HILDA T. KENNEDY v. FREDERIC A. POLLOCK

(NOTE: The status of this decision is Published.)

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0845-17T4

HILDA T. KENNEDY and
JOHN F. KENNEDY, wife
and husband,

         Plaintiffs-Appellants,

v.

FREDERIC A. POLLOCK and
ESTATE OF FREDERIC A.
POLLOCK,

     Defendants-Respondents.
______________________________

                   Argued November 13, 2019 - Decided December 20, 2019

                   Before Judges Accurso and Gilson.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Atlantic County, Docket No.
                   L-1167-15.

                   Hilda T. Kennedy and John F. Kennedy, appellants,
                   argued the cause pro se.

                   Stewart G. Milch (Goldberg Segalla LLP) of the New
                   York bar, admitted pro hac vice, argued the cause for
                   respondents (Goldberg Segalla LLP, attorneys;
             Thomas John Seery and Stewart G. Milch, on the
             brief).

PER CURIAM

      Plaintiffs Hilda T. Kennedy and her husband John F. Kennedy appeal

from a jury verdict dismissing their negligence claim against the Estate of

Frederic A. Pollock. The Kennedys claim that defense counsel's badgering of

the elderly Mrs. Kennedy on cross-examination and error in the jury charge

requires reversal of the jury's verdict. We cannot agree.

      The facts of this unfortunate accident are largely undisputed and easily

summarized. Mr. and Mrs. Kennedy took an Atlantic City jitney home after

grocery shopping for Thanksgiving dinner. The day was blustery and rainy,

and the driver, defendant Pollock, missed their stop. When Pollock finally

stopped the jitney to let the Kennedys off, he didn't pull the jitney to the curb.

Instead, the Kennedys had to walk three or four feet in the street to get to the

sidewalk. Mr. Kennedy got off first with their shopping cart. He then walked

back into the street to assist his wife, then eighty-five years old, off the jitney.

Moments after Mrs. Kennedy disembarked, she fell under the rear wheels of

the jitney, which rolled over her, crushing her shoulder and causing her several

other serious injuries.



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      The jitney had a camera installed that shot video from four angles and

also recorded audio inside and outside the jitney. While the camera didn't

capture the accident, it did record events from the moments leading up to it

through the 911 call afterward. Both sides referred to the video extensively at

trial, and the jury viewed it more than a dozen times.

      Mr. Kennedy testified that both he and his wife reached the sidewalk

after disembarking the jitney, and the video confirms it. As they were "trying

to adjust [themselves] to walk away," something, perhaps the wind, caused

Mrs. Kennedy to fall into the street. Mr. Kennedy testified he stepped back

into the street to help her up, banged on the side of the jitney and yelled,

"Don't move" to the driver, defendant Pollock, before the rear wheels rolled

over her.

      The defense contended the video established the jitney had already

begun to pull away when the Kennedys were standing safely on the sidewalk.

Although the audio recorded Mr. Kennedy's conversation with Pollock about

missing their stop, Mrs. Kennedy's screams, and Mr. Kennedy yelling to the

driver to call 911, Mr. Kennedy is not heard yelling for the driver not to move

the jitney.




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      Mrs. Kennedy testified the jitney stopped in the middle of the street, that

she never reached the sidewalk, and that she believed it was the jitney that

caused her to fall. She also testified that as she was lying in "the gutter," her

husband "went up and look[ed] at the driver and sa[id], 'Please don't move,

please don't move,'" and that she also said the same thing "[b]ut in the moment

he finish[ed] telling him please don't move[,] the driver move[d] . . . ."

      Plaintiffs contend the court erred in failing "to reign in" defendant's

counsel, which permitted him to ask the same question on cross-examination

"at least a dozen times each without an objection," which, along with an

erroneous jury instruction, "caused the jury's incorrect verdict." Having

reviewed Mrs. Kennedy's direct and cross-examination, we find no error.

      The defense conceded the driver missed plaintiffs' stop, did not pull the

jitney to the curb to let them disembark, and that Mrs. Kennedy was grievously

injured when the rear wheels of the jitney rolled over her. It maintained,

however, that the video established the Kennedys were standing safely on the

sidewalk as the jitney pulled away, and thus the accident was not a result of

the driver's negligence.

      Plaintiffs argued Pollock pulled away to "make" a green light even

before the doors closed, failing to check his mirrors or notice that Mrs.


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Kennedy had fallen into the street before he began to move. Although Mr.

Kennedy testified that both he and Mrs. Kennedy had reached the sidewalk

before Mrs. Kennedy fell, and plaintiff's counsel conceded it based on that

testimony and the video, Mrs. Kennedy testified at one point that she reached

the sidewalk, but at another that the jitney caused her to fall before she reached

the sidewalk and then rolled over her after she and her husband had called out

to the driver to stop.

      Defense counsel exploited that inconsistency in his questions to Mrs.

Kennedy. But not unfairly so. A trial court has "broad discretion in

determining the scope of cross-examination." Manata v. Pereira,  436 N.J.

Super. 330, 343 (App. Div. 2014) (quoting State v. Silva,  131 N.J. 438, 444

(1993)). Here, contrary to pro se plaintiffs' contention on appeal, their trial

counsel objected at least three times to defense counsel's questions on cross-

examination, and the judge conducted two side-bar conferences. The judge

sustained plaintiffs' counsel's objection after the questioning had become

repetitive and directed the defense to "move on."

      As the testimony was plainly relevant to plaintiffs' contentions of

defendant's negligence in causing the accident, the defense was entitled to

probe Mrs. Kennedy's ability to remember and recount those events accurately.


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See Silva,  131 N.J. 438 at 444. In no event could we find that the trial judge

abused her discretion in permitting the examination, see Estate of Hanges v.

Metro. Prop. & Cas. Ins. Co.,  202 N.J. 369, 383 (2010), or that the questioning

could support overturning the jury's verdict. See Zaman v. Felton,  219 N.J.
 199, 214 (2014).

      We likewise find no merit in plaintiffs' allegation of error in the jury

charge. Plaintiffs contend the court's instruction to the jury that "Frederic

Pollock asserts that he was not negligent in causing the incident and that his

conduct was not a proximate cause of any injury suffered by Mrs. Kennedy,

and he is not responsible for any of her damages," essentially directed a verdict

for defendant by having the judge declare that "Frederic Pollock is not

responsible for any of Mrs. Kennedy's damages."

      We do not judge any single sentence in a jury charge in isolation, but

instead review it in the context of the overall charge to determine whether the

jury was likely confused or misled. Bradford v. Kupper Assocs.,  283 N.J.

Super. 556, 573 (App. Div. 1995). Because plaintiffs raised no objection to

the charge at trial, preventing "the trial judge from remedying any possible

confusion in a timely fashion," id. at 573-74, we will reverse only if the error




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                                        6
    was one "clearly capable of producing an unjust result." R. 1:7-5; see Dimaria

    Const., Inc. v. Interarch,  351 N.J. Super. 558, 571 (App. Div. 2001).

                Applying those standards here, we cannot conclude that this jury, which

    deliberated for ninety minutes, was confused or misled to believe the trial

    judge was instructing them that defendant was not responsible for any of Mrs.

    Kennedy's damages. The entire sentence, as well as the entire charge, made

    patent that defendant claimed he was not negligent, did not proximately cause

    any of Mrs. Kennedy's injuries and was thus not responsible for any of her

    damages.

                Although there is no question but that Mrs. Kennedy was very seriously

    injured by defendant's jitney, the jury concluded the accident was not a result

    of Pollock's negligence. There is simply no basis on which to overturn its

    verdict. See Jacobs v. Jersey Cent. Power & Light Co.,  452 N.J. Super. 494,

    502 (App. Div. 2017).

                Affirmed.

I hereby certify that the foregoing
is a true copy of the original on
file in my office.   _ \~
                      \


    CLERK OF THE AP~TE DIVISION




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