SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-457-96T2
HAROLD E. SMITH, Executor
of the Estate of Helen V.
Robbins, Deceased,
Plaintiff-Respondent/
Cross-Appellant,
v.
ALAN L. WHITAKER, JR.,
Defendant-Respondent,
and
COASTAL OIL OF NEW YORK, INC.,
(incorrectly pled as COASTAL
OIL COMPANY OF NEW YORK, INC.,
and formerly known as BELCHER
COMPANY OF NEW YORK, INC.),
Defendant-Appellant/
Cross-Respondent.
_________________________________
Argued: April 22, 1998 - Decided: June 15,
1998
Before Judges King, Kestin and Cuff.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County.
John C. Eastlack, Jr., argued the cause for
appellant-cross-respondent (Poplar & Eastlack,
attorneys; Mr. Eastlack, on the brief).
Theodore E. Baker argued the cause for
respondent-cross-appellant (Lummis, Krell &
Baker, attorneys; Mr. Baker, on the brief).
The opinion of the court was delivered by
KING, P.J.A.D.
This case involves claims for wrongful death and survival action damages. Plaintiff obtained a modest compensatory award of $40,178 (plus the net funeral and burial expenses of $3,939) under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6 and a punitive damage award of $1.25 million under the Survivor's Act, N.J.S.A. 2A:15-3. Defendant Coastal Oil of New York, Inc. (Coastal) challenges the punitive damage verdict on a number of grounds. We find no error and affirm.
On January 4, 1990 Helen V. Robbins (Mrs. Robbins), a widow, age 60, was driving her 1979 Lincoln Town Car north on County Route 649 in Commercial Township, Cumberland County. On the same day, Alan L. Whitaker, Jr. (Whitaker), an employee of Coastal, was driving a 36,000-pound Coastal oil truck south on County Route 633. The southbound lane of County Route 633 was governed by two yield signs where it intersects County Route 649. Due to maladjusted rear brakes, Whitaker was unable to stop the truck, even though he was "standing" on the brakes. The truck crossed the intersection, struck Mrs. Robbins' automobile, and overtopped it. Mrs. Robbins died in the accident.
Harold E. Smith, the nominal plaintiff, executor of Mrs. Robbins' estate, filed an action under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and under the Survivor's Act, N.J.S.A. 2A:15-3, against Whitaker and Coastal (collectively defendants). Smith died in 1995 and Grant Keller was appointed to replace him as
plaintiff.
On its appeal, Coastal raises many issues, but primarily
contends that, as a matter of law, plaintiff should not recover
punitive damages. We disagree.
On June 8, 1990 the plaintiff executor filed this action under the Wrongful Death Act and Survivor's Act against defendants. Among other things, plaintiff claimed that the Coastal oil truck driven by Whitaker on January 4, 1990 had been "improperly serviced and maintained, in that the brake systems, air hoses and braking mechanisms were faulty, defective and not in proper working order." Plaintiff also alleged that "defendants . . . either knew or should have known that the braking systems and braking mechanisms on the vehicle being operated by . . . Whitaker . . . were faulty, defective and not in proper working order, but . . . defendants negligently, recklessly and with callous disregard for the safety of others, failed to take such proper steps as were necessary to adequately service, maintain and ensure that the braking mechanisms on said vehicle were in proper working order." Finally, plaintiff alleged that the "carelessness and recklessness" of defendants was "willful, wanton, and with knowledge of a high degree of probable harm to others such that the deliberate and wanton failure of the defendants . . . should be assessed with punitive and exemplary damages."
On May 9, 1995 the first jury trial began. After all sides rested on May 11, 1995 they agreed to the judge's suggestion to
select a second, different jury to decide the "punitive damage
issue."
On May 12, 1995 the first jury was asked to answer this
question: "What amount of money, if any, would fully and fairly
compensate Lois Buttner as the survivor of Helen V. Robbins for the
actual pecuniary or financial loss suffered by Lois Buttner due to
the death?" The jurors (6-0) answered "$40,178" to this question.
Following this, the judge molded the verdict by adding the net
"funeral bill and expense" of $3,939, for a total judgment of
$44,117. On May 30, 1995 the judge entered a judgment against
defendants reflecting that the jury had "rendered a verdict in the
amount of $40,178 pursuant to the Wrongful Death Act, N.J.S.A.
2A:31-1, et seq.," and that the judge had "molded the verdict as to
funeral and burial expenses pursuant to the Survivor's Act,
N.J.S.A. 2A:15-3 to include the sum of $3,939.00."
On May 15, 1995 Coastal filed a motion to dismiss plaintiff's
punitive damage claim. In response, plaintiff filed a cross-motion
for a new trial on the wrongful death damages claim. The judge
denied Coastal's motion, holding that plaintiff's claim for
"punitive damages" against defendants "could be properly presented
under the survivorship statute." The judge also denied plaintiff's
cross-motion for a new trial on the "compensatory damages."
Finally, the judge ruled that the "funeral bill" of $3,939 "would
properly be included in the wrongful death aspect of the case."
On July 15, 1996 the punitive damage trial began before a new
jury. With the consent of plaintiff and Coastal, plaintiff's
punitive damage action against Whitaker was dismissed. On July 25,
1996 the jury was asked to answer two questions. The first
question was: "Do you find that the conduct of the Defendant,
Coastal Oil Company, gave rise to a claim for punitive damages?"
The jurors (6-0) answered "yes" to that question. The second
question was: "What is the proper amount of punitive damages to be
awarded in this case against Coastal Oil Company of New York?" The
jurors (6-0) answered "one million, two hundred fifty thousand" to
that question.
On August 5, 1996 Coastal filed a motion for a new trial or
remittitur. On September 5, 1996 the judge entered an order
denying Coastal's new trial motion. In this order, the judge at
Coastal's request amended the judgment entered on May 30, 1995 to
reflect that the "molded verdict including funeral and burial
expenses were recovered pursuant to the Wrongful Death Act,
N.J.S.A. 2A:31-1 et seq." Both parties then appealed.
Coastal raises nine points on its appeal:
1. DID THE JUDGE ERR IN HOLDING THAT
PUNITIVE DAMAGES ARE RECOVERABLE
UNDER THE WRONGFUL DEATH ACT?
2. DID THE JUDGE ERR IN NOT DISMISSING
PLAINTIFF'S PUNITIVE DAMAGE CLAIM AS
A MATTER OF LAW, BECAUSE NO
COMPENSATORY DAMAGES WERE RECOVERED
BY PLAINTIFF UNDER THE SURVIVORSHIP
ACTION?
3. MUST THE PUNITIVE DAMAGE AWARD BE REVERSED, BECAUSE THE FACTS OF THIS CASE DO NOT MEET THE THRESHOLD FOR EGREGIOUS CONDUCT NECESSARY FOR THE
IMPOSITION OF PUNITIVE DAMAGES?
4. DID THE JUDGE ERR IN DENYING
COASTAL'S MOTION TO BAR PLAINTIFF'S
EXPERTS AND IN REJECTING ITS
OBJECTION TO ONE EXPERT RENDERING AN
OPINION AS TO CAUSATION?
5. DID THE JUDGE ERR IN DENYING
COASTAL'S MOTION TO STRIKE THE
PUNITIVE DAMAGE AWARD OR, IN THE
ALTERNATIVE, FOR REMITTITUR, BECAUSE
THE $1.25 MILLION AWARD WAS CLEARLY
EXCESSIVE, AND NOT IN ACCORDANCE
WITH THE PUNITIVE DAMAGES ACT?
6. DID THE JUDGE ERR IN DENYING
COASTAL'S MID-TRIAL MOTION TO RECUSE
HIMSELF?
7. WAS THE JURY'S PUNITIVE DAMAGES
VERDICT THE PRODUCT OF PASSION OR
PREJUDICE, BECAUSE THE JURY
APPARENTLY DID NOT UNDERSTAND THE
ISSUE OF PROXIMATE CAUSE OR THE
STANDARDS BY WHICH TO MEASURE
CONDUCT IN DETERMINING WHETHER
PUNITIVE DAMAGES WERE APPROPRIATE?
8. DID THE JUDGE ERR IN PERMITTING
IMPROPER FINANCIAL INFORMATION TO BE
PLACED BEFORE THE JURY TO CONSIDER
IN DETERMINING A PUNITIVE DAMAGE
AWARD?
9. DID THE JUDGE ERR IN ADMITTING INTO
EVIDENCE COASTAL'S FEDERAL HIGHWAY
ADMINISTRATION CARRIER PROFILE FOR
THE PERIOD JULY 22, 1
994 TO JULY 22,
1996?
Plaintiff's sole point on the cross-appeal states:
DID THE JUDGE MAKE SEVERAL TRIAL ERRORS WHICH
MUST BE ADDRESSED IN THE EVENT THIS MATTER IS
REVERSED AND A RETRIAL IS ORDERED?
Coastal first contends that the judge "erred in holding that punitive damages are recoverable under [the] New Jersey Wrongful Death Act." The judge made no such ruling, and would have erred if he had. The judge said that: "In a wrongful death action, perhaps punitive damages would not be appropriate." With regard to the "punitive damage issue," he ruled that this issue "could be properly presented under the survivorship statute."
When the death of a person is caused by the "wrongful act, neglect or default" of another, an "action for damages" arises. N.J.S.A. 2A:31-1. In "every action" brought under N.J.S.A. 2A:31-1, the jury can only award damages "with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased" to the "persons entitled to any intestate personal property of the decedent." N.J.S.A. 2A:31-5. In this case, the sole surviving adult child, Lois Buttner, was the only eligible beneficiary under the Wrongful Death Act. See N.J.S.A. 2A:31-4.
This aspect of the Wrongful Death Act was explained in Turon v. J. & L. Constr. Co., 8 N.J. 543 (1952):
The evident policy of the statute is the recovery of damages for the pecuniary injury
sustained by the designated beneficiaries.
The act is essentially remedial rather than
penal. Damages are assessed to compensate for
the injuries sustained by the persons to whom
they are payable.
[8 N.J. at 555-56.]
The design of section 5 [N.J.S.A. 2A:31-5],
from the very beginning, was the limitation of
the measure of damages to the "pecuniary
injuries" sustained by the statutory beneficiaries as the result of the death. The
statutory policy was remedial and not punitive.
[Id. at 557.]
See Carey v. Lovett,
132 N.J. 44, 67 (1993) ("Damages for the
wrongful death of an infant, like wrongful-death damages generally,
are limited to economic matters."); Graf v. Taggert,
43 N.J. 303,
311 (1964) ("Our [Wrongful] Death Act was not intended to grant
damages against a tortfeasor merely to punish him."); Goss v.
American Cyanamid, Co.,
278 N.J. Super. 227, 241 (App. Div. 1994)
("An award of damages in a wrongful death action is not intended to
punish the tortfeasor, but only to replace that which the decedent
likely would have provided."); DeFelice v. Beall,
274 N.J. Super. 592, 599 (App. Div.) ("The purpose of New Jersey's Wrongful Death
Act is to provide compensation for pecuniary losses suffered by
survivors of those killed by wrongful acts."), certif. denied,
138 N.J. 268 (1994). In Meehan v. Central R.R. Co. of New Jersey,
181 F. Supp. 594 (S.D.N.Y. 1960), the decedent's administrator sought
to recover "punitive damages" under the "New Jersey Wrongful Death
Statute, N.J.S.A. 2A:31-1 to 2A:31-6." Id. at 598. "In accordance
with the compensatory nature of the New Jersey Wrongful Death
Statute," the plaintiff's "punitive damage action on the wrongful
death was dismissed." Ibid.
In Kern v. Kogan,
93 N.J. Super. 459, 462 (Law Div. 1967), the
administrators of the minor decedent filed a medical malpractice
action against the defendant doctor who had treated the minor from
March 9, 1964 to her death on March 18, 1964. Based primarily on
Graf,
43 N.J. 303, and Meehan,
181 F. Supp. 594, the Law Division
judge in Kern granted defendant's motion to dismiss plaintiffs'
action to recover "punitive damages" from Kogan "under the Wrongful
Death Act." Id. at 468-69. The judge explained:
A reading of the cases discloses that the
status of the law in New Jersey bearing upon
wrongful death actions would seem to restrict
all such claims to compensatory damages, and
therefore, the demands for punitive damages
based upon the allegations that defendant Dr.
Kogan was fraudulent, deceitful and negligent,
which actions resulted in the death of
decedent, will not lie and thus defendant's
motion with respect to these counts will be
granted.
[Id. at 469.]
New Jersey case law has not changed on this point since the
Kern decision in 1967. See Jadlowski v. Owens-Corning Fiberglas
Corp.,
283 N.J. Super. 199, 213 (App. Div. 1995), certif. denied,
143 N.J. 326 (1996) (observing that a "punitive damages award is
not to be considered compensatory," we noted that "punitive damages
are not awarded for a wrongful death"). Punitive damages are not
recoverable under most wrongful death statutes in this country.
Ghiardi & Kircher, Punitive Damages § 5.19 n.4 (1992 Cum. Supp.
Callaghan); Schlueter & Redden, Punitive Damages (3d 1996) § 9.9(A)
at 589.
We agree with Coastal that punitive damages are not available
under our Wrongful Death Act. We also conclude that the jury made
no such award.
Since no traditional compensatory damages were recovered under the dismissed survivorship action, Coastal claims that plaintiff's demand for punitive damages should have been dismissed as a matter of law, citing O'Connor v. Harms, 111 N.J. Super. 22, 29-30 (App. Div.), certif. denied, 57 N.J. 137 (1970); Cooper Distributing Co. Inc. v. Amana Refrigeration, Inc., 63 F.3d 262 (3d Cir. 1995); and Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993). We disagree with Coastal's conclusory contention that because there were no traditional compensatory damages for pain and suffering under the survival action, "a punitive damages verdict cannot stand . . . as a matter of law." Indeed, Mrs. Robbins sustained the ultimate injury or damage; her life was extinguished. Of interest, the jury was not asked to consider "nominal damages." In an action for malicious conversion of property and punitive damages, we have stated: "Assuming that compensatory damages cannot be proved beyond a nominal sum, the better view appears to be that exemplary damages may nevertheless be awarded in this type of action." Winkler v. Hartford Accident & Indemnity Co., 66 N.J. Super. 22, 29 (App. Div.), certif. denied, 34 N.J. 581 (1961).
This is the procedural context pertinent to Coastal's contention. Before the jury was brought into the courtroom to begin the first trial, Coastal's attorney stated there was "no question" that Mrs. Robbins "died as a result of the injuries sustained in the accident." However, he also stated that it "has
candidly been admitted by [plaintiff's] counsel" that "there is not
one single item of proof that exists or could be placed before this
jury indicating that Mrs. Robbins suffered any conscious pain or
endured any suffering at all," because, during discovery, no post-accident witness "has indicated any consciousness at all by Mrs.
Robbins."
Over plaintiff's objection, the judge dismissed plaintiff's
damage claim "with respect to the pain and suffering," because
there "needs to be conscious pain and suffering to be part of the
. . . damages that goes to the jury." According to the judge,
"there is nothing in the medical reports or in the observations of
doctors, nurses, emergency personnel, or any of those people that
would suggest that there was conscious pain and suffering." For
the same reason, the judge, over plaintiff's objection, dismissed
plaintiff's damage claim "with respect to the hedonic damages,"
because "hedonic damages would have to be based on the victim's own
loss of enjoyment and all those are simply not available." See
Eyoma v. Falco,
247 N.J. Super. 435, 445 (App. Div. 1991).
As noted, at the end of the first trial, the judge had entered
a total judgment of $44,117 against Whitaker and Coastal. The
judge also stated in the final judgment of September 5, 1996, after
the second trial, that "all compensatory damages, including funeral
and burial expenses, recovered by plaintiff in [the first] trial"
were "recovered pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 et seq." This was a reallocation of the initial judgment of May
30, 1995, after the first trial, when the judge had "molded the
verdict as to funeral and burial expenses pursuant to the
Survivor's Act, N.J.S.A. 2A:15-3 to include the sum of $3,939."
Since 1969, funeral and burial expenses are recoverable and
properly may be allocated to either the survival action, N.J.S.A.
2A:15-3See footnote 1, or the wrongful death action, N.J.S.A. 2A:31-5See footnote 2.
At the motion hearing following the first trial, Coastal's
attorney again observed that, at the beginning of the first trial,
plaintiff's attorney had "candidly admitted before this court that
he did not have one, single solitary witness who would come in here
and say that Mrs. Robbins even for one second survived the accident," or "had any apprehension or fear or fright . . . of an impending death with a crash." Coastal asserted that there had been
a "candid representation" by plaintiff that "there was not any
evidence that he could present on a survivorship claim." Coastal
argued that the "punitive damages aspect of the case must be
dismissed as a matter of law," because "there are no punitive
damages available under the Wrongful Death Act," and because "there
has not been one dime, not one single dime recovered under the
survivorship action."
In response, plaintiff argued that he had "never relied upon
the Wrongful Death Act to establish a claim for punitive damages,"
but instead had "always relied upon the Survivor's Act," because
"punitive damages would be compensable under the Survivor's Act."
Plaintiff's counsel asserted that Coastal misunderstood plaintiff's
concession at the first trial. Plaintiff's counsel asserted:
I never said that the survivor's cause of
action was not being pursued. In fact, it was
pleaded in every count.
Your Honor, I never conceded at any time
that there wasn't a survivor's claim. What I
conceded was that I couldn't produce evidence
of conscious pain and suffering of the decedent. I never said that there was no claim
under 2A:15-3. In fact, legally it stands
alone. I disagree with counsel's assessment
that you can't have punitive damages where no
compensatory damages have been awarded [under
the Survivor's Act]. I disagree with that as
a matter of law. They can be in this State.
In denying Coastal's motion to dismiss plaintiff's punitive damage claim, the judge said there was "no question that in this case, at least insofar as the proofs are concerned, the decedent
died instantly and there was no proof to the contrary"; that is,
"there simply was no proof of cognition that she was alive after
the impact for any period of time." He explained that he had also
dismissed plaintiff's "pain and suffering claim," because there was
"no proof" of "conscious pain and suffering," because Mrs. Robbins
"died instantly . . . without any period of suffering." He
explained that he had previously dismissed plaintiff's claim for
"hedonic damages," because there was "no question" that Mrs.
Robbins "died instantly."
While the judge considered Coastal's argument that "there ...
must be at least a dollar's worth of compensatory [damages]"
recovered under the Survivor's Act "to trigger punitive damages,"
he rejected this argument because the "punitive damage issue should
have a stand-alone basis in a case such as this." Judge Forester
explained:
Punitive damages would have been a claim
available to Mrs. Robbins had she survived. I
believe it should not depend on whether or not
she died instantly or whether or not she died
after an anguishing death. To do so would
place the following unusual circumstance that
someone who was to do something outrageous and
worthy of punitive damages, if the person was
killed thereby, and killed instantly, there
would be no claim for punitive damages.
Whereas if they were less effective in their
method and, consequently, the person lingered
in the hospital for a year, then punitive
damages would apply. I believe that that is
not the intent of the Legislature and I don't
believe that that was the intent of the
decision in Kern [
93 N.J. Super. 459 (Law Div.
1967)].
[I]n a case where survivorship claims are made
and not released and not abandoned, I do not
believe that by granting the motion to dismiss
the pain and suffering aspects of the case,
... that, therefore, the punitive damages ...
under the 2A:15-3 rubric were likewise
dismissed.
For example, it is mentioned there ["in the
punitive damage charge, 620"] that punitive
damages may be awarded for wrongful conduct
even if you have decided not to award compensatory damages citing Nappe v. Anschelewitz,
97 N.J. at page 50.
On this appeal, Coastal argues that "New Jersey case law
concerning punitive damages" requires "an award of compensatory
damages as a predicate to punitive damages." We disagree. As the
trial judge noted, in Nappe v. Anschelewitz, Barr, Ansell &
Bonello,
97 N.J. 37 (1984), a fraud action, the Supreme Court has
ruled to the contrary:
Because of the fortuitous circumstance
that an injured plaintiff failed to prove
compensatory damages, the defendant should not
be freed of responsibility for aggravated
misconduct. People should not be able with
impunity to trench wilfully upon a right.
[97 N.J. at 50 (emphasis added).]
We therefore hold that punitive damages
may be assessed in an action for an intentional tort involving egregious conduct
whether or not compensatory damages are awarded, at least where some injury, loss, or detriment to the plaintiff has occurred.
[Id. at 51 (emphasis added).]
[A] jury would need to find that the plaintiff
suffered some harm as a result of his reliance
on the defendant's fraudulent conduct, even if
he were unable to prove that he was entitled
to compensatory damages.
[Id. at 54 (emphasis added).]
In Stella v. Dean Witter Reynolds, Inc.,
241 N.J. Super. 55
(App. Div.), certif. denied,
122 N.J. 418, 419 (1990), we ruled
that the Supreme Court in Nappe meant exactly what it said:
In Nappe, . . . the Supreme Court declared that "punitive damages may be assessed
in an action for an intentional tort involving
egregious conduct whether or not compensatory
damages are awarded, at least where some
injury, loss or detriment to the plaintiff has
occurred." Id. at 51 . . . (emphasis added).
The phrase, "at least," might be interpreted
as leaving open the possibility that punitive
damages may be available even if a claimant
has not suffered "injury, loss, or detriment."
However, the Court in Nappe expressly held
that the trial judge was correct in
instructing the jury that to justify an award
of punitive damages, "a jury would need to
find that the plaintiff suffered some harm as
a result" of the defendant's intentional tort.
Id. at 54. . . . Our reading of Nappe
requires us to hold that, although an award of
compensatory damages is not a prerequisite to
an award of punitive damages, Sykes cannot
recover punitive damages against Midlantic . .
. unless he suffered "some harm" as the result
of its conduct.
[241 N.J. Super. at 69-70.]
Before the first trial began, Coastal made a "stipulation ... as to negligence and proximate cause." With regard "to who was responsible for the accident," Coastal said it was "acknowledging negligence, acknowledging responsibility for the occurrence of the
accident." On appeal, Coastal concedes that the "nature of the
stipulation was that Coastal was responsible for the occurrence of
the accident," and Coastal does not dispute that the accident
"caused the injuries which resulted in the death of plaintiff's
decedent."
In this context, we cannot say that Mrs. Robbins suffered no
harm from Coastal's conduct. The Supreme Court clearly held in
Nappe that punitive damages may be awarded "whether or not compensatory damages are awarded," as long as "some injury, loss, or
detriment to the plaintiff has occurred." 97 N.J. at 51. We
reject Coastal's contention that plaintiff could not recover
punitive damages under the survivorship action, simply because "no
compensatory damages [were] awarded under the survivorship action."
We also agree with the trial judge's conclusion that a claim
for punitive damages "would have been . . . available to Mrs.
Robbins had she survived," and that this availability "should not
depend on whether or not she died instantly." We question the
judge's comments on how quickly Mrs. Robbins died. He said:
There is no question that in this case,
at least insofar as the proofs are concerned,
the decedent died instantly and there was no
proof to the contrary.
The . . . court granted the motion to dismiss
the pain and suffering portion of the case
because there simply was no proof of cognition
that she was alive after the impact for any
period of time.
In the motion brief after the first trial, plaintiff actually
had not conceded this:
The oil truck being driven by Whitaker continued into the intersection and struck the
Robbins' vehicle on the left front side and
continued traveling over and on top of Helen
Robbins' vehicle, proceeding into a ditch on
the southerly side of County Route 649. . . .
The oil [truck] struck Helen Robbins' automobile with such force that it actually
stretched the vehicle approximately ten feet
and detached the engine and drive train assembly. . . .
It is not known for what period of time
Helen Robbins survived the impact, but Trooper
Terruso testified that[,] when he first
observed her, Helen Robbins didn't appear to
be breathing and appeared to be unconscious....
Clearly, during Helen Robbins' lifetime
the defendants committed a tortious trespass
upon her person. Each act or omission occurred prior to the January 4, 1990 accident
and the tortious act was complete the moment
Coastal's oil truck made impact with Helen
Robbins' vehicle. That the defendant may
claim the serendipity of complete and almost
instant eradication of Helen Robbins' life
does not vitiate the reality of the tortious
conduct, nor that it caused extreme fear to
Helen Robbins upon the realization that the
defendant's oil truck was overtopping her own
vehicle.
N.J.S.A. 2A:15-3 provides that, in those actions based upon the wrongful act, neglect or default of another, "where death resulted from injuries for which the deceased would have had a cause of action if he had lived," the plaintiff's executors or administrators may recover "damages as their testator or intestate would
have had if he was living."
In Kern, 93 N.J. Super. at 462, 469, the alleged tort was
committed on March 9, 1964 and the decedent died, after suffering
"severe pain and agony," on March 18, 1964. The Law Division judge
noted that this factual situation implicated the following
distinction between the Wrongful Death Act (N.J.S.A. 2A:31-1) and
the Survivor's Act (N.J.S.A. 2A:15-3):
The [wrongful] death statute gives to the
personal representatives a cause of action
beyond that which the deceased would have had
if he had survived, and based upon a different
principle, a new right of action.
[93 N.J. Super. at 471.]
A very different legal problem is
presented, however, by the act of 1855, now
designated as N.J.S. 2A:15-3. In this act the
law contemplates compensation to the deceased
person's estate. It is in the interval
between injury and death only that loss can
accrue to the estate, and in that alone is the
personal representative interested. . . . It
is most significant . . . that in this
connection the limitation under the [wrongful
death] act of 1848 runs from the death, and
under the act of 1855 the limitation runs from
the time of the injury inflicted until death.
[Id. at 472 (emphasis added).]
See Soden v. Trenton & Mercer County Traction Co.,
101 N.J.L. 393,
399 (E. & A. 1925) ("It is significant . . . that the limitation
under the act of 1848 runs from the death, while under the act of
1855 the limitation runs from the time of the injury inflicted.")
The Law Division judge in Kern also described how this
distinction affected a claim for punitive damages under the
Survivor's Act:
The question of permitting a claim for
punitive damages under N.J.S. 2A:15-3 . . .
presents a problem of a different nature. It
has been shown supra [93 N.J. Super. at 465-69] that punitive damages will not be permitted in an action brought under the Wrongful
Death Act (N.J.S. 2A:31-1 et seq.) for the
reason that such act is remedial in nature,
and not penal. Claims for punitive damages
for the wrongful death of a decedent have consequently been barred. Such claim, however,
is to be distinguished from that portion of
plaintiffs' claim which seeks punitive damages
for the pain and suffering of decedent prior
to her death, for the reason that this
separate cause of action owes its existence
not to the Wrongful Death Act, but rather to
the survival action statute, designated as
N.J.S. 2A:15-3.
[93 N.J. Super. at 474.]
The Law Division judge in Kern denied defendant's motion to
dismiss plaintiffs' action "under N.J.S. 2A:15-3," which demanded
"punitive damages for the pain and suffering of the deceased prior
to her death." Id. at 475-76 (emphasis added). The judge
explained why:
[T]he case of Messina v. Petroli,
11 N.J.
Misc. 583, 585,
167 A. 767 (Circ. Ct. 1933),
would seem to support awards of punitive damages in actions brought under N.J.S. 2A:15-3.
In Messina, supra, a writ of attachment was
issued in favor of the administrator ad
prosequendum of deceased, in an action in tort
for personal injuries suffered between the
time that the tort was committed and death.
The Hudson County Circuit Court granted
defendant's motion to set aside the writ of
attachment, stating at page 587:
"* * * a general administrator, * * * would under the Executors and
Administrators act of 1855, § 4 (
2 Comp. St. 1910, p. 2260) have the
right to bring an action against the
defendant for pain and suffering and
the other losses recoverable * * *.
In any event, an action for an
outrageous battery committed on the
decedent to recover for pain and
suffering, money losses and punitive
damages should be brought in the
name of the general administrator
and not by an administrator with
limited powers as the plaintiff in
this case." (Emphasis added)
It can thus be seen, therefore, that the
court in Messina, supra, set aside the writ of
attachment not because a claim for punitive
damages cannot be maintained where malice is
alleged, but merely because the action was
brought by the administrator ad prosequendum
under the Wrongful Death Act, and not by the
general administrator under the Executors and
Administrators Act. Such reasoning would at
least imply that an action brought by a general administrator under N.J.S. 2A:15-3 for
punitive damages for pain and suffering of a
decedent prior to his death, where malice is
alleged, is actionable.
[Id. at 475.]
In Messina, 11 N.J. Misc. at 583-84, Concetta Messina was the decedent and her administrator ad prosequendum was Alfred Messina, her husband. In the affidavit upon which the writ of attachment was issued, Alfred Messina alleged the following: "While my wife was in the kitchen cooking supper, . . . Giovanni Petroli did attack my wife and with a gun, shot her a number of times from which shots she instantly died." Id. at 583. The tort was committed upon the "attack" on Concetta Messina by Petroli, following which Petroli "shot her a number of times from which shots she instantly died." This is why the judge in Kern, said
that the tort action in Messina was for Concetta Messina's personal
injuries suffered "between the time that the tort was committed and
death." 93 N.J. Super. at 475.
In Alfone v. Sarno,
168 N.J. Super. 315 (App. Div. 1979),
modified on other grounds,
87 N.J. 99 (1981), we said:
The Wrongful Death Act is distinct from the
so-called "survival action," N.J.S.A. 2A:15-3,
which gives executors or administrators a
right of action for tortious injury or damage
to the deceased or his property incurred prior
to death. N.J.S.A. 2A:15-3. In the usual
case both actions are joined.
[168 N.J. Super. at 323 (emphasis added).]
See Alexander v. Whitman, 114 F.3d 1392, 1399 (3d Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 367, 139 L. Ed.2d 286 (1997) ("The major item of damages in a survival action [under N.J.S.A. 2A:15-3] (aside from funeral and burial expenses) is recovery of the decedent's pain and suffering between the time of injury and the time of death."); Foster v. Maldonado, 315 F. Supp. 1179, 1180 (D.N.J.), appeal denied, 433 F.2d 348 (3d. Cir. 1970) ("Under the New Jersey Survival Act N.J.S.A. 2A:15-3, the damages recoverable are essentially for `pain and suffering' between the time of injury and death."). See also Tirrell v. Navistar Int'l Inc., 248 N.J. Super. 390, 394, 407 (App. Div.), certif. denied, 126 N.J. 390 (1991) (We affirmed the jury award of "$50,000 on the survival action for decedent's pain and suffering" because, while decedent died "practically instantaneously after the truck had crushed his chest," the evidence revealed that "for some finite period the
slowly-moving truck dragged decedent under its wheels" and the jury
could infer that decedent had "some brief but distinct anticipation
of his impending death as well as physical pain and suffering.").
As stated in Kern, 93 N.J. Super. at 457, in a survival action
under N.J.S.A. 2A:15-3, the period "between the time that the tort
was committed and death" is crucial. This is probably why Judge
Dreier in Tirrell, 248 N.J. Super. at 407, was careful to say that
the decedent there died "practically instantaneously" (i.e., that
the decedent continued to live "for some finite period," albeit
"brief," after the truck had crushed his chest).
The "concept of instantaneous death" is of interest here
because some states, for example, "allow the survival only of torts
not resulting in instantaneous death, requiring that instantaneous
death torts be sued for under the wrongful death statute only."
John P. Ludington, Annotation, When is Death "Instantaneous" for
Purposes of Wrongful Death or Survival Actions,
75 A.L.R.4th 151,
§ 2 at 155-56 (1990). A plaintiff is, therefore, perhaps well-advised to allege "a hiatus between the impact and the decedent's
death," because some states, for example, "disallow punitive damages in cases of instantaneous death." Id. at 156-58.
Death rarely may be instantaneous in fact. This was discussed
by the Michigan Supreme Court in Ford v. Maney's Estate,
232 N.W. 393 (Mich. 1930):
In this state . . . the Legislature did not intend to give two remedies for death by negligent act, but that the Death Act and the Survival Act are each exclusive within its sphere. The line of cleavage between them is
whether the death is instantaneous. The legal
test of instantaneous death was devised in
order to afford a practical working of the
statutes, death being seldom instantaneous in
fact.
[232 N.W. at 394.]
The Michigan Supreme Court in Ford relied in part upon its
earlier decision in Olivier v. Houghton County St. Ry. Co.,
96 N.W. 434 (Mich. 1903), where it said:
We see no reason for splitting hairs as
to what is meant by instantaneous death,
though we can appreciate the difference between a continuing injury resulting in
drowning, or death by hanging, throwing from a
housetop, etc., and one where a person survives the wrongful act in an injured condition. . . . See . . . Kellow v. Iowa Cent.
Ry. Co.,
68 Iowa 470,
23 N.W. 740,
27 N.W. 466, . . . where it was held that survival of
the injury for a moment is sufficient to permit the cause of action to vest and survive.
[96 N.W. at 434-35 (emphasis added).]
See Kellow v. Central Iowa Ry. Co.,
23 N.W. 740, 745 (Iowa 1885),
petition for reh'g denied,
27 N.W. 466 (Iowa 1886) ("If the injury
which caused the death is necessarily fatal, and death results in
a few moments from it, it would no doubt be commonly called an
instant death; but, as the person survived the injury for that
brief period, it cannot be said that the death was instantaneous.").
Consider, for example, Justin v. Ketcham,
298 N.W. 294, 294-95
(Mich. 1941), where the opposing counsel agreed that the subject
decedent, Cecil Berersdorfer, had been an "occupant of said (Ford)
car," and that "all of the occupants of the Ford car . . . were
killed instantly" in the "automobile collision." The record also
indicated "that the collision was the cause of Berersdorfer's
death, and that he died as a result of the collision without the
intervention of any other causative factor." Id. at 295. The
Michigan Supreme Court observed that all this did not mean that
Berersdorfer had been "killed instantly by the collision." Id. at
294-96. The Court explained why:
If the death of Berersdorfer was caused
by, or was the result of, the collision, common sense compels the conclusion that both the
cause of death and death itself did not occur
in the same split second. The cause of death
must come first, and the death must follow as
a result. We reach the conclusion that the
agreed statement that . . . [Berersdorfer] was
"killed instantly" means that death was
instantaneous resulting from the collision.
It does not mean that death was precisely
coincidental with the impact.
[Id. at 295.]
The pertinent question in Justin was the existence of "an instant of time," even though no more than a "split second," between the "instant of the tort" and the "instant of death." Id. at 295-96. For example, if the decedent had "died in . . . one-tenth of a second as a result of the tort," the instant of the tort and the instant of death "did not occur in the same split second." Ibid. While the Court in Justin could conceive of an automobile collision case where the death "might be precisely coincidental with . . . [the] tort" (i.e., where the "precise split second ... [of] death occurs `instantaneously' with the act of wrongdoing"),
such was "not the case at bar." Ibid. Under N.J.S.A. 2A:15-3, the
pertinent time period is also "between the time that the tort was
committed and death." Kern, 93 N.J. Super. at 475.
Generally, the plaintiff (i.e., decedent's representative)
"has the burden of proving that death was not instantaneous."
75
A.L.R.4th at 158-59. However, the plaintiff, in carrying this
burden, is favored by the "presumption of continuing life until the
contrary is proved." Fretz v. Anderson,
300 P.2d 642, 649-50
(1956), modified on other grounds and petition for reh'g denied,
308 P.2d 948 (Utah 1957). This presumption was described in
Fontenot v. Southern Farm Bureau Cas. Ins. Co.,
304 So.2d 690 (Ct.
App. 1974), writ denied,
307 So.2d 640 (La. 1975):
Our view is that where the time of death is
uncertain, a legal presumption exists in favor
of the continuation of life, until evidence is
presented sufficient to establish that death
occurred at some specific time or until a
presumption of death established by law
attaches.
[Id. at 693.]
Citing to Fretz and quoting from Fontenot, our Supreme Court in Hake v. Manchester Township, 98 N.J. 302 (1985), commented upon the existence of "a presumption that life continues `until evidence is presented sufficient to establish that death occurred at some specific time.'" Id. at 312 n.3. See Vreeland v. Vreeland, 78 N.J. Eq. 256, 259 (E. & A. 1911) (noting that the "law presumes a continuation of life"). Accord DeSena v. Prudential Ins. Co. of Am., 117 N.J. Super. 235, 240 (App. Div. 1971). See also
Scharwenka v. Cryogenics Management, Inc.,
163 N.J. Super. 16, 20
(App. Div. 1978) (noting that, "while it is ordinarily presumed
that a person alive at a given time continues to exist until his
death is proved," a person's "death may be found as a fact from
proof of circumstances overcoming the presumption"). See, e.g.,
Bowman v. Redding & Co.,
449 F.2d 956, 961 (D.C. Cir. 1971) (noting
the "broadly applicable doctrine" that, "in cases where the time of
death is uncertain, there is a presumption of continuance of
life"); American Sugar Refining Co. v. Ned,
209 F.2d 636, 638 (5th
Cir. 1954) (noting the "presumption in favor of the continuation of
life until the contrary is shown"). This presumption is deemed
conclusive, unless rebutted. In the Interest of Coots v. Burton,
877 S.W.2d 245, 248 (Mo. Ct. App. 1994) ("Life is conclusively presumed to continue until the contrary is shown by sufficient
proof.").
While death rarely may be instantaneous in fact, instantaneous
death can occur. As indicated in Sawyer v. Perry,
33 A. 660 (Me.
1895), electrocution may be an example of instantaneous death in
fact:
Very few injuries cause instantaneous death.
"Instantaneous" means done or occurring in an
instant, or without any perceptible duration
of time, as the passage of electricity appears
to be instantaneous. It is so defined in
Webster's International Dictionary.
[Id. at 661.]
Potomac Elec. Power Co. v. Smith, 558 A.2d 768 (Ct. Spec. App.), cert. denied, 564 A.2d 407 (Md. 1989), overruled on other
grounds, United States v. Streidel,
620 A.2d 905 (Md. 1993),
involved the "electrocution of fifteen-year-old Chrissy Lambert by
the force of an errant 7600 volt power line." Id. at 771. Even
accepting this as a case of "instantaneous death" in fact, the
intermediate Maryland appellate court affirmed the "jury's award of
punitive damages in the survivorship claim." Id. at 793. The
Maryland court in Potomac Electric Power explained why:
Under the unique circumstances before us,
there has been proof of an "actual loss" or a
"showing of compensable injuries" although,
aside from the award for funeral expenses, no
compensatory damages were awarded in the
survivorship action. In arguing that no
punitive damages may be awarded, appellant
shall not be permitted to rely on the fact
that its reckless act instantaneously caused
the death of the 15-year-old decedent. Because punitive damages are not recoverable
under the wrongful death statute, see Cohen v.
Rubin,
55 Md. App. 83, 101-02,
460 A.2d 1046
(1983), in cases of instantaneous death
punitive damages would be precluded under
appellant's theory. Such a result would thwart
the policy of punitive damages "to punish the
wrongdoer for misconduct and to deter future
egregious conduct by others." Exxon Corp. v.
Yarema,
69 Md. App. 124, 137,
516 A.2d 990
(1986), cert. denied,
309 Md. 47,
522 A.2d 392
(1987). To establish a policy rewarding
defendants otherwise liable for punitive
damages for their expediency in causing an
innocent person's death would be absurd. We
refuse to do so, and we uphold the jury's
award of punitive damages in the survivorship
claim.
[Id. at 793.]
While Potomac Electric Power apparently was not cited at the
trial level, Judge Forester's ruling on the punitive-damage issue
significantly reflects much the same reasoning because he said:
Punitive damages would have been a claim
available to Mrs. Robbins had she survived. I
believe it should not depend on whether or not
she died instantly or whether or not she died
after an anguishing death. To do so would
place the following unusual circumstance that
someone who were to do something outrageous
and worthy of punitive damages, if the person
was killed thereby, and killed instantly,
there would be no claim for punitive damages.
Whereas if they were less effective in their
method and, consequently, the person lingered
in the hospital for a year, then punitive
damages would apply. I believe that that is
not the intent of the Legislature and I don't
believe that that was the intent of the
decision in Kern.
The judge may have somewhat over-credited the evidence when he
said that, "at least insofar as the proofs are concerned," there
was "no question" that Mrs. Robbins "died instantly." Granted,
there was "no proof to the contrary," in that there was "no proof
. . . that she was alive after the impact for any period of time."
However, giving plaintiff the benefit of the presumption that life
continues until the contrary is shown, the judge might have assumed
that Mrs. Robbins was alive for a period of time, albeit brief,
after the impact between Coastal's oil truck and her automobile.
But in any event, we conclude that plaintiff's survivorship claim
for punitive damages was legally valid.
While the factual underpinnings of the judge's conclusion may
have been somewhat theoretical, we think his legal conclusion was
sound: "Punitive damages would have been a claim available to Mrs.
Robbins had she survived. I believe it should not depend on
whether or not she died instantly or whether or not she died after
an anguishing death."
We reject Coastal's casuistic or metaphysical argument that as
a matter of law, plaintiff cannot recover punitive damages under
the survival action. Plaintiff's decedent clearly suffered "some
injury" and "some harm" from Coastal's conduct, the predicate for
a free-standing award of punitive damages (without compensatory
damages) under Nappe v. Anschelewitz, 97 N.J. at 51, 54. We also
cannot overlook the reality that reallocation of the burial and
funeral expenses nunc pro tunc to the survivor's action or even an
implied verdict for nominal damages of six cents ($.06) could
supply the necessary underlying procedural predicate for the award.
"Because of the fortuitous circumstance that an injured plaintiff
failed to prove compensatory damages, the defendant should not be
freed of responsibility for aggravated misconduct." Id. at 50.
Coastal next contends that the punitive damage award in the survival action must be set aside because its alleged conduct "did not rise to a level required for consideration for imposing punitive damages." We disagree. Coastal relies heavily upon M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991), where the trial judge held that "[t]o warrant a punitive damage award there must be an evil minded act accompanied by a wilful and wanton disregard of the rights of others." Id. at 480 (emphasis suppled).
In M.G., the Chancery Division judge said:
To warrant the punitive damage award there must be an evil minded act accompanied by a wilful and wanton disregard of the rights of
others. Nappe v. Anschelewitz et al.,
97 N.J. 37, 48 [sic],
477 A.2d 1224 (1984).
[Id. at 480 (emphasis added).]
However, this is not the standard set out in Nappe,
97 N.J. 37,
where the Supreme Court said:
To warrant a punitive award, the defendant's conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an "evil-minded act" or an act accompanied by a wanton
and wilful disregard of the rights of another.
Di Giovanni v. Pessel, supra, 55 N.J. at 191.
[Id. at 49 (emphasis added).]
In Di Giovanni v. Pessel,
55 N.J. 188 (1970), the Supreme
Court said:
An act to give rise to punitive damages
must be actuated by
"(1) actual malice, which is nothing
more or less than intentional
wrongdoing __ an evil-minded act; or
(2) an act accompanied by a wanton
and wilful disregard of the rights
of another. Clearly, each case must
be governed by its own peculiar
facts." La Bruno v. Lawrence,
64 N.J. Super. 570, 575 (App. Div.
1960), certif. denied,
34 N.J. 323
(1961).
[Id. at 191 (emphasis added).]
The correct standard is the one set forth in Di Giovanni and Nappe.
See Gennari v. Weichert Co. Realtors,
148 N.J. 582, 610 (1997).
Plaintiff did not allege that Coastal "knowingly permitted its
vehicle to be operated with defective or deficient braking
systems." But such an allegation would only implicate one of the
two factors, either of which must be found before punitive damages
can be awarded. La Bruno, 64 N.J. Super. at 575. This would be
"an intentional wrongdoing in the sense of an `evil-minded act.'"
Nappe, 97 N.J. at 49. However, such an allegation does not
eliminate the second, alternative factor, which would be "an act
accompanied by a wanton and wilful disregard of the rights of another." Ibid. The second factor's "requirement of willfulness or
wantonness" may be satisfied by proof of a "deliberate act or omission with knowledge of a high degree of probability of harm and
reckless indifference to consequences." Berg v. Reaction Motors
Div.,
37 N.J. 396, 414 (1962). Accord Nappe, 97 N.J. at 49; Di
Giovanni, 55 N.J. at 191.
Plaintiff presented substantial proof to the jury to satisfy
the high standard required for a claim of willful and wanton
conduct creating a high degree of probability of harm and reckless
indifference to the consequences. The 36,000 pound straight-body
oil truck was operated by a completely inexperienced and virtually
untrained driver, who knew nothing about how to adjust air brakes
or how the complex braking system on this oil truck actually
worked.
The truck, a used 1974 Ford, had been purchased by Coastal in
October 1989 and Whitaker, an inexperienced oil truck driver, was
hired to operate this vehicle. Whitaker had no experience with
heavy equipment; he had never operated anything larger than a pick-up truck before employed by Coastal. He never claimed he knew how
to drive a large oil truck. Whitaker testified that he knew
nothing about adjusting the brakes. The oil truck was equipped
with air brakes and Whitaker stated that "after a while" he knew
that the brakes needed adjustment. Whitaker said that he had never
been given the Federal Motor Carrier Safety Regulations. He had no
commercial driver's license nor did he ever obtain the commercial
driver's manual issued by the State of New Jersey. He was never
sent to school for any training.
This oil truck had a front-brake limiting valve which operated
to reduce its front braking power on wet surfaces. When activated,
it prevented the front brakes from locking. However, Whitaker knew
nothing about that device or how it worked.
The air brakes on this truck required brake adjustments
regularly and systematically. The Federal Motor Carrier Safety
Regulations mandated regular maintenance. Pre-trip inspections
were required. Whitaker stated that he only knew how to step on
the brakes to check them. He knew nothing about how to adjust
them. Specific pre-trip braking tests were never explained to him.
Whitaker also said that he was required to fill out driver's
daily logs or pre-trip inspection reports. He said he was required
to check off the items he inspected, but he did not know how to
check the brakes. The driver's daily logs revealed that there were
a number of problems with this vehicle during the two-week period
before the date of Mrs. Robbins' January 4, 1990 fatal accident
with this truck. Whitaker kept noting electrical problems. Fuses
kept blowing, and as a result, turn signals, brake lamps and stop
lights would malfunction. In addition, a blown fuse would cause
the low-brake air-warning buzzer to malfunction. Whitaker testified
that he had no knowledge about how to maintain the truck, and on
the date of this accident, the manager, John Sorenson, did not
check the brakes. Whitaker could not tell whether the brakes were
in good working order except by using them.
Whitaker recorded this truck as being in good working order on
December 15, 1989. However, there were numerous violations found
on that day by Trooper John Herman when the State Police pulled the
truck over for inspection. The vehicle was declared out-of-service
or "redlined" for having no operating low-air warning device, no
rear brake lamps, no windshield wipers, no emergency marking kit,
a broken right vent window, and no legible description of a haz/mat
warning. The brake lamps and low-air warning device were "out of
service conditions." Trooper Herman testified that he was not
aware that Coastal had ever certified that any repairs were
completed after December 15, 1989, though required to do so. On
December 15, 1989, however, Trooper Herman never actually inspected
the brake adjustments. He did, however, testify that repeated
usage of air brakes causes them to go out of adjustment and that
regular maintenance and adjustments were critical.
Before the accident, Whitaker had informed management at
Coastal's Vineland, New Jersey facility that there were problems
with these brakes. He did not know if the brakes had ever been
adjusted, and he stated that the brakes felt "weak" at and before
the time of the accident. Again, Whitaker was not trained on what
to look for or to do if brakes felt weak and needed adjustment.
Between the time of the December 15, 1989 State Police stop
and the time of this accident, there is no indication that repairs
were made. Rather, evidence suggested Coastal knowingly and
deliberately operated the vehicle "out of service" for several
weeks. The driver's daily logs reveal the same electrical problems
that caused this vehicle to be declared "out of service" on
December 15, 1989 continued to exist during the two-week period
prior to this accident. The only record of repair was a January 2,
1990 invoice from a company known as "Met'l Worx." A
representative from Met'l Worx testified the repairs were done on
January 2, 1990. However, these same problems were found after the
January 4, 1990 accident involving Mrs. Robbins. These conditions
were outlined by Trooper Manuel Gordillo and Trooper Herman as
described in the North American Out-of-Service Criteria. Under
North American criteria, a vehicle is deemed unsafe to operate if
declared out-of-service. The North American Out-of-Service
Criteria indicate that the rear brakes on a vehicle like the one
involved in this accident were required to be within adjustment.
One rear brake with an adjustment limit of 2 1/4" renders the
vehicle out-of-service. At the time of this accident, both rear
brakes were at 2 1/4". Either of the rear brakes would have
rendered this vehicle unsafe to drive.
As Whitaker approached the intersection, before the accident,
he testified that his brakes were not working properly. He was
going about 35 to 45 m.p.h. At no time before the impact was he
able to lock his brakes. He said that he observed Mrs. Robbins'
vehicle traveling northbound after he realized that his brakes did
not work. He said he saw Mrs. Robbins' vehicle perhaps five
seconds before impact. In fact, Whitaker testified that he was
standing on the brakes in an effort to make the vehicle stop but
was unsuccessful. Trooper Mario Terruso testified that Whitaker
told him at the scene that he could not stop the vehicle.
Whitaker's truck overtopped Mrs. Robbins' vehicle and literally
tore the engine away from the Lincoln Town Car, causing it to
"stretch out."
Whitaker was questioned as to whether he knew how to perform
a pre-trip inspection of the brakes to make sure they worked
properly. He was questioned by reference to the New Jersey
Commercial Driver's Manual testing procedures. He said that he did
not know how to perform that test. He also did not know what
service criteria rendered the vehicle out-of-service.
In addition to Whitaker's own statements that he was unable to
stop the vehicle, there was testimony from Trooper Manuel Gordillo
and two experts produced by the plaintiff, Graham Thompson and John
Cheruka, that the rear brakes on this truck were not operational
and provided no braking power. Trooper Gordillo testified that a
size 30-clamp type chamber, as on this 1974 Ford, with rear brake
adjustments at 2 1/4" will not cause the brakes to lock. He said
that you will "not have any brakes." Graham Thompson, a mechanical
engineer, noted that with the rear brakes at 2 1/4" of adjustment,
the rear wheels still were moving with the spring brakes activated.
The spring brakes, also known as masix, were the emergency brakes designed to lock the rear brakes in the event of an emergency. Thompson said these are on the same system that operate the rear brakes of the vehicle. Thompson said that they were "totally defective." Thompson also stated that within a reasonable degree of engineering probability, the stopping power of this truck had been reduced between 92