Roman v. Mitchell

413 A.2d 322, 82 N.J. 336, 1980 N.J. LEXIS 1325

• Court: Supreme Court of New Jersey
• Decided: March 13, 1980
• Status: Published

Opinions

The opinion of the Court was delivered by

SULLIVAN, J.

The suit herein is a tort action filed on behalf of Michael Roman, the infant plaintiff herein, for serious injuries sustained by him in an accident on the New Jersey Turnpike. His mother Carol Roman has joined in the suit.

On September 29, 1973, Michael, then 12 years old, and three young companions pushed their bicycles up on an embankment adjacent to the southbound lanes of the New Jersey Turnpike near Linden and onto the shoulder of the road. They then pedaled a short distance on the shoulder in a southerly direction to a Howard Johnson’s restaurant located in a Turnpike service area where they had something to eat. On their way back to where they had entered the Turnpike and while proceeding along the shoulder, they were stopped by a state trooper. According to the trooper, he told told the boys to leave the highway immediately. However, the boys testified at trial that the trooper simply told them “to get off where we had come on.”

The trooper did not stay to see to it that the boys followed instructions; instead, he responded to a traffic problem a short distance away. Almost immediately after the officer left and while the boys were still standing on the shoulder, a dump truck owned by Robert M. Mitchell, Jr., and being driven south on the Turnpike by Sherman Wade, lost its two left rear wheels. One of the wheels careened across the roadway onto the shoulder where the boys were standing and struck Michael, seriously injuring him.

At the time, both Mitchell and Wade were employed by the Salvaterra Construction Co., Mitchell as a mason foreman and Wade as a laborer. Salvaterra periodically used Mitchell’s truck in its construction work with Mitchell as the operator. On the date of the accident, however, Mitchell had given Salvaterra permission to use the truck and it was being driven by Wade to a Salvaterra construction site when the wheels came off.

Plaintiffs’ suit for damages joined Mitchell, Wade and Salvaterra Construction Co. as defendants. At the commencement of the trial, which was limited to the issue of liability, counsel for plaintiffs sought leave to ask the following questions of prospective jurors on their voir dire examinations.

1. Are any of you stockholders or employees of any insurance company which is engaged in the casualty insurance business?

2. Are any of you engaged in the general insurance agency business or are any of you an agent for a casualty insurance company?

3. Have any of you ever worked as a claims investigator or insurance adjuster?

The trial judge denied the request, observing that “you might just as well tell (the jury) now you know the defendant is insured in this case.”

At the trial on liability, Mitchell testified that the truck was in his possession 99% of the time and it was, more or less, his responsibility to make sure that the truck was in working order. As a rule, he inspected the lug nuts on the wheels of the vehicle every two or three weeks, but could not remember whether he had made such an inspection within the week preceding the accident. He said that under his arrangement with Salvaterra, inspection and maintenance of the vehicle were his responsibility

Plaintiffs’ expert testified that the standard for safety inspection of wheel lugs on a construction vehicle used on rough terrain with heavy loads required examination “perhaps once a day, once every few days” of use. He expressed the opinion that prior to Wade’s driving the truck on the day of the accident, most probably one or more of the lug nuts on the left rear wheels had loosened, causing stresses during use which in turn caused the other lug nuts to loosen or break.

After describing the details of the accident, the infant plaintiff testified that prior to the accident he knew that the Turnpike was a dangerous place for bicyclists and that he had been warned not to ride on heavily traveled streets.

On motion, at the close of evidence, the trial court dismissed the ease as to defendants Wade and Salvaterra Construction Co. on the ground that plaintiffs had failed to produce any evidence of negligence on their part.

The accident had occurred a few weeks after the effective date of the New Jersey comparative negligence statute, N.J.S.A. 2A:15-5.1 et seq., and the case was tried under the provisions of that act. Since construction of the statute is a primary issue in the case, its provisions are set forth in full.

N.J.S.A. 2A:15-5.1

Contributory negligence shall not bar recovery in any action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering.

N.J.S.A. 2A:15-5.2

In all negligence actions in which the question of liability is in dispute, the trier of fact shall make the following as findings of fact:

a. The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence, that is, the full value of the injured party’s damages;

b. The extent, in the form of a percentage, of each parties’ negligence. The percentage of negligence of each party shall be based on 100% and the total of all percentages of negligence of all the parties to a suit shall be 100%.

c. The judge shall mold the judgment from the finding of fact made by the trier of fact.

NJ.S.A. 2A:15-5.3

The party so recovering, may recover the full amount of the molded verdict from any party against whom such recovering party is not barred from recovery. Any party who is so compelled to pay more than such party’s percentage share may seek contribution from the other joint tortfeasors.

After the trial court refused to strike the defense of contributory negligence, holding that a jury question was presented, counsel for plaintiffs requested that the jury be charged as to the legal effect of the application of the comparative negligence statute. In essence, the request to charge asked that the jury be told that for the infant plaintiff to recover, the jury would have to find that the defendant’s percentage of negligence was greater than that of the plaintiff, and that the damages awardable to the infant must be diminished in proportion to the amount of negligence attributable to him. The request was denied.

In response to interrogatories submitted to it by the court, the jury found that the accident was caused by the negligence of both the infant plaintiff and defendant Mitchell. It fixed the percentage of negligence of the infant plaintiff at 75% and that of Mitchell at 25%. Based on these findings the trial court molded the verdict and entered judgment for the defendant. N.J.S.A. 2A:15-5.2(c).

The Appellate Division affirmed the judgment in favor of defendant finding no error in any of the rulings made by the trial court. 165 N.J.Super. 68 (1979). Certification was granted by this Court. 81 N.J. 254 (1979). We now reverse and order a new trial.

I.

We agree with the trial court that there was sufficient evidence of Michael’s contributory negligence to submit that issue to the jury pursuant to the comparative negligence statute. He deliberately ventured onto the shoulder of the Turnpike knowing that it was a dangerous place for a cyclist and in spite of prior warnings not to ride his bike on heavily traveled streets. Despite his age, Michael was aware of the risks involved and deliberately placed himself in an area of extreme danger. A jury reasonably could have found that his venturing onto the shoulder of the roadway was a proximate cause of the accident.¹ Dziedzic v. St. John’s Cleaners and Shirt Launderers, Inc., 53 N.J. 157 (1969), cited by plaintiffs, does not support plaintiffs’ contention that Michael’s presence on the shoulder of the road was not a proximate cause of the accident. See Latta v. Caulfield, 79 N.J. 128, 133-135 (1979).

II.

We conclude that the trial court erred in granting the motion of defendant Salvaterra Construction Co. for an involuntary dismissal. The basis for the dismissal was the court’s conclusion that Mitchell as owner of the vehicle had a duty to make safety inspections of the lug nuts on the wheels and that Salvaterra had no legal obligation in that regard.

However, evidence was presented that a vehicle such as here involved should have had its lug nuts inspected “perhaps once a day, once every few days.” While Mitchell as owner had assumed the responsibility of making safety inspections of the vehicle, including the wheel lug nuts, this did not relieve Salvaterra of the independent duty to check the vehicle prior to use. Certainly Salvaterra, who was engaged in the construction business, should have been aware that the wheel lug nuts on a heavy dump truck will tend to loosen when the vehicle is subjected to the stresses and strains of construction operation. However, the same knowledge cannot be imputed to Wade. The record indicates that he was employed as a laborer and that this was the first time he had driven the Mitchell truck. Mr. Salvaterra testified that, when he hired Wade, he did not know if he was qualified or experienced in the driving of construction trucks and that he did not give Wade any training in that regard. In these circumstances we do not see how a jury reasonably could have found that Wade had an independent obligation to inspect the vehicle prior to driving it.

III.

We next consider the denial of plaintiffs’ request that the jury be instructed as to the legal effect of the application of the comparative negligence statute to the jury’s findings. There is nothing in the statute which specifically requires that the jury be instructed as to such effect — an ultimate outcome charge. All that the statute provides is that the judge shall mold the judgment from the findings of fact made by the jury. N.J.S.A. 2A:15-5.2(e). However, plaintiffs argue that unless the jury is made aware of the legal effect of its findings as to percentages of negligence, such findings may be premised on an erroneous concept of the law and can result in a molded judgment far different from that intended by the jury. In this very case it has been suggested that the jury may well have concluded that its findings of the infant plaintiff’s negligence quota of 75% and defendant Mitchell’s 25% would result in a monetary verdict for plaintiff for 25% of the damages found.

We believe the contention has merit and that a jury in a comparative negligence situation should be given an ultimate outcome charge so that its deliberations on percentages of negligence will not be had in a vacuum, or possibly based on a mistaken notion of how the statute operates. Prior to the adoption of the comparative negligence statute when the contributory negligence of a plaintiff was an absolute bar to recovery in this State, a jury was instructed as to the outcome of its findings, by a charge that it if found contributory negligence to any substantial degree, its verdict must be for the defendant. See O’Brien v. Bethlehem Steel Corporation, 59 N.J. 114, 124 (1971).

We recognize that some states with comparative negligence statutes have rejected the notion that an ultimate outcome charge be given. See McGowan v. Story, 70 Wis.2d 189, 234 N.W.2d 325 (Sup.Ct.1975). The reason given is that since a jury’s function is fact finding, it should have no interest in determining how the law should be applied to the facts found; otherwise, a jury, motivated by bias or sympathy, might attempt to manipulate the apportionment of negligence to achieve a result that may seem desirable to it. Possible confusion of the jury has also been mentioned.

There is considerable support for this position. See Heft and Heft, Comparative Negligence Manual, § 7.40 (1978); Schwartz, Comparative Negligence, § 17.5 at 291 (1974). However, a growing number of comparative negligence jurisdictions now provide for ultimate outcome instructions in comparative negligence situations by legislative provision, court rule or judicial decision. See, e. g., Loup-Miller v. Brauer & Assoc.-Rocky Mountain, 572 P.2d 845, 847 (Ct.App.Colo.1977) (legislative amendment to statute); Porche v. Gulf Mississippi Marine Corp., 390 F.Supp. 624 (E.D.La.1975) (judicial decision); Krengel v. Midwest Automatic Photo Inc., 295 Minn., 200, 203 N.W.2d 841, 848 (Sup.Ct.1973) (court rule).

A detailed discussion of the trend in favor of an ultimate outcome instruction in comparative negligence cases is included in Seppi v. Betty, 99 Idaho 186, 579 P.2d 683, 688-692 (Sup.Ct.1978), which held that in most cases an ultimate outcome instruction would be fully warranted, but that a trial court would have discretion not to so inform the jury in a complex case where such instructions would tend to confuse or mislead the jury.

We conclude that, ordinarily, a jury informed of the legal effect of its findings as to percentages of negligence in a comparative negligence trial is better able to fulfill its fact finding function. Hereafter, an ultimate outcome instruction should be given to a jury in such a trial. However, in a complex case involving multiple issues and numerous parties, the trial court, in the exercise of sound discretion, could withhold the instruction if it would tend to mislead or confuse the jury. See Seppi, supra, 579 P.2d at 692.

Our holding will not result in juries deciding comparative negligence cases according to whim or fancy. The trial court can always set aside a jury’s findings if it concludes that the verdict is the product of misunderstanding, bias or prejudice. As noted in Seppi, supra, “[tjhis is a much more effective way to control the problems of misunderstanding and bias in jury verdicts than attempting to blindfold the jury.” 579 P.2d at 692.

IV.

Finally we consider the rejection of plaintiffs’ proposed voir dire questions to prospective jurors concerning their stockholding or employment in a company engaged in the casualty insurance business. Plaintiffs are entitled to a fair and impartial jury and, facially, the proposed questions are designed to ascertain possible bias or prejudice on the part of a prospective juror where casualty insurance coverage is involved.

In this State the voir dire questioning of prospective jurors is regulated by statute, N.J.S.A. 2A:78-4, and by court rule, R. l:8-3(a). Both the statute and the rule allow the judge to control the scope of inquiry and in practice it is the judge who does the questioning. See State v. Manley, 54 N.J. 259, 282-283 (1969). On the voir dire, a prospective juror’s employment or occupation may be inquired into and invariably, as here, the jurors are also asked whether they know of any reason why they “could not act fairly and impartially as judges of the facts in this case.” It has not been the practice in this State to allow specific questioning of prospective jurors as to possible stock-holding or employment in an insurance company absent some indication that a basis therefor exists.

True, the average juror may be aware that there is insurance coverage in almost every motor vehicle accident case and the disclosure of such coverage to a jury has been held not to be prejudicial error. Runnacles v. Doddrell, 59 N.J.Super. 363 (App.Div.1960). However, the questions here propounded tend to emphasize unduly the fact of insurance coverage. Absent some indication that a basis for asking them exists, they should ordinarily be rejected by the trial court. The risk is that, if permitted, such questions would be used, not as a bona fide inquiry into possible bias or prejudice, but solely to stress the fact of insurance coverage to the jury.

Plaintiffs argue that unless these questions are permitted they cannot know whether a juror is biased. However, the inquiry, even if in good faith, can prejudice a defendant’s right to a fair trial. The better rule is to leave the matter to the sound discretion of the trial judge who should balance the plaintiff’s claim of need and the basis therefor against the possibility of prejudice to the defendant. We are aware of Kiernan v. Van Schaik, 347 F.2d 775 (3 Cir. 1965), which holds that questions such as these should be allowed in accident cases. The opinion indicates that possible prejudice to defendants can be avoided by an adequate caution to the jury

* * * that these questions do not imply either that any defendant is insured or that the matter of insurance or lack of insurance is to be considered in reaching a verdict. [Id. at 782.]

Kiernan would appear to bar the trial judge from exercising any discretion in the matter and require that such questions be asked even if no basis therefor has been shown. This approach, we think, could unduly prejudice a defendant’s rights. The harm is not so much in the jury being made aware of insurance coverage as in the undue stress on such fact, and its possible influence on the jury’s findings. The better rule, as heretofore indicated, is to leave the matter to the trial judge’s sound discretion.

Reversed and remanded for a new trial.

1 The additional contentions that the infant plaintiff was also contributorily negligent (1), in failing to obey the trooper’s order to leave the turnpike immediately and (2), in taking his eyes off the wheels and watching the skidding truck, lack a sufficient basis in the record. The accident happened almost immediately after the trooper left and while the boys were still standing on the shoulder. To suggest that young Roman might have been able to avoid the careening wheel had he kept his eyes on it, rather than on the truck, is pure speculation. In any event, we conclude that the jury verdict, fixing the percentage of negligence of the infant plaintiff at 75%, was contrary to the weight of the evidence.