IN THE MATTER OF GIOVANI COLON, DEPARTMENT OF CORRECTIONS(CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-1762-15T3
MARIANNE MURPHY,
Plaintiff-Appellant,
v.
RAEANN MARTIN,
Defendant-Respondent.
________________________________
Submitted March 13, 2017 – Decided April 3, 2017
Before Judges Sabatino, Haas and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No.
L-0153-12.
Emolo & Collini, attorneys for appellant (John
C. Emolo, on the brief).
John C. Prindiville, attorney for respondent.
PER CURIAM
This appeal arises from a jury's no-cause verdict on claims
brought by plaintiff Marianne Murphy against defendant Raeann
Martin stemming from a roadway encounter. As a result of that
encounter, defendant allegedly injured plaintiff and damaged
plaintiff's car.
Plaintiff sued defendant, claiming negligence, assault, and
battery. Defendant admitted that her vehicle struck plaintiff's
open car door while attempting to leave the scene, but asserted
that her conduct was excusable in light of the volatile situation
and plaintiff's allegedly threatening behavior.
By agreement of the parties, the trial was bifurcated as to
liability and then, if necessary, a damages phase. The liability
phase spanned three days and involved five witnesses.
The sole argument plaintiff raises on appeal is that the
trial court erred and unduly prejudiced her in reading to the
jury, over objection, the generally-disfavored model jury charge
for a "sudden emergency." See Model Jury Charge (Civil), 5:10(g),
"Sudden Emergency." We agree with plaintiff that, in the factual
context of this case, the court issued this jury charge
improvidently. We further agree that the charge had the clear
capacity to skew the jurors' objective assessment of the evidence.
Consequently, we reverse the judgment for defendant and remand for
a new trial.
I.
The principal witnesses in this trial were plaintiff and
defendant. Their testimony diverged considerably about exactly
what occurred on the day of the incident.
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Plaintiff's Version
According to plaintiff, on June 2, 2010, she planned to go
to the beach in Sandy Hook. She drove her 2001 Chrysler Sebring
convertible east on Route 36 towards Sandy Hook. She had no
passengers in her car.
When plaintiff initially entered Route 36, she drove in the
right lane, but "for whatever reason" moved "eventually" into the
left lane. "Not very long" after changing to the left lane,
plaintiff moved back to the right lane. Before doing so, plaintiff
allegedly "checked all [her] mirrors," "checked that the lane next
to [her] was clear," and "put [her] blinker on[.]" Plaintiff
noticed a car in the right lane as she moved into that lane, but,
by her own estimation, it was "about 10 car lengths back[.]"
According to plaintiff, after she moved into the right lane,
defendant, who was driving a van, "came up behind [her] and started
screaming and yelling and cursing and flailing her arms[.]"
Plaintiff's convertible had the top and windows down. The windows
in defendant's van were likewise down.
Plaintiff testified that defendant's hostile reaction to her
lane change made her "[a]bsolutely scared out of [her] wits
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terrified." According to plaintiff, defendant was throwing things1
around in her vehicle and did not have her hands on the steering
wheel. Defendant allegedly was also "punching" the roof of the
car and the wheel. Plaintiff claimed this behavior continued
through "several" traffic lights.
Plaintiff eventually stopped at a traffic light. According
to plaintiff, the van then moved into the left lane and came up
alongside the convertible. At that moment, there was one car
behind plaintiff and two cars in front of her, causing her to be
"boxed in."
According to plaintiff, she then called a friend of her family
on her cell phone. The friend was a retired police officer who
had served in another town for twenty-eight years. Plaintiff
testified that, while she was on the call, defendant continued to
scream at her. She contends it was loud enough so that the friend
could hear through the phone what defendant was shouting.
Plaintiff then observed that defendant was "reaching over her
passenger side," attempting to grab her. She saw that defendant
had a Snapple bottle "raised by her left arm . . . as if one were
going to pitch."
1
It is unclear what "things" plaintiff was referring to, or if
that description included the Snapple bottle that she alleges
defendant later used to threaten her.
4 A-1762-15T3
Plaintiff testified that she put her car in park because she
was "afraid that [she] was going to roll into the car in front of
[her] and have an accident." By plaintiff's estimate, her car was
"a foot and a half" from defendant's lane at the time.
At this point, plaintiff recalled, defendant's van "backed
up and [then] rammed" into her convertible. According to
plaintiff, the van hit the convertible three times. The impact
allegedly "ripped" off her car door, leaving it "hanging by one
hinge." She added that, when the van hit the back of the
convertible, it caused the latter's door to "pop" open.
Plaintiff testified that after defendant's van struck her
car, her friend told her to hang up and call 9-1-1, which she
claims to have done.2 She stated that defendant, by that point,
had proceeded through the traffic light. Plaintiff estimated that
defendant's van was "about 30 feet away" from her own car on the
shoulder of the road.
Plaintiff admitted possessing in her car what she described
as a "trinket" bat, which was next to her by the console. She
explained that she kept that small bat in her car for protection,
after her dog had been attacked by other dogs several months
2
Plaintiff testified that she made several attempts to get a copy
of the audio recording of the 9-1-1 call, but was unable to obtain
one.
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earlier. According to plaintiff, the bat was eight to ten inches
long, and was similar to, but "a little thicker" than, a pen.
Plaintiff contended that the bat the defense introduced into
evidence at trial was inauthentic, and was not the actual one she
had kept in her car.3
Plaintiff claimed that there were as many as eight
eyewitnesses to the incident. However, she asserted that the
police officers who responded to the scene did not take down the
eyewitnesses' information, nor would they "allow" plaintiff to do
so. One of the officers allegedly "intimidate[ed]" the
eyewitnesses "with his ticket book" and told them to leave.4
The officers provided plaintiff with a form on which she
could write a statement about the incident. According to
plaintiff, she did not fill out the form that day because she was
"shaking," "in pain," "confused," "in shock," and "hurt."
Plaintiff testified that the officers told defendant, with
whom they appeared to be "familiar[,]" to leave, but conversely
3
The bat moved in evidence had a tag, indicating it had been
logged at the Hazlet police station on August 1, 2011, almost a
year and two months after the accident.
4
Plaintiff filed an internal affairs complaint with the police in
June 2010 because she claimed she was "unfairly treated" by the
officers at the scene. However, her complaint was dismissed when
she failed to appear for an interview. Plaintiff explained that
she was in the hospital when the police department scheduled the
interview, and was thus unavailable.
6 A-1762-15T3
told plaintiff to stay. Plaintiff was issued a summons for
wielding a weapon, after a police officer found the miniature bat
in her car. That summons was eventually dismissed.
Plaintiff wrote a statement two days after the incident, and
allegedly attempted to file it with the police multiple times.
However, according to plaintiff, she was not allowed to file the
statement until June 21, 2010, because up until that day the police
report was not done and allegedly "they had nothing to put [her
statement] with."
Plaintiff's friend also submitted a statement to the police
soon after the incident, detailing what he had heard during his
phone call with her on the day of the incident. He testified
briefly as to those matters in plaintiff's case in chief.
Defendant's Version
According to defendant, the convertible "cut [her] off" in a
lane change on Route 36 while plaintiff was talking on her cell
phone. Defendant was driving a Chrysler Town and Country van at
the time.
After the lane change, the convertible "came to a complete
stop." Defendant testified that she put her hands up and gestured
to plaintiff, "What are you doing?" Defendant acknowledged that
she then "pulled over to the side of [plaintiff's car], rolled
7 A-1762-15T3
down [her] window," and exclaimed, "[W]hat are you doing, get the
F--- off the phone[.]" Defendant then "moved on."
According to defendant, the vehicles thereafter stopped at a
traffic light, with the convertible in the right lane and
defendant's van in the left lane. Defendant claimed that, at that
point, plaintiff got out of her car with the miniature bat.
Plaintiff said, "Did [defendant] want to be beaten and did
[defendant] want to be arrested[,]" all allegedly while she "held
the club over [defendant's] windshield." Defendant stated that
she was "scared" as plaintiff did this.
At that point, plaintiff's car door on the driver's side was
open. According to defendant, the door was on an angle and
intruding into defendant's lane. Defendant claimed that she could
not see plaintiff's door in front of her car "because [plaintiff's]
window was down and she was standing at [the van's] windshield."
Defendant testified that she then thought to herself, "[H]uh,
she's got a club, I'm getting out of here."
According to defendant, at that point she "[t]urned [her]
wheel towards the barrier to try to miss [plaintiff] and
[plaintiff's] door because she was still standing there."
Defendant testified that
as I caught the door I went about 36, 42 inches
and I realized I was -- I heard the scraping,
I went (gasp) and I stopped. I back[ed] up
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just a little bit to unhook myself and I pulled
around and went and pulled over before the
light[.]
Defendant claimed that she did this because she was "scared, trying
to get away from [plaintiff]."
Defendant admitted causing damage to plaintiff's car door.
However, she denied causing the additional damage to the car
depicted in photographs that were introduced by plaintiff at trial.
According to defendant, after striking plaintiff's car, she
pulled over to the side of the road. She was "parked on the same
side of the accident[,]" about ten feet away from plaintiff.
Defendant then called 4-1-1 to get the number for the Hazlet police
department. She thereafter spoke with the police, after someone
at a nearby store apparently called them.
The Police Officers' Testimony
Two Hazlet police officers, one female and one male, were
called by defendant as trial witnesses. They recounted that they
had arrived at the scene, and spoke to both drivers. The female
officer recalled that defendant was "visibly upset" and crying.
Defendant told the officer about the bat that plaintiff had
allegedly used to threaten her. The officer then retrieved the
miniature bat "from in between the driver's seat and the center
console" of the convertible.
9 A-1762-15T3
After obtaining defendant's side of the narrative, the female
officer spoke with plaintiff. However, the officer did not learn
much from that conversation, because plaintiff was "very vague"
and "really didn't want to give much information." Plaintiff did
admit to the officer that she had opened her car door. The male
officer similarly testified that he spoke to plaintiff, but
recalled she was not "forthcoming" with her answers.
The male officer testified that, when he arrived, plaintiff's
car was blocking traffic in the left lane, and other cars could
not get around her open door. The female officer testified that
plaintiff's car was "on an angle" and "closer to the left side of
its lane[,]" but still "within its lane[.]"
According to the female officer, she was not aware of any
eyewitnesses to the incident being present when the two officers
arrived. The officer maintained that, contrary to plaintiff's
claim, she did not tell any witnesses to leave.
The Jury Charge and the Verdict
During the charge conference, defense counsel requested that
the court instruct the jury with Model Jury Civil Charge 5:10(g),
addressing a "sudden emergency." Defense counsel argued in this
regard that defendant had attempted to drive away from the scene
because she was in fear of plaintiff, who was "out of the car with
her bat." Although defense counsel conceded that the requested
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instruction was "not a favored charge in our law," he argued that
the circumstances of this automobile accident were not "standard"
and the situation justified the charge.
Plaintiff's counsel strenuously opposed the issuance of the
sudden emergency charge. He argued that the charge was unduly
prejudicial to his client and would confuse the jury. He
maintained that the customary charge for comparative negligence,
which the court planned to give, provided sufficient guidance to
the jury here in determining whether defendant and plaintiff had
each acted reasonably under the circumstances. He also argued
that, if the charge were given for defendant, it must also be
given for plaintiff.
After reflecting on the matter, the trial court decided to
charge the jury on only defendant's alleged sudden emergency, and
included that charge in the final instructions, over plaintiff's
objection. The court did recognize the charge is generally
disfavored, but concluded that it was appropriate to give the jury
in this particular situation of alleged "road rage" between two
drivers.
During summations, counsel for plaintiff attempted to negate
the impact of the court's forthcoming charge on sudden emergency.
He argued that defendant, rather than plaintiff, was the negligent
party in the overall encounter. More pointedly, he asserted that
11 A-1762-15T3
defendant herself had created an emergency at the scene through
her own vulgarities and aggressive conduct, which made plaintiff
fearful. Hence, argued plaintiff's counsel, the damage that
defendant caused to plaintiff by her own wrongful behavior could
not be excused.
Defense counsel did not allude to the emergency charge in his
own closing. We presume he was satisfied that the jury hearing
the charge from the court itself was sufficient for his own
tactical advantage.
The jury unanimously found defendant not liable on all three
counts. This appeal ensued.
II.
The singular issue before us is whether the trial court erred
in issuing the sudden emergency charge, and, if so, whether that
error was sufficiently prejudicial to warrant a new trial.
The sudden emergency doctrine stems from the English common
law dating back to Jones v. Boyce, 1 Stark. 493, 171 Eng. Rep. 540
(N.P. 1816), in which the plaintiff had leapt out of a stagecoach
after being scared by the negligent manner in which the coach was
being driven. The English court instructed that if the plaintiff
had acted negligently in leaping from the stagecoach due to a
perception of a sudden emergency, his negligent conduct could be
excused. Id., 171 Eng. Rep. at 541. On the other hand, if the
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plaintiff's act resulted from a rash apprehension of danger, which
was not confirmed to exist, he would not be entitled to recover.
The United States Supreme Court adopted the sudden emergency
doctrine in Stokes v. Saltonstall, 38 U.S. 181, 10 L. Ed. 115(1839). That case likewise involved a passenger who had become
frightened and leapt from a stagecoach.
For the sudden emergency doctrine to apply, and therefore
potentially warrant the related jury charge, "a party must have
been confronted by a sudden emergency over which he had no control,
without fault on his part." Roberts v. Hooper, 181 N.J. Super.
474, 478 (App. Div. 1981). The doctrine "negates negligence if
the jury finds that the party chose one of alternative reasonably
prudent courses of action, even though, by hindsight, another
course of action would have been safer." Id. at 478-79.
Many years ago, our state adopted this model charge. However,
over time, the charge has been regarded as unnecessary, confusing,
and conceptually subsumed within the charge for comparative fault.
The model charge reads as follows:
In connection with the question of
(contributory) negligence, it has been
asserted that the defendant (plaintiff) was
confronted with a sudden emergency. Where a
person, without any fault on his/her part, is
confronted with a sudden emergency, that is,
is placed in a sudden position of imminent
peril not reasonably to be anticipated, the
law will not charge him/her with negligence
13 A-1762-15T3
if he/she does not select the very wisest
course in choosing between alternative courses
of action. An honest mistake of judgment in
such a sudden emergency will not, of itself,
constitute negligence, although another
course might have been better and safer. All
that is required of such a person is that
he/she exercises the care of a reasonably
prudent person under like circumstances.
It is for you the jury to determine from
the evidence whether such an emergency
existed, whether it arose without the fault
of that person and whether that person acted
with due care under the circumstances.
[The following two additional paragraphs may
be utilized where necessary:]
The law recognizes that one acting in a
sudden emergency may have no time for thought
and so cannot weigh alternative courses of
action but must make a speedy decision which
will be based on impulse or instinct. What
is required of a person in such an emergency
is that he/she act reasonably and with
ordinary care under such circumstances.
However, if the emergency arose in whole
or in part by reason of the fault, that is, a
lack of due care, of that person in the events
preceding the emergency, then this rule of
sudden emergency does not apply to excuse
him/her even though his/her conduct during the
emergency does meet the standard of reasonable
care referred to.
[Model Jury Charge (Civil), 5:10(g), "Sudden
Emergency" (emphasis added).]
In 1995, the Model Civil Jury Charge Committee added a "Note
to Judges" indicating that the sudden emergency charge is in
"disfavor." The Note cautions that the modern view is that the
14 A-1762-15T3
charge is argumentative, confusing, and should be eliminated,
citing this court's opinion in Finley v. Wiley, 103 N.J. Super.
95 (App. Div. 1968), which criticized the charge. See id. at 103.
In Leighton v. Sim, 248 N.J. Super. 577, 580 (App. Div. 1991),
we further admonished that the sudden emergency instruction should
only be given in "the most unusual circumstances." Although
several states have retained the charge, others have eliminated
it. See Moran v. Atha Trucking, 208 W. Va. 379, 387-88, 540 S.E.2d
903, 911-12 (1997) (canvassing the law of various states).
In light of these cautionary developments, we conclude that
the trial court erred here in acceding to defense counsel's request
to issue the charge. The charge essentially gives the jury an
explicit judicial imprimatur that a litigant's conduct in a
negligence case can be excused if he or she was responding to an
emergency.
Here, the emergency was portrayed as, or assumed to be, one
caused solely by plaintiff. However, viewing the divergent
testimony of the parties as a whole, plaintiff was arguably as
much confronted with a "sudden emergency" here as was defendant,
depending on whose account of events is believed.
This is not a situation in which an emergency was caused by
a third party or some external force, such as when a defendant
driver must change lanes in order to make way for an ambulance and
15 A-1762-15T3
collides in the process with another vehicle. The alleged
emergency, if one existed at all, instead was generated by the
escalating argument between the two drivers, neither of whom was
manifestly without fault. Indeed, defendant, whose counsel
requested the charge, herself admitted that she had shouted and
cursed at plaintiff after being cut off in her lane.
Given the competing proofs, the standard charges on
negligence and comparative fault sufficed here for the jury to
fairly weigh the respective behavior of the two actors involved.
By hearing from the judge's lips the disfavored charge on sudden
emergency, which was obtained for defendant's sole benefit, the
jury's objective consideration of the evidence easily could have
been tainted.
"It is fundamental that '[a]ppropriate and proper charges to
a jury are essential for a fair trial.'" Velazquez v. Portadin,
163 N.J. 677, 688 (2000) (alteration in original) (quoting State
v. Green, 86 N.J. 281, 287 (1981)); see also Washington v. Perez,
219 N.J. 338, 350-51 (2014) (noting that "[o]ur law has long
recognized the critical importance of accurate and precise
instructions to the jury"). "A charge is a road map to guide the
jury, and without an appropriate charge a jury can take a wrong
turn in its deliberations[.]" Das v. Thani, 171 N.J. 518, 527
(2002) (quoting State v. Martin, 119 N.J. 2, 15 (1990)).
16 A-1762-15T3
Although we appreciate the fact that the sudden emergency
charge remains on the books, and that the trial court responded
to defense counsel's request in a conscientious manner, we conclude
that it was harmful error to give the charge in the context of
this particular case.5 This was not the appropriate rare case
where the charge was warranted.
The judgment for defendant is reversed, and the matter is
remanded for a new trial.
5
Given the passage of time since it was last studied, we
respectfully suggest that the Model Civil Charge Committee
undertake a renewed assessment of the continued need for this
model charge.
17 A-1762-15T3