KEITH CARTER v. ZHENGLIN YAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4481-09T2

KEITH CARTER,

Plaintiff-Appellant,

v.

ZHENGLIN YAN,

Defendant-Respondent.

_______________________________

March 16, 2011

Argued December 1, 2010 - Decided

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3742-08.

Donald M. Stanzione argued the cause for appellant (Lombardi & Lombardi, P.A., attorneys; Mr. Stanzione, on the briefs).

Katherine Lyons argued the cause for respondent (Purcell, Mulcahy, O'Neill & Hawkins, L.L.C., attorneys; Ms. Lyons and Rita Barone, on the brief).

PER CURIAM

Following trial on plaintiff's action to recover for personal injuries stemming from a motor vehicle collision, the jury found defendant was not negligent and returned a verdict of no cause of action. The court dismissed plaintiff's complaint with prejudice. Plaintiff argues the trial court erred in instructing the jury and in denying his motion for a new trial or entry of a judgment notwithstanding the verdict (JNOV). We disagree and affirm.

On the morning of March 16, 2007, the vehicle operated by defendant rear-ended the vehicle driven by plaintiff, as it was stopped on Woodland Avenue at its intersection with Randolph Road in Plainfield. Woodland Avenue is an undivided roadway with a single lane in each direction. At the time of the accident, the road conditions were poor, as it had started snowing. Defendant was traveling in the slushy conditions, driving approximately twenty miles per hour, and encountered a curve on Woodland Avenue. As he was coming out of the curve, he noticed plaintiff s vehicle was stopped at the intersection waiting to turn left onto Randolph Road, which he approximated was twelve feet immediately ahead of his car. Defendant applied his brakes, but the road conditions impeded his ability to stop his car. Defendant attempted to turn his vehicle to the right to avoid contact, however his car slid and the driver's side of defendant's vehicle struck the rear passenger's side of plaintiff s vehicle.

Following the accident, plaintiff exited his car and spoke to defendant. The parties agreed to pull onto Randolph Road and plaintiff called the police. When the police investigation was completed, both parties drove from the scene. Plaintiff later filed his complaint seeking damages suffered as a result of the accident.

Plaintiff's proofs included photographs of the roadway and his testimony regarding the curved portion of Woodland Avenue, stating it ends between 500-600 feet from the intersection where his vehicle was stopped. Plaintiff argued defendant failed to observe his vehicle and negligently operated his car based upon the weather conditions encountered. Plaintiff's case included evidence of his medical treatment and expert testimony regarding the neck and back injuries he experienced as a result of the vehicles' collision. Defendant testified, presented his expert witness and introduced photographs of the parties' vehicles.

The jury returned a verdict in favor of the defendant, finding he was not negligent. Thereafter, plaintiff moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. These requests were denied on April 30, 2010. This appeal followed.

"The standard for our setting aside a verdict already sustained by the trial judge is high." Horn v. Vill. Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993). This is because a jury verdict is entitled to a presumption of correctness, Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), and we must afford "the utmost regard" to a jury's evaluation of the disputed factual issues. Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). Our Supreme Court has characterized "the standard for authorizing a new trial as one that requires a determination that the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality.'" Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). Accordingly, in our review, we will not set aside a jury's verdict "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses," it clearly and convincingly appears that there was a miscarriage of justice under the law. Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969) (quoting R. 4:49-1(a)).

Like the trial judge considering such a request, we do not "balance the persuasiveness of the evidence on one side as against the other[.]" Dolson, supra, 55 N.J. at 6. Instead, viewing "the evidence in the light most favorable to the party opposing the motion for relief[,]" Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325 (App. Div. 2010), we consider "whether reasonable minds might accept the evidence as adequate to support the jury verdict." Dolson, supra, 55 N.J. at 6. Finally, "'because reasonable people may disagree about inferences which may be drawn from common facts, neither a trial judge nor an appellate court may reweigh the evidence and impose a new verdict simply because they disagree with the jury's decision.'" Crego v. Carp, 295 N.J. Super. 565, 578 (App. Div. 1996). See also Sun Source, Inc. v. Kuczkir, 260 N.J. Super. 256, 267 (App. Div. 1992) (holding that a "judgment notwithstanding the verdict must be denied if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ").

On appeal, plaintiff raises two arguments in support of his request for a new trial. First, he asserts the trial court erred in instructing the jury by including an unavoidable accident charge. Second, he claims the court erred in not granting a new trial when defendant's expert stated plaintiff was taking methadone, in violation of an agreement to exclude information regarding plaintiff's prior drug use.

Plaintiff first asserts the trial judge erred in instructing the jury. Because there were no objections by plaintiff to the court's charge, we review the first argument under the plain error standard of review. See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008); Das v. Thani, 171 N.J. 518, 525 (2002). Plain error occurs when the error prejudicially affects the substantial rights of a party, and is sufficiently grievous to convince us that the error possessed a clear capacity to bring about an unjust result. R. 2:10-1; Caldwell v. Haynes, 136 N.J. 422, 432 (1994). This standard governs because a failure to object deprives the court of an opportunity to make a prompt correction and additionally suggests counsel did not perceive a potential for prejudice from the error. Aly v. Garcia, 333 N.J. Super. 195, 205 n.2 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001). To fully understand the challenge, it is necessary to provide additional factual context.

At the conclusion of the second day of trial, plaintiff, relying on Dolson, supra, sought a directed verdict on liability, arguing defendant was following plaintiff's car in a single traffic lane, yet failed to maintain a reasonably safe distance between the vehicles. Defendant opposed the motion, asserting a dispute as to whether his conduct was reasonable had been presented. Defendant argued that, like the defendant in Mockler v. Russman, 102 N.J. Super. 582 (App. Div. 1968), certif. denied, 53 N.J. 270 (1969), the accident was caused by the skidding of an automobile due to the snow covered roadway, which does not in itself justify an inference of negligence. Judge Rea denied the motion for a directed verdict, emphasizing the facts regarding defendant's negligence were sufficiently disputed such that the jury needed to deliberate the issue of liability.

In his jury charge, the trial judge included these instructions:

In this case plaintiff argues that the defendant was negligent because the defendant violated a provision of the motor vehicle laws . . . . If you find that defendant has violated this statute by following another vehicle more closely than is reasonable and prudent, having due regard to the speed of the preceding vehicle and the traffic upon and the condition of the highway, then such conduct is negligence on the defendant s part.

Now, the defendant denies that he violated this section of the motor vehicle laws and makes the following contention concerning the operation of his motor vehicle. The defendant maintains that at the time of the accident the condition of the road was such that he should not be held to be responsible or at fault for the accident. It is common knowledge that the sudden and unexpected skidding of an automobile is one of the natural hazards of driving on . . . slippery roads . . . and that it may befall even the most cautious of drivers. If such a driver is operating his car as would a reasonably prudent person under the circumstances he is not to be held negligent merely because his car skidded resulting in damage or injury to another. However, skidding may be evidence of negligence if it appears that it was caused by the failure of the driver to take reasonable . . . precautions to avoid it when conditions of which he knew or should have known . . . made such a result probable in the absence of such precautions.

Once counsel reviewed the proposed jury instructions in chambers, they each agreed they were acceptable. Further, no objection was lodged following Judge Rea's instruction of the jury.

Plaintiff argues the court should have limited its charge to state only that defendant's failure to maintain a reasonable safe distance behind plaintiff's car was negligence and should not have included defendant's contentions and the Mockler charge. We are not persuaded.

We decline to read sections of the charge in isolation. Mohr v. B.F. Goodrich Rubber Co., 147 N.J. Super. 279, 283 (App. Div.), certif. denied, 74 N.J. 281 (1977). Rather, we must read the jury charge as a whole. Kaplan v. Haines, 96 N.J. Super. 242, 253 (App. Div. 1967), aff d, 51 N.J. 404 (1968), overruled on other grounds, Largey v. Rothman, 110 N.J. 204, 206 (1988).

Other than advancing his argument that the Mockler section of the charge was error and suggesting it must have caused the jury to not find defendant negligent, plaintiff fails to explain how the charge inaccurately stated the principles of law pertinent to the issues.

We discern no error in the charge as given. The ultimate issue was whether defendant was negligent in causing the accident. The parties presented their respective proofs: plaintiff testifying defendant had ample room to stop had his car been under control; and defendant explaining he braked immediately as he exited the curve and saw plaintiff's vehicle but the newly fallen snow caused the road to be slick and he skidded rather than stopped. Photographs of the roadway and the vehicles were also provided. The jury weighed the evidence, assessed credibility and reached its conclusion that found defendant had acted reasonably. We conclude Judge Rea properly charged the jury by including instructions supporting each side's proofs in this low speed collision.

Plaintiff's second challenge attacks a misstep by the defendant's expert. As a backdrop, we note that immediately prior to trial, an issue arose when defendant moved to include evidence of plaintiff s May 26, 1994 criminal conviction for possession of a controlled dangerous substance. The trial court denied the application based on its remoteness from the accident. See N.J.R.E. 609; State v. Sands, 76 N.J. 127, 144-45 (1978). During that argument, both parties concurred that plaintiff's prescription use of methadone to treat his addiction was not relevant to any material issue in the case and would not be discussed. Plaintiff's medical records were redacted to remove that fact and witnesses were to be instructed not to mention his methadone use. Unfortunately, Dr. Edward Decter, defendant's expert, was called to testify out of order and counsel failed to advise him of this understanding and, while discussing plaintiff's medical history, Dr. Decter mentioned plaintiff's methadone use:

[Defense counsel]: And what did you find when you did a physical examination?

[Dr. Decter]: He was a very pleasant, cooperative 40-year-old man at the time. He was not in acute distress, meaning he was not in pain at that time.

And another important factor is I asked him what medications he was taking. And I believe there had been some methadone or something. I m sorry.

Q: Yeah. That's an issue that we're trying to table.

A: Okay.

Q: That's okay.

A: So, there were medicines, but I will stay away from them.

Q: Yes. Okay.

Thereafter, the doctor detailed the findings made and conclusions drawn from his examination of plaintiff. Plaintiff neither objected to the witness s reference to methadone, nor requested a curative or other instruction to strike the expert's testimony. Then, during cross-examination, plaintiff inquired about the pain mitigating effects of methadone, asking Dr. Decter:

Q: The fact that someone is on methadone, that would dull the individual's feelings of pain, correct?

A: If they had taken it within the last 4 to 6 hours, yes, sir.

Q: All right. And that would be at any point in time when that individual had pain. If that individual had taken methadone that would dull their pain, and maybe they wouldn't be feeling pain at that point in time, correct?

A: I can't dispute what you are saying, sir.

The trial proceeded that day and into its final day. At that point, plaintiff moved for a mistrial because the defense expert breached the agreement to exclude mention of plaintiff's methadone treatment, thus denying plaintiff of a fair trial. Viewing the matter in its entirety, we find no abuse of discretion in Judge Rea's denial of plaintiff's motion for a mistrial. We agree with Judge Rea's analysis that the expert's statement when relating plaintiff's medication was not intentional but inadvertent; it was fleeting and cryptic as to the need for the medication's use; and did not include a reference to plaintiff's struggle with addiction. "Fleeting comments, even if improper, may not warrant a new trial[.]" Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009).

We also reject plaintiff's argument that he was forced to explain plaintiff's methadone use to the jury and thus should be granted a new trial. Plaintiff extended discussion of the issue on cross-examination by posing questions regarding the pain-masking effects of the drug. This inquiry was designed to refute defendant's statements that plaintiff seemed fine following the accident. Plaintiff again raised the matter in summation at which time he tied methadone's use to assist with drug addiction, prompting an objection by defendant.

We determine plaintiff attempted to use the expert's accidental comment to his advantage. Dr. Decter's non-descript comment of plaintiff's medications on direct examination would have ended. Instead, defendant probed further and he revealed plaintiff's former drug use. Therefore, any error resulting from such comments were invited by plaintiff. See Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996) ("The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.").

Accordingly, we do not hesitate in finding there was no miscarriage of justice under the law and we conclude the jury's verdict was grounded on sufficient credible evidence in the record. Crego, supra, 295 N.J. Super. at 577-79.