Opinion
DOCKET NO. A-2471-13T3
08-04-2015
KULDEEP K. SAINI, Plaintiff-Appellant, v. FRANK L. LAMPE, Defendant-Respondent, and LOIS A. LAMPE, Defendant.
Christian A. Pemberton, attorney for appellant. Green, Lundgren & Ryan, P.C., attorneys for respondent (Charles F. Blumenstein, II, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-0829-11. Christian A. Pemberton, attorney for appellant. Green, Lundgren & Ryan, P.C., attorneys for respondent (Charles F. Blumenstein, II, on the brief). PER CURIAM
Plaintiff Kuldeep K. Saini appeals from the Law Division's January 28, 2014 order dismissing her complaint against defendant Frank L. Lampe, which the court entered after a jury returned a finding of "no cause" of action against defendant. Plaintiff's complaint sought damages for injuries she sustained after defendant struck her with his car while plaintiff walked to work during inclement weather. On appeal, plaintiff challenges the admission of witness testimony and an aerial photograph of the accident scene. She argues that the trial court should not have allowed the witness to testify because his testimony was irrelevant and unduly prejudicial. She also maintains that the aerial photograph was unduly prejudicial due to the difference between the weather on the day of the accident and day of the photograph.
We have considered plaintiff's arguments in light of our review of the record and applicable legal principles. We affirm.
We discern the facts from the trial record.
On February 2, 2011 at approximately 4:45 a.m., plaintiff was walking to work, northbound on Route 41 in Deptford Township, from her home in Bellmawr. The road has one lane in each direction, separated by a double yellow line. There was approximately one foot of snow on the ground and the footpath that services pedestrians was impassable due to the accumulation of snow. There was also snow on the road's shoulder.
Plaintiff testified that she was walking closer to the footpath than the center yellow line and was travelling against traffic. There was a light rain that morning, but plaintiff could see drivers in their cars as they passed. Plaintiff was wearing a coat with a hood and carried a yellow umbrella.
As plaintiff was walking, she saw the headlights of a snow plow in front of her. As it passed, its driver told her to move aside. Plaintiff continued to walk, and the next thing she remembered was waking up in the hospital. According to plaintiff, she "didn't realize when the car came and hit" her because she was "watching the water" and "watching traffic and [she] didn't realize the car came and hit [her]."
Anthony Oelenschlager was the operator of the snow plow. Oelenschlager was employed with the New Jersey Department of Transportation, and salting the roads that morning due to the snow fall. According to Oelenschlager, he barely saw plaintiff while driving, but eventually saw her when he was approximately thirty feet away. As he approached plaintiff, he rolled down his window, beeped his horn, and told her to get off the road because she was going to get hit. He estimated that he was driving at a speed of about ten miles per hour. Plaintiff continued walking after Oelenschlager's warning without any reaction, and he proceeded to the area that he was assigned to salt.
Defendant testified that morning he was driving a compact car southbound on Route 41 at approximately thirty-five miles per hour. He left for work at about 5:15 a.m. and was headed toward Deptford when the accident occurred. It was still dark and a little foggy at the time of the incident. However, his car and the other cars on the road did not have difficulty operating in the weather conditions.
As defendant drove, he came to a portion of Route 41 that contained multiple lanes for turning. As he moved into the right lane to make a turn, something appeared in front of him. Approximately ten to twenty feet ahead, defendant saw a person walking toward him in the middle of the right lane. He pressed on his brakes immediately and turned his steering wheel sharply to the left in order to avoid hitting plaintiff. However, the right side of defendant's car made contact with plaintiff.
Defendant immediately pulled his car into a side street and ran back to the site of the accident. Another person present at the scene asked defendant if he had seen who hit plaintiff, and defendant stated that he did. Police and paramedics arrived on the scene, and defendant told the police what happened.
As Oelenschlager continued to drive to his assigned area, he realized that there was a new driver currently working, and he wanted to make sure that the driver knew about the woman walking in the road. The new driver did not have a radio in his truck, so Oelenschlager turned around to warn him. As Oelenschlager drove on Route 41, he came upon the accident. He arrived at the accident scene ten to fifteen minutes after plaintiff, police and fire personnel. However, the accident scene was not the exact location on the road where he had originally seen plaintiff.
Upon his arrival, Oelenschlager spoke to a police officer telling him that he knew this was going to happen. He also spoke with defendant at the scene of the accident and told him that he knew this was going to happen, gave his name and number to defendant and offered himself as a witness. Oelenschlager, however, did not see the accident occur and did not know where exactly on Route 41 plaintiff was hit. He stated that he had driven about a mile away and then turned around and came back.
Prior to the start of testimony, plaintiff made a motion in limine to exclude Oelenschlager's testimony because it was irrelevant and unduly prejudicial. Plaintiff argued that his testimony about seeing someone walking down the middle of the street could not be used to show that plaintiff was still walking there when the accident occurred. The trial court allowed the testimony over plaintiff's objection finding that it was both relevant and would not result in undue prejudice. The trial judge found the argument that the woman Oelenschlager warned may not have been plaintiff had no merit because plaintiff admitted that someone yelled something out at her from a snow plow. Further, the judge stated that if plaintiff was concerned about the jury drawing an improper inference from the fact that plaintiff was walking down the middle of the road when Oelenschlager saw her the first time, then plaintiff could cross-examine Oelenschlager to address that issue. The judge also stated that whether plaintiff was walking in the middle of the street was relevant to plaintiff's comparative negligence.
During the ensuing trial, defendant offered as exhibits an aerial Google Map photograph of the area where the collision occurred and a zoomed in aerial photograph of the actual accident scene, which were admitted into evidence. The photographs did not depict snow or reflect the road conditions at the time of the accident. Plaintiff objected to the admission of the photographs stating that "nobody has testified that these photographs fairly and accurately depict the scene at the time of the collision." Plaintiff argued they were barred from admission by N.J.R.E. 403, as being unduly prejudicial because they did not reflect the snowy conditions at the time of the accident, the photographs had minimal relevance because the jury knew what a two-lane highway looked like and it heard descriptions of the accident scene from the parties and witnesses.
The trial judge admitted the photographs with a limiting instruction. The judge determined that the photographs were relevant only to show the road's configuration, and decided that a limiting instruction would appropriately address the fact that there was no snow in the photograph and that the lack of snow did not substantially outweigh the relevance or mislead the jury.
In the court's limiting instruction to the jury, the judge stated:
Okay. [Defendant] has moved D-2 and D-3, which are Google Maps photographs of the area in question. I've heard argument from counsel with regard to admissibility and the documents are going to be admitted, D-2 and D-3. And I'm going to give what we call a limiting instruction, in that these documents, as you've heard the testimony, were taken when snow was not on the ground.
So to that extent, . . . you're going to assess what is credible and what is not credible, but, obviously, when you're looking at these photographs, you're looking at them with a view that it gives you a general configuration of the road and they were used by the Plaintiff in her testimony as to where the accident occurred.
So I am going to admit those documents with that limiting instruction. You're quite aware that you've heard testimony with regard to the snow-covered ground and you
will be guided accordingly when reviewing the evidence in this matter.
As noted, the jury found defendant not liable for plaintiff's injuries. The court dismissed plaintiff's complaint with prejudice and this appeal followed.
"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991); see also Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). We give substantial deference to the trial judge's discretion in evidentiary rulings and only disturb a court's decision where its ruling may result in a denial of justice. N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012). Reversal is only justified when the wrongfully admitted evidence is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Plaintiff first argues the trial court erred in admitting Oelenschlager's testimony because it was irrelevant, as he did not witness the accident and ten to fifteen minutes passed between when he first saw plaintiff and when he returned to the accident scene. Plaintiff also relies upon the fact that Oelenschlager's testimony was markedly different from defendant's because he did not need to swerve to avoid hitting plaintiff, he could see plaintiff from up to thirty feet away, his vehicle was much larger than defendant's, he was going at a much slower speed than defendant, and he saw plaintiff at a different place and time than defendant. Given these differences plaintiff maintains that no reasonable inference can be drawn from Oelenschlager's testimony to any material fact relating to the actual collision, making it irrelevant. Plaintiff also argues Oelenschlager's testimony was not relevant as a warning to plaintiff because a warning from a large commercial vehicle did not provide notice to plaintiff of the possible dangers from all vehicles on the road.
Defendant argues Oelenschlager's testimony was relevant to whether plaintiff had been walking in the road at the time of the accident. Defendant asserts Oelenschlager's testimony that plaintiff had been walking in the middle of the roadway a short distance from the accident only minutes earlier, would have a tendency to prove that that she was still walking in the road at the time of the incident. Defendant further maintains that Oelenschlager's testimony about his warning to plaintiff shows that plaintiff was on notice about the danger of walking in the road and consciously disregarded this danger, which would constitute negligence.
We conclude from our review the trial court properly admitted the challenged testimony as relevant and not unduly prejudicial. All relevant evidence is admissible, unless otherwise excluded by our rules of evidence. N.J.R.E. 402. Relevant evidence is defined as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The definition of relevant evidence focuses on "the logical connection between the proffered evidence and a fact in issue." Marrero v. Feintuch, 418 N.J. Super. 48, 60 (App. Div. 2011) (quoting Verdicchio v. Ricca, 179 N.J. 1, 33 (2004)). Evidence is irrelevant if it "does not justify any reasonable inference as to the fact in question." Verdicchio, supra, 179 N.J. at 34 (citation and internal quotation marks omitted). The test for relevance is "broad and favors admissibility." State v. Deatore, 70 N.J. 100, 116 (1976).
Relevant evidence includes testimony about a party's conduct just prior to the accident which is the subject of the trial. For example, in Miller v. Trans Oil Co., 18 N.J. 407 (1955), the Court found a witness' testimony relevant even though the witness viewed a car driving at a high rate of speed before the actual car accident took place about three-quarters of a mile away, the witness did not see the actual accident, and the witness' testimony was somewhat inconsistent with the parties' statements. The Court reasoned:
Justice and common sense, fused by enlightened reasoning, engender a legal philosophy embodying the abolition of all obstacles having a tendency to deprive the jury of any facts, however remotely relevant or from whatever source, which gravitate toward assisting them in arriving at a correct solution of the factual equation confronting them. Intellectual productiveness is not increased nor is the truth maintained by withholding circumstances which may shed some helpful light.
[Miller, supra, 18 N.J. at 413.]
Applying these principles here, the trial court correctly found that Oelenschlager's testimony was relevant and admissible. His testimony about warning plaintiff about the danger of her conduct, was directly related to the proximate cause of the accident, a fact of consequence in a negligence suit. Creanga v. Jardal, 185 N.J. 345, 354 (2005) ("To prove a claim of negligence, a plaintiff must show that the defendant's actions were the proximate cause of his or her injury."). Also, his testimony was probative as to the parties' credibility because, contrary to plaintiff who testified she was walking near the footpath, Oelenschlager said she was walking closer to the middle of the road. His testimony clearly aided the jury in drawing inferences about causation and liability in this accident, which made it relevant. Verdicchio, supra, 179 N.J. at 34. The fact that he did not see the actual accident or that there were differences between Oelenschlager's testimony and defendant's does not change the result. See Miller, supra, 18 N.J. at 407. We find no abuse in the court's discretion by finding Oelenschlager's testimony was relevant.
Plaintiff also argues Oelenschlager's testimony was not admissible because its probative value was outweighed by its prejudicial effect. N.J.R.E. 403. She argues that his testimony had the prejudicial effect of encouraging jurors to make an impermissible leap regarding where plaintiff was at the time of the accident and it had minimal probative value because other evidence could establish that Oelenschlager shouted a warning to plaintiff, that plaintiff was walking on Route 41, and what the road and weather conditions were like. Plaintiff maintains by allowing Oelenschlager's testimony, the jury was more likely to conclude that plaintiff was the cause of the accident. She asserts the witness, who was not at the accident scene and who testified unfavorably on matters that go to the heart of the controversy, led the jury to a conclusion that it would have otherwise not reached.
Defendant argues Oelenschlager's testimony could not have misled the jury or led to any confusion because it was directed toward a basic issue in the case: where plaintiff was walking shortly before and at the time of the impact. Further, defendant states that the trial judge addressed all of the N.J.R.E. 403 issues and determined that the evidence was admissible. He maintains that plaintiff has not raised any issues that warrant disturbing the trial court's ruling.
N.J.R.E. 403 states "[e]xcept as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." The rule allows judges, in their discretion, "to exclude otherwise admissible evidence under specified circumstances." Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Evidence is only excluded as unduly prejudicial when "its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." Belmont Condo. Ass'n v. Geibel, 432 N.J. Super. 52, 96 (App. Div. 2013) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)), certif. denied, 216 N.J. 366. The mere possibility of prejudice does not justify exclusion; rather, there must be both an actual likelihood that prejudice will follow and a probability that such prejudice will substantially outweigh probity. State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). The probative value of evidence is the tendency of evidence "to establish the proposition that it is offered to prove." State v. Buckley, 216 N.J. 249, 261 (2013) (citation and internal quotation marks omitted). "Evidence of an inflammatory nature must be excluded under N.J.R.E. 403 if probative, non-inflammatory evidence on the same point is available." Biunno, Weissbrand & Zegas, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 403 (2015).
Here, the trial court properly ruled that Oelenschlager's testimony was not unduly prejudicial. The only argument plaintiff raised regarding prejudicial evidence is that Oelenschlager stated plaintiff was walking in the middle of the road when he first saw her and that jurors would then conclude that plaintiff was walking in the middle of the road at the time of the accident. There is no dispute that the sidewalks were impassable and that plaintiff was walking in the lane of oncoming traffic. Therefore, the plaintiff could only have been walking within a finite space. It was up to the jury to determine where defendant was walking and whether that contributed to the accident. This testimony did not have the "inherently inflammatory potential" that is required for the court to classify it as unduly prejudicial evidence as contemplated by N.J.R.E. 403. Belmont Condo. Ass'n, supra, 432 N.J. Super. at 96.
Oelenschlager's testimony, although harmful to plaintiff's case, did not have the "'probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." Ibid. (quoting Thompson, supra, 59 N.J. at 421). The jury was free to consider the fact that his initial encounter with plaintiff was fifteen minutes beforehand and occurred at different places on the same road, in its assessment of his testimony, while it determined what weight, if any to give to his probative testimony.
Finally, plaintiff argues that the trial court erred in admitting the photograph of the scene of the accident. She argues that the snow present at the time of the accident was an essential element of this case, and maintains that the photographs without snow had little probative value because the pictures failed to depict the road as it appeared that day. Also, as to the road's configuration, the jury was already familiar with a two-lane highway divided in the center. Plaintiff also maintains that the photograph was highly prejudicial because it was missing the element that forced plaintiff to walk in the road instead of the sidewalk, the snow. She further argues that the trial judge did not properly consider bias in ruling on plaintiff's N.J.R.E. 403 objection. Plaintiff asserts there was little evidence as to liability in this case and that this picture would have biased the jury in defendant's favor.
On appeal, plaintiff only objects to the aerial photograph of Route 41 and not to the zoomed in aerial photograph of the actual accident scene. --------
Defendant responds arguing the photograph was a proper aid to the jury in understanding the area where the accident occurred and understanding where Oelenschlager first encountered plaintiff. Defendant states the photographs were properly authenticated by Oelenschlager and a police officer that investigated the incident. Further, Defendant argues that any prejudice was cured by the trial court's limiting instruction and that plaintiff did not ask for any further instruction.
We find no error in the photograph's admission into evidence. A photograph is an admissible writing. N.J.R.E. 801(e). "In addition to proving the evidence's relevance and that its probative value is not substantially outweighed by the risk of undue prejudice, the persuasive representational nature of photographs demands that the foundation for the admission of photographs must be properly laid." Brenman v. Demellow, 191 N.J. 18, 30 (2007). The admissibility of any relevant photograph rests on whether the photograph fairly and accurately depicts what it purports to represent. Saldana v. Michael Weinig, Inc., 337 N.J. Super. 35, 46 (App. Div. 2001). The question of whether a photograph is a sufficiently accurate representation is a preliminary issue for the court. State v. Wilson, 135 N.J. 4, 15 (1994). Any witness with knowledge of the facts represented by the photograph may authenticate the photograph. State v. Joseph, 426 N.J. Super. 204, 220 (App. Div.), certif. denied, 212 N.J. 462 (2012). In order to authenticate a photograph, a witness' testimony must establish that:
(1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or, in the alternative, the scene has not changed between the time of the incident in question and the time of the taking of the photograph.
[Id. at 220-21.]
Here, the Google Map photograph of the accident scene was not prejudicial so as to violate N.J.R.E. 403 because, even though it did not depict snow, defendant only used the picture to demonstrate the layout of the road. Defendant's counsel asked Oelenschlager, "And does that photograph . . . — although there's no snow and, obviously, there's no rain or anything like that, does that exhibit . . . accurately depict what the roadway looked like in terms of lanes, intersection and things like that at of the time of the accident?" Defense counsel then went on further to use the photograph to demonstrate where Oelenschlager first saw plaintiff as opposed to where he saw the accident scene. Further, defense counsel pointed out that there was no snow in the photographs and the judge later gave a limiting instruction that the photograph was used to demonstrate "a general configuration of the road" and where the accident occurred but that the weather conditions were different in the photograph from the time of the accident. The photograph was admitted for the limited purpose of showing the configuration of the road, which was properly described by the judge. The probative value of the photograph was not outweighed by undue prejudice, and it was admissible. The court did not abuse its discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION