MARISSA HANLEY VS. NEW JERSEY MANUFACTURERS INSURANCE COMPANY (L-2498-14, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 18, 2018
• Docket: A-5023-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5023-15T2

MARISSA HANLEY,

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURERS INSURANCE COMPANY,

Defendant-Respondent. __________________________

Argued May 24, 2018 – Decided June 18, 2018

Before Judges Reisner, Gilson, and Mayer.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2498-14.

Kevin E. Barber argued the cause for appellant (Niedweske Barber Hager, LLC, attorneys; Kevin E. Barber and Jessica L. Mariconda, on the briefs).

Valerie A. Vladyka argued the cause for respondent (Schenck, Price, Smith & King, LLP, attorneys; Steven H. Daniels, of counsel; Valerie A. Vladyka, on the brief).

PER CURIAM Plaintiff Marissa Hanley alleges that she was injured when

she was hit by a vehicle while walking across the street. She

could not identify the driver or owner of the vehicle and,

therefore, she sued her insurer New Jersey Manufacturers Insurance

Company (insurer or NJM), asserting a claim for uninsured motorist

coverage. Following a trial, a jury found that the unknown driver

or owner of the vehicle was not negligent.

Plaintiff appeals from a June 23, 2016 order of judgment

memorializing the jury's verdict and dismissing her complaint with

prejudice. We affirm.

I.

On March 16, 2013, plaintiff attended the St. Patrick's Day

parade in New York City. She testified that as she was crossing

the street in a crosswalk, she was struck by an unidentified

vehicle. Police and emergency medical personnel responded, and

plaintiff was taken to a hospital where she was treated for head

injuries.

In March 2014, plaintiff sued her insurer asserting a claim

for uninsured motorist coverage. Specifically, she claimed that

she sustained permanent, physical and neurological injuries as a

result of a hit-and-run. The parties engaged in discovery and the

case was tried before a jury for six days in June 2016. Plaintiff

2 A-5023-15T2 presented five witnesses, including two medical experts. NJM

presented three medical experts.

Plaintiff had limited recollection of the day of the accident.

She testified that there was "snow" and that in the afternoon she

and two friends were waiting on the sidewalk to cross the street.

Plaintiff explained that she began to walk across the street in

the crosswalk and she was "hit." Plaintiff clarified that she did

not recall actually being hit by a vehicle.

The only eyewitness to the accident called at trial was one

of plaintiff's friends. The friend testified that she was "pretty

sure" that she saw a car sideswipe plaintiff. The friend could

not, however, identify the make, model, or color of the car. The

friend testified that the vehicle did not stop and she did not see

the driver, nor could she recall where the car hit plaintiff.

The majority of the trial involved evidence concerning

plaintiff's injuries. Plaintiff and her mother described

plaintiff's activities and abilities before and after the

accident. Plaintiff also presented testimony from two experts who

opined that plaintiff's injuries were permanent and consistent

with head injuries that could have resulted from being struck and

knocked down by a car. As noted, the defense presented three

experts who opined that plaintiff was not permanently injured.

3 A-5023-15T2 After hearing the evidence, the jury returned a verdict of

no cause of action. Specifically, the jury was asked, "[w]as the

defendant XYZ Company negligent with regard to the accident of

March 16, 2013?" The unanimous jury responded, "No." Plaintiff

did not file a motion for a new trial. Instead, she filed this

appeal.

II.

On appeal, plaintiff makes three primary arguments. First,

she contends that the trial court erred in preventing her from

arguing that the driver's flight after the accident was evidence

of negligence. Second, she argues that defense counsel made a

number of improper statements during closing arguments and those

statements warrant a reversal and a new trial. Finally, she

asserts that the trial court abused its discretion in a number of

evidentiary rulings.1

1 In her initial merits brief, plaintiff contended that the jury verdict was against the weight of the evidence. In her reply brief, however, plaintiff withdrew that argument because she had not filed a motion for a new trial. Rule 2:10-1 states that "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." Consequently, plaintiff properly withdrew that argument since it was not preserved for this appeal.

4 A-5023-15T2 Having reviewed the record and law, we are not persuaded by

any of plaintiff's arguments and we affirm the jury verdict. We

will summarize and analyze each of plaintiff's arguments.

A. The Inference of Negligence from the Driver's Failure to Stop

Plaintiff contends that the trial court committed reversible

error by failing to permit an inference of negligence from the

unknown driver's flight from the scene of the accident. In that

regard, plaintiff argues that her friend's testimony about the

car's failure to stop was uncontested. Thus, plaintiff asserts

that there was a "mandatory" inference of negligence. The record

does not support that argument.

Plaintiff's argument about an inference of negligence is

premised on the contention that the hit-and-run was uncontested.

The defense, however, contested that issue. Indeed, the defense's

theory of the case was that plaintiff was never struck by a vehicle

and, instead, she fell and struck her head without being hit by

any vehicle.

Plaintiff's contention that the trial court prevented her

from submitting evidence of the hit-and-run driver's negligence

is also not supported by the record. Throughout the trial,

plaintiff's counsel referenced the "hit-and-run" and he made

extensive arguments concerning the inference that the jury could

5 A-5023-15T2 draw from that allegation. For example, in his closing argument,

counsel for plaintiff stated:

All right, and the first question you're going to be asked is was defendant XYZ Company negligent with regard to the accident on March 16, 2013? The answer is a compelling yes . . . . A driver shall yield right-of-way to a pedestrian crossing the crosswalk. That's what the law was. The driver never yielded to [plaintiff] . . . . He or she hit her and he or she fled the scene of the accident.

In arguing that the court prevented her from submitting

evidence of the driver's negligence, plaintiff referenced a

curative instruction the trial court gave following plaintiff's

opening statement. In plaintiff's opening statement, counsel

referenced the unknown driver's absence from trial. The court

properly provided a curative instruction informing the jury that

the parties agreed that the driver was unknown and could not be

called to testify. That instruction did not preclude plaintiff

from arguing that the unknown driver was negligent.

Moreover, plaintiff cites no law to support a mandatory

inference. Instead, she points to cases that allow evidence of a

hit-and-run by a driver to support a consciousness of liability.

See Miller v. Lewis, 40 Misc. 3d 499 (N.Y. Sup. Ct. 2013);2 Rock

v. McHenry, 115 S.W. 3d 419, 421 (Mo. Ct. App. 2003); Lynch v.

2 The parties agreed that New York law controlled since the accident occurred in New York City.

6 A-5023-15T2 McGovern, 270 So. 2d 770 (Fla. Dist. Ct. App. 1972); Jones v.

Strelecki, 49 N.J. 513, 518-19 (1967); Shaddy v. Daley, 58 Idaho

536 (Idaho 1938).

Finally, to the extent plaintiff argues that the trial court

erred by not charging the jury on an inference of negligence, we

reject that argument because it was not raised in the trial court.

Plaintiff never requested a jury charge regarding an inference of

negligence, and never objected to the final jury charge.

Consequently, we limit our review to a search for plain error.

See R. 1:7-2 ("Except as otherwise provided by R. 1:7-5 and R.

2:10-2 (plain error), no party may urge as error any portion of

the charge to the jury or omissions therefrom unless objections

are made thereto before the jury retires to consider its

verdict[.]"); see also State v. Belliard, 415 N.J. Super. 51, 66

(App. Div. 2010) (stating that a party "is required to challenge

[jury] instructions at the time of trial or else waives the right

to contest the instructions on appeal."). Having reviewed the

entire jury charge in light of the record, we discern no error,

and certainly no plain error that was "clearly capable of producing

an unjust result." R. 2:10-2.

B. Comments Made By Defense Counsel in Closing Arguments

Next, plaintiff contends that defense counsel made a number

of inappropriate remarks during his closing arguments, which were

7 A-5023-15T2 not supported by the evidence and misled the jury. Specifically,

plaintiff argues that defense counsel: (1) used plaintiff's

"hearsay" statements made to a defense expert; (2) improperly

referred to witnesses to the hit-and-run that never testified; and

(3) used facts not in evidence to sway the jury.

In making closing arguments, counsel are accorded broad

latitude, but their arguments must be "fair and courteous, grounded

in the evidence, and free from any 'potential to cause injustice.'"

Risko v. Thompson Mueller Auto. Grp., 206 N.J. 506, 522 (2011)

(quoting Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div.

2009)). Accordingly, counsel should not make statements that

would undermine a jury's deliberation. Id. at 522-23. In

considering whether to grant a new trial because of improper

comments by counsel, we consider whether opposing counsel objected

and whether the trial judge gave a curative instruction. Id. at

522-24.

Plaintiff contends that defense counsel improperly referenced

a statement she made to defense expert, Dr. Alweiss, that she was

"struck by a taxi." At trial, Dr. Alweiss explained that he had

conducted an independent medical examination of plaintiff and that

she advised him that "she was crossing the street when she was

struck by a taxi." Plaintiff's statement was admissible hearsay

as a statement of a party opponent. N.J.R.E. 803(b)(1).

8 A-5023-15T2 Accordingly, defense counsel's reference to plaintiff's statement

was not improper.

Plaintiff also contends that defense counsel improperly

argued in closing that plaintiff failed to present testimony from

her other friend who was with her when the alleged hit-and-run

occurred. Plaintiff's counsel objected and the court provided an

immediate curative instruction directing the jurors to disregard

any comments regarding witnesses who did not testify. That

instruction cured any potential prejudice.

Further, plaintiff points to several remarks by defense

counsel that she contends were improper. Specifically, she

challenges counsel's reference to: (1) doctors' reports that were

not entered into evidence; (2) hospital records that were not

entered into evidence; (3) an expert's statement that no further

treatment was recommended; and (4) mischaracterizations about

plaintiff's lifestyle before and after the accident.

With one exception, all of these arguments pertain only to

damages. As the jury found no proof of negligence, the arguments

about damages are not grounds for reversing the jury verdict.

Moreover, our review of these contentions in light of the record

shows that they do not have sufficient merit to warrant a new

trial.

9 A-5023-15T2 The exception was defense counsel's argument that the

hospital records did not reflect that plaintiff had reported being

hit by a car. When plaintiff objected to defense counsel's

reference to the hospital records that were not in evidence, the

court ruled that it would instruct the jury that "what the lawyers

say is not evidence[,]" and would repeat the instruction as it

related to experts and the use of documents that were not in

evidence. We discern no abuse of discretion in the trial court's

ruling that those instructions were sufficient to cure any possible

prejudice. See State v. Kueny, 411 N.J. Super. 392, 403 (App.

Div. 2010) (stating that a trial court's ruling that "a curative

instruction was adequate to preserve a fair trial" is entitled to

deference and will not be reversed absent an abuse of discretion).

C. Evidentiary Rulings

Finally, plaintiff contends that the trial court abused its

discretion in three evidentiary rulings. Plaintiff argues that

the trial court committed reversible error by: (1) preventing her

from recalling plaintiff's mother as a rebuttal witness;

(2) refusing to strike expert testimony that read inadmissible

medical records into evidence; and (3) allowing an MRI not in

evidence to be shown to the jury.

The trial court's evidentiary rulings are entitled to

deference, and will not be disturbed absent an abuse of discretion.

10 A-5023-15T2 Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 95-96

(App. Div. 2013). Accordingly, we will uphold the trial court's

evidentiary rulings "unless it can be shown that the trial court

palpably abused its discretion, that is, that its finding was so

wide off the mark that a manifest denial of justice resulted."

Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492

(1999)).

On cross-examination, plaintiff testified that her pants were

wet when she was taken to the hospital. Plaintiff argues that she

should have been allowed to recall her mother as a rebuttal

witness. Counsel proffered that plaintiff's mother would testify

that hospital personnel informed her that plaintiff had urinated

on herself as a result of the trauma.

The trial court precluded that testimony because it was

hearsay. Plaintiff's mother was not at the scene of the accident

and had no personal knowledge of how plaintiff's pants got wet.

Moreover, the statements made to plaintiff's mother by hospital

personnel were hearsay. See N.J.R.E. 801 and 802. No exception

to the hearsay rule applied. See N.J.R.E. 803. Accordingly, we

discern no abuse of discretion in the trial court's ruling. See

Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472,

497-98 (App. Div. 2000) (explaining that a trial court's decision

11 A-5023-15T2 to exclude rebuttal testimony is reviewed for an abuse of

discretion).

The other two evidentiary rulings that plaintiff challenges

go to the issue of damages. Again, because the jury found that

plaintiff failed to prove negligence, those rulings could not have

affected the jury's verdict on negligence. Moreover, a substantive

review of those evidentiary rulings demonstrates that the trial

court did not abuse its discretion.

Affirmed.

12 A-5023-15T2