waste of time, or needless presentation of
N.J.R.E. 403.
cumulative evidence."
Moreover, the admissibility of any relevant photograph
rests on whether the photograph fairly and accurately depicts
what it purports to represent. N.J.R.E. 901; see also Saldana
v. Michael Weinig, Inc.,
337 N.J. Super. 35, 46 (2001). This
showing of authenticity is required because of the persuasive
representational nature of photographs. Brenman v. Demello,
191 N.J. 18, 30 (2007). The question of whether a photograph is a
sufficiently accurate representation is a preliminary issue for
State v. Wilson,
135 N.J. 4, 15 (1994).
the court.
Any witness with knowledge of the facts represented by the
photograph may authenticate the photograph. Id. at 14-15. To
authenticate a photograph, the testimony of a witness must
establish that:
(1) the photograph is an accurate
reproduction of what it purports to
represent; and (2) the reproduction is of
the scene at the time of the incident in
question, or, in the alternative, the scene
has not changed between the time of the
A-6149-07T3
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incident in question and the time of the
taking of the photograph.
[Id. at 15.].
Here, Judge Toskos found that the photographs were relevant
and probative. He noted that Kuipers's determination of when
the accident occurred was based on the 911 records. In the
judge's opinion, this was a credibility issue for the jury to
decide. Regarding the N.J.R.E. 403 objection, Judge Toskos
ruled that the prejudicial effects of the photographs, even if
they do not depict the actual time, did not substantially
outweigh their probative value. The judge found that if the
photographs depict a different time than the actual accident, it
was a credibility issue for the jury. Ibid.
Applying the abuse of discretion standard, we conclude that
Judge Toskos's decision to admit the photographs into evidence
cannot be characterized as resulting in a manifest denial of
justice. The parties presented conflicting evidence and
testimony regarding the time of the accident. The time of the
accident was a disputed fact and consequently a factual issue
for the jury to resolve. Moreover, plaintiff was provided an
opportunity on cross-examination to challenge the accuracy of
Kuipers's visibility test.
Plaintiff's reliance on Wilson, supra,
135 N.J. at 4, is
misplaced. There, the Supreme Court established that a
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photograph entered into evidence must consist of a substantially
correct representation of the matters offered into evidence,
accompanied with identification of what the photograph shows.
Id. at 14-15. Here, Kuipers testified that the photographs
depicted the lighting conditions forty-six minutes after sunset.
This time was based on Kuipers's assumption that the accident
occurred at 5:27 p.m. as reflected in the 911 records. Despite
plaintiff's contentions, Kuipers did not testify that the photos
depicted the lighting conditions at the time of the actual
accident. The pictures therefore constituted a fair and
accurate representation of the lighting conditions at the time
of Kuipers's visibility test. Whether the conditions at forty-
six minutes after sunset were similar to the conditions that
prevailed when plaintiff said the accident occurred was a matter
to be resolved by the jury. Thus, the judge did not abuse his
discretion.
III
Plaintiff contends that the judge erred in denying
plaintiff's motion for a new trial pursuant to Rule 4:49-1(a).
Plaintiff asserts that the verdict was clearly against the
weight of the evidence resulting in a miscarriage of justice.
Plaintiff argues that the judge's decisions to admit the DVD
simulation of defendant's expert and the police photographs into
A-6149-07T3
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evidence constituted evidentiary errors and merit a new trial.
We disagree.
Whether the motion for a new trial was granted or denied,
the standard of review on appeal is that "[t]he 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."
R. 2:10-1. "Further, our standard of reviewing the trial
judge's ruling is essentially the same as that which governs the
trial judge's disposition." Dolson v. Anastasia,
55 N.J. 2, 6-9
(1969). To decide whether there was a miscarriage of justice,
the appellate court defers to the trial court with respect to
"intangibles" not transmitted by the record, but otherwise makes
its own independent determination whether a miscarriage of
justice occurred. Carrino v. Novotny,
78 N.J. 355, 360 n.2
(1979); Baxter v. Fairmont Food. Co.,
74 N.J. 588, 597-98
(1977). It therefore follows that the appellate court must
accept as true the evidence supporting the jury's verdict and
all permissible inferences therefrom. Bell Atl. Network Servs.
v. P.M. Video Corp.,
322 N.J. Super. 74, 83 (App. Div.), certif.
denied,
162 N.J. 130 (1999).
Here, Judge Toskos held that the fact that the jury did not
accept plaintiff's theory of the case did not provide grounds
for granting the motion for a new trial. The judge noted that
A-6149-07T3
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the parties' experts provided different assessments of where the
decedent was struck. Moreover, regarding the admission of the
police photographs and the DVD simulation, the judge found that
the witnesses at trial opined that accident occurred at three
different times and it was in the province of the jury to decide
which testimony to give weight. Thus, the judge held that
plaintiff did not meet the high bar for setting aside a jury
verdict.
Plaintiff's contention that the jury's unanimous verdict
was against the weight of the evidence lacks merit. First,
Judge Toskos's evidentiary decisions to admit the police
photographs and DVD simulation did not result in a miscarriage
of justice. Despite plaintiff's contentions, the actual time of
the accident was a disputed fact at trial. The discrepancy
concerning the time of the accident was an issue for the jury to
determine. The jury was responsible for determining how much
weight to place in the conflicting testimony of the witnesses.
The determination of credibility constitutes an "intangible feel
of the case." Dolson, supra,
55 N.J. at 6. Consequently, the
fact that the jury concluded that the testimony and evidence
presented by defendant was the accurate account of the
underlying accident is not grounds for granting a new trial.
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Second, plaintiff's contention that it was uncontroverted
that defendant drove on the night of the accident without lights
is not supported by the record. The headlights were in the
"park" position when the police arrived. Plaintiff's witness,
Jason Moodie, testified that he turned off plaintiff's car but
did not touch the lights. Further, defendant testified that she
used her headlights because it was dark outside. This testimony
demonstrates that it was not uncontroverted that defendant's
headlights were turned off. The jury's verdict reflects that
the jury rejected plaintiff's theory that defendant was driving
without headlights. This finding that defendant was not
negligent is supported by the record.
Finally, the jury's unanimous verdict indicates that the
jury did not accept plaintiff's allegation that defendant acted
negligently by not paying attention after observing decedent.
The parties' experts presented different theories as to how the
collision occurred. Plaintiff's expert, Natoli, concluded that
defendant was most likely not paying attention and hit decedent
on the shoulder of the road. Natoli acknowledged that he relied
on defendant's deposition testimony, in which she allegedly
states that she saw decedent twenty-feet to her right. However,
defendant testified that after initially losing sight of
decedent, she did not see him until the collision. Moreover,
A-6149-07T3
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defendant's expert, Desch, testified that based on the lighting
conditions and stopping distance, defendant could not have
avoided the collision. The conflicting testimony created a
credibility issue for the jury to decide.
Affirmed.
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