NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4347-18T2
DONNA HOPKINS,
Plaintiff-Appellant,
v.
BRUCE BIROC,
Defendant-Respondent. _________________________
Submitted September 16, 2020 – Decided October 15, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1489-17.
Chance & McCann, LLC, attorneys for appellant (Matthew Weng, on the briefs).
Leary, Bride, Mergner & Bongiovanni, attorneys for respondent (David J. Dering, of counsel and on the brief).
PER CURIAM In this personal injury action, plaintiff Donna Hopkins' complaint alleged
that while defendant Bruce Biroc was an invited guest in her home, his dog
chased her cat, and caused the cat to bite plaintiff when she "grabbed [the] cat
in an attempt to avoid the cat getting injured" by the dog.1 Plaintiff also alleged
the cat bite caused severe injuries requiring hospitalization and medical
treatment.
The parties agreed to a trial on the issue of liability only, subject to a high-
low agreement on damages. Following the trial, at which only plaintiff and
defendant testified, the jury returned a no-cause verdict on plaintiff's negligence
claim.
Plaintiff appeals from the verdict, claiming the court erred by barring
evidence concerning defendant's consumption of beer prior to the incident and
by barring plaintiff's presentation of her daughter as a rebuttal witness. Having
reviewed the record in light of the applicable law, we find no merit to plaintiff's
arguments, and we affirm.
1 At trial, plaintiff's counsel advised the court plaintiff divorced subsequent to the filing of the complaint, and counsel moved to amend the complaint to identify plaintiff by her maiden name, Donna Marie Urnaitis. During trial, plaintiff was sworn as a witness and otherwise identified by her maiden name. However, the record on appeal does not include an order granting her request to amend the complaint, and the final judgment and plaintiff's submissions on appeal refer to her as Donna Hopkins. A-4347-18T2 2 On the first day of trial, prior to the commencement of jury selection, the
court addressed pretrial issues, two of which are pertinent to this appeal. First,
the court addressed the number of trial witnesses, noting it understood only
plaintiff and defendant would testify. Plaintiff's counsel stated he intended to
call plaintiff's daughter as a rebuttal witness. Defendant's counsel objected,
explaining plaintiff had not identified her daughter as an individual with
knowledge of any pertinent facts in her interrogatory answers, and her daughter
was not listed in the parties' pretrial submissions to the court. 2 The court
sustained defendant's objection, finding plaintiff could not call her daughter as
a witness because the child was "never named or identified in any document"
and was first mentioned only on the "eve of trial."
The second pretrial issue addressed by the court that is challenged on
appeal arises from plaintiff's pretrial submission stating she intended to present
evidence defendant consumed "several beers" during the hours prior to the dog-
and-cat incident. In her pretrial submission, defendant's counsel noted she
2 In her pretrial submission to the court, see R. 4:25-7(b), plaintiff identified only herself, defendant, and a physician as trial witnesses. Plaintiff does not dispute she failed to identify her daughter as an individual with knowledge of facts pertinent to her cause of action in her answers to defendant's interrogatories. A-4347-18T2 3 intended to object to the evidence because it was not probative and was
prejudicial.
Plaintiff's counsel represented to the court that she did not intend to prove
or assert defendant was intoxicated, but instead sought to introduce the evidence
solely to establish defendant "was drinking. That's it." The court did not
initially decide the issue because a motion in limine to exclude the evidence had
not been filed.
Before and after jury selection the following day, the court again
addressed defendant's objection to plaintiff's plan to introduce evidence
defendant consumed beer during the hours prior to the dog-and-cat incident. The
court concluded evidence concerning defendant's consumption of beer was
irrelevant because plaintiff did not intend to present evidence of intoxication,
and the proffered evidence presented a risk of undue prejudice, confusion of the
issues, and misleading the jury. The court sustained defendant's objection to the
evidence and barred its admission at trial.
Plaintiff testified at trial that she and her then-husband have been friends
with defendant since 1998, and defendant is the godfather of plaintiff 's oldest
daughter. To her knowledge, defendant had never owned a dog. Plaintiff
explained that at about 2:45 p.m. on July 1, 2015, defendant arrived at the home
A-4347-18T2 4 she then shared with her husband and two daughters, and defendant and her
husband spent several hours talking in the kitchen. 3 During this time, plaintiff
moved around the house "a little bit" and also sat on a couch watching television
with her daughter. At around 7:00 p.m., defendant said he "forgot" he left his
dog in his car and he was leaving the house to check on the dog.
Plaintiff further testified defendant returned to the house, opened the front
door, and his "little" dog ran toward plaintiff who was seated on a couch holding
her cat.4 Plaintiff said defendant had a leash in his hand, but it was untethered
to the dog. Plaintiff testified the dog charged at her and jumped onto her legs
for about thirty seconds while defendant stood and watched. Plaintiff explained
the dog tried to attack her cat; she attempted to push the dog "off of" her; and,
at the same time, she held onto her cat. During this time, the cat bit plaintiff's
finger and caused the injuries for which plaintiff sought damages in the
complaint.
3 The complaint alleged the incident occurred on July 2, 2015, and the parties' respective counsel variously argued the incident occurred on that date, but plaintiff testified it occurred on July 1, 2015. 4 Plaintiff agreed the dog was "little" and was the "about the same size as [her seventeen-pound] cat." A-4347-18T2 5 Defendant testified he was a friend of plaintiff, her former husband, and
their two daughters since 1988 or 1989, and he had a history of adopting rescue
dogs that was known to plaintiff. For example, he explained he brought a rescue
dog he previously owned to plaintiff's older daughter's christening.
According to defendant, on the date of the incident, he went to plaintiff's
home to "say hello" and show her daughters the new miniature greyhound dog
he adopted a "couple weeks" earlier. Defendant described the dog as "happy"
and not "aggressive." Defendant explained he knocked on the front door and
said, "I got a little greyhound [and] I'll bring him in," and plaintiff and her
daughters said "okay."
Defendant testified he went to his car, retrieved the dog, and brought him
into the house on a leash. Plaintiff was seated on a couch holding her cat.
Defendant saw the dog go "towards the cat," and "[t]he cat freaked out and
meowed and, you know, and [plaintiff] got bit." The cat then "scurried off."
Defendant said plaintiff went into the bathroom and he spoke to plaintiff's
husband. When plaintiff exited the bathroom, he told her she should get the bite
"checked out," and he left. Defendant admitted he brought the dog into the house
knowing plaintiff had a cat and the "cat's reaction was a result of [his] dog
A-4347-18T2 6 coming into the house," but he explained the dog was on a six-foot leash and the
dog never jumped on plaintiff.
When the trial continued on the morning following defendant's testimony,
the court again addressed plaintiff's counsel's request to call plaintiff's oldest
daughter, this time as a rebuttal witness. From the colloquy included in the trial
record, it appears the issue had been discussed during off-the-record discussions
between the court and counsel after the prior day's proceedings.5 We glean from
the record that, as a result of those discussions, plaintiff's counsel came to the
conclusion the court determined it would not permit the child to testify because
she had not been identified in plaintiff's discovery responses and pretrial
submissions. Plaintiff's counsel advised the court that, based on that conclusion,
the child had not been brought to the court to testify.
The court explained counsel's conclusion was incorrect and it had not
decided the issue the previous day, and it had so advised plaintiff's counsel at
5 Defendant's counsel noted that it was her understanding the discussions "were off the record." We remind counsel and the court that off-the-record discussions concerning issues of importance during trial hamper our ability to fully review the record on appeal. See Pressler & Verniero, Current N.J. Court Rules, cmt. 3.2 on R. 1:2-2 (2020). When there are in-chambers discussions "concern[ing] important subjects such as the procedure to be utilized, a record must be made or a summary placed on the record as to what transpired. Only then is effective appellate review insured." Klier v. Sordoni Skanska Const. Co., 337 N.J. Super. 76, 86 (App. Div. 2001). A-4347-18T2 7 that time. In any event, the court informed counsel it had decided to allow
plaintiff's daughter to testify as a rebuttal witness. Plaintiff's counsel proffered
that plaintiff's daughter would rebut only defendant's testimony that he told
plaintiff and her daughters he was going to bring the dog into their house.
The court offered to briefly delay the continuation of the trial to allow
plaintiff to pick her daughter up at her nearby school and bring her daughter to
the court to testify. Plaintiff's counsel requested an opportunity to speak with
plaintiff about producing her daughter so she could testify as a rebuttal witness.
The court granted the request, and there was a break in the proceedings.
Following the break, plaintiff's counsel informed the court plaintiff did
"not have [her] daughter" at the court and he "want[ed] to call [plaintiff] back
to the witness stand" as a rebuttal witness. He also stated, "That's it. That's what
I want to produce." Plaintiff made no further requests related to the production
of her daughter as a witness, and she did not call her daughter as a rebuttal
witness.
Plaintiff testified briefly in rebuttal. She explained she had never seen
any of defendant's dogs prior to the date of the incident.
Following the summations of counsel and the court's final instructions on
the law, the jury returned a no-cause verdict. The jury determined plaintiff
A-4347-18T2 8 failed to prove by a preponderance of the evidence that defendant's negligence
was the proximate cause of her injury. The court subsequently entered an order
for judgment in plaintiff's favor in the amount of $30,000 based on the high-low
agreement, which provided for "the low [of] $30,000 and the high [of]
$150,000." This appeal followed.
On appeal, plaintiff offers two arguments for our consideration. She
claims the court erred by barring evidence defendant consumed beer during the
several hours he allegedly spent at her home prior to the incident during which
she was injured. Plaintiff also contends the court erred by barring plaintiff from
calling her daughter as a rebuttal witness. Defendant asserts plaintiff's
arguments lack merit and the appeal should be dismissed as moot because the
case was finally resolved under the parties' high-low agreement.
We first consider defendant's claim the appeal is moot. He argues the
parties entered into a high-low agreement constituting a settlement that "renders
any appeal between the parties as moot." His argument is founded on the
premise that plaintiff voluntarily resolved her claim in the high-low agreement
and, therefore, she forfeited her right to appeal. In other words, although
defendant argues the high-low agreement renders the appeal moot, he actually
A-4347-18T2 9 contends the high-low agreement constitutes a contractual bar to the prosecution
of this appeal.
"A high-low agreement, like the one at issue in this case, is '[a] settlement
in which a defendant agrees to pay the plaintiff a minimum recovery in return
for the plaintiff's agreement to accept a maximum amount regardless of the
outcome at trial.'" Serico v. Rothberg, 234 N.J. 168, 177 (2018) (alteration in
original) (quoting Black's Law Dictionary 797 (9th ed. 2009)). A high-low
agreement is a "device used in negligence cases," Benz v. Pires, 269 N.J. Super.
574, 578 (App. Div. 1994), that "protects a plaintiff from the danger of receiving
less than the floor amount and protects a defendant from exposure to a judgment
higher than the agreed ceiling," id. at 579.
A high-low agreement "is a settlement contract and [is] subject to the rules
of contract interpretation." Serico, 234 N.J. at 177. We will "enforce contracts
'based on the intent of the parties, the express terms of the contract, surrounding
circumstances and the underlying purposes of the contract.'" Id. at 178 (quoting
In re County of Atlantic, 230 N.J. 237, 254 (2017)). In our interpretation of a
high-low agreement, we must consider the agreement's terms "in the context of
the circumstances . . . and . . . apply a rational meaning in keeping with the
expressed general purpose." Ibid. (quoting County of Atlantic, 230 N.J. at 254).
A-4347-18T2 10 We enforce the contract as agreed to by the parties, but where an agreement is
ambiguous, we "will consider the parties' practical construction of the contract
as evidence of their intention and as controlling weight in determining [the]
contract's interpretation." Ibid. (quoting County of Atlantic, 230 N.J. at 255).
The parties' high-low agreement was placed on the record and is limited
solely to the amount defendant would be required to pay plaintiff based on the
jury's findings of comparative negligence. The parties agreed defendant would
pay plaintiff a minimum of $30,000 if the jury returned a no-cause verdict and
$150,000 if the jury determined defendant was solely negligent for plaintiff's
injuries. The parties further agreed the amount paid to plaintiff would be
prorated between the high and low amounts based on the jury's allocation by
percentages of the parties' comparative negligence. As presented to the court on
the record, the parties' high-low agreement did not include any other terms or
conditions.
Defendant offers no evidence supporting his claim the high-low
agreement included a waiver of the parties' respective rights to appeal from the
jury's verdict based on trial court errors, and the record shows the agreement did
not include such a waiver. Thus, the record undermines defendant's assertion
A-4347-18T2 11 the high-low agreement included, permitted, or required a waiver of the right to
appeal from alleged errors committed by the trial court.
We "will not make a better contract for [the] parties than they themselves
have seen fit to enter into, or alter it for the benefit of one party and to the
detriment of the other." James v. Fed. Ins. Co., 5 N.J. 21, 24 (1950) (quoting
Kupfersmith v. Delaware Ins. Co., 84 N.J.L. 271, 275 (E. & A. 1912)); see also
Benz, 269 N.J. Super. at 579 (explaining that unless the parties agree to the
contrary, in a high-low agreement, "[t]he parties agree to let the usual process
of trial and judgment operate and control the outcome, under all of the rules
applicable to trial determinations"). Because the record does not support a
finding the high-low agreement was conditioned on a waiver of the parties'
respective rights to appeal from trial court errors, we find no basis to impose
such a term. We therefore reject defendant's claim the agreement bars plaintiff's
prosecution of this appeal or otherwise renders the appeal moot.
Plaintiff argues we should reverse the no-cause verdict based on the
court's purported error in barring evidence plaintiff consumed "several beers"
during the more than four hours plaintiff contends defendant spent at her home
prior to the cat-and-dog incident. Before the trial court, plaintiff's counsel
represented that introduction of the evidence was not for the purpose of
A-4347-18T2 12 demonstrating defendant was intoxicated. Instead, counsel proffered that the
evidence would explain what occurred prior to the incident. As noted, the court
sustained defendant's objection to the evidence because it had no probative value
and was otherwise unduly prejudicial.
Relevant evidence is generally deemed admissible, N.J.R.E. 402, but it
may be excluded under N.J.R.E. 403 when its "'probative value is so
significantly outweighed by [its] inherently inflammatory potential as to have a
probable capacity to divert the minds of the jurors from a reasonable and fair
evaluation' of the issues in the case." Griffin v. City of E. Orange, 225 N.J. 400,
421 (2016) (quoting State v. Koskovich, 168 N.J. 448, 486 (2001)). "[W]hether
evidence should be excluded under [N.J.R.E.] 403 because its prejudicial effect
outweighs its probative value is an issue remitted to the discretion of the trial
court." State v. Harvey, 151 N.J. 117, 184 (1997). We reverse a trial court's
decision to exclude evidence under N.J.R.E. 403 only when the trial court
commits a clear error of judgment. Ibid.
In Gustavson v. Gaynor, we held that evidence a defendant consumed
alcoholic beverages prior to his involvement in an automobile accident "is by
itself insufficient to warrant an inference that the [defendant-]driver was
intoxicated and that the intoxication was of such a degree as to render him unfit
A-4347-18T2 13 to drive at the time of the accident." 206 N.J. Super. 540, 545 (App. Div. 1985).
We held that to admit evidence of drinking alcohol to establish the negligent
operation of a motor vehicle, supporting evidence must be presented "from
which the trier of fact may reasonably conclude that the drinking affected the
safe operation of the vehicle." Id. at 544-45. We also found applicable the
following "general rule": during a trial, "questions cannot be asked which
intimate to the jury that a party was intoxicated at the time of [an] accident
unless there is supporting evidence . . . .; in the absence of supporting evidence,
testimony concerning the drinking of intoxicants should be stricken." Id. at 545
(quoting Ballard v. Jones, 316 N.E.2d 281, 286 (Ill. App. Ct. 1974)).
Here, plaintiff sought admission of evidence defendant consumed beer
prior to the incident, but she conceded it did not establish defendant was
intoxicated and acknowledged she did not contend that it did. Plaintiff also
failed to proffer any other evidence supporting a finding that defendant's alleged
consumption of beer resulted in intoxication or impairment, or that the alleged
drinking affected him in any manner. See id. at 544-45.
Plaintiff argued that despite the absence of any evidence establishing
defendant's intoxication, evidence showing he consumed alcohol was admissible
to provide a complete picture of the circumstances leading to the cat-and-dog
A-4347-18T2 14 incident. “Relevancy [of evidence] is tested by the probative value the evidence
has with respect to the points at issue." State v. Hutchins, 241 N.J. Super. 353,
358 (App. Div. 1990). Lacking any proof of intoxication caused by the
purported beer consumption or some other evidence establishing intoxication or
impairment, the proffered evidence was unnecessary to provide "narrative
completeness" and could not logically establish defendant's alleged negligence.
Gustavson, 206 N.J. Super. at 544. The evidence therefore did not have "a
tendency in reason to prove or disprove any fact of consequence to the
determination of the action," N.J.R.E. 401, and the trial court properly
concluded it was irrelevant.
We reject plaintiff's claim a different result is required by our decision in
Black v. Seabrook Associates, LTD., where, in a wrongful death and
survivorship action, we determined the trial court erred by excluding testimony
concerning the decedent's consumption of alcohol in the hours preceding the
incident that resulted in his death. 298 N.J. Super. 630, 635 (App. Div. 1997).
In Black, the decedent suffered a severed artery when he punched the door to
his apartment to gain entry because the door "was stuck." Id. at 632. Testing at
the hospital where the decedent was treated and died revealed a .143 blood
alcohol content, and a later test revealed a .11 blood alcohol content. Id. at 633.
A-4347-18T2 15 Another test showed "a trace of cocaine metabolite in [the] decedent's urine."
Ibid.
The trial court excluded testimony concerning the decedent's use of
alcohol based on a finding "there was insufficient supplemental evidence of
alcohol to admit such testimony" under Gustavson. Ibid. We reversed the trial
court's decision, and we determined evidence establishing the extent to which
the decedent's "judgment and/or coordination were impaired" by his
consumption of alcohol was "a proper subject for the jury to consider," and could
be established by testimony from two witnesses and "the blood alcohol content
results of decedent's blood serum analysis." Id. at 636-37. We further found
that evidence satisfied the Gustavson "supplemental evidence standard." Id. at
637.
In Black, defendant sought the admission of the decedent's alcohol
consumption prior to the accident to establish the decedent's intoxication or
impairment as probative of whether the decedent's negligence caused or
contributed to the accident. Id. at 636-37. That is not the case here. Plaintiff's
counsel represented to the court he did not seek to introduce the evidence to
establish defendant was intoxicated or impaired. During colloquy with
plaintiff's counsel, the court stated, "Let's be clear for the [record]. Your
A-4347-18T2 16 argument, whether or not the plaintiff can testify that the defendant . . . was
intoxicated or had been drinking. Which is it?" In response, plaintiff's counsel
said, "Had been drinking." When later asked by defense counsel about the
relevance of the proffered evidence and what plaintiff intend to imply by
presenting evidence defendant was drinking beer, plaintiff's counsel replied,
"That [defendant] was drinking. That's it."
Plaintiff offered no supplemental evidence of defendant's alleged
intoxication or impairment. Plaintiff proffered the evidence only to show
defendant was "drinking," and not to establish defendant was intoxicated. Thus,
unlike in Black, the trial court was not presented with evidence probative of any
alleged intoxication or impairment of defendant resulting from the consumption
of alcohol, and plaintiff's counsel represented the evidence was not to be
admitted to establish intoxication. The court therefore properly concluded the
evidence, as represented in plaintiff's proffer, was not probative of defendant's
alleged negligence. See Gustavson, 206 N.J. Super. at 545 (finding evidence of
drinking alcohol alone does not support a finding a defendant-driver negligently
operated a vehicle); cf. Black, 298 N.J. Super. at 636-37 (finding evidence
establishing decedent's intoxication was probative of the decedent's comparative
negligence).
A-4347-18T2 17 Because the evidence as proffered by plaintiff had no probative value, it
was properly excluded as irrelevant under N.J.R.E. 402. Moreover, admission
of the evidence solely for the purpose of establishing defendant was "drinking,"
and without any claim or evidence he was intoxicated, presented a substantial
risk the jury would have judged defendant's actions during the incident based on
irrelevant facts and mere speculation. The court's determination the nonexistent
probative value of the proffered evidence was substantially outweighed by the
risk of undue prejudice, confusion of the issues, and misleading the jury ,
N.J.R.E. 403, did not constitute an abuse of discretion.
Plaintiff next argues the no-cause verdict should be reversed because the
court erred by barring plaintiff's daughter from testifying as a rebuttal witness.
The argument is without sufficient merit to warrant discussion in a written
opinion, R. 2:11-3(e)(1)(E), because it is founded on an inaccurate factual
premise. The court did not bar the plaintiff's daughter from testifying as a
rebuttal witness. To the contrary, the court ruled plaintiff could call her daughter
as a rebuttal witness, and the court stated it would delay the trial to permit
plaintiff to produce the child before the jury for her testimony. After conferring
with her counsel, plaintiff opted not to produce the child and, instead, testified
A-4347-18T2 18 on her own behalf in rebuttal. Plaintiff's assertions to the contrary are both
unsupported by, and contradicted by, the record.
Affirmed.
A-4347-18T2 19