BRIAN J. RICE VS. CHRISTINA M. MILLER (L-0451-14, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2513-16T3
BRIAN J. RICE,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v.
June 5, 2018
CHRISTINA M. MILLER and RICHARD APPELLATE DIVISION
H. MILLER, IV,
Defendants-Respondents.
___________________________________
Argued May 14, 2018 – Decided June 5, 2018
Before Judges Sabatino, Rose and Firko.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
0451-14.
Gary F. Piserchia argued the cause for
appellant (Flynn & Associates, PC,
attorneys; Gary F. Piserchia and Stephen L.
Slavoff, on the briefs).
Robert M. Kaplan argued the cause for
respondents (Margolis Edelstein, attorneys;
Robert M. Kaplan, of counsel and on the
briefs).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
Tried to a jury, this negligence case arose out of a motor
vehicle accident in which the defendant driver struck plaintiff,
a pedestrian, as he was attempting to walk one February evening
across an eight-lane state highway. Plaintiff alleged that he
acted reasonably while crossing the highway, and that defendant
was negligent because she was not using her headlights and had
failed to observe him in the road until it was too late for her
to stop. Defendant asserted that plaintiff unreasonably failed
to use a crosswalk and insisted her headlights were on and she
was attentive to the road. The jury found plaintiff was
seventy-five percent at fault in causing the accident and
defendant was twenty-five percent at fault. Given that finding,
the trial court entered a judgment in defendant's favor pursuant
to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8.
Plaintiff appeals, contending that the trial court erred
with respect to several evidentiary rulings concerning opinion
testimony from a police officer, hearsay, and other subjects.
Plaintiff further argues the court issued inappropriate
instructions to the jury concerning the traffic laws governing
pedestrian crossings and should have taken judicial notice
concerning the asserted legality of his attempted crossing.
Plaintiff argues he is entitled to a new trial because of these
claimed errors.
We affirm the judgment in defendant's favor. The trial
court's jury instructions were proper, as were several of its
challenged evidentiary rulings. We agree with plaintiff that
2 A-2513-16T3
the court misapplied its discretion in allowing a police
officer, who was not designated as an expert witness, to provide
opinion testimony calculating the range of defendant's speed and
also in allowing a police officer to relay to the jury hearsay
statements of other declarants. However, upon reviewing the
record as a whole and counsel's summations, we conclude these
discrete errors were harmless and are insufficient to require a
new trial.
I.
At around 8:00 p.m. on February 8, 2012, plaintiff Brian J.
Rice was at a pub located on the westbound side of State Highway
70 in Cherry Hill, when he decided to purchase a "Powerball"
lottery ticket from a gas station on the eastbound side of the
highway. Plaintiff left his freshly-ordered drink at the bar
and, without putting on his coat, began to walk toward the gas
station. It was dark and lightly snowing, although no snow had
accumulated on the road surface.
Initially, plaintiff walked from the pub toward Greentree
Road, which crosses Route 70 at an intersection controlled by a
traffic light. Although plaintiff claims he was unaware of it
at the time, there is a pedestrian crosswalk for Route 70 at
Greentree Road. In order to reach that crosswalk, plaintiff
would have needed to cross Greentree itself in two places
3 A-2513-16T3
without a crosswalk: first, going across a turning lane for
vehicles merging from Greentree onto Route 70 west, and, second,
across one or more lanes for vehicles going onto or from
Greentree across Route 70.
Instead of heading across Greentree, because it appeared to
be too dangerous, plaintiff decided to cross Route 70 at a point
further to the west. At that location, the posted speed limit
on Route 70 is forty-five miles per hour, and the road surface
is straight and level. Route 70 is eight lanes wide at that
point (including a fourth westbound lane emanating from
Greentree for merging vehicles). The lanes are divided by a
grassy center median about thirty feet wide, which separates
westbound traffic from eastbound traffic. As plaintiff
described it in his trial testimony:
As I walked up [to Greentree], there was an
Escalade [vehicle] come up Greentree Road
onto Route 70. And at that point, I thought
it was too dangerous. So, I wanted to put
some space between myself and the
intersection, to an area where I can see
that intersection, Route 70, and on the
other side of Greentree Road. So, that's
why I positioned myself where I did.
Plaintiff stated that he chose to cross underneath, or within a
few feet from, a streetlight rather than crossing Greentree
Road.
4 A-2513-16T3
According to plaintiff, once he got to the point where he
began to cross Route 70, he waited for a period of time, and did
not immediately cross the highway. When asked why he had
waited, plaintiff responded, "[T]here were two cars that had
passed me on Route 70 while I was standing on the side of the
road on the – I guess it's still part of [the pub's] parking
lot." Plaintiff testified the two cars that passed him were
heading westbound.
Plaintiff recalled that he could see "particularly far down
Route 70," about "three football fields" to his left, and beyond
the Route 70 and Greentree intersection. However, plaintiff
testified he did not see the car defendant was driving until
"maybe a couple of seconds" before impact.
Plaintiff contended he had been "scanning the area" before
crossing Route 70. He stated that he looked down Route 70 for
car lights. In this regard, he testified:
But I just started across the street. And
as I crossed the street, I kept looking down
Route 70, because I know nobody's coming
from this way. And I kept scanning the
roadway between that intersection and
Greentree Road on the other side of the
street next to the BP Gas Station, and Route
70 coming from east going west.
Plaintiff claimed that he did not see any cars coming at that
point when he crossed the highway. He further testified that,
5 A-2513-16T3
at the time of the accident, the parking lot for the pub was
illuminated, as was the gas station across the highway.
According to plaintiff, just before getting hit by
defendant's car, he "turned and looked, and all [he] s[aw] was a
little girl in the back seat, and her face . . . ." Plaintiff
recalled he was able to "see in the [defendant's] vehicle,"
stating that was the reason he knew that the car's headlights
were not on when it hit him.
Plaintiff contends that after he landed in the road, he
"used [his] arms to pull [him]self out onto the grass, so –
because [he] knew [his] leg was broke. And [he] made it to the
grass." According to plaintiff, he sat up on the grass and saw
defendant get out of her car crying, with her hands over her
mouth. He further recalled that defendant's passenger "was out
of the passenger side [of the car], [he] believe[s] on the
phone, looking around." It was estimated that plaintiff's body
was thrown eighty-five feet from the point of impact.
Critically, plaintiff gave the following testimony at trial
concerning whether defendant's headlights were on:
I don't – I don't remember seeing [the
headlights] come on . . . I think right when
all – right when the cops started to come –
or not the cops started to come – more cars
started to show up, that's when, I think,
she went and turned her headlights on.
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Plaintiff claimed he told the police multiple times that
defendant's headlights were not on at the time of impact: once
when in the back of an ambulance; and two more times when the
police interviewed him at the hospital.
When confronted at trial, plaintiff admitted that he had
not mentioned in his answers to interrogatories, in giving a
detailed account of the accident, that defendant's headlights
had been off. Nor did plaintiff mention this fact at his
pretrial deposition because, according to plaintiff, he was not
asked specifically about defendant's headlights.
Defendant, meanwhile, testified that she had been driving
her Honda sedan westbound on Route 70, with her sister-in-law in
the passenger seat and defendant's child in the back seat. She
described the weather as a mixture of snow turning to rain.
Defendant recalled that she stopped for gasoline and then
reentered Route 70 heading west. She insisted that her
headlights and fog lights had been on, as well as her windshield
wipers.
According to defendant, she stopped at the traffic light
for Greentree Road, and was the first car in the far left
westbound lane. She recalled there were multiple cars in the
lane to her right, but she could not recall the exact number of
cars. When the light changed, defendant proceeded forward, at
7 A-2513-16T3
what she estimated was a speed of between twenty-five and thirty
miles per hour. She denied being distracted.
As defendant described it, plaintiff suddenly appeared "on
the right hand side of her headlight[s]." She estimated he was
only "centimeters" away. According to defendant, she "slammed
the brakes as hard as [she] could," but nevertheless struck
plaintiff. Emergency aid soon arrived.
Defendant also presented factual testimony from her sister-
in-law and her daughter, both of whom had been passengers in the
Honda. They provided details substantially consistent with
defendant's testimony. Both of them corroborated generally
defendant's recollection that the Honda's headlights had been on
the night of the accident. Additionally, defendant's daughter
corroborated defendant's assertion that the headlights had been
on specifically at the time of the collision.
The parties presented several other fact and expert
witnesses at trial, on both liability and damages issues. Other
than the testimony of two police officers who investigated, but
who did not witness the accident, which we discuss, infra, in
Part II(B), we need not detail that other testimony here.
The jury returned a 7-1 verdict on all questions it
reached, finding that plaintiff and defendant were each
negligent and a proximate cause of the accident. The jury
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additionally found that plaintiff's fault was seventy-five
percent and defendant's was only twenty-five percent. Because
of plaintiff's comparatively greater fault, there was no need
for the jury to reach questions of damages. See N.J.S.A. 2A:15-
5.1 and -5.2. The court accordingly entered a final judgment of
no cause of action. Plaintiff moved for a new trial, which the
court denied. This appeal ensued.
II.
A.
Plaintiff's first two arguments in his brief involve
related concerns. Fundamentally, he contends that, under the
applicable motor vehicle statutes, his decision to cross Route
70 at the location he selected was lawful, and that he was not
obligated to use the crosswalk at Greentree Road traversing the
highway. Plaintiff specifically argues that the trial judge:
(1) should have taken judicial notice under N.J.R.E. 201 that
his crossing was lawful; and (2) should not have charged the
jury with N.J.S.A. 39:4-33, a statute that disallows certain
pedestrian crossings. We reject these arguments.
Two related motor vehicle statutes, N.J.S.A. 39:4-33 and
N.J.S.A. 39:4-34, bear upon the analysis. N.J.S.A. 39:4-33
instructs:
At intersections where traffic is directed
by a police officer or traffic signal, no
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pedestrian shall enter upon or cross the
highway at a point other than a crosswalk.
Pedestrians shall move, whenever
practicable, upon the right half of
crosswalks.
[N.J.S.A. 39:4-33 (emphasis added).]
The "flip side" of N.J.S.A. 39:4-33 is N.J.S.A. 39:4-34, which
reads:
Where traffic is not controlled and directed
either by a police officer or a traffic
control signal, pedestrians shall cross the
roadway within a crosswalk or, in the
absence of a crosswalk, and where not
otherwise prohibited, at right angles to the
roadway. It shall be unlawful for a
pedestrian to cross any highway having
roadways separated by a medial barrier,
except where provision is made for
pedestrian crossing. On all highways where
there are no sidewalks or paths provided for
pedestrian use, pedestrians shall, when
practicable, walk only on the extreme left
side of the roadway or its shoulder facing
approaching traffic.
Where sidewalks are provided it shall be
unlawful for any pedestrian to walk along
and upon an adjacent roadway.
[N.J.S.A. 39:4-34 (emphasis added).]
As the language of these companion statutory provisions
reflects, a critical determinant of whether the pedestrian has
an obligation to use a crosswalk is the nature and proximity of
that crosswalk to the subject location. For example, if a
pedestrian is seeking to cross a highway at a spot with an
intersection "where traffic is directed by a police officer or
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traffic signal," N.J.S.A. 39:4-33 plainly obligates the
pedestrian to use a crosswalk and, where practicable, to use its
right half. (Emphasis added). Conversely, if there is no
nearby traffic signal or any police officer directing traffic,
N.J.S.A. 39:4-34 prescribes that the pedestrian, "in the absence
of a crosswalk," shall proceed across the roadway "at right
angles," unless there is a medial barrier. (Emphasis added).
There was no medial barrier on Route 70 at the location of
plaintiff's accident. Nor was a police officer directing
traffic.
The analysis therefore turns on whether there was a
crosswalk sufficiently close and accessible to the spot where
plaintiff attempted to cross Route 70 so as to require him to
use it. During his trial testimony, plaintiff estimated that he
was "probably twenty or thirty feet from Greentree [Road] down
Route 70" where he crossed the highway. As we have already
noted, plaintiff explained that he decided not to use the
Greentree crosswalk across Route 70 because it seemed too
dangerous to access from the pub, although plaintiff testified
that the surrounding roadways were "illuminated, but not in –
not as illuminated as the – the intersection of Greentree Road
and Route 70."
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A police officer who investigated the accident, Sergeant
Ronald Dolan, estimated that plaintiff tried to cross much
further west on Route 70, approximately 150 feet from the
crosswalk.1 Thus, a factual issue was presented to the jury
concerning exactly where plaintiff attempted to cross the
highway, and how far that actually was from the Greentree
crosswalk. A related factual question for the jury was whether,
as plaintiff claimed, it would have been even more hazardous for
him to traverse multiple lanes of traffic on Greentree without a
crosswalk, in order to reach the Route 70 crosswalk at the
intersection.
This court confronted related issues in Abad v. Gagliardi,
378 N.J. Super. 503, 505 (App. Div. 2005). In Abad, the
defendant was driving a vehicle when it collided with the
plaintiff, a pedestrian crossing the street. Ibid. The
accident in Abad occurred approximately ninety feet away from an
intersection controlled by a traffic light. Ibid. The trial
court decided to charge the jury with only N.J.S.A. 39:4-33,
which, as we have noted, pertains to intersections controlled by
1
Defendant has chosen in her brief to adopt Sergeant Dolan's
150-foot measured distance, rather than plaintiff's twenty-to-
thirty-foot estimate. The record does not contain a measurement
of how far the pub building is from the Greentree crosswalk,
although the intersection is described as being near the pub's
parking lot. No witness described or measured how far the east
edge of the parking lot is from the pub building.
12 A-2513-16T3
a traffic light or a police officer. Id. at 506. The jury in
Abad found the plaintiff, who had not used the crosswalk, more
at fault than the defendant. Ibid. On appeal, we held that the
court properly charged only N.J.S.A. 39:4-33 rather than
N.J.S.A. 39:4-34, because the intersection was sufficiently
close and the crosswalk "was clearly visible and readily
accessible by walking a short distance." Id. at 508 (emphasis
added).2 Hence, the plaintiff was legally obligated in those
circumstances to use the crosswalk. Ibid.The situation here is debatable, because of the factual
questions concerning plaintiff's actual distance from the
Greentree crosswalk and also whether that crosswalk was "readily
accessible," given the lighting and traffic conditions. Under
these circumstances, the trial judge wisely charged the jury
with both traffic statutes.3 The legality of the crossing would
properly depend upon the jury's credibility and factual
assessments.
2
The plaintiff in Abad described the crosswalk "as being thirty
steps away; an investigating police officer described it as
being approximately one hundred feet from where [the] plaintiff
crossed the street." Ibid.3
The judge also charged the jury with N.J.S.A. 39:4-36(a)(4)
which provides that pedestrians who cross at a point other than
a crosswalk "shall yield the right-of-way to all vehicles upon
the roadway." Plaintiff does not challenge this aspect of the
jury charge.
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Given the bona fide factual disputes present here, it would
have been improper for the court, as plaintiff urges, to take
judicial notice of the alleged legality of his crossing under
N.J.R.E. 201, even if plaintiff had requested it. The notice
rule is inapplicable because the pertinent facts can "reasonably
be the subject of dispute." N.J.R.E. 201(b)(1) and (2).
B.
More troublesome issues stem from aspects of Sergeant
Dolan's testimony during the defense's case. Plaintiff argues
the trial court erred in allowing Sergeant Dolan: (1) to express
to the jury, over objection, opinion testimony estimating
defendant's speed at the time of the collision, despite
defendant's failure to designate Dolan as an expert witness; and
(2) to rely upon and convey the hearsay statements made at the
accident scene of other declarants, specifically defendant's two
passengers.
Sergeant Dolan did not observe the accident. He was on
traffic duty that evening and arrived at the scene after the
accident had already occurred. Dolan spoke with another Cherry
Hill police officer, Ryan Johnstone, who was the first
responding officer and had preceded Dolan's arrival. Dolan
interviewed defendant and other persons at the accident scene,
14 A-2513-16T3
and he thereafter interviewed plaintiff twice at a local
hospital.
Dolan also took measurements at the scene, including the
distance between where he found debris from defendant's car and
where Officer Johnstone had told him he had found plaintiff's
injured body. Based on a mathematical formula Dolan knew from
his training in motor vehicle accidents, known as the "Searle
formula" or the "Searle equation,"4 Dolan calculated that the
estimated speed of defendant's car when she struck plaintiff was
approximately thirty-two to forty-one miles per hour. This
estimated range was less than the forty-five miles per hour
posted speed limit, but higher than defendant's personal
estimate of her speed. Dolan included this calculation in his
police report.
In her answers to interrogatories, defendant notably did
not designate Sergeant Dolan as an anticipated expert witness.
4
See John A. Searle & Angela Searle, The Trajectories of
Pedestrians, Motorcycles, Motorcyclists, etc., Following a Road
Accident, Society of Automotive Engineers, Inc. (1983); John A.
Searle, The Physics of Throw Distance in Accident
Reconstruction, Society of Automotive Engineers, Inc. (1993).
In essence, the formula utilizes several variables, including
the "throw distance" of a pedestrian after impact, to calculate
the range of speed of a vehicle that struck the pedestrian.
15 A-2513-16T3
Instead, defendant retained as a liability expert an accident
reconstructionist, William Camlin.5
Plaintiff took the deposition of Sergeant Dolan, who
repeated his opinions about defendant's speed based on his
Searle calculation. During the deposition, Dolan explicitly and
emphatically denied that he was serving as an expert witness in
the case. Dolan was not identified as an expert in defendant's
Rule 4:25-7 pretrial exchange, although he was listed as a
potential witness.
When defense counsel called Sergeant Dolan to the stand, he
sought to elicit Dolan's opinions and calculations regarding
defendant's speed. Plaintiff's counsel objected, emphasizing
that the defense had never designated Dolan as an expert.
Defendant's counsel laid a foundation concerning Dolan's
extensive police experience and training in traffic accident
techniques, including his knowledge of the Searle formula,
although the officer acknowledged he was not an expert in Searle
speed equations. The trial court did not declare Sergeant
Dolan qualified to express opinions as an expert witness. In
5
Prior to trial, plaintiff moved in limine to exclude Camlin's
expert opinions on various grounds, including the improper
presentation of legal opinions. That motion was never decided
because defendant withdrew Camlin as an expert during the midst
of trial, for what counsel described to us at oral argument as
"strategic reasons."
16 A-2513-16T3
fact, the court did not reference Dolan in the customary jury
instruction for expert witnesses, see Model Jury Charges
(Civil), 1.13, "Expert Testimony" (2018), even though the court
did so for all of the other experts who testified during the
trial. Nevertheless, the court allowed Dolan, over objection,
to provide the jurors with his opinion about defendant's speed
based upon the Searle calculation. In essence, the court
impliedly allowed Dolan to do so under the lay opinion rule,
N.J.R.E. 701.
The court's allowance of Dolan's opinion testimony under
the circumstances was erroneous. N.J.R.E. 701 did not authorize
this police officer, despite his training and credentials, to
provide the jury with his opinion concerning the speed of a
vehicle that he had not personally observed, without being
designated before trial, and qualified by the court, as an
expert.
N.J.R.E. 701, which addresses the admissibility of lay
opinions, prescribes that "[i]f a witness is not testifying as
an expert, the witness' testimony in the form of opinions or
inferences may be admitted if it (a) is rationally based on the
perception of the witness and (b) will assist in understanding
the witness' testimony or in determining a fact in issue."
(Emphasis added). The central purpose of N.J.R.E. 701 is to
17 A-2513-16T3
ensure that lay opinion is based on a sufficient foundation, and
not inadmissible hearsay. Biunno, Weissbard & Zegas, Current
N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 701 (2018).
By contrast, N.J.R.E. 702 specifies the general requirement
to admit opinion testimony from an expert witness:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education may
testify thereto in the form of an opinion or
otherwise.
[N.J.R.E. 702.]
N.J.R.E. 703 provides a special latitude for expert witnesses to
rely upon facts or data which are not in evidence when they are
formulating and rendering their opinions, so long as the facts
or data are of a type "reasonably relied upon" by experts in the
same field.
The pretrial rules of our civil courts have specific
requirements for parties to designate expert witnesses during
the course of discovery. See generally R. 4:17-4(e) (requiring
litigants to furnish opposing parties with the names and reports
of experts and treating physicians who are involved in the
matter); R. 4:17-7 (imposing an obligation for parties to amend
their interrogatory answers "not later than 20 days prior to the
end of the discovery period"). The obvious purpose of these
18 A-2513-16T3
disclosure requirements for anticipated experts is to promote
fair advocacy and to discourage gamesmanship or unfair surprise
at trial.
Substantively, the Supreme Court carefully delineated in
its seminal decision in State v. McLean, 205 N.J. 438 (2011),
the appropriate (and, conversely, inappropriate) role of opinion
testimony when it is elicited from a police officer. The Court
reversed in McLean some of the criminal defendant's convictions,
upon concluding that a police officer's opinion testimony at
trial for the State failed to meet the requirements for lay
opinion, thereby invading the fact-finding province of the jury.
Id. at 463. Noting that certain limits "have traditionally been
imposed on lay opinion testimony," the Court observed that "lay
opinion testimony is limited to what was directly perceived by
the witness and may not rest on otherwise inadmissible hearsay."
Id. at 460 (citation omitted). In particular, the Court ruled
in McLean that the opinion of a police officer, who had not been
appropriately designated by the prosecution before trial as an
expert witness, asserting that the defendant had been engaging
in hand-to-hand drug transactions, was inadmissible as lay
opinion. Id. at 463.
We extended these principles from McLean to a civil context
in Gonzales v. Hugelmeyer, 441 N.J. Super. 451 (App. Div. 2015),
19 A-2513-16T3
an opinion issued in the year before the present case was tried. 6
In Gonzales, a state trooper responded to the scene of a car
accident he had not observed and interviewed several persons.
Id. at 456. We held the defendant was "unfairly prejudiced by
two critical aspects of [the trooper]'s testimony, which [the]
plaintiffs' counsel punctuated in his closing argument to the
jury." Id. at 457.
We noted in Gonzales the most troubling aspect of the
trooper's testimony was that he was allowed to give an opinion,
over objection, as to which driver had been at fault in causing
the accident. Id. at 459. The trooper in Gonzales was never
proffered to the court as an expert in any capacity. Id. at
460. Although the trooper had over five years of experience in
investigating car accidents, his opinion testimony as to fault
"clearly [went] beyond the scope of lay opinion admissible under
N.J.R.E. 701." Ibid. We reasoned that because the trooper "had
no personal observation or recollection of the accident . . .
his opinions thus failed the foundational requirements of Rule
701." Ibid. Citing the Supreme Court's opinion in Neno v.
Clinton, 167 N.J. 573, 585 (2001), we instructed that "a police
6
Perhaps because it was then a relatively recent precedent,
there is no indication that Gonzales was cited to the trial
court. The case was not cited in the parties' appellate briefs,
but, at our request, counsel supplied us with helpful
supplemental briefs addressing it.
20 A-2513-16T3
officer cannot provide an opinion at trial when that opinion is
based primarily on the statements of eyewitnesses." Ibid. Any
other conclusion would enable police officers to subvert the
hearsay prohibition. Id. at 460-61 (citing Neno, 167 N.J. at
585).
We recognize that the line between permissible and
impermissible lay opinion from police officers is not always
self-evident, and that some degree of case-by-case analysis may
be necessary. In this regard, the Court in McLean recognized
that police officers traditionally have been permitted in our
case law to present lay opinion testimony about the "point of
impact" of a motor vehicle collision. McLean, 205 N.J. at 459
(citing State v. Labrutto, 114 N.J. 187, 199-200 (1989)).
Here, however, Sergeant Dolan's application of the "Searle
formula" extrapolating information to calculate defendant's
speed was too esoteric and too far beyond the "ken" of a
layperson to be admissible, without qualifying the officer as an
expert witness. We are mindful of the apparent ad hoc decision
by defense counsel to jettison his designated private expert
witness, and his attempt to convince the court to deem the
police sergeant as an expert in form or in function. The court
correctly did not go that step, which would be contrary to the
expert witness and pretrial discovery rules in Rules 4:17-4 and
21 A-2513-16T3
4:17-7. But the court nonetheless erred in allowing the
officer's opinion about the Honda's speed to be provided under
the guise of lay opinion.
That said, we are not persuaded this error was sufficiently
harmful to warrant a new trial. Defense counsel did not
mention, let alone emphasize, Sergeant Dolan's speed calculation
in his closing argument to the jury. This contrasts with
Gonzales, in which counsel who had improperly presented the
officer's opinions at trial punctuated those opinions as a "tie
breaker" in summations. Gonzales, 441 N.J. Super. at 461. Nor,
as in Gonzales, was the officer's opinion about defendant's
speed here the core ultimate issue before the jury. Plaintiff
did not contend defendant was speeding above the limit; instead,
he urged she did not have her headlights on and did not make
proper visual observations of his crossing.
Under the circumstances, the evidential error was harmless.
See State v. Macon, 57 N.J. 325, 333 (1971). Considering the
trial record as a whole, the evidential error was not "clearly
capable of producing an unjust result . . . ." R. 2:10-2.
Plaintiff further argues the trial court improperly allowed
Sergeant Dolan to divulge to the jurors hearsay statements from
defendant and her sister-in-law passenger. In Neno, 167 N.J. at
585, the Supreme Court clearly prohibited the use of testimony
22 A-2513-16T3
by a police officer as such a conduit of hearsay by other
declarants. Nonetheless, we deem this error harmless as well.
We recognize that the jurors, in essence, were provided with
repetitive accounts of those declarants' factual narratives.
But that mere repetition does not mandate a new trial. R. 2:10-
2; see also N.J.R.E. 403 (providing discretionary authority to
exclude cumulative evidence only where its probative value is
"substantially outweighed" by the prejudice).
C.
We have carefully considered the balance of plaintiff's
arguments on appeal, including his claims that the trial court
unfairly: (1) disallowed him to testify about his personal
knowledge of New Jersey motor vehicle statutes and legal
crossings at roadways; and (2) disallowed testimony from Officer
Johnstone about other people who have in the past crossed Route
70 at the subject location without using a crosswalk. Both
arguments are clearly without merit. R. 2:11-3(e)(1)(E).
As to the first point, it will suffice to say that legal
opinions of witnesses in jury trials are generally disallowed,
except in a legal malpractice case or other special setting.
See Kirkpatrick v. Hidden View Farm, 448 N.J. Super. 165, 179
(App. Div. 2017) (upholding the disallowance of a layperson's
testimony about a legal definition of a term contained in a
23 A-2513-16T3
statute). As to the second point, whether other persons had –
reasonably or foolishly – crossed Route 70 at this spot instead
of using a crosswalk has no or little probative value under
N.J.R.E. 401. The judge did not misapply his discretion on
these evidentiary rulings. Hisenaj v. Kuehner, 194 N.J. 6, 25
(2008) (endorsing and applying an "abuse-of-discretion standard"
of appellate review of evidentiary rulings).
Affirmed.
24 A-2513-16T3