JARRETT C. HYNES VS. DAVID S. GIBSON (L-0165-15, HUNTERDON 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NOT FOR PUBLICATION WITHOUT THE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-5930-17T2
JARRETT C. HYNES,
Plaintiff-Appellant,
v.
DAVID S. GIBSON,
Defendant-Respondent.
____________________________
Submitted May 28, 2020 – Decided August 14, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Docket No. L-0165-15.
Katharine Leigh Errickson, attorney for appellant.
Lamb Kretzer, LLC, attorneys for respondent (John A.
Fearns and Robert D. Kretzer, on the brief).
PER CURIAM
Plaintiff Jarrett C. Hynes appeals from the denial of his motion for a new
trial. He argues the jury verdict constituted a miscarriage of justice because the
trial court erred by charging the jury on comparative negligence and because of
improper comments by defense counsel, which he claims the court's curative
instructions did not remedy. Plaintiff also contends defense counsel should have
been disqualified based on a non-waivable conflict of interest. For reasons that
follow, we affirm the order denying a new trial, finding no miscarriage of
justice.
The case arises from a road rage incident on April 16, 2013, in
Flemington. Plaintiff was operating his vehicle when he changed from the right
to the center lane after looking in his rearview mirror and putting on his blinker.
He testified, "I didn't see any vehicles." Defendant was operating his van on the
same road, going in the same direction with his wife in the passenger seat. She
testified that "all of a sudden in my peripherals, I saw a car. . . . I realized the
car was so incredibly close to ours that we were probably going to get in an
accident. . . . And I screamed." Defendant beeped the horn, avoiding an
accident, and plaintiff's vehicle pulled in front of defendant's. When plaintiff
stopped at the next light, he heard screaming and saw defendant yelling. He
gave defendant the middle finger. As they proceeded, defendant now was
tailgating him. Plaintiff testified he "softly tapped [his] brake light and brake
checked him." Defendant's wife testified plaintiff gave them the middle finger
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"and was kind of doing a bit of a gyration, and it was up and down." Then,
plaintiff was "on and off constant pumping of the brakes; like not just once, not
just twice, but it was like a constant thing." When they reached another stop
light, defendant got out of his van with a window punch and proceeded to shatter
plaintiff's driver's side window. Although plaintiff saw defendant had
something in his hand resembling a knife, he pushed open his car door and got
out; the two men began to grapple. Plaintiff testified that defendant "lunged at
me and stabbed me" with the window punch. Defendant's wife broke up the
fight. Plaintiff sustained "a small puncture wound" and small cuts from the
window glass. He refused medical assistance at the scene, but later went to the
Hunterdon Medical Center for treatment. 1
Plaintiff sued defendant in the Law Division in April 2015, for physical
and emotional injuries, alleging intentional assault and battery (count o ne),
negligent assault and battery (count two), and intentional or negligent assault
and/or battery (counts three through seven). Plaintiff contended he developed
1
Defendant was arrested and charged criminally. He pleaded guilty to third
degree aggravated assault with bodily injury, N.J.S.A. 2C:12-1(b)(7), and was
sentenced to a two-year term of non-custodial probation, a required mental
health evaluation, and a ninety-day suspension of his driver's license, requiring
medical clearance.
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psoriasis and suffered from post-traumatic stress disorder (PTSD) as a result of
the incident.
Defendant's answer raised as an affirmative defense that plaintiff's
negligence "proximately contributed to" the incident. He was represented by
privately retained counsel on the counts of the complaint alleging intentional
actions and by John Fearns, Esq. (insurance counsel), appointed by his insurer,
Liberty Mutual Insurance Company (Liberty Mutual), on the remaining counts
of the complaint.
The jury awarded plaintiff a judgment of $5000 for pain and suffering,2
finding defendant 52% liable for plaintiff's injuries and plaintiff 48% liable. The
intentional counts of the complaint had been dismissed by motion at the close
of plaintiff's case.
Plaintiff filed a motion for a new trial, alleging that errors by the trial court
constituted a "manifest injustice." He contended the trial court erred by
instructing the jury on comparative negligence because that instruction had not
been requested by counsel nor discussed at the pre-charge conference. His
2
The jury's award did not include any amount for plaintiff's alleged aggravation
of a pre-existing condition.
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counsel argued the case "was always intentional versus straight negligence, not
comparative negligence."
The court denied the new trial motion on July 13, 2018, finding it was
appropriate to give the comparative negligence charge because of the nature of
the case and because comparative negligence was included as an affirmative
defense in defendant's answer. Plaintiff was given the opportunity to object to
the charge and did so.
The court found reference to plaintiff's DWI arrest was harmless error,
which was addressed by the court's curative instruction. Also, the court
considered "fair and appropriate" the manner in which it addressed defense
counsel's comment about plaintiff's treating doctor's failure to appear.
The court was satisfied there was no miscarriage of justice—even if the
three issues were considered together—as the "case came down to the credibility
of the witnesses." Plaintiff's credibility was adversely affected because he was
not consistent about when his psoriasis condition arose for the first time, and he
claimed PTSD but was not treated for it. The court observed the jury apparently
"believe[d] that [plaintiff] played a significant role in bringing about . . . this
road rage incident by his conduct, which they determined to be negligent leading
up to the confrontation at the street corner."
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On appeal, plaintiff raises the following issues:
I. SINCE A MISCARRIAGE OF JUSTICE
RESULTED FROM THE TRIAL COURT
IMPROPERLY CHARGING THE JURY WITH
COMPARATIVE NEGLIGENCE, SUA SPONTE,
AFTER THE PARTIES HAD BOTH RESTED, THE
COURT SHOULD REVERSE THE TRIAL COURT'S
DECISION AND GRANT THE PLAINTIFF A NEW
TRIAL.
II. THE DEFENDANT'S INSURANCE
ATTORNEY SHOULD HAVE BEEN
DISQUALIFIED DUE TO HIS CONFLICT OF
INTEREST THAT COULD NOT BE WAIVED.
III. DEFENSE COUNSEL'S COMMENTS TO
PLAINITFF'S EMOTIONAL DAMAGES EXPERT
ABOUT PLAINTIFF'S SIX-YEAR-OLD DWI,
COMPLETELY IGNORED THE TRIAL COURT'S IN
LIMINE MOTION, AND DEFENSE COUNSEL'S
IMPROPER COMMENTS TO THE JURY
COMMENTING ON THE REASON PLAINTIFF'S
TREATING DOCTOR DID NOT TESTIFY,
CONSTITUTE REVERSIBLE ERROR.
We review the denial of defendant's motion for a new trial under the same
standard used by the trial court, which is, "whether there was a miscarriage of
justice under the law." Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.
506, 522 (2011). We do so giving "'due deference' to the trial court's 'feel of
the case.'" Ibid. (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)). "A jury
verdict is entitled to considerable deference and 'should not be overthrown
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except upon the basis of a carefully reasoned and factually supported (and
articulated) determination, after canvassing the record and weighing the
evidence, that the continued viability of the judgment would constitute a
manifest denial of justice.'" Id. at 521 (quoting Baxter v. Fairmont Food Co.,
74 N.J. 588, 597-98 (1977)). We must, however, make our own independent
determination of whether a miscarriage of justice occurred. Carrino v. Novotny,
78 N.J. 355, 360 (1979).
Plaintiff contends the comparative negligence charge should not have
been given. Even if it were appropriate, plaintiff argues for the first time on
appeal, the court should have used Model Jury Charge (Civil), 7.16,
"Negligence—Acts or Misconduct Are Willful, Wanton or Malicious or In
Reckless Disregard Of One's Safety Or Are Intentional Acts," instead of 7.30,
"Comparative Negligence—(Auto)—All Issues."
In reviewing the adequacy of the court's instructions to the jury, we must
consider the charge as a whole in determining whether it was prejudicial. See
State v. Figueroa, 190 N.J. 219, 246 (2007) (Rivera-Soto, J., dissenting).
"[A]ppropriate and proper [jury] charges are essential for a fair trial." State v.
Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613
(2004)). Model jury charges are often helpful to trial courts performing this
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important function. See Mogull v. CB Commercial Real Estate Grp., Inc., 162
N.J. 449, 466 (2000) (holding that instructions given in accordance with model
charges, or which closely track model charges, are generally not considered
erroneous).
We are satisfied there was no miscarriage of justice by giving a
comparative negligence charge. "Comparative negligence is a legislative
amelioration of the perceived harshness of the common-law doctrine of
contributory negligence." Ostrowski v. Azzara, 111 N.J. 429, 436 (1988). "A
second underlying principle of the [Comparative Negligence Act] is the idea that
'every person has an obligation to exercise reasonable care for his or her own
safety. It is only fair that each person only pay for injuries he or she proximately
caused.'" Fernandes v. DAR Dev. Corp., 222 N.J. 390, 407 (2015) (quoting
Waterson v. Gen. Motors Corp., 111 N.J. 238, 267 (1988)). "A jury may
consider a plaintiff's negligence only when the evidence adduced at trial
suggests that the plaintiff was somehow negligent and that negligence
contributed to the plaintiff's damages." Id. at 408.
There was evidence in this case that plaintiff's conduct contributed to the
incident. Plaintiff used an offensive finger gesture toward defendant and also
repeatedly stepped on his brake as defendant was near his bumper. Plaintiff did
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not stay in the car after the window was broken but exited and grappled with
defendant, who plaintiff knew had a knife-like object in his hand. Defendant's
affirmative defenses specifically alleged plaintiff's negligence contributed to
causing the incident.
The trial court is responsible for instructing the jury on the law. See
McDonough v. Jorda, 214 N.J. Super. 338, 346 (App. Div. 1986) (stating, "the
trial judge must prepare a full, complete charge on all facets of the applicable
law"). "The precise language of every jury instruction must be tailored by the
trial judge to fit the particular fact situation and the applicable statutory or
decisional law." Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div.
1999) (quoting Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518, 520
n.1 (Law Div. 1984)).
We are satisfied given the evidence in the case and the affirmative
defense, that it was not a miscarriage of justice to instruct the jury on
comparative negligence. Plaintiff had the opportunity to object to the charge
and made an objection. The fact that plaintiff did not prevail does not mean
there was error.
For the first time on appeal, plaintiff contends the trial court should have
instructed the jury under Model Jury Charge 7.16 rather than 7.30. We need not
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consider plaintiff's arguments that were not raised before the trial cour t.
Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973). If we did, however, because this case
involved a road rage incident involving two motor vehicle operators and
included standard allegations involving personal injuries, we think it was not an
abuse of discretion by the trial court to use Model Jury Charge 7.30. Model Jury
Charge 7.30 was more comprehensive and Model Jury Charge 7.16 arguably
might have created confusion by its reference to willful and malicious or
intentional conduct once the court dismissed the intentional causes of action.
Plaintiff argues defendant's insurance counsel and defendant have an
irreconcilable conflict of interest which requires disqualification of counsel. He
contends defendant's waiver did not satisfy the holdings in Burd v. Sussex
Mutual Insurance Company, 56 N.J. 383 (1970).
Liberty was proceeding under a reservation of rights because plaintiff's
lawsuit against defendant contained claims alleging both negligent and
intentional conduct. Plaintiff's motion prior to trial to disqualify insurance
counsel was denied on October 27, 2017, because the court found that any
conflict was waived. Defendant submitted a certification, in opposition to the
motion stating he "conferred with personal counsel . . . and [his] assigned
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defense counsel, John A. Fearns, Esq., . . . and ha[s] been fully advised of the
alleged conflict argument presented to the Court. It is my desire to have Mr.
Fearns continue as my counsel throughout the balance of this case."
Plaintiff's notice of appeal does not list the October 27, 2017 order that
denied his motion to disqualify plaintiff's insurance counsel. 3 "[I]t is only the
judgments or orders or parts thereof designated in the notice of appeal which are
subject to the appeal process and review." Fusco v. Bd. of Educ. of Newark,
349 N.J. Super. 455, 461-62 (App. Div. 2002) (quoting Pressler, Current N.J.
Court Rules, cmt. 6 on R. 2:5–1(f)(3)(i) (2002)). "The appellant should
explicitly designate all judgments, orders and issues on appeal in order to assure
preservation of their rights on appeal." Id. at 461 n.1. Because plaintiff did not
appeal the October 27, 2017 order, the issue of disqualification is not before us.
Even if it were, the trial court had ample basis to deny the motion based
on defendant's certification. Defendant submitted a certification to the court
explaining he wanted Fearns to continue as his counsel, and was fully advised
about the conflict argument. Burd recognized an insured could waive a conflict.
56 N.J. at 389-90. "[T]he carrier should not be permitted to assume the defense
if it intends to dispute its obligation to pay a plaintiff's judgment, unless of
3
The issue is referenced in the Case Information Statement but not the order.
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course the insured expressly agrees to that reservation." Id. at 390. Plaintiff
argues it was Liberty's reservation that created the conflict of interest, but
defendant's reference to "conflict arguments" in his certification was a sufficient
basis for the judge to find consent to representation in this case. We conclude
that plaintiff's further arguments on this point are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Plaintiff argues the trial court erred by denying him a new trial based on
a question by defense counsel on cross-examination that referenced a 2007 DWI
arrest, and a comment in his summation about the absence of plaintiff's treating
doctor. We disagree.
The trial court granted plaintiff's unopposed in limine motion to bar
reference at trial to plaintiff's prior DWI arrest. Defense counsel's cross-
examined plaintiff's psychological expert Dr. Maureen Santina about specific
stressors plaintiff experienced earlier. When she requested clarification,
defendant's attorney stated, "[a]n arrest for DWI." Plaintiff's counsel objected
based on the in limine ruling and because she claimed to have reminded counsel
not to mention the DWI charges. Following side-bar, the judge instructed the
jury:
Ladies and gentlemen, you heard a reference . . . to
[plaintiff] having an arrest for driving under the
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influence, DUI. That was back in 2007 and it really has
– other than the fact that it was referenced in . . . the
doctor's report as part of some other stressors that had
to do with . . . some alcohol problems, which you had
already heard about as well, the fact that he had an
arrest really has no bearing on this lawsuit. And you
should disregard the reference to the DUI arrest, okay?
Then, during summation, defense counsel commented on the absence of
testimony from plaintiff's treating dermatologist. He argued the jury had not
heard from plaintiff's treating dermatologist "because she would testify
consistently with the dermatological expert that you heard from [defendant's
dermatological expert], . . . that there's no evidence in this case - - ." Plaintiff's
counsel objected before the sentence was finished. After a lengthy side-bar, the
court gave a curative instruction.
Now, the objection was made mid-sentence by . . .
[plaintiff's counsel] and so [defense counsel] really
never did complete the statement he was about to make
about [plaintiff's treating dermatologist's] failure to
appear. So I'm going to instruct you to disregard
anything you recall about what was said about [the
dermatologist's] failure to appear.
"[W]hen weighing the effectiveness of curative instructions, a reviewing
court should give equal deference to the determination of the trial court. The
adequacy of a curative instruction necessarily focuses on the capacity of the
offending evidence to lead to a verdict that could not otherwise be justly
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reached." State v. Winter, 96 N.J. 640, 647 (1984). The test is whether the error
was "clearly capable of producing an unjust result." State v. Daniels, 182 N.J.
80, 95 (2004) (quoting R. 2:10-2).
Attorneys are afforded "broad latitude in summation[s]." Bender v.
Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci v. Oppenheim, 326 N.J.
Super 166, 177 (App. Div. 1999)). While, the "cumulative effect" of
inappropriate comments can result in a miscarriage of justice, Geler v. Akawie,
358 N.J. Super. 437, 468 (App. Div. 2003) "[f]leeting comments, even if
improper, may not warrant a new trial, particularly when the verdict is fair."
Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009).
The trial court did not err in denying a new trial on the basis of these
comments. They were isolated and followed by immediate curative instructions.
Plaintiff did not object to the curative instructions that were given or request a
mistrial. In both instances, the court instructed the jury not to consider the
question or comment. It is presumed the jurors followed these instructions.
State v. Loftin, 146 N.J. 295, 390 (1996). The curative instructions were
sufficiently timely and substantively adequate.
Plaintiff is dissatisfied with the verdict and bootstraps from this that the
jury was swayed by passion or prejudice. However, there was ample evidence
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to support the verdict based on plaintiff's inconsistent testimony about his
psoriasis condition and based on his conduct during the incident. With respect
to the summation comment, it was incomplete and the court gave an immediate
curative instruction. On this record, the errors cited did not constitute manifest
injustice warranting a new trial particularly in light of the appropriate and timely
curative instructions.
Affirmed.
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