IFRAIN VELEZ v. MARGARET BUTCH
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2235-16T1
IFRAIN VELEZ,
Plaintiff-Respondent,
v.
MARGARET BUTCH,
Defendant-Appellant.
______________________________
Argued February 7, 2018 – Decided March 9, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-11309-14.
Elizabeth C. Flanagan argued the cause for
appellant (Purcell, Mulcahy, Hawkins &
Flanagan, LLC, attorneys; Elizabeth C.
Flanagan, of counsel and on the briefs;
Alyssa K. Weinstein, on the briefs).
John R. Gorman argued the cause for
respondent (Lutz, Shafranski, Gorman &
Mahoney, PA, attorneys; John R. Gorman, of
counsel and on the brief).
PER CURIAM
This personal injury action arose out of a collision
between the parties' automobiles that occurred when defendant
made a left turn in front of plaintiff. Defendant appeals from
an order denying her motion for a new trial and for an order
vacating the judgment the court entered on the jury's verdict.
The jury awarded plaintiff $125,000 in damages, to which the
court added a monetary sanction, interest, and costs.
On appeal, defendant argues the court erred by directing a
verdict in plaintiff's favor on defendant's claim that plaintiff
was negligent. Defendant also alleges the court erred by
misstating the law when it charged the jury on the concepts of
permanent injury and aggravation of a pre-existing injury.
Finding no merit in defendant's arguments, we affirm.
Plaintiff commenced this action by filing a complaint
alleging he sustained injuries in an automobile accident caused
by defendant's negligence. Defendant answered and alleged,
among other separate defenses, plaintiff's comparative
negligence. The case was tried before a judge and jury during
the first three days in November 2016.
Following the close of all the evidence, the court granted
plaintiff's motion for a directed verdict that he was not
negligent and dismissed defendant's comparative negligence
defense. The court found no evidence from which the jury could
have inferred plaintiff was negligent. After the court
dismissed defendant's comparative negligence defense, plaintiff
2 A-2235-16T1
moved for a directed verdict on liability. The court granted
the motion.
The jury determined plaintiff had sustained a permanent
injury and returned a damage verdict in his favor. Defendant
filed a motion for a new trial, which the court denied. This
appeal followed.
Four witnesses testified at trial: plaintiff, his wife, his
medical expert, and defendant's medical expert. Plaintiff was
the only witness to give an account of the accident. He
testified it happened on Buckelew Avenue in Jamesburg, a few
blocks from the home where he had lived for approximately
thirty-three years. Northbound Buckelew Avenue — plaintiff's
direction of travel — has two lanes at its intersection with
Pergola Avenue. At the same location, southbound Buckelew
Avenue — defendant's direction of travel — has two lanes, one
for through traffic and one for traffic turning left. There are
no traffic lights, stop signs, or other traffic control devices
for traffic travelling north and south on Buckelew Avenue. The
speed limit is thirty-five miles per hour.
On the day of the accident the weather was clear and the
road was dry. Plaintiff was driving his Nissan Altima at a
speed of thirty miles per hour when defendant, driving her
Toyota, made a sharp left turn in front of him to turn onto
3 A-2235-16T1
Pergola Avenue. She did not stop before turning left. When
defendant turned in front of him, plaintiff slammed on the
brakes and grabbed the wheel but could not avoid the collision.
According to plaintiff, "[l]ike one second" elapsed from the
time defendant turned sharply in front of him until the impact.
Plaintiff's Altima sustained damage to the passenger side
of the front bumper and the front of the car near the passenger-
side headlight. Defendant's Toyota sustained damage to the rear
passenger side. The damage to defendant's car did not extend to
the rear passenger side taillight.
Plaintiff's medical expert, an orthopedic specialist,
testified plaintiff sustained permanent injuries to his neck and
back as a result of the accident. The doctor testified
plaintiff sustained "a chronic post-traumatic cervical and
lumbar strain and sprain patterns"; "dis[c] herniations at C4-5,
C6-7"; and "cervical facet joint syndrome." The doctor also
testified plaintiff "sustained aggravation of pre-existing,
quiescent, age-related degenerative dis[c] disease and
osteoarthritis of [the] cervical spine." The pre-existing
condition was asymptomatic before the accident.
In addition, the expert testified plaintiff sustained a
"dis[c] herniation at L4-L5, a lumbar radiculopathy confirmed by
. . . EMG." Plaintiff also sustained a lumbar facet joint
4 A-2235-16T1
syndrome. Plaintiff's "pre-existing, age-related, multi-level
degenerative dis[c] disease in the lumbar spine" was aggravated
as the result of the injuries plaintiff sustained in the
accident.
Plaintiff's orthopedic expert acknowledged a possibility
that plaintiff's herniated cervical and lumbar discs could have
pre-dated the accident and been caused by the degenerative
conditions seen in plaintiff's cervical and lumbar spine on
magnetic resonance imaging (MRI) scans.1 The doctor explained
that from plaintiff's viewpoint, the symptoms and impairment are
the same regardless of whether the herniated discs pre-dated the
accident, because the chronic pain and consequent impairment are
the same. Nonetheless, the doctor maintained the trauma from
the accident was the direct cause of plaintiff's herniated
discs.
Plaintiff presented proofs as to the course of his medical
treatment, including an emergency room hospital visit the day
after the accident; chiropractic treatment and physical therapy;
1
An MRI scan "uses a large magnet and radio waves to look at
organs and structures inside your body." MRI Scans,
MedlinePlus: Trusted Health Information for You,
https://medlineplus.gov/mriscans.html (last visited February 20,
2018). They are especially useful for examining the spinal
cord. Ibid.
5 A-2235-16T1
and trigger point injections.2 Plaintiff and his wife testified
about the extent to which plaintiff's injuries impaired his
functional ability and prevented him from engaging in numerous
pre-accident activities. Plaintiff's medical expert opined that
such impairments were consistent with the injuries to plaintiff,
who was sixty-seven years old at the time of trial. The
expert's final conclusion was that plaintiff "has a permanent
orthopedic impairment with a permanent disability."
Defendant presented the testimony of an orthopedic surgeon
who had examined plaintiff at her request. He disputed
plaintiff's expert's testimony. According to defendant's
orthopedic surgeon, the condition of plaintiff's lumbar and
cervical discs, seen on the MRI scans, was due to longstanding
disc and bone degeneration, not the trauma from the accident.
Defendant's doctor opined plaintiff "did not sustain any
permanent injury to his neck or back in that accident."
When defendant rested, plaintiff moved for a directed
verdict, seeking dismissal of defendant's comparative negligence
2
Plaintiff's expert explained trigger point injections as the
use of small needles filled with lidocaine and sometimes a
steroid that are "inject[ed] [at the] trigger points [to] calm
them down." He further stated "if you find what is called an
area of hyperirritability, you roll the skin, you'll find an
area of hyperirritability. You mark it. You inject it so that
you can break that up [with the trigger point injections]."
6 A-2235-16T1
defense. The court noted it had listened to defendant's
testimony and replayed it earlier in the morning. Giving
defendant the benefit of all reasonable inferences from the
evidence, the court determined there was no basis to impose
liability on plaintiff.
Following the court's ruling, plaintiff moved for a
directed verdict on liability. The court found plaintiff's
testimony as to how the accident occurred established
defendant's liability. Even giving defendant the benefit of all
reasonable inferences, no reasonable juror could find otherwise.
Plaintiff was subject to the limitation on lawsuit
threshold,
N.J.S.A. 39:6A-8(a), and was therefore required to
prove he sustained a permanent injury in order to recover for
noneconomic loss. The trial court explained the issue to the
jury in its charge:
In order to recover damages in this
case, as the attorneys have explained to
you, the plaintiff must prove by a
preponderance of the evidence that he
sustained injuries which fit into a
particular category, that of a permanent
injury within a reasonable degree of medical
probability, other than scarring o[r]
disfigurement.
If you find that the injuries caused by
the accident do not come within this
category, then your verdict must be for the
defendant.
7 A-2235-16T1
However, if you find that the injuries
caused by the accident do come within this
category, your verdict must be for the
plaintiff. In this case, the plaintiff
alleges that he suffered permanent injury as
a result of the motor vehicle accident. An
injury shall be considered permanent when
the body part or organ, or both, has been –
has not healed to function normally, and
will not heal to function normally with
further medical treatment.
Later, when charging the jury on damages, the court explained:
In this case, evidence has been
presented that the plaintiff had a condition
before the accident that is described as a
cervical spine and/or lumbar spine age –
age-related architectural change, also known
as degeneration. I will refer to this
condition as his preexisting injury.
And there are different rules that
apply for awarding damages, depending on
whether the preexisting injury was or was
not causing the plaintiff any harm or
symptoms at the time of the accident.
Obviously the defendant in this case is
not responsible for any preexisting injury
of the plaintiff. As a result, you may not
award any money in this case for damages
attributable solely to the preexisting
condition.
But I want to explain to you what
happens if the plaintiff was experiencing
symptoms of the preexisting condition at the
time of the accident. . . . If the injuries
sustained in this accident aggravated or
made plaintiff's preexisting injury more
severe, then the plaintiff may recover for
any damages sustained due to an aggravation
or worsening of a preexisting condition, but
only to the extent of that aggravation.
8 A-2235-16T1
Plaintiff has the burden of proving
what portion of his condition is due to his
preexisting injury. Plaintiff is entitled
to damages only for that portion of his
injury attributable to the accident.
If you find that the plaintiff's
preexisting condition was not causing him
any harm or symptoms at the time of the
accident, but that the preexisting condition
combined with injuries incurred in the
accident to cause him damage, then plaintiff
is entitled to recover for the full extent
of the damages that he sustained.
But I want to explain to you what
happens if plaintiff had a predisposition or
weakness which was causing no symptoms or
problems before the accident but made him
more susceptible to the kind of medical
problems he claims in this case.
If the injuries sustained in this
accident, combined with that predisposition
to create the plaintiff's medical condition,
[then plaintiff is] entitled to recover for
all of the damage sustained due to that
condition.
You must not speculate that an
individual without such predisposition or
latent condition would have experienced less
pain, suffering, disability and impairment.
The court further explained:
Here you should understand that if the
plaintiff has proven by a preponderance of
the evidence that he sustained at least one
permanent injury as I have defined that
permanent injury to you, as a proximate
result of the July 24th, 2013 collision,
which may include the aggravation of a
preexisting condition, then you may
compensate him for all of his claimed
9 A-2235-16T1
injuries, even if you find one or more of
those injuries standing alone is not a
permanent injury.
In other words, if you determine that
the plaintiff suffered at least one
permanent injury which may include the
aggravation of a preexisting condition, then
all of his accident-related injuries are
eligible for compensation, even if you find
that one or more are not permanent.
On appeal, defendant first argues the trial court erred by
directing a liability verdict in favor of plaintiff. She
contends reasonable jurors could conclude from the photographic
evidence defendant had almost entirely completed her turn and
cleared the intersection when the impact occurred, and that
"jurors could have concluded that it was not possible that
[p]laintiff failed to see [d]efendant's vehicle until one second
before impact, as he testified." Defendant also asserts the
jury could have disbelieved plaintiff's testimony regarding his
speed in view of "his testimony that he 'slammed' on his brakes
but was still travelling [sic] at about the same speed as he was
when he first observed [d]efendant's vehicle."
Last, defendant argues she was prejudiced by the directed
verdict and its implications that "she had not only acted
unreasonably in causing the accident, but also in contesting the
issue in court, thereby wasting the jury's time."
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Plaintiff responds that defendant's argument is based on a
misstatement of the evidence, namely, that plaintiff failed to
observe defendant's Toyota until one second before impact.
Plaintiff testified not that he first saw the Toyota one second
before impact, but rather one second elapsed between the time
defendant suddenly turned and the impact. Plaintiff asserts
neither the photographs nor his familiarity with the
intersection negates the fact defendant made a sudden left turn
in front of him and he had insufficient time to react and avoid
the accident. Plaintiff rejects defendant's claim she was
somehow prejudiced because she pled plaintiff's comparative
negligence but could not prove it.
A party is authorized by Rule 4:40-1 to make a motion for
judgment at the close of all the evidence. A trial judge
considering such a motion must apply this "evidential standard:
'if, accepting as true all the evidence which supports the
position of the party defending against the motion and according
[such party] the benefit of all inferences which can reasonably
and legitimately be deduced therefrom, reasonable minds could
differ, the motion must be denied[.]'" Smith v. Millville
Rescue Squad,
225 N.J. 373, 397 (2016) (second alteration in
original) (quoting Verdicchio v. Ricca,
179 N.J. 1, 30 (2004)
(citation omitted)). If, however, "the evidence and
11 A-2235-16T1
uncontradicted testimony is 'so plain and complete that
disbelief of the story could not reasonably arise in the
rational process of an ordinarily intelligent mind, then a
question has been presented for the court to decide and not the
jury.'" Sackman v. New Jersey Mfrs. Ins. Co.,
445 N.J. Super.
278, 291 (App. Div. 2016) (quoting Frugis v. Bracigliano,
177 N.J. 250, 270 (2003) (citation omitted)).
When "reviewing a trial court's decision on a motion for a
directed verdict, this court 'appl[ies] the same standard that
governs the trial courts.'" Id. at 290-291 (alteration in
original) (quoting Frugis,
177 N.J. at 269).
Applying these principles to the facts the parties
developed in the case before us, we reach the same conclusion
the trial court reached: there was no triable issue as to
defendant's negligence or plaintiff's comparative negligence.
We begin our analysis with the longstanding proposition
that the mere happening of an accident raises no presumption of
negligence. Malzer v. Koll Transp. Co.,
108 N.J.L. 296, 297
(1931). Negligence will not be presumed; rather, it must be
proved. Rocco v. N.J. Transit Rail Ops., Inc.,
330 N.J. Super.
320, 338-39 (App. Div. 2000). There is a presumption against
negligence, and the burden of establishing it is on the party
12 A-2235-16T1
asserting the negligence of another. Buckelew v. Grossbard,
87 N.J. 512, 525 (1981).
Generally, to prove negligence, a plaintiff must establish
a defendant did not take the "precautions a reasonably prudent
[person] in the position of the defendant would have taken."
Fantini v. Alexander,
172 N.J. Super. 105, 108-09 (App. Div.
1980) (quoting Sanzari v. Rosenfeld,
34 N.J. 128, 134 (1961)).
This principle applies to motor vehicle negligence claims.
Ambrose v. Cyphers,
29 N.J. 138, 144 (1959); see also Model Jury
Charge (Civil), §5.30A "General Duty Owing" (1999). In
addition, in motor vehicle negligence claims, proof "that a
party has violated 'a statutory duty of care . . . is a
circumstance which the jury should consider in assessing
liability." Eaton v. Eaton,
119 N.J. 628, 642 (1990) (quoting
Waterson v. General Motors,
111 N.J. 238, 263 (1988)).
A driver making a left turn in front of traffic has an
elevated duty of care. When a driver seeks to make a left turn
across the path of other traffic, the driver has a "duty to await
an opportune moment for the turn and 'exercise an increased amount
of care in proportion to the increased danger' involved in the
turn." Zec v. Thompson,
166 N.J. Super. 52, 55 (App. Div. 1979)
(quoting Ambrose,
29 N.J. at 150).
13 A-2235-16T1
If a plaintiff proves a defendant's negligence, the fact-
finder's inquiry does not necessarily end there. "Unless public
policy dictates otherwise, whenever a plaintiff's conduct
contributes to an event negligently caused by a defendant, the
plaintiff's comparative fault should be submitted to the
factfinder for determination." Del Tufo v. Twp. of Old Bridge,
147 N.J. 90, 111 (1996). A defendant has the burden of
demonstrating a plaintiff's negligence. See Buckley v. Est. of
Pirolo,
101 N.J. 68, 79-80 (1985).
In the case before us, the undisputed evidence established
defendant violated her duties to wait for an opportune moment to
make her left turn and exercise an increased amount of care when
turning across traffic. Plaintiff's testimony established
defendant, without warning, turned suddenly in front of him. The
photographic evidence and damage to the vehicles supported
plaintiff's proofs that defendant turned left in front of him, and
defendant never argued otherwise. Plaintiff's uncontradicted
testimony and the photographic evidence were "so plain and
complete that disbelief of the story could not reasonably arise in
the rational process of an ordinarily intelligent mind." Frugis,
177 N.J. at 270 (quoting Ferdinand v. Agric. Ins. Co.,
22 N.J.
482, 494 (1956)).
14 A-2235-16T1
On the other hand, defendant did not sustain her burden of
proving plaintiff's comparative negligence. Her argument to the
trial court, as well as the argument in her appellate brief on
this point, are based on a faulty factual premise: plaintiff did
not see defendant's car until one second before impact. That was
not plaintiff's testimony. Rather, he testified perhaps one
second elapsed between the inception of defendant's sudden left
turn and the impact between the cars.
Defendant presented no evidence as to the distance between
her car and plaintiff's at the inception of her turn, the distance
traversed by her car during the interval between the inception of
her left turn and impact, or her speed. She provided no
explanation of a driver's reaction time.3 Absent competent
evidence of such facts, the jury would have been left to speculate
about whether plaintiff had failed to make proper observations or
violated some other duty imposed on the drivers of motor vehicles
on our roadways. Indisputably, "[s]peculation cannot supply the
place of proof." Moore v. Chesaspeake & O.R. Co.,
340 U.S. 573,
3
Reaction time "is that period of time which elapses from the
instant the mind perceives the peril placed in the path of the
vehicle until the physical reaction of applying the brakes, or
turning the vehicle from the path of danger, can be made." B.
Finberg, Annotation, Judicial Notice of Drivers' Reaction Time
and of Stopping Distance of Motor Vehicles Traveling at Various
Speeds,
84 A.L.R.2d 979 (2017).
15 A-2235-16T1
578 (1931) (citing Galloway v. United States,
319 U.S. 372, 395
(1943)); accord Shelhammer v. Lehigh V.R. Co.,
14 N.J. 341, 344
(1954) (explaining mere speculation is not enough to establish
negligence and proximate cause).
We are also unpersuaded by defendant's argument that she was
prejudiced by the directed verdict and the implication she had
acted unreasonably both in causing the accident and in contesting
her liability. Obviously, a trial court should not submit to the
jury claims or defenses unsupported by competent evidence merely
because a party has pled a cause of action or affirmative defense
she cannot prove.
In her second point, defendant argues the court gave
erroneous or confusing jury instructions concerning whether
plaintiff had sustained a "permanent injury" and when plaintiff
was permitted to recover for pre-existing conditions. We have
considered the argument and determined it to be without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). We add only that the challenged portions of the
charge, when considered in the context of the instructions in
their entirety, were neither misleading nor confusing. Moreover,
neither party objected to the portions of the charge defendant now
claims as error. The parties were present when the court charged
the jury and were able to hear its delivery, including the court's
16 A-2235-16T1
tone and inflection. The parties' failure to object to the charge
at trial raises the presumption that the instructions were
adequate, see State v. Macon,
57 N.J. 325, 333, (1971), and, more
importantly, that trial counsel perceived no prejudice affecting a
client's substantial rights, State v. Wilbely,
63 N.J. 420, 422
(1973).
Affirmed.
17 A-2235-16T1
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