NOT FOR PUBLICATION WITHOUT THE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