JAMES STONEY, JR. v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5719-04T35719-04T3

JAMES STONEY, JR.,

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURERS INSURANCE

COMPANY,

Defendant-Respondent,

and

RENTAL CAR FINANCE,

Defendant.

_____________________________________

SHEILA BROOKS,

Plaintiff-Respondent,

v.

JAMES STONEY, JR.,

Defendant-Appellant,

and

JAMES STONEY, SR., and RENTAL CAR

FINANCE,

Defendants,

and

NEW JERSEY MANUFACTURERS INSURANCE

COMPANY,

 

Defendant-Respondent.

_____________________________________

 

Submitted May 22, 2006 - Decided June 19, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

L-298-03.

DeZao & DiBrigida, attorneys for appellant (James C. DeZao, on the brief).

Connell Foley, attorneys for respondent New Jersey Manufacturers Insurance Company (Brian G. Steller, of counsel; Christopher Abatemarco, on the brief).

Kirsch, Gelband & Stone, attorneys for respondent Sheila Brooks (Gregg Alan Stone, on the brief).

PER CURIAM

Plaintiff Sheila Brooks was a passenger seated in the front passenger seat of a Mercury Topaz driven by James Stoney, which collided with a stolen Dodge Intrepid driven by an unknown driver. Stoney was in the process of turning left from South Orange Avenue onto Sunnyside Terrace, while the unknown driver was operating the Dodge in the opposite direction on South Orange Avenue. Brooks filed a personal injury complaint against Stoney and the unknown driver, naming New Jersey Manufacturers Insurance Company (NJM) under Stoney's uninsured motorist coverage (UM). Stoney filed a separate personal injury complaint naming NJM under his UM coverage.

Following consolidation of the complaints, the matter was bifurcated and tried before a jury on the liability of the two drivers. Participating in the trial were plaintiffs' attorneys for both Brooks and Stoney, and NJM counsel on behalf of the unknown driver. The jury returned a verdict finding Stoney fifty-five percent negligent and the unknown driver forty-five percent negligent. The judge executed an order dismissing Stoney's complaint with prejudice and entered judgment in favor of NJM, thus effectively deconsolidating the complaints.

Stoney appeals from the adverse judgment, asserting trial error. Specifically, Stoney argues that the trial judge erred in (1) refusing to present Brooks' negligence to the jury on the theory that she violated her duty to warn the driver of the impending collision; (2) precluding evidence that the Dodge Intrepid was stolen and the driver fled from the scene; (3) disallowing the investigating police officer from giving his opinion that the unknown driver operated the stolen vehicle in a reckless or careless manner; and (4) declining to give an ultimate outcome instruction to the jury. We reject Stoney's contentions and affirm.

The following relevant testimony was given at trial. At approximately 11:45 a.m., Stoney was traveling eastbound on South Orange Avenue, in the left lane, intending to turn left onto Sunnyside Terrace. South Orange Avenue is a four-lane roadway with two lanes traveling in each direction. Sunnyside Terrace has one lane of traffic traveling in each direction. According to Brooks, "all of the sudden as we're proceeding, Mr. Stoney decides he's going to make a left hand turn." She testified that he slowed down but did not come to a complete stop before executing his left turn. She indicated that up until the point of impact Stoney "was driving pretty well."

Brooks noticed two vehicles in the inside opposite lane of South Orange Avenue that were stopped, preparing to make left turns. She stated that they "messed up [her] view of anything coming." She did not see where the Dodge Intrepid came from, only that it was "right there" as Stoney was crossing the far right lane of South Orange Avenue. Brooks did not see the Dodge until it was "[m]aybe one car length" away, "was up on me." When asked why she did not warn Stoney of the oncoming car, she replied, "[t]here was nothing to say. The car was already on me."

Stoney testified that he came to a complete stop, activated his left turn signal, and observed the two vehicles in the opposing lane, one behind the other, that both had their left turn signals on. He looked down the roadway to the next light, which was red. He did not see any other cars traveling in the opposite direction coming towards the intersection. According to Stoney, he began his left-hand turn by easing out and was able to see two to three blocks west on South Orange Avenue, but did not see any approaching traffic. In his discovery deposition, he indicated that he put on his signal after he stopped. His view was unobstructed. Stoney testified that about a second and a half later, while engaged in the turn, he saw "something big and black" coming toward him before the impact. In discovery depositions when asked if he saw the vehicle, he answered "no." Stoney claimed at trial that the stenographer wrote down the wrong answer.

Officer Kevin Green responded to the scene. Stoney's vehicle was overturned on its roof in the intersection approximately twenty to thirty feet from Sunnyside Terrace. It was damaged on the passenger side. The unoccupied Dodge Intrepid was located in the intersection closer to Sunnyside Terrace. At the hospital after the accident, Green ascertained from Stoney that the Dodge approached the intersection in the inside lane and then veered to the outside lane going around the vehicles that were stopped to make a left turn. Green did not talk to Brooks.

With these facts in mind, we address Stoney's contentions, seriatim. After the presentation of evidence, Stoney's counsel requested a jury charge on passenger's duty to warn, indicating the charge was appropriate because of Brooks'

failure to warn or say anything to [Stoney] at all. She said this vehicle was approaching and right before impact and yet she said nothing to him. So I think in line with what the charge that the jury should make a determination as to whether she should have or shouldn't have done that.

Declining the request, the judge stated:

I just don't think there's any question in the evidence that can be presented to the jury. This is a matter that occurs over a minute or two. It is not the classic case of a passenger for example in a speeding vehicle. Or with a drunken driver. Or with someone who is driving for some extended period of time carelessly. I just don't see any foundation for submitting to the jury any question about Miss Brook[s'] negligence.

Stoney argues that, because Brooks testified that she was familiar with the area, the jury should have been permitted to consider whether she was in a better position "to appreciate any particular dangers associated with the . . . intersection . . . particularly [because] there was no traffic control device securing [Stoney's] right-of-way while making the left turn." He also asserts that Brooks' testimony that she saw the vehicle maybe one car-length away and did not yell or say anything was evidence of her negligence.

A passenger's duty to warn was discussed at length in Ambrose v. Cyphers, 29 N.J. 138, 150-51 (1959):

In general terms, a passenger is bound to exercise for his own safety the care of a reasonably prudent person under the circumstances. But . . . a passenger "need not be on the alert or watch the road and may trust himself to the driver, until he has reason to believe that there is danger" . . . in the absence of circumstances indicating the contrary, a passenger "need not anticipate that the driver, who had exclusive control and management of the vehicle, will enter a sphere of danger, omit to exercise proper care, to observe the approach of other vehicles, or fail to keep the speed of the vehicle within proper limits, or otherwise improperly increase the common risks of travel." A contrary approach would encourage disquieting interference and be more mischievous than serviceable. In Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 176 (1955), it was stated that there is a duty "to warn the driver . . .only of a known and appreciated peril if a reasonably prudent person would have given such warning under the same or similar circumstances, and the risk could thereby have been averted." The peril cannot be said to be "known and appreciated" unless the passenger (1) is aware of the hazard and (2) circumstances indicate to the passenger that the driver is unaware of it. (citations omitted).

There was no evidence that the intersection presented unusual danger. Defendant was aware of the lack of a left turn traffic signal. He also was confronted with the increased risk of harm in making a left turn across oncoming lanes. Fattohi v. Cardner, 318 N.J. Super. 331 (App. Div. 1999); Model Jury Charge (Civil), 5.20C Left-Hand Turn. Brooks did not become aware of the approaching vehicle until it was very close, maybe one car-length away. She explained that she had no time to react because the Dodge was already on her. From Brooks' point of view, the accident happened almost instantaneously. There is nothing in this record establishing awareness and appreciation on the part of Brooks sufficient to warrant a charge on failure to warn. Beyond that, we note neither Stoney nor NJM asserted the theory of contributory negligence in their opening remarks to the jury.

Prior to openings, Stoney sought to introduce into evidence a police report, for the purpose of showing that the vehicle was stolen and that the driver of the stolen vehicle fled the scene. He argued that "a stolen vehicle and a driver fleeing the scene [are] circumstantial and an inference could be made that [the operator was] driving carelessly and recklessly." The judge responded that the evidence should not be entertained because it was "intended to sort of inflame the jury and make them think the other driver's a bad person. Therefore, it's more the bad person's fault . . . ." She then made the following ruling:

If the driver was . . . present I might agree that . . . the fact that the driver fled . . . might be evidential of consciousness of negligence. . . . But the fact remains here that everybody agrees it was a stolen vehicle. And . . . fleeing the scene was actually more logically consistent with the fact that it's a stolen vehicle than anything else.

The problem is that . . . I'm absolutely convinced the fact that it was a stolen vehicle is completely irrelevant. It's got nothing to do with this case. And to allow anyone to argue an inference . . . of negligence from the fact that the driver fled the scene in this case I think, one stretches the inference a little too far and, most importantly, even if there is some . . . relevant connection, the prejudicial effect far outweighs any relevant purpose because to allow that inference to be argued would then in turn have to allow the testimony about the car being a stolen vehicle, which according to the case I think that's completely irrelevant and completely prejudicial without having any relevant purpose.

After the judge's ruling, Stoney requested that he be permitted to present lay opinion testimony, pursuant to N.J.R.E. 701, from the police officer, who never observed the unknown driver, that the operator was recklessly operating a stolen vehicles. To which the court responded that:

[I]t's not a lay opinion. It's an expert opinion. It requires knowledge of law enforcement. It requires knowledge of the difference between trafficking and stolen vehicles and what might be called joy riding by underage drivers in stolen vehicles, et cetera. And so in the Court's view that is an area of expert opinion, not an appropriate topic for lay opinion. And to the extent that you seek to offer that opinion under that rule the Court will deny the application.

Immediately thereafter, Stoney sought to offer Officer Green as an expert witness. After hearing objection to Stoney's request, the judge precluded the requested testimony because Stoney had not provided any advance notice that he would be calling Officer Green as an expert witness.

Stoney reprises these same evidential arguments on appeal. We must defer to the trial judge's rulings absent an abuse of discretion. Green v. N. J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999); Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). "As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter, supra, 252 N.J. Super. at 92; see also Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). Our role is not to substitute our judgment for that of the trial judge, but to decide whether the judge pursued a manifestly unjust course. Green, supra, 160 N.J. at 492. The existence of other evidence in the record, properly admitted, may render error, otherwise committed in either the exclusion or admission of specific evidence, harmless. State v. Doyle, 77 N.J. Super 328, 344 (App. Div. 1962), aff'd, 42 N.J. 334 (1964).

The jury was made aware of the absence of the driver of the Dodge at the scene. There was no testimony respecting excess speed, pursuit, joyride, or the like that would create and inference relating the fact that the Dodge was stolen to the happening of the accident. This also is not the type of case that bears upon the foreseeability of a vehicle owner's knowledge that leaving an unattended vehicle open with keys available inside would lead to it being stolen and later untoward consequences. See Hill v. Yaskin, 75 N.J. 139, 147-48 (1977). We are satisfied that the judge used appropriate discretion and correctly applied N.J.R.E. 403, finding that the probative value of such evidence was outweighed by the risk of undue prejudice. Likewise, she correctly determined that the opinion Stoney sought from Officer Green was not a lay opinion based upon common knowledge and observations, N.J.R.E. 701, State v. Johnson, 120 N.J. 263, 294 (1990), and properly precluded Stoney from calling Green as an expert for failing to provide his adversaries either advanced notice or a report. R. 4:23-5(b).

Finally, Stoney argues that it was plain error for the judge to fail to give the jury an instruction on the ultimate outcome. During the charge conference, Brooks' counsel requested the judge to give the ultimate outcome charge, stating,

[a]nd although . . . plaintiff's counsel for . . . Stoney has not requested an ultimate outcome charge, obviously that's something that should be included.

. . . .

[U]ltimate outcome deals with comparative fault. And comparative fault is an issue here because . . . Mr. Stoney is both the plaintiff and the defendant. If he's found 51 or more percent at fault, he has no affirmative case anymore. And I know that the Supreme Court feels that it really is a charge that should be required.

NJM responded:

The instructions from the court on percentage of negligence and how they will decide I think cover any problem that Mr. Stoney may have in terms of percentages. The jury questions suggest percentages. So to go beyond that with an ultimate outcome charge which truly I think has something to do with damages would be inappropriate here.

Stoney's counsel replied that he would defer to the judge's decision. When the judge said "[n]o deferring[,] [t]ell me what your position is," however, Stoney agreed with NJM's position that everything was clear and the ultimate outcome charge was not needed. Consequently, the judge decided not to give the ultimate outcome charge, noting that Stoney was the only party with standing to request it and that he requested that the court not give the charge. Later during an off-the-record discussion concerning the jury interrogatories, however, Stoney's counsel changed his mind and asked the judge to charge ultimate outcome. Thereafter, the judge acknowledged Stoney's new position on the record and made the following ruling:

It is a liability only trial. Now, that's not to say that the ultimate outcome charge is always inappropriate in a liability only trial. But I believe in this particular case, given that the procedural posture is claim on an uninsured motorist benefits policy. The difficulty becomes explaining to the jury the true ultimate outcome in terms of what claims can be made where and how they might get paid. So I think in this case that has the potential to confuse the jury, distract them from the question that is presented to them and has been told to them from the time they started that it's a simple question that's going to be presented to them. Who was at fault and by how much. So that's how I'm going to give it to them.

A jury charge on the ultimate outcome is necessary to inform a jury of the effect of its findings as to percentages of negligence in a comparative negligence trial. Roman v. Mitchell, 82 N.J. 336, 346-47 (1980). "However, in a complex case involving multiple issues and numerous parties, the trial court, in the exercise of sound discretion, could withhold the instruction if it would tend to mislead or confuse the jury." Id. at 347. The ultimate outcome charge instructs the following:

If you find that both the plaintiff and the defendant were negligent, and proximately caused the accident, then you must compare their negligent conduct in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%.

I will explain to you the effect of these percentages. If you attribute to the plaintiff a percentage of negligent conduct of 50% or less, then the Court will reduce his/her recovery of damages by his/her percentage of the negligence that proximately caused the accident. If you attribute to the plaintiff a percentage greater than 50%, then he/she will not recover damage from the defendant at all. In that event, you must stop your deliberations without making any determination as to damages.

[Model Jury Charge (Civil), 8.21 Comparative Negligence: Ultimate Outcome.]

The ultimate outcome is given so that the jury's deliberations on percentages of negligence are not "based on a mistaken notion of how the statute operates." Roman, supra, 82 N.J. at 345. The charge, however, is not appropriate when considered in a case where there is no issue as to the negligence of the plaintiff. De Los Santos v. Saddlehill, Inc., 211 N.J. Super. 253, 270 (App. Div. 1986), certif. denied, 107 N.J. 101 (1987); see also Brodsky v. Grinnell Haulers, Inc., 362 N.J. Super. 256, 270-71 (App. Div. 2003), aff'd in part, rev'd in part, 181 N.J. 102 (2004); Colucci v. Thomas Nicol Asphalt Co., 194 N.J. Super. 510, 518 (App. Div. 1984). The ultimate outcome charge "is generally required when a plaintiff and one or more defendants are comparatively negligent." De Los Santos, supra, 211 N.J. Super. at 270. The decision to utilize the instruction, however, is left to the sound discretion of the judge, who may withhold the instruction if it would tend to mislead or confuse the jury. Ibid. Omission of an ultimate outcome charge when a jury is assessing the negligence of two drivers is harmless. Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 610 (App. Div. 1984).

 
The jury was essentially comparing the negligence of two drivers, even though one, Stoney, stood as both a plaintiff and a defendant. There was no issue of comparative negligence on the part of Brooks. Under these circumstances, we cannot say that the judge's decision to withhold the instruction was an abuse of discretion. Although it would have been better practice to instruct the jury on ultimate outcome as it applied to Stoney, the failure to do so was harmless in light of the circumstances present. R. 2:10-2.

Affirmed.

Both complaints named Rental Car Finance, the owner of the stolen Dodge Intrepid, and fictitious party drivers of the vehicle. Rental Car Finance is not a party to this appeal.

(continued)

(continued)

15

A-5719-04T3

June 19, 2006