DELLA DAVIS et al. v. SHEAVON REDWOOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5455-04T35455-04T3

DELLA DAVIS and SHARON D. DAVIS,

Plaintiffs-Appellants,

v.

SHEAVON REDWOOD,

Defendant-Respondent,

and

MARK A. BROWN,

Defendant.

 
_________________________________________________

Argued September 26, 2006 - Decided November 17, 2006

Before Judges Weissbard and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

L-2413-03.

Douglas E. Schwartz argued the cause for

appellants (David J. Zendell, attorney;

Mr. Schwartz and Christopher Hoskey,

on the brief).

Mario A. Batelli argued the cause for

respondent (Foster & Mazzie, attorneys;

Carl Mazzie and Sarah K. Delahant, on the

brief).

PER CURIAM

In this motor vehicle accident case arising from the alleged failure of defendant Sheavon Redwood to stop at a stop sign, plaintiff Sharon Davis appeals from an order of summary judgment against her for failure to meet the verbal threshold; plaintiff Della Davis, Sharon's mother, appeals from a no-cause verdict in favor of Redwood and the denial of her motion for a new trial.

I.

Because the parties have conceded that Sharon's appeal is mooted if we affirm the jury's verdict and order denying a new trial in Della's case, we first address that matter. We commence with a summary of the evidence regarding the accident, which occurred on the evening of March 22, 2002 at the intersection of Fourteenth Street and Twenty-ninth Street in Paterson. Fourteenth Street is a through street; traffic on Twenty-ninth Street is regulated by a stop sign. Della was a front-seat passenger in a car that was being driven east on Fourteenth Street by her son-in-law, Mark Brown. Defendant Redwood was driving north on Twenty-ninth Street. The cars collided at the intersection of the two streets. Little damage to the cars was evident, and both were driven from the scene. No diagram of the position of the cars following the accident was made at the time, and no police testimony was offered at trial regarding the vehicles' position after the accident or any other circumstance of that accident.

Although suit was filed by Della against both Brown and Redwood, she reached a settlement with Brown early in the litigation, and he did not answer the complaint, participate in discovery, or appear at trial. Nonetheless, the jury was informed of the fact of the settlement and was properly instructed in accordance with Model Jury Charges (Civil) 1.11 and 1.17 that the settlement was not evidence of negligence, which could be found only upon the basis of evidence adduced at trial. The only two fact witnesses at trial were Della and Redwood. Della testified first that:

[A]ll of a sudden like out of nowhere here comes this car going as fast as it could. And it hit us so hard that it knocked us over onto the oncoming traffic, and that's what just stopped us like that.

However, Della could not respond to a question regarding whether the car was speeding, stating that she was unaware of the speed limit at the accident scene.

When Della was asked on direct examination whether she had seen Redwood's car before it hit the vehicle in which she was riding, Della responded: "By the time I did see it, it was too late. . . . I could see it coming, and . . . it wasn't going to stop." However, on cross examination, in response to a question whether she had actually seen the other car before the accident occurred, Della responded: "I didn't see the car until it hit us. . . . I just looked and the car was there hitting us so fast. And I froze." She later explained that she had seen the car for a "split second" before the impact. That impact, Della stated, occurred in the area between the car's front door and front wheel on the passenger side. However, no damage at that site appeared on photographs marked as exhibits at trial.

Redwood testified that, prior to the accident, she had stopped at the stop sign at Fourteenth Street and, because a van was blocking her view to the left, she then inched forward. She continued:

So I keep inching out and stopping and looking to see if I could go; I could proceed.

Then after inching out and inching out, I barely looked from where the van was to see, and I didn't know where this car come from prior to when it was hit.

In contrast to Della's testimony, Redwood stated that she was proceeding at a speed of zero to five miles per hour "because I wasn't really driving. I was just inching out to see my way if I could go across." When shown photographs, Redwood identified a small area of her front bumper as constituting the impact site. Whereas Della had characterized the impact as "heavy," Redwood testified that it was not.

According to Redwood, she stopped her vehicle "where the impact happened," but Brown's car "move[d] on a little bit after" and then stopped "on the side of the road [on which] it was proceeding." Although Della had testified that Brown was operating the car he was driving at a normal speed, Redwood testified that Brown's car "was going a little faster to me than it should be going. It was going, like, about - it was supposed to be like a 25 zone. Maybe it was going about 35, 40." On cross-examination, Redwood was asked: If she had not seen the Brown vehicle prior to the accident, how did she know its speed? Redwood responded that she estimated speed from the fact that Brown's car did not stop when the impact occurred, but continued forward. A motion to strike the testimony was denied. Additionally, the court denied Della's motion for a directed verdict on the issue of Redwood's negligence, stating:

It's a close case . . . . But, basically, what you have is the defendant driver saying that I looked, I made observations, and I didn't see anybody coming. And then the accident occurred, and then the only other testimony is they must have been going too fast. In fact, I think she even opined a speed, because of the fact that they continued through after the vehicles collided.

Viewing this [evidence] in its most favorable light, and allowing the jury to take . . . all favorable inferences from that, if the jury believes that witness, they could conclude that the witness looked, . . . did not see the other vehicle, and then the accident occurred because the other vehicle was traveling too fast. . . . It's a jury question.

The jury's verdict of no cause for action against defendant Redwood followed and judgment was entered accordingly.

On appeal, we reverse, finding merit in a number of Della's arguments. First, we find error to have occurred when the court permitted defense counsel in closing to reinforce the permissible inference that Brown was not called by Della as a witness because his testimony would have been unfavorable to her case with the impermissible inference that Brown's settlement with Della constituted an admission of liability. References to settlement were conjoined with missing witness arguments by defense counsel in his summation to the jury. In discussing the credibility of Redwood's testimony, counsel stated:

Now look at the credibility of Ms. Redwood. She could have come here and quite simply told you Mr. Brown, the defendant that settled, was speeding and I saw him. Did she tell you that? No. . . . She admitted to you she didn't see Mr. Brown.

Then, when discussing the testimony of Della, and after noting the inconsistency between Della's testimony regarding the severity of the impact and evidence provided by the pictures placed in evidence, counsel stated:

Another personal fact. Mr. Brown, the co-defendant who settled in this case, is [Della's] son-in-law. If he's going [to] help her case, why isn't he here? If my client's testimony is not truthful, why isn't he here?

Following an objection by Della's counsel that was overruled, defense counsel continued:

It's her family member. If he didn't come here to tell you what he was doing and he also had settled the case. Keep that in mind when you're deliberating about how this accident really happened.

Counsel then concluded his summation with the following:

My position and I believe the facts show it that Ms. Redwood acted in a reasonably prudent manner. She was inching out. There's nothing to suggest that she was speeding, although, I believe Ms. Davis said she sped through the stop sign. Again, if she sped through the stop sign, why isn't there more damage to either vehicle?

So I submit when - when you consider that as to the fact you didn't hear from Mr. Brown. He didn't come in. He didn't tell you his version. Why? You draw the inference. Why didn't you hear from Mr. Brown?

As we have noted, we find no error in defense counsel's references to Brown, the driver of the vehicle in which Della was riding, as a crucial missing witness, given the paucity of other competent evidence at trial of how the accident had occurred. We also find no error in counsel's suggestion that the jury draw a negative inference from the fact that Brown was not produced to testify by Della. State v. Clawans, 38 N.J. 162 (1962) permits such an inference to be drawn from a party's failure to call a witness if it appears that "the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." Id. at 171.

As the Clawans Court observed, the existence and strength of the inference to be drawn from non-production is "dependent upon the circumstances of the case, including whether one party has superior knowledge of the identity of the witness and what testimony might be expected from him, as well as the relationship of the witness to the parties." Id. at 171-72. Here, as defense counsel observed, Brown was Della's son-in-law, and thus she was in a far better position both to know his version of how the accident had taken place and to obtain his presence at trial. In this circumstance, the failure by Della to call Brown as a witness could properly be viewed by the jury as relevant to its analysis of whether Della had met her burden of proving negligence on the part of Redwood. Although defense counsel did not notify Della's attorney or the court of his proposed missing witness argument, we have held that such notification is not required in a civil action. Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419, 430-31 (App. Div. 1996).

However, we regard counsel's repeated coupling of his missing witness argument with the fact of settlement to have been improper, because the argument, as framed, unmistakably suggested an admission of liability on Brown's part, in violation of N.J.R.E. 408 and the court's instruction to the jury that no inference of liability should be drawn from the fact of Brown's settlement. State v. Williams, 184 N.J. 432, 446 (2005). It was Redwood's burden, through the introduction of competent evidence, to demonstrate negligence on the part of Brown that was causally related to the accident. Shatz v. TEC Technical Adhesives, 174 N.J. Super. 135, 144-46 (App. Div. 1980). Counsel's repeated references to Brown's settlement instead raised an impermissible presumption that negligence by Brown existed. Ibid.

We also find error in the court's failure to strike Redwood's testimony regarding the speed at which Brown was traveling at the time that the accident occurred. N.J.R.E. 701 permits lay opinion testimony if it "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." See also State v. Labrutto, 114 N.J. 187, 197-201 (1989) (permitting police testimony regarding point of impact in a vehicular homicide case when the testifying officer had conducted a two-hour investigation of the accident scene that required detailed personal observations).

In Pierson v. Fredrickson, 102 N.J. Super. 156 (App. Div. 1968), we affirmed the admissibility of lay testimony, solely based on auditory perception, that the speed of a vehicle was no less than thirty miles per hour, determining that the background of the witness as an electronics engineer, whose work included the measurement of sound waves in order to detect the movement of vehicles and persons, provided a sufficient foundation for the opinion. Id. at 160-63. We further observed that "it would not be improper for the average lay witness who is familiar with the sound of a moving automobile to give a general characterization of the vehicle's speed, i.e., slow or fast, based solely on auditory perception," and that it would not have been a mistaken exercise of discretion by the trial court to permit two lay witnesses who lacked specialized expertise to testify that the tortfeasor was going fast. Id. at 163. Lay witnesses have also been permitted to testify on the basis of their observations that a vehicle was proceeding "fast." Baus v. Trenton and Mercer County Traction Corp., 102 N.J.L. 1, 3 (Sup. Ct. 1925), aff'd o.b., 102 N.J.L. 712 (E. & A. 1926) (speed of trolley); Roeltgen v. Pub. Serv. Ry. Co., 2 N.J. Misc. 471, 472 (Sup. Ct. 1925)(speed of car and trolley).

In contrast to the cases that we have cited, in the present matter, no foundation was presented for Redwood's testimony that Brown was proceeding at a speed of thirty-five to forty miles per hour, and it was thus error to deny counsel's motion to strike that testimony. We also find no foundation for Redwood's testimony that Brown was proceeding at a little faster speed than he should have prior to the accident, since Redwood testified that she did not see Brown prior to that time. Redwood was, however, competent to compare the ease with which she stopped with Brown's difficulty in doing so, despite the slight nature of the impact - testimony from which an inference of speed could be drawn.

As a final matter, we tend to believe that plain error occurred as the result of the court's admitted failure to follow its charge regarding the stop sign provisions of the Traffic Act, N.J.S.A. 39:4-144, with Model Jury Charge (Civil) 5.20D, which instructs that if violation of a statutorily-established standard of care is found to have occurred, that violation may be considered in determining the existence or nonexistence of the defendant's negligence. In the absence of a transcript of the court's instructions to the jury, we are unable, as required, to consider the jury charge as a whole, and to determine from that review whether other aspects of the charge provided the essence of the missing instruction. Neno v. Clinton, 167 N.J. 573, 589 (2001). However, it appears to us that, without that instruction, the jury may have been confused or misled as to the significance, if any, of Redwood's statutory violation, assuming that the jury found such violation to have occurred. In such circumstances, reversal is required. Conklin v. Hannoch Weisman, 145 N.J. 395, 409 (1996).

We reject Della's argument that the trial court erred in declining to direct a verdict against Redwood pursuant to R. 4:40-2 because of the absence of evidence of negligence on the part of Brown. We agree with the trial court that reasonable minds could differ as to Redwood's liability. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). Evidence, viewed in a light most favorable to Redwood provided a basis for the conclusion that she had properly brought her vehicle to a halt at the stop sign, and because of the presence of a van that obstructed her view to the left, at the time the accident occurred, she was inching forward at a speed of less than five miles per hour. Evidence also provided grounds for the jury to conclude that Brown either failed to observe Redwood or failed to take any evasive action after seeing her. Further, the evidence could support the conclusion that Brown was proceeding through the intersection at a greater speed than was Redwood, since he was unable to stop his vehicle immediately after the impact, which Redwood described as light - a description that was corroborated by photographs of the condition of the cars following the collision and the fact that both cars remained drivable. Although, as the judge observed, the evidence was slight and the case "close," we find that evidence to have been beyond a mere scintilla, and thus sufficient to require submission of the case to a jury for its consideration. Ibid.

We decline to address Della's arguments regarding the admissibility of photographs of Redwood's vehicle taken after the accident and the admissibility of testimony as to who had taken those photographs, finding the incomplete and partially unintelligible record of this aspect of the trial to be insufficient to permit our consideration of the issue. We do note, however, that in cases such as this in which an audio recording of trial proceedings is made, trial judges and their court clerks must work to ensure that the record that is obtained is both capable of transcription and complete: that sidebar conferences are properly and intelligibly recorded, and that testimony is not lost during tape changes.

We regard Della's additional arguments on appeal to have insufficient merit to warrant our consideration in a written opinion. R. 2:11-3(e)(1)(E).

The judgment of no liability on the part of Redwood is therefore reversed, and the matter is remanded for retrial.

II.

We turn next to the claim of Sharon that the court erred in granting summary judgment against her for failure to cross the verbal threshold. At the time of the accident of March 22, 2002, Sharon was an unrestrained back-seat passenger in the car driven by Brown. She was first examined approximately three weeks later, on April 15, 2002, by Leonard Joachim, M.D., a physician practicing with Sall/Myers Medical Associates, who diagnosed post-traumatic headaches, contusion of the head, cervical spine injury with nerve root involvement, injury to the dorsal root, lumbar spine injury with nerve root involvement, and soft tissue injuries to muscles and ligaments. Physical therapy and a neurological consultation were recommended. An MRI of the cervical spine, conducted on May 31, 2002, disclosed bulges of the C3-4, C5-6 and C6-7 discs, each of which indented the ventral aspect of the thecal sac, and cervical straightening suggestive of paraspinal muscle spasm. An MRI of the lumbar spine was normal.

On June 23, 2002, Sharon was examined by Stanley Malkin, M.D., a neurologist in the Sall/Myers practice group. Dr. Malkin diagnosed post-traumatic headaches that were resolving, sprains and strains of the neck, cervical spine injury with nerve root involvement, displacement of cervical intervertebral disc without myelopathy, and lumbar sprain/strain. In a report dated June 17, 2002, Dr. Malkin found that Sharon's symptoms were "causally related to the automobile collision of March 22, 2002, and the prognosis is uncertain at this point in time." Following the completion of thirty-one physical therapy treatments, on July 24, 2002, Sharon was discharged from the care of Sall/Myers Medical Associates. Upon discharge, Steven Dane, M.D., a neurologist, gave the following discharge diagnosis:

Flexion/extension injury of the cervical spine with chronic fibrosis and fibromyositis plus cervical radiculopathy manifested by the loss of range of motion, complaints of pain radiation and reflex changes plus traumatic derangement of the intervertebral disc at C3-4, C5-6 and C6-7 with disc bulges with straightening of the cervical spine noted on MRI.

The areas of the body mentioned in the diagnosis have not healed and will not heal to normal function.

Dr. Dane also found Sharon's injuries to be causally related to the March 22 accident.

We find the diagnosis of Dr. Dane upon Sharon's discharge, supported by an objective demonstration of three cervical bulges indenting the thecal sac, to constitute prima facie evidence of the existence of a permanent injury as defined in N.J.S.A. 39:6A-8, and thus sufficient to withstand a motion for summary judgment based upon failure to meet the limitation on lawsuit threshold of the Automobile Insurance Cost Reform Act (AICRA). DiProspero v. Penn, 183 N.J. 477, 481-82 (2005). We recognize that a dispute exists among experts as to whether evidence of a disc bulge is sufficient to meet AICRA's threshold. Pardo v. Dominguez, 382 N.J. Super. 489, 494 (App. Div. 2005). However, we find that issue to be one that is best resolved at trial after a full exploration of relevant medical opinions.

The orders dismissing the complaints of Della and Sharon Davis are reversed.

 

We refer to plaintiffs by their first names to avoid confusion.

The record of the trial proceedings is not complete and, among other things, does not contain a transcript of the charge conference or the jury charge. However, there appears to be no dispute regarding the text of the charges given.

Counsel's attempt to place his objection on the record was improperly precluded by the judge, who cut him off before the objection could be articulated. As a consequence, we are unable to determine whether counsel objected to the reference to settlement, to the missing witness argument, or both.

The police report identifies Brown as a Massachusetts resident. If that is correct, he was not subject to the subpoena power of New Jersey's courts, and his presence at trial as a party could not be required, since he had never appeared in the action.

We are unable to address Della's argument that her counsel was unfairly precluded from rebutting defense arguments regarding the absence of Brown because, in violation of R. 2:5-3(b), the transcript of that closing argument has not been supplied to us.

(continued)

(continued)

17

A-5455-04T3

November 17, 2006