NOT FOR PUBLICATION WITHOUT THE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-3430-15T3
NIURKA ALMONTE,
Plaintiff-Respondent,
v.
YEURIS M. ULLOA TINEO,
Defendant-Appellant.
______________________________
Submitted August 1, 2017 – Decided August 9, 2017
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, Docket
No. SC-0125-16.
Leary Bride Tinker & Moran, PC, attorneys for
appellant (Frank D. DeRienzo, of counsel and
on the briefs).
Santo J. Bonanno, attorney for respondent.
PER CURIAM
Defendant Yueris Ulloa-Tineo appeals from the March 4, 2016
order entered following a bench trial in the Special Civil Part.
Because we find that the judge erred in admitting the police report
without redaction or testimony, and incorrectly applied several
principles of evidence and law, we reverse.
Defendant was involved in an automobile accident with several
other vehicles, including one owned by plaintiff Niurka Almonte.
As a result of the property damage incurred to her car, plaintiff
filed a complaint in the Special Civil Part seeking $2695 from
defendant.1
Plaintiff presented testimony on her own behalf at trial.
She stated that her car had been parked at the time of the
collision, and she had not seen the incident. However, she sought
to introduce a police report into evidence in which the
investigating police officer attributed fault for the accident to
defendant in a narrative containing information from unidentified
witnesses. Over defendant's objection, the judge admitted the
report into evidence stating, "[I]t's just a diagram and . . .
there [are] no oral or written statements that are attached to
this in any way. It's just a police report. It's a public
document."
1
Plaintiff presented an estimate of $3745. She testified that
she had received a check from defendant's insurance company of
$1050 as reimbursement for her property damage. The insurer had
prorated its $5000 property damage limits among the three
claimants. Plaintiff therefore sought the balance of $2695 in her
suit.
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Defendant testified that as he was traveling through an
intersection with a green light, he was struck by another vehicle
on his passenger side which had come through a red light. The
impact caused his car to strike two other vehicles, including
plaintiff's parked car.
Defendant requested a dismissal of plaintiff's complaint as
she had presented no proofs of negligence on his part and could
not contradict his testimony that he had the green light in his
favor.
In an oral decision, the judge ruled in favor of plaintiff.
In relying on Dolson v. Anastasia, 55 N.J. 2 (1969), the judge
stated that "the driver of a vehicle has to maintain control over
his vehicle especially when one car is stationary which is what
we have here." Since defendant was unable to regain control of
his car after he was struck by another vehicle, the judge found
that defendant was responsible for the damages incurred to
plaintiff's car. She reasoned that plaintiff was entitled to
recover from the driver who had struck her; it was "defendant's
responsibility to go get indemnification from all of these other
people that he says caused this loss of control in his car."
The judge also considered the letter and check sent to
plaintiff by defendant's insurer and concluded that the insurer
had proffered its property damage policy limits because it had
3 A-3430-15T3
determined that defendant's car was responsible for the accident.
Judgment was entered for $2695.
On appeal, defendant argues that the judge (1) erred in
admitting the police report into evidence; (2) misapplied the
principles of Dolson; and (3) erred in considering the check issued
by his automobile insurer as an admission of liability.
We review the evidential rulings of the introduction of the
police report and the insurer's settlement check under an abuse
of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008).
A judgment based on an evidentiary error should be reversed if it
is found to be "clearly capable of producing an unjust result."
Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 502 (1999).
Under most circumstances, absent an allegation of
untrustworthiness, a routine police report prepared by the
investigating police officer as part of his regular course of
duties is admissible as a business record under N.J.R.E. 803(c)(6)
and as a public record, N.J.R.E. 803(c)(8). However, the court
must scrutinize any hearsay statements contained within the report
and determine whether the statements are separately admissible
under a hearsay exception. A police officer's diagram of the
accident is not based on the officer's personal observations of
the incident; it is derived from what another person has told the
officer occurred. The narrative is either inadmissible embedded
4 A-3430-15T3
hearsay of witnesses to the events or an inadmissible expert
opinion of the officer. See Manata v. Pereira, 436 N.J. Super.
330 (App. Div. 2014).
Here, plaintiff did not witness the events that led to the
damage to her car. She had no personal knowledge of what had
occurred in the intersection or thereafter. She, therefore, relied
on a narrative contained in a police report as substantive evidence
to support her claim of defendant's negligence. Without any
testimony by the author of the report or the witnesses themselves,
this narrative was inadmissible hearsay and the trial court
misapplied its discretion in permitting its introduction as
substantive evidence.
It was also a mistaken exercise of discretion for the judge
to consider the settlement check tendered by defendant's insurer
as evidence that defendant was negligent and responsible for the
accident. Under N.J.R.E. 408, "offers of compromise or any payment
in settlement of a related claim, shall not be admissible to prove
liability for . . . or amount of the disputed claim." Although
the settlement check might be considered for purposes of adjusting
the damages award to which plaintiff might be entitled, it may not
be considered as determinant of defendant's liability. See Leslie
Blau Co. v. Alfieri, 157 N.J. Super. 173 (App. Div.), certif.
denied, 77 N.J. 510 (1978).
5 A-3430-15T3
The admission of these documents clearly had the capacity to
influence the outcome of the trial. Plaintiff had no personal
knowledge of the events but instead relied on the hearsay contained
in the police report and the settlement letter as her only proofs
of defendant's negligence. Accordingly, we are constrained to
reverse the judgment and remand for a new trial.2
Reversed and remanded. We do not retain jurisdiction.
2
In light of our decision, it is not necessary for us to address
at length defendant's argument regarding the judge's reliance on
Dolson, supra, to support her entry of judgment against defendant.
We are confident that, on remand, the trial judge will properly
apply the principles of proximate cause required in a negligence
case.
6 A-3430-15T3