MARIE GUERRIER VS. PABLO LLIGUICHUZHCA (L-2644-13, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1568-17T3
MARIE GUERRIER,
Plaintiff-Appellant,
v.
PABLO LLIGUICHUZHCA
and JLB GENERAL
CONTRACTORS, LLC,
Defendants,
and
NAOMI ROSENFELD,
Defendant-Respondent.
___________________________
Argued November 27, 2018 – Decided March 29, 2019
Before Judges Rothstadt, Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-2644-13.
K. Raja Bhattacharya argued the cause for appellant
(Bendit Weinstock, PA, attorneys; K. Raja
Bhattacharya and Kay A. Gonzalez, on the briefs).
Richard J. Mirra argued the cause for respondent
(Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys; Richard J. Mirra and Kathleen Huntley-
Robertson, of counsel and on the brief).
PER CURIAM
In this personal injury action, plaintiff Marie Guerrier appeals from the
Law Division's judgment dismissing her complaint against defendant the late
Naomi Rosenfeld, which it entered after a jury returned a verdict of "no cause."
On appeal, plaintiff argues that the trial court erred by (1) failing to charge the
jury in accordance with Dolson v. Anastasia, 55 N.J. 2 (1969); (2) allowing a
treating psychologist to testify as to her interpretation of a magnetic resonance
image (MRI); and (3) incorrectly charging the jury as to the effect of settling
defendants on the verdict. We reverse and remand for a new trial because the
trial court failed to include a Dolson charge in its instructions to the jury.
Plaintiff's complaint arose from a July 2011 auto accident in which a
landscaping truck driven by defendant Pablo Lliguichuzhca and owned by
defendant JLB General Contractors, LLC (JLB) made a right-hand turn from the
left lane in front of plaintiff's vehicle, causing her to stop suddenly, at which
point Rosenfeld, who was behind plaintiff, rear-ended plaintiff's vehicle.
Plaintiff alleged that she sustained significant injuries in that accident.
A-1568-17T3
2
After plaintiff filed suit in this action, on April 2, 2014, she was involved
in a second crash, this time as a passenger. After she filed suit for damages
arising out of that accident, the trial court consolidated her lawsuits and plaintiff
ultimately settled with Lliguichuzhca, JLB, and all defendants involved in the
second accident. The only claim that was tried was plaintiff's action against
Rosenfeld. Although Rosenfeld participated in pretrial discovery, including
attending a deposition, by the time the case was tried, Rosenfeld had passed
away due to health issues unrelated to the accident.
On September 28, 2017, plaintiff filed motions in limine seeking among
other relief (1) a jury charge that Rosenfeld was negligent; (2) the barring of
evidence about plaintiff's settlement with other defendants; and (3) the exclusion
of the settling defendants on the verdict sheet. In asking for a jury charge that
Rosenfeld was negligent, plaintiff argued that when a case involves a rear-end
collision, the jury must be charged in accordance with Dolson. According to
plaintiff, there was no question that based on Rosenfeld's deposition testimony,
she was traveling too fast at a distance of twenty feet behind plaintiff, which
was too close under the requirements of the New Jersey Driver Manual. Counsel
for Rosenfeld argued that the unique circumstances of the collision negated the
Dolson requirement.
A-1568-17T3
3
On October 11, 2017, relying on our holding in Seoung Ouk Cho v.
Trinitas Regional Medical Center, 443 N.J. Super. 461 (App. Div. 2015), the
trial court denied plaintiff's motion for a Dolson charge, finding that "the
granting of plaintiff's motion would have the effect of negating the defendant's
entire defense as to liability, thus it would be dispositive in nature." The court
reasoned that because "granting a motion [would] result in . . . the suppression
of the defendant's defenses, the motion is subject to [Rule 4:46], which
governs . . . summary judgment motions" and untimely summary judgment
motions could not be made in limine.
In her trial testimony, plaintiff described the 2011 accident and explained
how JLB's truck made a right turn from the left lane, causing her to suddenly
apply her brakes, which, in turn, caused Rosenfeld's vehicle to collide with the
rear end of plaintiff's vehicle. Plaintiff testified that she blacked out upon
impact, experienced dizziness, fell, and was disoriented immediately afterward.
She described the injuries she sustained to her neck, head, and back, her memory
loss, agitation, headaches, and problems focusing, and her medical treatment
from the day after the accident through the years that followed. In addition to
her testimony, plaintiff produced other fact witnesses and expert opinion
A-1568-17T3
4
evidence about the physical and cognitive injuries she suffered as a result of the
accident.
Rosenfeld's deposition testimony was also introduced into evidence and
read to the jury. According to Rosenfeld's testimony, the rear-end collision was
minor, causing no damage to Rosenfeld's car. Rosenfeld estimated that both she
and plaintiff were traveling at forty-five miles per hour, and that she was
approximately twenty feet behind plaintiff prior to impact. Rosenfeld also
recounted having a conversation with plaintiff immediately after the crash
during which plaintiff remained conscious, did not fall, and asserted that she
was uninjured.
Also, plaintiff introduced into evidence an excerpt from the New Jersey
Driver Manual. The portion that was admitted described a safe distance between
vehicles traveling at a speed similar to that at which Rosenfeld was estimated to
have been traveling prior to the impact.
After the presentation of the evidence, the trial court conducted a charge
conference. At that time, plaintiff renewed her request for a Dolson charge. The
trial court relied upon its earlier in limine decision and denied the request. It
stated the following:
[A]s the Court has previously ruled, Dolson will not be
charged. This Court will not take from the hands of the
A-1568-17T3
5
jury findings that they should be making at the
conclusion of all of the evidence whether in fact there
is liability. And the Dolson charge is equivalent to a
directed verdict that you must find that the Defendant
Rosenfeld . . . was liable.
And they may believe that she was [at a] sufficient
distance based upon what a reasonably prudent person
would have done, given her . . . circumstances. They
may find she was not. But to remove that from their
hands is inappropriate.
During the trial court's charge to the jury, it first gave a general
explanation of negligence, then read several relevant motor vehicle and traffic
laws, including N.J.S.A. 39:4-89, which states in pertinent part that "[t]he driver
of a vehicle shall not follow another vehicle more closely than is reasonable and
prudent, having due regard to the speed of the preceding vehicle and the traffic
upon, and condition of, the highway." The court then instructed:
The statutes in question have set up a standard of
conduct for the users of our streets and our highways.
If you find that a defendant has violated—or any party,
Plaintiff has violated the standard of conduct, such [a]
violation is evidence to be considered by you in
determining whether negligence, as I have defined that
term for you, has been established. You may find that
such violation constituted negligence on the part of the
defendant, or you may find that it did not constitute
such negligence. Your finding on this issue may be
based on such violation alone, but in the event that there
is other or additional evidence bearing upon that issue,
you will consider such violation together with all . . .
A-1568-17T3
6
such additional evidence in arriving at your ultimate
decision as to defendant's negligence.
[(Emphasis added).]
After deliberation, the jury returned a verdict finding that Rosenfeld was
not negligent and that Lliguichuzhca was one hundred percent responsible for
the accident. On November 6, 2017, the court entered a judgment dismissing
plaintiff's complaint with prejudice. This appeal followed.
On appeal, plaintiff contends that the trial court misapplied our holding in
Cho, which is applicable to summary judgment motions filed in limine, to a
legitimate request for a jury charge that was applicable to the facts developed at
trial. We agree.
We begin our review by acknowledging "not every improper jury charge
warrants reversal and a new trial." Prioleau v. Kentucky Fried Chicken, Inc.,
223 N.J. 245, 257 (2015). Where a litigant contests a jury instruction at trial,
on appeal, we review challenges to jury charges for harmless error. Estate of
Kotsovska v. Liebman, 221 N.J. 568, 592 (2015). That is, we will "reverse on
the basis of [a] challenged error unless the error is harmless." Ibid. (quoting
Toto v. Ensuar, 196 N.J. 134, 144 (2008)). An error is harmful when it is
"clearly capable of producing an unjust result." Ibid. (quoting R. 2:10-2). In
A-1568-17T3
7
reviewing such challenges, we "examine the charge as a whole, rather than focus
on individual errors in isolation." Ibid. (quoting Toto, 196 N.J. at 141).
The importance of correct jury instructions cannot be understated. "A jury
is entitled to an explanation of the applicable legal principles and how they are
to be applied in light of the parties' contentions and the evidence produced in
the case." Prioleau, 223 N.J. at 256 (quoting Viscik v. Fowler Equip. Co., 173
N.J. 1, 18 (2002)). When charging the jury, a court must "set forth in clearly
understandable language the law that applies to the issues in the case." Little v.
Kia Motor Am., Inc., 455 N.J. Super. 411, 436-37 (App. Div. 2018) (quoting
Toto, 196 N.J. at 144); see also Kotsovska, 221 N.J. at 591. A jury charge is the
"road map that explains the applicable legal principles, outlines the jury's
function, and spells out 'how the jury should apply the legal principles charged
to the facts of the case.'" Little, 455 N.J. Super. at 437 (quoting Toto, 196 N.J.
at 144). To create such a roadmap, the court should tailor the jury charge to the
facts of the case. Kotsovska, 221 N.J. at 592. Although it is axiomatic that
accurate and understandable jury instructions are essential to a fair trial, see
Velazquez v. Portadin, 163 N.J. 677, 688 (2000), "a party is not entitled to have
the jury charged in the words of his own choosing." Kaplan v. Haines, 96 N.J.
A-1568-17T3
8
Super. 242, 251 (App. Div. 1967), aff'd, 51 N.J. 404 (1968), overruled on other
grounds by, Largey v. Rothman, 110 N.J. 204 (1988).
By requesting a Dolson charge here, plaintiff correctly sought to have the
jury instructed that if it found Rosenfeld violated N.J.S.A. 39:4-89, she was
negligent. In Dolson, the Supreme Court acknowledged that because N.J.S.A.
39:4-89 incorporated the common law standard of care with regard to following
distance, a violation of that statute establishes negligence. Dolson, 55 N.J. at
10-11. In Torres v. Pabon, 225 N.J. 167, 187-88 (2016), the Court addressed a
case where a plaintiff's vehicle struck a defendant's from behind. In its opinion,
the Court discussed the relationship between its holding in Dolson and the
obligation of a trial court to charge its holding in the appropriate circumstances.
The Court reviewed the language of N.J.S.A. 39:4-89 and observed that as stated
in Dolson, the statute "'merely incorporates the common law standard into the
motor vehicle law to authorize penal sanctions for a violation[,]' and that a
driver's conduct contravening that standard 'is negligence and a jury should be
so instructed.'" Id. at 187 (alteration in original). It concluded that "because
N.J.S.A. 39:4-89 imposes a statutory duty of care on a driver following behind
another driver, a finding that the driver violated the duty obviates the need for
further proof of negligence." Ibid. (emphasis added).
A-1568-17T3
9
The Court then quoted the appropriate Model Jury Charge. It stated:
The statutory standard, and the common-law principle
that it codifies, are incorporated in Model Jury Charge
(Civil), § 5.30D(2) "Violation of Traffic Act" (August
1999):
In this case, plaintiff argues that defendant
was negligent because defendant violated a
provision of the motor vehicle laws. The
provision referred to, N.J.S.A. 39:4-89, is
as follows: The driver of a vehicle shall not
follow another vehicle more closely than is
reasonable and prudent, having due regard
to the speed of the preceding vehicle and
the traffic upon, and condition of, the
highway.
[Id. at 188.]
The charge described by the Court in Torres, as compared to the one
delivered by the trial court here, was consistent with the instruction to judges
that accompanied the Model Jury Charges. Those instructions stated:
In some cases, however, an issue may be presented for
the jury as to whether a violation occurred or whether
an adequate explanation is to be found in the evidence.
In such a case where the particular statute violated
requires a conclusion of negligence the jury should be
instructed as follows:
In this case, plaintiff argues that defendant
was negligent because defendant violated a
provision of the motor vehicle laws. The
provision referred to, N.J.S.A. 39:4-89, is
as follows:
A-1568-17T3
10
The driver of a vehicle shall not follow
another vehicle more closely than is
reasonable and prudent, having due regard
to the speed of the preceding vehicle and
the traffic upon, and condition of, the
highway.
[Model Jury Charges (Civil), 5.30D, "Violation of
Traffic Act" (approved Aug. 1999) (emphasis added).]
In rear-end cases where there is an allegation that a driver violated
N.J.S.A. 39:4-89 that is supported by evidence that the defendant was traveling
too closely behind another vehicle, the jury must be charged that the defendant
is negligent if the jury finds that the defendant followed "more closely than is
reasonable and prudent, having due regard to the speed of the preceding vehicle
and the traffic upon, and condition of, the highway." However, the statute and
the related charge are "not intended to apply indiscriminately to any case in
which the front of one vehicle comes into contact with the rear of another,
irrespective of how the collision occurred." La Mandri v. Carr, 148 N.J. Super.
566, 571 (App. Div. 1977) (declining to apply Dolson where the vehicles were
traveling in different lanes of traffic prior to impact).
A Dolson charge has been found appropriate in situations similar to the
instant case. It was applied where a vehicle was forced to stop due to a sudden
obstruction in the road and that vehicle was subsequently rear-ended by a
A-1568-17T3
11
closely-following vehicle. See Paiva v. Pfeiffer, 229 N.J. Super. 276, 282 (App.
Div. 1988) ("The policy and logic of Dolson compels us to conclude that where
a motorist takes evasive action to avoid an accident, which would have
supported a Dolson charge had it occurred, and in doing so rear-ends another
vehicle, the Dolson principles should be charged"). Dolson has also been
applied where a vehicle was traveling forty miles per hour at a distance of fifteen
to twenty feet behind another vehicle, a speed and distance almost identical to
the speed and distance in this case. See Pagano v. McClammy, 159 N.J. Super.
581, 585 (App. Div. 1978) (reversing the denial of plaintiff's motion for a
directed verdict after concluding the sole cause of the accident was defendant's
tailgating in violation of N.J.S.A. 39:4-89). Under the statute, however, speed
and distance alone are not determinative.
The statutory standard incorporates the traditional reasonably prudent
person test, which is a factual question for the jury to determine. Thus, the jury
here could have found, based on the evidence, that Rosenfeld was not negligent
because she was following plaintiff at a reasonable and prudent distance "having
due regard to the speed of the preceding vehicle and the traffic upon, and
condition of, the highway," thereby accepting defendant's liability defense.
N.J.S.A. 39:4-89. But, the jury could have also found that Rosenfeld violated
A-1568-17T3
12
the statute, which would have meant that Rosenfeld was negligent. The jury
would then have been required to determine what amount of responsibility, if
any, Rosenfeld bore for the accident as compared to the other defendants. For
that reason, the trial court's charge here was improper and harmful, "clearly
capable of producing an unjust result." See R. 2:10-2.
Because we are constrained to remand this matter for a new trial, we need
not address plaintiff's remaining contentions.
The judgment is vacated and the matter is remanded for a new trial. We
do not retain jurisdiction.
A-1568-17T3
13