JAMES O'LEARY v. WILLIAM MOLONEY AND MARCIA J. MOLONEY -

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2553-07T32553-07T3

JAMES O'LEARY,

Plaintiff-Appellant,

v.

WILLIAM MOLONEY AND

MARCIA J. MOLONEY,

Defendants-Respondents.

 
Argued Telephonically October 30, 2008 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-39-03.

Carmine R. Villani argued the cause for appellant (Villani & DeLuca, attorneys; Mr. Villani, on the brief).

Stephen J. Foley, Jr. argued the cause for respondents (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Mr. Foley, on the brief).

PER CURIAM

While riding his bicycle on February 4, 2001, plaintiff James O'Leary was struck by a car driven by defendant William Moloney. The jury found that defendant was negligent, but his negligence was not a proximate cause of the accident. The court denied plaintiff's motion for a new trial. On appeal, plaintiff claims that he is entitled to a new trial because the verdict was against the weight of the evidence; the court erred by failing to bifurcate the liability trial from the damages trial; and the court failed to charge the jury under the careless driving statute. We conclude that plaintiff's arguments are without merit and affirm.

The accident occurred as plaintiff traveled north on Fourth Avenue in Spring Lake. He reached the intersection with Church Street, stopped at a stop sign and noticed defendant's vehicle approaching westbound on Pitney Avenue. According to plaintiff, he turned right, riding on the north side of Church Street into oncoming traffic, "to allow [himself] as much view coming down [the] road because this is a pretty fast road."

As plaintiff approached defendant's vehicle, he noticed that the driver's head was turned toward the passenger seat. He tried to pedal to the curb on the other side of Church Street, which required that he cross the road in front of defendant's vehicle. Plaintiff testified that as he did so, when he looked at defendant's vehicle, defendant was still not looking at the road ahead. Plaintiff tried to get as close to the curb as possible; when he saw that defendant's car was going to hit him, he screamed. Defendant's vehicle then collided with him "head-on."

Defendant provided the jury with a different version of events. He testified that he turned from Pitney Avenue onto Church Street, and while driving twenty-five miles an hour, he encountered a glare from the sun when "instantaneously Mr. O'Leary appeared before [him]." He stated, "And at that point I was sort of just horrified at the fact that, you know, somebody on a bicycle was in front of me, and there was nothing that I can do other than put my brakes on." When he first saw plaintiff, he was "close enough that I realized that I was going to be in an accident, and would not be able to avoid that." At the time of impact, "O'Leary was traveling in the direction from the driver's side of [defendant's] car, towards the passenger side of the car, at [an] angle, not directly, . . . kind of cutting across the street."

Plaintiff's accident reconstruction expert, Tom Thiemann, testified that defendant "could have adjusted his sun visor to compensate for [the sun] glare," and the road was clear of any other obstructions to defendant's vision. Thiemann testified that defendant "should have seen and could have seen that bicycle." Both parties had a clear view in excess of 500 feet. He concluded, based on a lack of skidmarks at the accident scene, that defendant did not hit his brakes until he collided with plaintiff. Thiemann opined that defendant drove "recklessly," and "[he] was traveling too fast for the conditions." Thiemann did not offer an opinion as to where impact occurred.

Investigating Officer Timothy Moran testified that it was a "clear shot for both Mr. Moloney and Mr. O'Leary." By examining the damage to plaintiff's bicycle, Moran concluded that the accident "was probably a head-on collision." Defendant's accident reconstruction expert, John Desch, concluded that defendant's vehicle hit plaintiff at an angle while plaintiff was crossing defendant's path of travel.

The trial court denied plaintiff's motion to exclude testimony about his drug and alcohol use and marital difficulties. As a result, plaintiff's counsel initiated questioning about these areas during his direct examination of plaintiff's doctor, Dr. Jay Gordon. During defendant's cross-examination of a second doctor, Dr. Amos Katz, the jury learned that plaintiff falsely informed his treating physician, post-accident, that he had no history of alcohol or substance abuse. The jury was also presented with testimony that following the accident, sometime after March 16, 2002, plaintiff suffered a drug overdose for which he was hospitalized, and in July 2002, he was admitted to a twenty-eight-day rehabilitation program. These incidents occurred despite doctors' advice to plaintiff that his drug or alcohol use could impede recovery from the injuries he received from the accident.

During plaintiff's direct examination, he explained that he and his wife were separated at the time of the accident. He testified about his drug use, alcohol abuse, his history of DWIs, and marital troubles. This line of questioning continued on cross examination, revealing that plaintiff's driver's license was suspended at the time of the accident and, for incidents that occurred subsequent to the accident, he pleaded guilty to possession of a controlled dangerous substance and criminal mischief.

On direct examination, plaintiff's wife, Jennifer O'Leary, testified that she had obtained a restraining order against plaintiff before the accident occurred. On cross-examination, she testified about the incident that led to the restraining order as follows:

Q That was an incident in which he slapped cooking oil out of your hand and told you he was going to kill you?

A Yes, but it's a little exaggerated that he was going to kill me. But there was an argument, and cooking oil was slapped out of my hand.

Q And your daughter [] got pushed up against the kitchen counter and broke her finger?

A Well that was filed in a divorce complaint. We also have a galley kitchen, and we have a 14 year-old daughter in a space. So she was pushing him, he shoved her, she hurt her finger. My lawyer was being a little aggressive with that. But the incident did occur as it is stated. It just seems like it was a little bit more aggressive stated in the complaint for divorce.

Q Did you ever object to your lawyer being a little bit aggressive in the complaint?

A No, I did not. No, I did not.

Q So in the complaint for the divorce it's okay to be a little bit aggressive because that's really a negotiating position, is that right?

A I guess you've got me there, yes.

Q And it would be okay to be a little bit aggressive in description of your husband here, is that right?

A No, it would not.

. . . .

Q And then you indicated that he began to have violent episodes which were worse than ever before, is that right?

A Yes, he would have rage episodes.

Q He overdosed on cocaine and Vicodin in April of 2002, and was taken to the hospital, is that right?

A Yes.

Q And then they discharged him from the hospital because he refused to seek counseling, is that right?

A Correct.

Q And he remained in denial and was worse than ever, and continued to use drugs, is that right?

A Correct.

Q Eventually there was an episode in June of 2002, when he again threatened to kill you, is that right?

A I don't recall.

Q You don't recall being trapped in a room, and refused to let use the telephone?

A Yes. But I recall we've had many restraining orders, we've had three or four.

Q That was while the children were in the house?

A Yes.

Q And all of these actions in your divorce complaint you ascribe to Mr. O'Leary's abuse of drugs and alcohol, is that right?

A No, that's not correct.

Q It's not?

A His behavior was much more severe after his brain injury.

At the time of the accident, plaintiff was a vice president at Smith Barney. Following the accident, he was unable to work until June 2001, and when he returned, he was forgetful and fatigued. In late 2002, Smith Barney asked plaintiff to resign because he failed to report a domestic dispute.

The trial court charged the jury, over plaintiff's objection, on plaintiff's statutory duty pursuant to the traffic act. The court instructed:

In this case in support of the charge of negligence made, it is asserted that the plaintiff violated a provision of the traffic act. That provision referred to is known as N.J.S.A. 39:4-14.1, and N.J.S.A. 39:4-14.2.

The first statute provides, "Every person riding a bicycle upon a roadway shall be granted all of the rights, and shall be subject to all of the duties applicable to the driver of a vehicle by [c]hapter [four] of Title 39 of the [R]evised [S]tatutes and all supplements thereto except as to those provisions thereof which by their nature can have no application."

Then N.J.S.A. 39:4-14.2 provides, "Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as [practicable], exercising due care when passing a standing vehicle or one proceeding in the same direction[;] provided, however, that any person may move to the left under any of the following circumstances: (A) to make a left turn from a left-turn lane or pocket; (B) to avoid debris, drains or other hazardous conditions that make it [impracticable] to ride at the right side of the roadway; (C) to pass a slower moving vehicle; (D) to occupy any available lane when traveling at the same speed as other traffic; (E) to travel no more than two abreast when traffic is not impeded."

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

Following the jury verdict, plaintiff moved for a new trial, arguing that the verdict was inconsistent with the evidence because if defendant was negligent, his negligence had to have been a proximate cause of the accident. He also argued that the trial court erred in charging the jury on N.J.S.A. 39:4-14.1 and N.J.S.A. 39:4-14.2 because the court did not, as plaintiff requested, charge the jury regarding the careless driving statute, N.J.S.A. 39:4-97. Plaintiff argued that to charge the driving offenses that favored defendant, N.J.S.A. 39:4-14.1 and N.J.S.A. 39:4-14.2, and not to charge the careless driving statute, which favored plaintiff, was unfair.

The court denied plaintiff's motion for a new trial, reasoning that the jury could have concluded that defendant was negligent but his negligence was not a proximate cause of the accident, based on the evidence. The court said:

The plaintiff's version is that he came out, I think it was Fourth Avenue to Church Street, cross Church Street and made a right and went down the left side of Church Street and made a right and went down the left side of Church Street and collided head-on with the plaintiff.

. . . .

The accident reconstruction expert though said that is not what happened. He could tell from the angle at which the bicycle was hit, that the plaintiff had gone down the right side of Church Street, in the correct lane and right before the accident had cut in front of the defendant.

. . . .

If the jury believed that the plaintiff had gone down the correct side of the roadway and just cut in front of the defendant, right before the accident occurred, that could explain a finding that the defendant was negligent for failing to make proper observations, but that that negligence was not a proximate cause of the accident, because even if he had made proper observations, he would not have been prepared for the plaintiff suddenly cutting in front of him at the last moment.

With regard to the jury charges, the court held that "[t]he plain language of N.J.S.A. 39:4-97 prohibits negligent driving. Proof of the violation of the statute is proof of negligence itself." To allow a jury charge of a violation of N.J.S.A. 39:4-97 as evidence of negligence would "directly [violate] the Supreme Court's opinion" in Eaton v. Eaton, 119 N.J. 628 (1990), "because it is not evidence of negligence, it is synonymous with negligence."

We first address plaintiff's argument that because the jury found that defendant was negligent, its subsequent determination that defendant's negligence was not a proximate cause of the accident was inconsistent. We disagree.

A plaintiff bears the burden of proving by a preponderance of the evidence that the defendant's negligent conduct was a proximate cause of an accident and resulting injury. Pisano v. S. Klein, 78 N.J. Super. 375, 392 (App. Div.), certif. denied, 40 N.J. 220 (1963). Proximate cause is "any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred." Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979) (citation omitted). "It is, of course, a basic principle of negligence jurisprudence that there may be two or more concurrent and directly cooperative and efficient proximate causes of an injury." Freund v. Cellofilm Props., Inc., 87 N.J. 229, 245 (1981) (quotation omitted).

Plaintiff relies on Neno v. Clinton, 167 N.J. 573 (2001) to support his argument that the verdict was inconsistent. In that case, the plaintiffs attempted to cross an intersection of a four-lane highway and another street, where there was no pedestrian crosswalk. Id. at 577. While the traffic light facing them was green, they crossed the first two lanes of the highway. Ibid. When the plaintiffs stepped into the southbound lanes, the highway traffic light turned green. Id. at 578. The plaintiffs were hit by a truck heading southbound on the highway. Ibid. A witness saw the defendant, just before the collision, look away from the road. Ibid. The jury found that the defendant was negligent but his negligence was not a proximate cause of the accident. Id. at 579.

This court affirmed, but a dissenting member concluded that:

[i]f defendant was negligent in failing to make proper observations or in failing to properly control his truck, I cannot conceive of any such act that was not also a proximate cause of the accident in these circumstances. . . . Assuming that defendant acted negligently, that conduct would have contributed to at least some of plaintiffs' damages. Put another way, if defendant was negligent, he proximately caused at least some of plaintiffs' injuries.

[Id. at 588.]

The Supreme Court agreed with the dissent, that under the undisputed facts, if the defendant was negligent, his negligence must have been a proximate cause of at least some of plaintiff's injuries. Ibid.

Here, however, the facts dictate a contrary result than the result in Neno. As the trial court explained,

If the jury believed that the plaintiff . . . cut in front of the defendant, right before the accident occurred, that could explain a finding that the defendant was negligent for failing to make proper observations, but that that negligence was not a proximate cause of the accident, because even if he had made proper observations, he would not have been prepared for the plaintiff suddenly cutting in front of him at the last moment.

The court provided a reasonable rationale for the verdict based upon the evidence. In addition, the trial proofs were also sufficient for the jury to conclude that defendant was negligent in not adjusting his sun visor to compensate for the sun glare, but nevertheless, even if he had done so, he would still have struck plaintiff because he simply cut across the street in front of defendant's car at a point where it would have been too late for defendant to avoid hitting him.

Accordingly, we agree with the trial court that the jury's finding of negligence, but that defendant's negligence was not a proximate cause of the accident, was consistent with the trial evidence.

We next turn to plaintiff's argument that the trial court erred in denying his pretrial motion to bifurcate the trial, which would have rendered the testimony of plaintiff's drug, alcohol and domestic violence history irrelevant in the liability phase of the trial. The record does not, however, contain the transcript of the argument and trial court's rulings with regard to the bifurcation issue prior to trial, and the motion was not addressed during the trial itself. Without that transcript, we are unable to address plaintiff's argument on this issue. R. 2:5-3(a); Cipala v. Lincoln Technical Inst., 179 N.J. 45, 55 (2004). That said, the jury's finding that defendant was negligent is indicative that it was not prejudiced against plaintiff by the evidence of his personal problems.

Finally, plaintiff's argument that the court erred by refusing to charge the jury under the careless driving statute, N.J.S.A. 39:4-97, is without merit. The charge, if given, would have had a bearing on whether plaintiff was negligent; and, as noted, the jury found that plaintiff was negligent. Thus, even if the failure to give the charge was error, which we do not find, the error was harmless.

 
Affirmed.

Driving While Intoxicated, N.J.S.A. 39:4-50.

(continued)

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A-2553-07T3

December 8, 2008