MIRIAM L. CHICAS VS. TOWN OF KEARNY JOSE A. MARTINEZ VS. TOWN OF KEARNY (L-2516-15 AND L-4785-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1248-17T3
MIRIAM L. CHICAS, a/k/a
MIRIAM CHICAS,
Plaintiff-Respondent,
v.
TOWN OF KEARNY and
DEREK P. HEMPHILL,
Defendants-Appellants,
and
JOSE A. MARTINEZ, a/k/a
JOSE CHICAS,
Defendant-Respondent.
_________________________
JOSE A. MARTINEZ,
Plaintiff-Respondent,
v.
TOWN OF KEARNY and
DEREK P. HEMPHILL,
Defendants-Appellants.
_________________________________
Argued November 14, 2018 – Decided January 10, 2019
Before Judges Yannotti, Rothstadt, and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket Nos. L-2516-15 and
L-4785-15.
Monique D. Moreira argued the cause for appellants
(Moreira & Moreira, PC, attorneys; Monique D.
Moreira, on the briefs).
Adam B. Lederman argued the cause for respondent
Miriam L. Chicas (Davis, Saperstein & Salomon, PC,
attorneys; Adam B. Lederman and David A. Drescher,
on the brief).
Antonio D. Arthurs argued the cause for respondent
Jose A. Martinez (Law Offices of Jeffrey S. Hasson,
PC, attorneys; Antonio D. Arthurs, on the brief).
Law Office of Patricia A. Palma, attorneys for
respondent Jose A. Martinez (Catherine Masterson, on
the brief).
PER CURIAM
On a snowy night, a Kearny police officer was on patrol in a police
vehicle. As he came down a street with an incline, he applied the brakes, but
his car slid through a stop sign and a car driven by plaintiff Jose Martinez
collided with the police vehicle. Plaintiff Miriam Chicas was a passenger in the
car driven by Martinez. Both Martinez and Chicas were injured and sued the
police officer and the Town of Kearny, which employed the officer. A jury
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found the officer negligent and solely responsible for the accident. Defendants
appeal from a January 6, 2017 order denying their motion for summary judgment
and a July 20, 2017 judgment memorializing the jury verdict. Having reviewed
the arguments in light of the record and applicable law, we affirm.
I
We take the facts from the record, including the evidence presented at
trial. On January 2, 2014, weather reports predicted a winter snowstorm.
Anticipating that the snow might be "heavy" and that road conditions might
become "hazardous," the Governor declared a state of emergency and authorized
various state officials to take certain actions if necessary. The declaration did
not close roads in the state and did not restrict people from driving.
Snow began falling on the evening of January 2, 2014, and continued into
January 3, 2014. In the early morning hours of January 3, 2014, Kearny Polic e
Officer Derek Hemphill was patrolling the streets of Kearny to determine which
roads needed to be plowed. Officer Hemphill was traveling in a Dodge Durango
police vehicle. At approximately 1:22 a.m., Officer Hemphill was traveling on
Laurel Avenue approaching a stop sign at a "T" intersection with Schuyler
Avenue. As Officer Hemphill applied his brakes, his vehicle skidded and slid
past the stop sign and into Schuyler Avenue. At approximately the same time,
plaintiff Martinez was driving a vehicle southbound on Schuyler Avenue,
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approaching the intersection with Laurel Avenue. Just before Martinez's vehicle
reached the intersection, Officer Hemphill's vehicle slid into Schuyler Avenue.
Martinez hit his brakes, but the front of his vehicle collided with the front
driver's side of Hemphill's vehicle.
Martinez had been driving his sister's car, a Mazda SUV. His sister,
plaintiff Chicas, was a passenger in the vehicle, sitting in the front seat. A friend
was seated in the rear passenger's side of the vehicle. Martinez and Chicas were
wearing seatbelts at the time of the collision.
Martinez and Chicas were both injured as a result of the collision.
Martinez herniated discs in his spine and neck and those injuries required
medical treatment. He also tore cartilage in his left wrist, which required
surgery. Chicas injured her neck, lower back, and knee. She required medical
treatment, which included surgery on her neck and knee.
In 2015, Chicas and Martinez separately sued Kearny and Officer
Hemphill. In her suit, Chicas also asserted claims against Martinez. Those suits
were consolidated and the parties engaged in discovery.
During discovery, plaintiffs produced a report on liability prepared by
Robert Klingen, an expert in accident reconstruction. Klingen opined that
Officer Hemphill had been driving at twenty-nine miles per hour as he
approached the stop sign on January 3, 2014. Having reviewed weather reports
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and various parties' testimony, Klingen pointed out that there was snow on the
ground and the officer was traveling above the twenty-five-miles-per-hour speed
limit for Laurel Avenue. Klingen further opined that the officer's rate of speed
was not appropriate given the snow on the road and the downward incline of
Laurel Avenue. Thus, Klingen opined that Hemphill solely caused the collision
when his vehicle failed to stop at the stop sign and failed to yield the right -of-
way to Martinez's vehicle.
Following the completion of discovery, defendants moved for summary
judgment contending that plaintiffs' claims were barred by the New Jersey Tort
Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Defendants also argued that
Klingen's opinion was a net opinion and he should be precluded from testifying.
After hearing oral argument, the trial court denied the summary judgment
motion in an order entered on January 6, 2017. The court held that the TCA did
not apply because Hemphill had been engaged in ministerial actions and none
of the exemptions under the TCA barred plaintiffs' claims. The trial cour t also
held that Klingen's expert opinion was not a net opinion because those opinions
were based on facts and analysis, including the testimony of the parties at
depositions, an accident scene inspection, and related analysis.
The parties thereafter agreed to bifurcate liability and damages and, in
July 2017, the case proceeded to a trial on liability. At the beginning of the
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liability trial, the court granted an in limine motion filed by plaintiffs and
precluded defendants from referencing the Governor's declaration of a state of
emergency. The court ruled that any reference to the state of emergency would
be substantially more prejudicial than probative because the declaration did not
prohibit Martinez from driving on January 3, 2014.
During the liability trial, the jury heard testimony from a number of
witnesses, including plaintiffs, Klingen, Officer Hemphill, and a defense
liability expert, Mark Marpet. After considering all of the evidence presented,
the jury returned a verdict for plaintiffs finding Officer Hemphill negligent and
solely responsible for the accident. On July 20, 2017, the trial court
memorialized that verdict in a judgment. The judgment also dismissed with
prejudice Chicas' claims against Martinez.
Thereafter, the parties agreed to resolve damages at a binding arbitration.
The arbitrator issued his decision on October 27, 2017, and awarded Chicas
$750,000 and Martinez $625,000.
Defendants now appeal from the order denying them summary judgment
and the liability judgment. Defendants do not challenge the arbitration award
on damages.
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II
On appeal, defendants make a number of arguments challenging both the
denial of their motion for summary judgment and the jury verdict. Those
arguments can be organized into five issues: (1) whether defendants were
entitled to judgment as a matter of law based on the TCA; (2) whether plaintiffs'
expert report should have been barred as a net opinion; (3) whether the trial court
erred in refusing to allow the jury to consider immunities under the TCA;
(4) whether the trial court erred in excluding any reference to the state of
emergency; and (5) whether the trial court erred in denying defendants' request
for three jury charges. We are not persuaded by any of defendants' arguments
and we discern no error warranting vacating the jury verdict.
A. The TCA
Defendants argue that immunities under the TCA precluded their liability
as a matter of law. Since these are legal issues, our review is de novo. Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016) (first citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512,
524 (2012); then citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
"The TCA provides general immunity for all governmental bodies except
in circumstances where the Legislature has specifically provided for liability."
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Caicedo v. Caicedo, 439 N.J. Super. 615, 623 (App. Div. 2015) (quoting Kain
v. Gloucester City, 436 N.J. Super. 466, 473 (App. Div. 2014)). As such, "the
TCA's dominant theme is immunity, with liability as the exception." Ibid. (first
citing D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013); then
citing Rochinsky v. Dep't of Transp., 110 N.J. 399, 408 (1988)). "Even if
liability exists, '[c]ourts must "recognize[] the precedence of specific immunity
provisions," and ensure "the liability provisions of the Act will not take
precedence over specifically granted immunities."'" Patrick ex rel. Lint v. City
of Elizabeth, 449 N.J. Super. 565, 572 (App. Div. 2017) (alterations in original)
(quoting Parsons v. Mullica Twp. Bd. of Educ., 440 N.J. Super. 79, 95 (App.
Div. 2015)). Accordingly, to determine whether a public entity is immune,
"courts should employ an analysis that first asks 'whether an immunity applies
and if not, should liability attach.'" Bligen v. Jersey City Hous. Auth., 131 N.J.
124, 128 (1993) (quoting cmt. on N.J.S.A. 59:2-1(a)). The burden of proof rests
on the public entity to establish immunity. Caicedo, 439 N.J. Super. at 623
(quoting Kain, 436 N.J. Super. at 473). "Where a public entity is immune from
liability for injury, so too is the public employee." Id. at 624 (citing N.J.S.A.
59:3-1(c)).
Defendants argue that three provisions of the TCA provide them with
immunity. In that regard, they contend that they are protected from liability
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under (1) the weather condition immunity, N.J.S.A. 59:4-7; (2) the good-faith
immunity, N.J.S.A. 59:3-3; and (3) the palpably unreasonable standard, N.J.S.A.
59:3-1(c). We disagree.
1. The Weather Condition Immunity
N.J.S.A. 59:4-7 provides that "[n]either a public entity nor a public
employee is liable for an injury caused solely by the effect on the use of streets
and highways of weather conditions." The key word in that immunity is
"solely." If weather conditions combine with other causes then the weather
condition immunity will not act as a bar. Dickerson ex rel. Duberson v. Twp.
of Hamilton, 400 N.J. Super. 189, 198-99 (App. Div. 2008) (quoting McGowan
v. Borough of Eatontown, 151 N.J. Super. 440, 447 (App. Div. 1977)); see also
Meta v. Twp. of Cherry Hill, 152 N.J. Super. 228, 232 (App. Div. 1977).
Therefore, the weather condition immunity will not apply to snow- and ice-
related accidents where there is evidence that plaintiffs' injuries were caused by
factors in addition to the weather itself.
Here, there was evidence that the collision was not solely caused by the
snowy conditions of the roads. Officer Hemphill testified that as he approached
the stop sign at the intersection of Laurel Avenue and Schuyler Avenue, he
applied his brakes, but his car skidded through the stop sign and proceeded onto
Schuyler Avenue. While the officer testified that the road had snow on it, he
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also testified that he began to apply his brakes approximately 160 feet before
the stop sign. Plaintiffs submitted an expert report and the expert testified that
the officer's driving speed and inability to control his vehicle had caused the
accident. Analyzing the police report, the parties' testimony at depositions, and
a site inspection, the expert conducted a slide-to-stop calculation. After
accounting for the downhill grade of Laurel Avenue and the snowy conditions
of the street, the expert opined that Officer Hemphill was driving at twenty-nine
miles per hour when the speed limit on that road was twenty-five miles per hour.
Based on that evidence, a reasonable jury could conclude that the officer
had been driving negligently in failing to stop even given the weather conditions.
Accordingly, there was sufficient evidence presented that weather conditions
were not the sole cause of the accident. Therefore, defendants were not entitled
to judgment as a matter of law based on the weather condition immunity.
2. The Good-Faith Immunity
N.J.S.A. 59:3-3 provides that "[a] public employee is not liable if he [or
she] acts in good faith in the execution or enforcement of any law." "The TCA
does not, however, 'exonerate a public employee for negligence arising out of
his [or her] acts or omissions in carrying out his [or her] ministerial functions.'"
Caicedo, 439 N.J. Super. at 624 (alterations in original) (quoting N.J.S.A. 59:3-
2). In Caicedo, we declined to extend the good-faith immunity provision to
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police officers acting in situations that do not involve an emergency, "such as
patrolling the streets or transporting prisoners." Ibid. Accordingly, we held that
a police officer "was not acting in the 'execution or enforcement of any law' so
as to afford him immunity under N.J.S.A. 59:3-3 while transporting [a] prisoner
to the police precinct when [a] collision occurred." Id. at 626.
In that regard, we noted that "[r]ead literally, N.J.S.A. 59:3-3 could be
interpreted to immunize all police activities, since 'virtually every police
function or duty is pursuant to some legal authorization in the broadest sense.'"
Ibid. (quoting Aikens v. Morris, 583 N.E.2d. 487, 493 (Ill. 1991)).
Consequently, we held that the Legislature did not intend for N.J.S.A. 59:3-3
"to be construed so broadly." Id. at 627. Instead, "the determination of whether
a police officer is engaged 'in the execution or enforcement of any law' so as to
entitle that officer to good-faith immunity under the statute must be made on a
case-by-case basis." Ibid.
Here, Officer Hemphill testified that he was patrolling the streets of
Kearny to determine which streets needed to be plowed. He was not responding
to a report of a crime, an accident, or some other situation requiring his
immediate attention. Defendants argue that Officer Hemphill was patrolling the
streets under a state of emergency situation and, therefore, was involved in
enforcement of the law. As already pointed out, however, the state of emergency
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did not close the streets to public use. Instead, the state of emergency authorized
certain state officials to take actions if appropriate. There was no evidence that
Officer Hemphill was specifically directed by any state official to conduct the
patrol that he was engaged in on January 3, 2014. Thus, there was no evidence
that Officer Hemphill was executing or enforcing any law that would implicate
the good-faith immunity under the TCA. Accordingly, defendants were not
entitled to immunity under N.J.S.A. 59:3-3.
3. The Palpably Unreasonable Standard
Defendants also argue that they are entitled to immunity under subsection
(c) of N.J.S.A. 59:3-1. That provision states, "[a] public employee is not liable
for an injury where a public entity is immune from liability for that injury."
Defendants then argue that the Town of Kearny could not be held liable under a
normal negligence standard. Instead, defendants contend that the Town of
Kearny could only be liable under a "palpably unreasonable" standard and,
therefore, plaintiffs needed to show that Officer Hemphill's actions were
palpably unreasonable for liability to attach. The TCA does not support this
argument.
A public employee is liable for an injury caused by his or her acts or
omissions to the same extent as a private person unless there is a specific
immunity granted by the TCA. N.J.S.A. 59:3-1(a). Likewise, "[a] public entity
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is liable for injury proximately caused by an act or omission of a public
employee within the scope of his [or her] employment in the same manner and
to the same extent as a private individual under like circumstances." N.J.S.A.
59:2-2(a); see also Tice v. Cramer, 133 N.J. 347, 355 (1993) ("The primary
liability imposed on public entities is that of respondeat superior: when the
public employee is liable for acts within the scope of that employee's
employment, so too is the entity[.]")
Defendants cite to Ogborne v. Mercer Cemetery Corp., 197 N.J. 448(2009) in support of the contention that a heightened "palpably unreasonable"
negligence standard should apply. In that case, the court used the "palpably
unreasonable" standard based on N.J.S.A. 59:4-2, which deals with public
entities' liability for dangerous conditions on public property. See Ogborne, 197
N.J. at 456-57. That statute is intended to comport with the principles of liability
used by courts for local public entities in their capacity as landowners. Id. at
459-60 (citing Margolis & Novack, Claims Against Public Entities, 1972 Task
Force Comment on N.J.S.A. 59:4-2 (2016)). While N.J.S.A. 59:4-2 has been
applied broadly, it nevertheless is limited to situations where a dangerous
condition of public property itself is at issue. Ibid.Here, plaintiffs are not complaining about the condition of the roads in
Kearny. Instead, plaintiffs sought to hold Kearny and Officer Hemphill
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responsible for the negligence of the officer while he was patrolling in snowy
conditions. Accordingly, the heightened "palpably unreasonable" standard set
forth in N.J.S.A. 59:4-2 is inapplicable. Rather, in accord with N.J.S.A.
59:2-2(a), defendants were subject to liability under the normal negligence
standard.
B. Plaintiffs' Expert Report
Defendants next argue that they were entitled to summary judgment
because plaintiffs' expert opinion was a net opinion and, without that expert
opinion, plaintiffs could not prove liability. The trial court rejected defendants'
arguments and found the expert opinions were based on facts and data, including
testimony by the parties, an inspection of the accident scene, a review of weather
reports, and related analysis. The trial court concluded that the expert opinions
possessed the "why and wherefores" and, thus, were not inadmissible as net
opinions.
We review a trial court's decision to admit expert testimony under an
abuse of discretion standard. Alloco v. Ocean Beach & Bay Club, 456 N.J.
Super. 124, 142 (App. Div. 2018) (quoting Townsend v. Pierre, 221 N.J. 36, 53
(2015)). The net opinion doctrine is a "corollary of [N.J.R.E. 703] . . . which
forbids the admission into evidence of an expert's conclusions that are not
supported by factual evidence or other data." Quail v. Shop-Rite Supermarkets,
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Inc., 455 N.J. Super. 118, 132 (App. Div. 2018) (alterations in original) (quoting
Pierre, 221 N.J. at 53-54). "[T]he net opinion rule 'requires an expert to give the
why and wherefore of his or her opinion, rather than a mere conclusion.'"
Alloco, 456 N.J. Super. at 142 (quoting State v. Townsend, 186 N.J. 473, 494
(2006)). Experts must "be able to identify the factual bases for their conclusions,
explain their methodology, and demonstrate that both the factual bases and the
methodology are reliable." Pierre, 221 N.J. at 55 (quoting Landrigan v. Celotex
Corp., 127 N.J. 404, 417 (1992)).
Here, we discern no abuse of discretion in the trial court's decision to
admit the expert opinion by Klingen. Klingen's opinions were based on evidence
in the record. In that regard, he reviewed a police accident and investigation
report, interrogatory responses, and deposition testimony by the parties,
including Officer Hemphill, Martinez, and Chicas. Klingen also conducted a
physical inspection of the location where the collision occurred and performed
accident reconstruction analysis, including a slide-to-stop calculation.
Klingen's report and his testimony provided analysis and explained how
he reached his opinions. Moreover, the analysis and resulting opinions were not
based on a "personal standard." See Alloco, 456 N.J. Super. at 143 ("A standard
which is personal to the expert is equivalent to a net opinion." (quoting
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 373 (2011))).
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Instead, the opinions were based on standards used by accident reconstruction
experts. In that regard, Klingen relied on sources such as traffic accident
reconstruction manuals, a traffic accident investigation manual, and a manual
on equations for the traffic crash reconstructionist. In short, Klingen's expert
opinions were not net opinions.
C. Trial Court's Decision Not To Ask The Jury To Consider
Immunities Under The TCA
Defendants argue that, at trial, the court erred by instructing the jury to
determine if defendants were negligent. Defendants contend that the jury should
have been instructed on the verdict sheet to determine if defendants were
protected by the three immunities defendants claim precluded their liability
under the TCA. In other words, having been denied summary judgment on those
TCA immunities, defendants asked the trial court to allow the jury to consider
those immunities.
Here, there were no material fact disputes concerning the application of
the three TCA immunities. Instead, as defendants acknowledged in moving for
summary judgment, determining whether the three immunities under the TCA
applied to the facts of this case involved questions of law for the court to decide.
As we have already determined that the immunities did not apply as a matter of
law, the trial court correctly refused to submit those legal issues to the jury.
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D. The State of Emergency
Next, defendants assert that the trial court erred when it granted plaintiffs'
in limine motion to preclude reference to the Governor's state-of-emergency
declaration. Defendants first contend that the in limine motion was filed late
and should not have been considered. Second, they argue that, substantively,
the court erred by precluding references to the state of emergency because such
evidence was not substantially more prejudicial than probative. We disagree
with both of these arguments.
Defendants did not challenge the timeliness of the in limine motion in the
trial court. Accordingly, we decline to consider it for the first time on appeal.
"[A]ppellate courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is
available." State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson,
200 N.J. 1, 20 (2009)); Nieder v. Royal Idem. Ins. Co., 62 N.J. 229, 234 (1973).
Nevertheless, we note that the record reflects that more than seven days before
trial, plaintiffs served their pre-trial information exchange, which stated that
they intended to bring an in limine motion to bar any reference to a "statewide
vehicular ban on the day of the accident[.]" Three days before trial, plaintiffs
amended their pre-trial information exchange to further clarify that their in
limine motion would seek to bar "any reference to a 'State of Emergency' and/or
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statewide vehicular ban on the day of the accident[.]" Accordingly, defendants
were on notice prior to trial of the in limine motion and we discern no reversible
error concerning the timeliness of the motion. See R. 4:25-7(b) (governing the
exchange of information regarding in limine or trial motions).
Turning to the substance, the trial court determined that the reference to
the state of emergency would be substantially more prejudicial than probative
under Rule 403. Specifically, the trial court found that there was no evidence
that motor vehicles were prohibited from being on the road on the day of the
accident. Accordingly, the trial court reasoned that the jury could incorrectly
assume that a state of emergency meant plaintiffs' vehicle should not have been
on the road and, thus, references to the state of emergency could be confusing.
We review the trial court's decisions to admit or exclude evidence under
an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins.
Co., 202 N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J.
480, 492 (1999)). Accordingly, absent a showing that the court abused its
discretion, we will not reverse a decision concerning the admission or exclusion
of evidence unless we conclude that it was so wide of the mark as to bring about
a manifest injustice. E & H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super.
12, 24-25 (App. Div. 2018) (citing Griffin v. City of E. Orange, 225 N.J. 400,
413 (2016)).
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Under Rule 403, the trial court can exclude relevant evidence "if its
probative value is substantially outweighed by the risk of (a) undue prejudice,
confusion of issues, or misleading the jury or (b) undue delay, waste of time, or
needless presentation of cumulative evidence." N.J.R.E. 403. "The burden lies
with the party seeking exclusion of the evidence to show that the probative value
is substantially outweighed by one or more of the factors listed in Rule 403."
McLean v. Liberty Health Sys., 430 N.J. Super. 156, 167 (App. Div. 2013)
(citing State v. Morton, 155 N.J. 383, 453 (1998)).
Here, we discern no abuse of discretion in the trial court's decision to
exclude evidence of the state of emergency. As already noted, the executive
order declaring a state of emergency did not ban vehicles from traveling on the
roadways. Instead, it authorized various state officials to take actions if they
deemed it appropriate depending on how the snowstorm developed. The trial
court did not abuse its discretion when it found reference to the state of
emergency would confuse the issues the jury needed to determine and that
confusion was substantially more prejudicial than probative. Indeed, defendants
have not articulated how the state of emergency was probative of any issue the
jury needed to determine.
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E. Defendants' Requested Jury Charges
Finally, defendants argue that the trial court erred by refusing to give the
jury three instructions that defendants had requested. Specifically, defendants
wanted the jury to be read the charges concerning (1) an act of God, Model Jury
Charge 5.10(E); (2) proximate causation, where there is a claim of concurrent
cause of harm, Model Jury Charge 6.13; and (3) the duty of a passenger in an
automobile, Model Jury Charge 7.12.
"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." Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)
(quoting Rendine v. Pantzer, 276 N.J. Super. 398, 431 (App. Div. 1994)).
Accordingly, a "jury charge must correctly state the applicable law, outline the
jury's function and be clear in how the jury should apply the legal principles
charged to the facts of the case at hand." Estate of Kotsovska ex rel. Kotsovska
v. Liebman, 221 N.J. 568, 591 (2015) (quoting Viscik, 173 N.J. at 18). Courts
accomplish this goal by tailoring the jury charge to the specific facts of a case.
Id. at 591-92 (citing Reynolds v. Gonzalez, 172 N.J. 266, 289 (2002)).
In reviewing the adequacy of a jury charge, we consider the charge as a
whole to determine if any error occurred. See id. at 592; see also State v.
Figueroa, 190 N.J. 219, 246 (2007) (citing State v. Wilbely, 63 N.J. 420, 422
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(1973)). When a party objects to a jury charge at trial, we will reverse on the
basis of a challenged error "unless the error is harmless." Estate of Kotsovska,
221 N.J. at 592 (quoting Toto v. Ensuar, 196 N.J. 134, 144 (2008)). "An error
is harmful only where that error is 'clearly capable of producing an unjust
result.'" Ibid. (quoting R. 2:10-2). Applying this standard, we discern no
reversible error in the decision of the trial court to not give these three jury
charges.
An act of God must be an unexpected event. In that regard, the model
jury charge explains that "[a]n act of God is an unusual, extraordinary and
unexpected manifestation of the forces of nature, or a misfortune or accident
arising from inevitable necessity which cannot be prevented by reasonable
human foresight and care." Model Jury Charges (Civil), 5.10(E), "Act of God"
(approved before 1984). The trial court acknowledged that the snow on the day
of the accident was predicted and Officer Hemphill was aware that he was
driving on snow-covered roads. Accordingly, the court reasoned that the
snowfall on the day of the accident was not a phenomenon of weather so
unpredictable or extensive to constitute an act of God. We discern no reversible
error in that decision.
Addressing proximate cause, the trial court determined to give the
proximate cause charge under Model Jury Charge 6.12, rather than the charge
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under Model Jury Charge 6.13. Model Jury Charge 6.12 addresses proximate
cause where there is a claim that concurrent causes of harm were present. Model
Jury Charges (Civil), 6.12, "Proximate Cause — Where There Is Claim that
Concurrent Causes of Harm Were Present" (approved May 1998). In contrast,
Model Jury Charge 6.13 addresses situations involving proximate cause where
there were concurring causes and there are claims that the specific harm was not
foreseeable. Model Jury Charges (Civil), 6.13, "Proximate Cause — Where
There Is Claim that Concurrent Causes of Harm Are Present and Claim that
Specific Harm Was Not Foreseeable" (approved May 1998). We discern no
reversible error in the court's decision to charge proximate cause under Model
Jury Charge 6.12, as compared to Model Jury Charge 6.13.
Model Jury Charge 7.12 addresses a situation where a passenger "knows,
or in the exercise of reasonable care should know, that the driver is incapable of
operating the automobile or is operating the automobile in a negligent
manner[.]" Model Jury Charges (Civil), 7.12, "Duty of Passenger in
Automobile" (approved May 1991). In such circumstances, the jury can then be
charged that "when it should become apparent to a reasonably careful person
that the vehicle is being driven negligently, the reasonable passenger must
protest or otherwise persuade the driver to drive carefully." Ibid.A-1248-17T3
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Here, defendants' theory was that Chicas was negligent for getting into the
car with Martinez a second time. In that regard, the evidence at trial showed
that Martinez and Chicas had first stopped at Chicas' home, and then continued
driving to Martinez's home, which was located nearby. Chicas elected to go
with Martinez on the second trip because Martinez was using her vehicle, and
she planned to return home with it after dropping him off.
Defendants cite to no law for the proposition that a reasonably careful
person who is riding in a motor vehicle as a passenger when it is snowing would
know or should know that the driver is operating the vehicle negligently.
Accordingly, we discern no reversible error in the trial court's decision not to
give an instruction concerning the duty of a passenger in an automobile.
In summary, having reviewed the record, including the record at trial,
defendants were accorded a fair trial. They were charged with negligence, but
they were afforded a full and fair opportunity to present their defenses. Thus,
there is no basis to reverse the jury verdict.
Affirmed.
A-1248-17T3
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