RAJESH S. PATEL v. GHANSHYAM PATEL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5714-06T15714-06T1

RAJESH S. PATEL and

TIUPTI PATEL,

Plaintiffs-Appellants,

v.

GHANSHYAM PATEL and

KETUL PATEL,

Defendants-Respondents/

Third-Party Plaintiffs,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Third-Party Defendant.

_________________________________________

 

Submitted September 24, 2008 - Decided

Before Judges A. A. Rodr guez and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1361-05.

Spevack & Cannan, attorneys for appellants (Howard H. Sims, on the brief).

Ciarrocca & Ciarrocca, attorneys for respondents (Mark P. Ciarrocca, of counsel; Paula C. Nunes, on the brief).

PER CURIAM

Rajesh S. Patel (Rajesh) and his wife Tiupti (collectively "plaintiffs") appeal from a jury verdict finding Rajesh's negligence was a proximate cause of his injuries sustained on October 25, 2003. The jury also found that defendant Ketul Patel (Ketul) was negligent in causing the injuries, and apportioned fault at: sixty percent to Rajesh and forty percent to Ketul. Accordingly, the judge molded the verdict into a judgment of no cause of action. Plaintiffs moved unsuccessfully for a new trial. This appeal follows. We reverse because the trial judge failed to instruct the jury as to the burden of proof with respect to comparative negligence.

These are the salient facts. On October 25, 2003, Rajesh went to Ketul's apartment to help him move. Ketul arrived with a rented box truck. Rajesh suggested that it would be easier to load the truck if it was parked right in front of the building's door. Ketul agreed. Rajesh saw the truck backing up towards the front door. The back end of the truck protruded two to three feet onto the sidewalk. The truck's wheels hit the curb, but the truck did not have sufficient momentum to mount the curb. The truck moved forward into the street. As the truck moved forward, Rajesh walked towards the back of the truck. The truck then accelerated backwards over the curb and struck Rajesh, whose "ankle got pinned between the concrete steps and the metal bar of the truck."

According to Rajesh, he was bleeding and in "awful pain." He blacked out. When he came to, he saw a deep wound in his ankle. He asked to be taken to Muhlenberg Hospital, where he was employed as a phlebotomist.

At the hospital, the wound was cleaned and stitched. Eventually, an orthopedic surgeon examined Rajesh and later performed surgery. Rajesh stayed at the hospital overnight. He went home the following evening with his ankle in a cast.

Plaintiffs sued Ketul, alleging negligence in the operation of the truck. Ketul answered, denying negligence and asserting several affirmative defenses, including Rajesh's negligence pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.17 (the Act).

Rajesh, his wife and Ketul testified at trial. On cross-examination, Rajesh testified that he knew the truck was backing up because he saw the back-up lights illuminated. Then, the following exchange occurred:

Q. Did it have a beeper?

A. I don't recollect it.

Q. May - maybe it did, maybe it didn't and as we sit here today you don't recall whether it was going beep, beep, beep?

A. I don't recall the beep. I recall lights, but I don't recall the beeper.

At the jury charge conference, plaintiffs' counsel noted that a portion of the jury charge was misleading and "harsh" because it did not indicate that defendants had a burden of proof in this case. The judge ruled that she would be using the Model Charge for comparative negligence, and that the language of that charge was sufficient. However, the judge did not specifically instruct the jury that Ketul had the burden of proving that Rajesh was negligent.

In his summation, defense counsel argued that Rajesh "couldn't recall whether [the truck] also had a back-up beeper." Plaintiffs' counsel objected. There was an untranscribed discussion at sidebar. Defense counsel continued, arguing that Rajesh "testified that he couldn't recall whether there were additionally a beeper or a signal that - that went on while the vehicle was backing up."

On appeal, plaintiffs contend that the judge's "failure to instruct the jury as to defendant's burden of proof on comparative negligence was error." We agree.

Pursuant to the Act, comparative fault is an affirmative defense for which the "defendant bears the burden of proving that a plaintiff is negligent and that such negligence contributed to plaintiff's damages." Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 254 N.J. Super. 380, 387 (App. Div. 1992). Plaintiffs contend that the judge should have included two additional provisions from the Model Charge. They are:

Because defendant has charged the plaintiff with negligence, it is his/her burden to prove that plaintiff was negligent and that such negligence was a proximate cause of the accident. Defendant also must prove his/her charge by a preponderance or greater weight of the credible evidence.

. . .

Each party must not only prove the negligence of the other party by preponderance or greater weight of the credible evidence, but also that this negligence was a proximate cause of the accident.

[New Jersey Standard Civil Jury Instructions 7.30(A) & (D)).]

It is unclear why the judge omitted these portions of the model charge.

This case is similar to D'Aries v. Schell, 274 N.J. Super. 349 (App. Div. 1994). There, the court did not instruct the jury that defendant carried the burden of proving plaintiff's negligence was the proximate cause of plaintiff's injuries. Id. at 351. Holding this to be plain error, we explained:

This was a close decision by the jury in that it apportioned fault at 60/40. With a proper instruction, the percentage could easily have been different and favorable to plaintiff. The jury received no guidance on how to use a substantial amount of damaging evidence against plaintiff. Beyond that, the jury was not instructed that defendant Schell had the burden of proving plaintiff's negligence and of apportioning the harm to plaintiff caused by plaintiff's negligence.

[Id. at 362.]

Accord Murphy v. City of Long Beach, 914 F.2d 183, 186-87 (9th Cir. 1990); McCrystal v. Trumbull Mem'l Hosp., 684 N.E.2d 721, 725-26 (Ohio Ct. App.), rev. denied, 674 N.E.2d 1186 (Ohio 1996).

Here, plaintiffs properly objected to the jury instruction on the ground that it did not mention defendant's burden of proof. Over this objection, the judge instructed the jury improperly, failing to mention that defendants, as well as plaintiffs, carried a burden of proof in this case. "Few issues occur during a trial that are more important or more fundamental than proof." Blitz v. Hutchinson, 252 N.J. Super. 580, 594 (App. Div. 1991). D'Aries compels reversal in this case.

For the guidance of the judge at the new trial, we address plaintiffs' contention that "defense counsel's argument with reference to a backup beeper not proven to be present by way of testimony during trial was improper and prejudicial." We disagree. It is well-established that "counsel may argue from the evidence any conclusion which a jury is free to arrive at." Spedick v. Murphy, 266 N.J. Super. 573, 590 (App. Div.), certif. denied, 134 N.J. 567 (1993). "Counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd, unless they are couched in language transcending the bounds of legitimate argument, or there are no grounds for them in the evidence." Id. at 590-91. Plaintiff's argument here is without merit.

In light of Rajesh's testimony on cross-examination, it was perfectly appropriate for defense counsel to remind the jury of this testimony. Defense counsel did not mischaracterize the testimony in any way. He did not transcend the bounds of legitimate argument.

The remaining contentions are that: (1) the judge's failure "to grant plaintiff's motion for directed findings of negligence and proximate cause against the defendant was reversible error;" (2) the judge's failure "to grant plaintiff's motion for directed findings of no negligence or proximate cause on the part of the plaintiff was reversible error;" and (3) the plaintiff's motion for new trial should have been granted since the jury verdict was clearly against the weight of the evidence." Based on our careful review of the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E). We merely add that a motion for directed verdict should be granted only when the opposing party's evidence, accepted as truth and given the benefit of every inference of fact, is still insufficient to support a verdict in favor of the opposing party. Potente v. County of Hudson, 187 N.J. 103, 111 (2006); Monaco v. Hartz Mt. Corp., 178 N.J. 401, 413 (2004). Here, the evidence was sufficient to defeat a motion for a directed verdict.

The judgment is reversed and the matter is remanded for a new trial.

The complaint also named Ghanshyam Patel, Ketul's father as a defendant.

(continued)

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A-5714-06T1

October 8, 2008