MICHAEL BARTOW VS. NICHOLAS A. REIF (L-3624-12, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1559-17T2
MICHAEL BARTOW,
Plaintiff-Appellant,
v.
NICHOLAS A. REIF and THE
PORT AUTHORITY OF NEW
YORK AND NEW JERSEY,
Defendants-Respondents.
____________________________
Submitted January 28, 2019 – Decided April 3, 2019
Before Judges Messano and Fasciale.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-3624-12.
Drazin & Warshaw, PC, attorneys for appellant (Brian
D. Drazin, on the briefs).
Michael Farbiarz, General Counsel for the Port
Authority of New York and New Jersey, attorney for
respondents (Cheryl N. Alterman and Lauren T.
Grodentzik, on the brief).
PER CURIAM
Plaintiff Michael Bartow was driving in the westbound left lane of 150th
Avenue near John F. Kennedy Airport when his car collided with an
approximately twenty-seven-foot-long truck, owned by defendant, the Port
Authority of New York and New Jersey, and driven by its employee, defendant
Nicholas Reif (collectively, defendants). Reif, with his fellow employee Mike
Russo in the front passenger seat, was turning left onto 148th Street from the
eastbound lanes of 150th Avenue. Plaintiff alleged injuries and filed suit.
The case was tried before a jury, which found plaintiff failed to prove Reif
was negligent. The judge entered judgment in favor of defendants and dismissed
the complaint with prejudice. Plaintiff moved for judgment notwithstanding the
verdict (JNOV) or, alternatively, for a new trial. The judge denied the motions,
and this appeal followed.
Plaintiff argues the judge's failure to provide playback of testimony in
response to a note from the jury requires reversal. He also contends there were
errors in the judge's jury charge, and the judge failed to give a curative
instruction promptly after defense counsel's opening and closing statements.
Further, plaintiff alleges it was error to allow the jury to view the truck in the
courthouse parking lot. Plaintiff also argues the verdict was against the weight
of the evidence, and the judge erred in denying plaintiff's motion for JNOV or a
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new trial. Having considered these arguments in light of the record and
applicable legal principles, we affirm.
I.
It was undisputed that the traffic light controlling the intersection was
green in both parties' favor at the time of the accident. Plaintiff could not recall
how fast he was travelling but testified simply that he never saw defendant's
truck until it "suddenly . . . ma[de] a left turn" in front of him. Although plaintiff
braked and turned toward the left, he could not avoid the collision.
Reif testified he was driving with Russo and stopped at the intersection
because the light was red. He signaled to make a left turn and when the light
turned green, seeing no oncoming traffic, Reif slowly began his turn. He was
"[ninety-percent] finished" when a gray van sped past him on his right. Seconds
later, Reif felt an impact on the passenger's side of the truck. Russo's testimony
corroborated Reif's.
Shortly after starting its deliberations, the jury sent the judge the following
note: "We are having a question amongst us about which direction the plaintiff
turned his wheel before impact. Can we please see the plaintiff's testimony in
reference to this[?]" The judge immediately responded by telling the jurors it
was their "collective recollection . . . that controls." Because it was close to
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lunch, the judge dismissed the jury, telling them, "I may talk to you a little bit
more" after lunch. With the jury excused, plaintiff's counsel told the judge,
I think it's incumbent upon the [c]ourt to at least
tell them that we have that technical capability. . . .
[W]hat you say beyond that is your discretionary call.
But I have suggested to tell them . . . if it's absolutely
necessary we have the technical capability, but that it
would take a considerable amount of time to find that.
The judge expressed reservations, noting "[t]here were several times where both
parties asked [plaintiff] what he was doing immediately before impact."
Plaintiff's counsel agreed that the judge would need to play back both direct and
cross-examination of plaintiff.
After the luncheon recess, the judge again expressed concern about
accuracy if the court failed to play back all of plaintiff's testimony on the issue.
Although plaintiff's counsel claimed he knew "exactly" where the answer to the
jury's question was on direct examination, he acknowledged not knowing where
it could be found during the cross-examination. The judge reiterated his earlier
instructions and told the jury to rely on their "collective recollection."
Plaintiff contends the judge's decision not to provide playback of the
testimony was reversible error. We disagree.
"Although the reading of all or part of a witness' testimony is within the
discretion of the trial court, 'in the absence of some unusual ci rcumstance, the
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request should be granted.'" Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J.
372, 391 (2009) (quoting State v. Wolf, 44 N.J. 176, 185 (1965)). "A judge
should not generally refuse to grant the jury a read back 'merely because the
reading would take time.'" Velazquez v. Jiminez, 336 N.J. Super. 10, 39 (App.
Div. 2000) (quoting Wolf, 44 N.J. at 186). "These rules also apply to
proceedings, such as those here, which are 'sound recorded rather than
stenographically transcribed.'" Ibid. (quoting State v. Middleton, 299 N.J.
Super. 22, 31 (App. Div. 1997)). However, even if the judge mistakenly
exercises his discretion, we do not reverse unless the error was harmful. Ibid.(citing R. 2:10-2).
Here, assuming arguendo the judge should have tried with the assistance
of counsel to isolate representative testimony responsive to the jury's question,
any mistake was not "clearly capable of producing an unjust result . . . ." R.
2:10-2. Whether or not plaintiff attempted to turn his steering wheel to the left
shortly before impact was of little consequence to the jury's ultimate decision
that plaintiff failed to prove defendant was negligent.
II.
Plaintiff requested the judge charge the jury regarding two New York
motor vehicle statutes. The judge agreed as to one but not the other, providing
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instructions regarding New York Vehicle and Traffic Law §1141, which
provides: "The driver of a vehicle intending to turn to the left within an
intersection . . . shall yield the right of way to any vehicle approaching from the
opposite direction which is within the intersection or so close as to constitute an
immediate hazard." N.Y. VEH. & TRAF. LAW §1141 (McKinney 1964)
(emphasis added). The judge refused to charge §1163(a), which provides: "No
person shall turn a vehicle at an intersection unless the vehicle is in proper
position upon the roadway . . . unless and until such movement can be made
with reasonable safety." N.Y. VEH. & TRAF. LAW §1163(a) (McKinney 1970)
(emphasis added). The judge explained that as opposed to the more general
§1163(a), §1141 specifically dealt with left turns at an intersection.
Plaintiff requested the judge instruct the jury that it could consider
statutory violations of New York's motor vehicle laws as evidence of negligence.
The judge concurred and provided the jury with instructions pursuant to Model
Jury Charges (Civil), 5.30D, "Violation of Traffic Act" (approved Aug. 1999).
Plaintiff's challenge on appeal is twofold. First, plaintiff argues the effect
of providing instructions only as to §1141, and not as to §1163(a), was that the
jury could conclude defendant was under no duty to yield because plaintiff was
not "within the intersection when [d]efendant began his turn."
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However, this overlooks the plain language of the statute, which explains
that defendant was under the obligation to yield if plaintiff was "so close as to
constitute an immediate hazard," which is consistent with plaintiff's own
testimony of how the accident occurred. Moreover, the judge provided Model
Jury Charges (Civil), 5.30C, "Left-hand Turn" (approved March 1991), which
provides that defendant was obliged to "seek an opportune moment for the turn"
and to "exercise an increased amount of care in proportion to the increased
danger." This instruction conveyed the heightened duty placed upon defendant
not to make the left turn unless he could do so safely. We find no error.
Plaintiff also argues it was plain error for the judge not to instruct the jury
that a violation of §1141 was not only evidence of negligence, but rather
negligence per se. See Model Jury Charges (Civil), 5.30D at 1-2. He notes New
York decisions have so held, and that failure to issue the charge is reversible
error. See, e.g., Ciatto v. Lieberman, 698 N.Y.S.2d 54, 55 (App. Div. 1999)
(holding a violation of § 1141 constitutes negligence per se and failure to so
charge is reversible error). Plaintiff argues that under New Jersey's choice of
law rules, the law of the state where the accident occurred controls.
Initially, plaintiff never requested the negligence per se charge, nor did he
ever contend that a choice of law analysis required New York law to apply on
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this point. In fact, during the charge conference, plaintiff's counsel cited the
judge to Model Jury Charges (Civil), 5.30D, and said: "It tells [the jury a finding
of negligence] can be based on the violation alone or if there's any additio nal
evidence[,] . . . [t]hey can consider the violation together with all other evidence.
So it's evidence of negligence that they can consider along with all the other
evidence." The judge provided these precise instructions. In short, if there was
any error, which we do not think there was, it was invited. See Brett v. Great
Am. Recreation, Inc., 144 N.J. 479, 503 (1996).
III.
We deal with the remaining trial issues in short order.
In her opening, defense counsel characterized plaintiff as "barreling
down" the road in a careless fashion. The judge overruled plaintiff's objection.
In summation, defense counsel argued that skid marks on the highway were
created by plaintiff's vehicle, an opinion that a Port Authority Police Officer
who investigated the crash and was called as a defense witness specifically could
not provide with certainty. Plaintiff's counsel never objected during the
summation. Immediately after defense counsel's summation, and again in his
final instructions, the judge told the jury that the attorneys' remarks were
arguments, not evidence. Before us, plaintiff contends the judge should have
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stricken defense counsel's comments and provided a curative instruction. 1 These
arguments lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Plaintiff objected to the judge permitting the jury to view the actual truck,
which had been fully repaired, in the courthouse parking lot. He argued that
removing the truck from the context of the accident scene was prejudicial. The
judge disagreed and permitted the viewing, advising the jury that the truck was
"in a different situation and setting . . . ."
N.J.S.A. 2B:23-16(a) permits the jury to view "personal property in
question to understand the evidence better." A view is not evidence, but may
help the jury to understand "the evidence properly introduced before it by the
1
Plaintiff also claims that defendants' trial testimony was so contrary to facts
asserted in prior discovery, and defense counsel's arguments as to whether
plaintiff was in the left or right lane of travel, and how far along the truck was
in completing its turn before impact, were so contrary to discovery that we
should reverse. Plaintiff included this contention in the same point heading as
the argument regarding defense counsel's opening and summation comments.
Legal arguments are required to be "divided[] under appropriate point headings
. . . ." R. 2:6-2(a)(6). Other than the accident report, plaintiff failed to provide
us with specific prior discovery that was contrary to trial testimony. Plaintiff's
counsel cross-examined Reif about his prior deposition testimony, but the actual
testimony is not in the record. On the record provided, the argument lacks
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
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parties." State v. Coleman, 46 N.J. 16, 25 (1965). We review the judge's
decision for an abuse of discretion. Id. at 25-26.
We find no mistaken exercise of discretion in this case. Even though
pictures of the truck were in evidence, it was difficult to imagine its substantial
length and height. Defendants clearly wanted the jury to consider the mass of
the truck in assessing the credibility of plaintiff's claim that he never saw the
truck until it was in front of him. However, the judge noted that the jury would
also see how high Reif was sitting while driving the truck, thereby supporting
plaintiff's essential claim, i.e., that Reif turned without ever being able to make
a reasonable observation of oncoming traffic. We find no reason to reverse.
IV.
Plaintiff contends that the judge should have granted his JNOV motion or
his motion for a new trial because the verdict was against the weight of the
evidence. He also argues the jury failed to understand the heightened duty of
care owed by a driver making a left-hand turn across traffic, such that Reif was
essentially negligent as a matter of law. We disagree.
Contrary to plaintiff's assertion, the standards governing the two motions
are not the same. In considering a motion for JNOV under Rule 4:40-2(b), the
standard is: "[I]f, accepting as true all the evidence which supports the position
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of the party defending against the motion and according him the benefit of all
inferences which can reasonably and legitimately be deduced therefrom,
reasonable minds could differ, the motion must be denied . . . ." Verdicchio v.
Ricca, 179 N.J. 1, 30 (2004) (alteration in original) (quoting Estate of Roach v.
TRW, Inc., 164 N.J. 598, 612 (2000)). We apply the same standard on review.
Estate of Roach, 164 N.J. at 612.
"The trial judge's obligation on a motion for a new trial because the verdict
is said to be against the weight of the evidence is quite a different and more
difficult one." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Under Rule 4:49-1(a),
a court shall grant a motion for a new trial "if, having given due regard to the
opportunity of the jury to pass upon the credibility of the witnesses, it clearly
and convincingly appears that there was a miscarriage of justice under the law."
The judge must take into account "not only tangible factors . . . as shown by the
record, but also appropriate matters of credibility, generally peculiarly within
the jury's domain, . . . and the intangible 'feel of the case' . . . gained by presiding
over the trial." Dolson, 55 N.J. at 6. We apply a similar standard, deferring to
the trial court's assessment of those factors "which are not transmitted by the
written record . . . ." Id. at 7. Thus, "[a]n appellate court may overturn a jury
verdict 'only if [that] verdict is so far contrary to the weight of the evidence as
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to give rise to the inescapable conclusion of mistake, passion, prejudice, or
partiality.'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134 (1990)
(second alteration in original) (quoting Wytupeck v. City of Camden, 25 N.J.
450, 466 (1957)).
As for the JNOV motion, it is clear there was sufficient evidence for the
jury to conclude that Reif's and Russo's testimony was more credible than
plaintiff's, and that Reif was not negligent. The judge properly denied the JNOV
motion.
We also affirm the judge's denial of plaintiff's new trial motion.
Although an appellate court has a duty to canvass the
record to determine whether a jury verdict was
incorrect, that verdict should be considered
"impregnable unless so distorted and wrong, in the
objective and articulated view of a judge, as to manifest
with utmost certainty a plain miscarriage of justice."
[Id. at 135 (quoting Carrino v. Novotny, 78 N.J. 355,
360 (1979)).]
We cannot reach such a conclusion in this case.
Affirmed.
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