Opinion
DOCKET NO. A-5984-13T4
12-07-2015
ANTOINETTE LLANOS, Plaintiff-Appellant, v. CLARENCE R. JOHNSON, Defendant-Respondent, and TOYOTA MOTOR CREDIT CORPORATION, Defendant.
Christian C. LoPiano argued the cause for appellant (Law Offices of LoPiano, Kenny & Stinson, attorneys; Mr. LoPiano, of counsel and on the brief). Carl Mazzie argued the cause for respondent (Foster & Mazzie, LLC, attorneys; Mr. Mazzie, of counsel; Jennifer L. Sanyshyn, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1848-12. Christian C. LoPiano argued the cause for appellant (Law Offices of LoPiano, Kenny & Stinson, attorneys; Mr. LoPiano, of counsel and on the brief). Carl Mazzie argued the cause for respondent (Foster & Mazzie, LLC, attorneys; Mr. Mazzie, of counsel; Jennifer L. Sanyshyn, on the brief). PER CURIAM
Plaintiff, Antoinette Llanos, appeals from a July 18, 2014 order denying her motion for a new trial after a jury verdict finding no cause for action. We affirm.
On May 6, 2011, plaintiff was standing at the rear of a parked vehicle removing bags from the trunk. Defendant, Clarence Johnson, was operating a motor vehicle nearby and fell asleep while he was driving, eventually striking the parked car. Plaintiff alleges she too was struck by defendant's car and jettisoned into the trunk, causing her to sustain severe injuries to her neck and back.
In April 2012, plaintiff filed a complaint against defendant and Toyota Motor Credit Company ("Toyota"), the owner of the vehicle operated by defendant. The complaint against Toyota was subsequently dismissed on summary judgment.
Plaintiff did not oppose Toyota's motion for summary judgment and does not appeal the order dismissing Toyota.
The matter was assigned to trial in March 2014. Prior to trial, the parties stipulated to damages of $65,000, and agreed to proceed solely on the issue of liability. No written stipulation was executed. The stipulation was placed on the record:
The Court: You have given me a statement of the case and we have agreed that [you would] like a general statement of the case to the jurors which is that on or about the date in
question, at the location which I will discuss with you in a moment, the plaintiff alleges that she was struck by the vehicle driven by the defendant, and the jury will be asked to decide whether that is, in fact, true. The jury will not be asked to decide damages. And you all are going to let me know if [you would] like them to discuss or address proximate cause in the charge as well.
There are no motions in limine; there are no other evidentiary issues that are outstanding. There has been a stipulation with regards to the amount of damages between the two of you. Do either of you wish to have that placed on the record?
[Plaintiff's Counsel]: I would like to place it on the record.
The Court: Okay. And as I understand it, you all agree to --
[Plaintiff's Counsel]: $65,000.
The Court: Is that correct counsel?
[Defendant's Counsel]: That is correct, Your Honor, but the jury is not going to be told anything abo[ut] --
The Court: No, I do not discuss the amount with the jury.
[Defendant's Counsel]: Just indicate that they [do not] have to decide the issue of damages.
The Court: They would be advised that they [do not] -- they are not asked to decide the issue of damages.
. . . .
The Court: The same as if it were [a] damages-only trial, they are not asked to decide the issue of liability. . . .
[Plaintiff's Counsel]: And there is no issue of comparative negligence, so there is no apportionment? It is either she was struck or she [was not] struck?
The Court: Correct. As I understand it, the only question is whether or not you all, when it is time for me to charge, whether or not you are asking me to charge negligence and proximate cause or whether you are actually simply asking me to charge negligence?
[Plaintiff's Counsel]: Right.
The Court: You all have to decide that. As I understand it, [there is] no issue with regards to proximate cause and damages; you are taking the position, defense counsel, that either she was hit or she [was not]. Proximate cause generally only comes into play as whether or not the injuries sustained were proximately caused by the accident. You are saying that you stipulated to the damages, and thus a discussion of the injuries are not warranted. So in the Court's view, it would simply be a charge of negligence. However, I would defer to you and hear your arguments at the appropriate time and make a ruling at that particular time. . . .
Is there anything else that I neglected to mention on the record that was previously discussed?
[Plaintiff's Counsel]: I [do not] think so, Your Honor.
Prior to jury selection, the judge instructed the potential jurors regarding the stipulation:
You, as the jurors, will be asked simply to decide whether or not [plaintiff] was struck by [defendant's] vehicle[.] You will not be required to determine damages . . . or anything of that nature; you would simply be required to determine whether or not the person was actually struck by the vehicle.
The trial commenced on April 1, 2014. During their respective opening statements, plaintiff's counsel briefly referenced the "redness" on plaintiff's leg, while defendant's counsel commented upon the lack of severity of plaintiff's injuries. Defendant's counsel further argued the jury should consider that plaintiff did not seek immediate medical attention, and reasoned that given her allegations plaintiff would have had a broken leg or some other serious injury requiring her to go to a hospital in an ambulance.
Plaintiff also contends that defendant's counsel made other factual misrepresentations during his opening statement.
Plaintiff's counsel objected to defendant's opening statement, arguing that counsel's comments were outside the parameters of the stipulation. Plaintiff's counsel further pointed out that plaintiff did not intend to submit medical evidence or evidence regarding the severity of the impact of defendant's vehicle with plaintiff's body, nor did plaintiff intend to present testimony that her body was thrown into the trunk of the parked car. The judge overruled the objection, holding that the remarks were made to attack plaintiff's credibility as to whether she was struck by the car. After the ruling, the judge instructed the jury, sua sponte, that "what the attorneys say in their openings and closing is not evidence. The evidence comes from what you hear from the witness stand and what you see in the evidence that is submitted to you in the jury room."
Plaintiff testified on the direct case, as did the responding police officer and plaintiff's friend who was standing next to her at the time of the incident. Defendant cross-examined the witnesses. A recurring line of inquiry on cross-examination was the minimal evidence of injury to plaintiff notwithstanding her claim that she was knocked into the trunk of her car as a result of the impact.
Plaintiff made no objection during defendant's cross-examination. Prior to the conclusion of plaintiff's case, her counsel moved for a "mistrial" based on the judge's failure to sustain the objection to defense counsel's opening statement, and for allowing counsel to elicit testimony from plaintiff and her witnesses regarding proximate cause and damages. The judge denied the motion, concluding that the strategy employed by defendant and the testimony elicited were relevant to a determination of plaintiff's credibility. The judge stated a curative instruction would be provided to the jury that they were not to consider proximate cause or damages, but only whether defendant's vehicle struck plaintiff.
Plaintiff noted in her brief that no objection was made because the judge overruled plaintiff's objection during opening statements, and "so as not to further highlight" the testimony elicited before the jury.
Following the judge's decision, the trial continued with defendant's testimony and the reading of a deposition transcript from a passenger in defendant's vehicle. At the trial's conclusion, the judge engaged in an extensive colloquy with counsel regarding jury instructions and the jury verdict sheet. No objections were lodged by either party regarding the proposed model jury charges. Defendant objected to the form of the verdict sheet, but the parties ultimately reached an agreement. Plaintiff also renewed her argument regarding defense counsel's trial strategy. In response, the judge ruled:
The witness's deposition testimony was read without objection because she was not available to testify.
The other issue that I have -- I have considered the information, and the Court still finds that the issue of whether or not [plaintiff] was transported by an ambulance and the fact that she walked off, is appropriate for the jury to consider in terms of her credibility, in light of the fact that there was testimony about the hard impact of the vehicle and how it caused her
to go into the trunk and those types of things.
However, the Court does believe that a corrective instruction with regards to when she actually sought medical treatment is beyond the scope of what the jury is to consider, because the ultimate issue is whether she was hit. The ultimate issue is not how hard she was hit or whether she was hurt as a result of being hit. And bringing into question whether she chose to actually go to the doctor, and when she chose to go to the doctor, and for what purposes she went to the doctor, would be inappropriate and not within the scope of determining whether or not she was actually struck by the vehicle.
So I intend to instruct them and explain to them that they may consider, for the purposes of credibility only, as to whether or not she was hit by the vehicle, the facts that had been provided, including, you know, the 9-1-1 call; the scratch on her leg; the alleged impact of the -- the contact with her, her falling into the trunk; whether she received treatment on the scene; and how she left the scene, as evidence to consider about the credibility of whether the accident happened. However, any issues concerning whether she ever got medical treatment, when she got medical treatment, what that medical treatment was, is not for them to consider, because damages are not in this case.
During jury instructions, the judge stated:
You are not to consider anything else. . . . They want you to determine whether or not [plaintiff] has proven that [defendant] struck her physical person. You are not to consider [] whether she was injured, how she was injured, how much she was injured, when she went to the doctor, if she went to the
doctor, whether she received treatment after the doctor[,] . . . anything that happened regarding injuries is not for you to decide. The only question for you to decide is whether or not she was struck by this vehicle.
Now, you may consider all of the evidence that has been presented in determining whether or not you find her testimony credible, the other witnesses' testimony credible, and the defendant's testimony credible. So you may consider the 9-1-1 call and what you feel about that; you may consider the red mark on her leg and what you believe that came from or how that occurred; you may consider the fact that she did not get into an ambulance, and that she walked home. You may consider those facts. However, you may not consider the fact of when and if she ever chose to call and go to a doctor.
The fact that she had been hit by the vehicle is the only fact for you to determine. Did [defendant's] vehicle strike her physical person? That is how you are to read this jury instruction sheet. The way that it was prepared is asking whether he was negligent, and in parentheses I put "striking her with the automobile he was driving"; I put that in parentheses so that you remember that your only focus is whether or not he struck her person, not whether he struck the car, not whether she was injured and had to go to the hospital or any of those things, or call the doctor and when she called the doctor.
The only question for you to consider is whether [defendant's] vehicle struck her physical person. You do that by using all of the laws that I have just explained to you and considering all the factors and evaluating the credibility of the witnesses
and everything that I have just explained to you.
The jury found no cause for action. Thereafter, plaintiff filed a motion for a new trial citing various trial errors, including defendant's violation of the stipulation. The judge denied the motion in an oral opinion.
Plaintiff raises the following points on appeal:
POINT I
A NEW TRIAL MUST BE GRANTED GIVEN THE PARTIES' AND THE COURT'S MUTUAL MISUNDERSTANDING REGARDING WHAT EVIDENCE WOULD BE ADMISSIBLE REGARDING PLAINTIFF'S INJURIES IN A LIABILITY ONLY TRIAL WHERE THE PARTIES AGREED TO STIPULATE DAMAGES.
POINT II
A NEW TRIAL ON ALL ISSUES IS WARRANTED IN THIS CASE AS THE TRIAL COURT FAILED TO EXERCISE SOUND DISCRETION BY DENYING PLAINTIFF'S MOTIONS FOR A MISTRIAL AND FOR A NEW TRIAL AS THE JURY'S VERDICT REPRESENTS A MISCARRIAGE OF JUSTICE.
POINT III
A NEW TRIAL ON ALL ISSUES IS WARRANTED IN THIS CASE AS THERE WERE TRIAL ERRORS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT AND ARE SUFFICIENT TO RAISE A REASONABLE DOUBT WHETHER THE JURY'S VERDICT ON LIABILITY ONLY MIGHT NOT HAVE BEEN REACHED BUT FOR THE TRIAL ERRORS.
In determining whether the trial court erred in denying plaintiff's motion for a new trial, we apply the standard of review found in Rule 2:10-1: "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law."
In reaching our determination, we must give due deference to the trial court's "feel of the case," that is, its regard for "the jury to pass upon the credibility of the witnesses" and whether "it clearly and convincingly appears that there was a miscarriage of justice under the law." Carrino v. Novotny, 78 N.J. 355, 361 (1979) (quoting R. 4:49-1(a)); see also Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (holding that in reviewing the trial court's denial of a motion for a new trial, "the appellate court must give deference to the views of the trial judge . . . .").
Our Supreme Court has discussed the miscarriage of justice standard:
[A] motion for a new trial should be granted only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court. . . . Thus, a trial judge is not [to] substitute his [or her] judgment for that of the jury merely because he [or she] would have reached the opposite conclusion . . . .
A miscarriage of justice has been described as a pervading sense of wrongness needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-
valuation of crucial evidence, [or] a clearly unjust result[.]
[Risko v. Thompson Muller Automotive Group, Inc., 206 N.J. 506, 521 (2011) (internal citations and quotation marks omitted).]
In deciding a motion for a new trial, the trial judge must "canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict . . . ." Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962).
Plaintiff argues the judge erred in denying the motion for a new trial based on "improper" consideration of evidence regarding the nature and extent of her injuries despite the parties' stipulation of damages. Specifically, plaintiff contends that by introducing such evidence, defendant improperly raised issues of proximate cause and damages in contravention of the stipulation, and that this caused plaintiff to alter her trial strategy.
In denying plaintiff's motion for a new trial, the judge addressed the stipulation, the evidence presented at trial, and its relevance as to plaintiff's credibility. The judge concluded:
In the court's view, this boils down to a misunderstanding by counsel as to what the rules of evidence allow and preclude when
you have stipulated to damages. While proximate cause may or may have not been stipulated to for the purpose of not asking a jury to make a finding with regards to those particular issues, it in no way binds anyone's hands with regards to the evidence they can use for the purposes of either attacking the credibility as it relates to liability, and whether their versions of the facts were correct, which is wholly what the court finds to be the case here.
We agree. "[A]ny fact which bears against the credibility of a witness is relevant to the issue being tried," and a party "has a right to have that fact laid before the jury in order to aid them in determining what credit should be given to the person testifying." State v. Pontery, 19 N.J. 457, 472 (1955); see also State v. Martini, 131 N.J. 176, 255 (1993), overruled in part on other grounds by State v. Fortin, 178 N.J. 540, 646 (2004); State v. Silva, 131 N.J. 438, 444 ( 1993); Delgaudio v. Rodriguera, 280 N.J. Super. 135, 141 (App. Div. 1995) (observing that "extrinsic impeachment evidence may include 'defect of character' and 'proof by others that material facts are otherwise than as testified to by the witness under attack.'") (internal citations and omitted). The trial judge is vested with "broad discretion" to determine the proper limits of examination of a witness's credibility. Delgaudio, supra, 280 N.J. Super. at 141; State v. Engel, 249 N.J. Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991). The judge should measure the extent of allowable cross-examination involving collateral matters "in light of the effect of such examination upon substantial justice." Mazza v. Winters, 95 N.J. Super. 71, 78 (App. Div. 1967). We will not interfere with the trial judge's control in determining the proper limits of examination of a witness's credibility unless clear error and prejudice is shown. Lawlor v. Kolarsick, 92 N.J. Super. 309, 311 (App. Div.), certif. denied, 48 N.J. 356 (1966).
After plaintiff objected, the judge ruled that testimony relating to plaintiff's claimed injury was admissible as bearing on plaintiff's credibility. See N.J.R.E. 607. The testimony elicited during defendant's cross-examination of plaintiff was in harmony with the judge's ruling at the time of the objection by plaintiff's counsel; specifically, that the existence or non-existence of bodily injury was relevant to refute plaintiff's claim she was struck by defendant's vehicle. Consistent with that evidentiary ruling, the judge provided instructions to the jurors which informed them they were to consider evidence relating to plaintiff's injury for the purpose of determining whether defendant's car made contact with plaintiff — a predicate for determining the issue of liability. Juries are presumed to understand and follow instructions. McRae v. Saint Michael's Med. Ctr., 349 N.J. Super. 583, 599 (App. Div. 2002); Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 495-96 (App. Div.), certif. denied, 165 N.J. 607 (2000); Derfuss v. N.J. Mfrs. Ins. Co., 285 N.J. Super. 125, 134 (App. Div. 1995).
Plaintiff's reliance on Gonzalez v. Silver, 407 N.J. Super. 576 (App. Div. 2009) is misplaced. In Gonzalez, we directed a new trial following the improper use of irrelevant facts. Id. at 594-595. Gonzalez was a medical malpractice action wherein the defendant doctor attempted to introduce hearsay testimony regarding statements plaintiff made about the cause of his injury. Id. at 593. This court held that such testimony was irrelevant to the issue of whether or not the defendant doctor provided proper medical care, and carried "an enormous potential for prejudice . . . ." Id. at 595.
Here, as the judge held, the evidence of plaintiff's minimal injury elicited by defendant's counsel was both relevant and probative to the determination of liability. We agree. While the evidence was "prejudicial" to plaintiff, it was not "unduly prejudicial" nor, given the judge's instructions, confusing to the jury. See N.J.R.E. 403(a).
Plaintiff also argues that a new trial should be granted based on the cumulative effect of various trial errors. These include: defense counsel's reference to himself and plaintiff's counsel as "spin doctors," defense counsel's misrepresentations during opening, defendant's testimony regarding a second police report not produced in discovery, and other factual inconsistencies between the evidence produced in discovery and the testimony given at trial. Having considered these arguments in light of the record, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We only add that we find defense counsel's comment during his opening statement that he and plaintiff's counsel were "spin doctors" was ill-chosen, though not rising to the level of inappropriate conduct we discussed in Geler v. Akawie, 358 N.J. Super. 437 (App. Div.), certif. denied, 177 N.J. 223 (2003). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION