(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued January 17, 2001 -- Decided May 16, 2001
PER CURIAM
The question raised in this appeal is whether the admission of the investigating officer's opinion about the
cause of the accident, as well as his recitation of hearsay statements on which that opinion was based, are errors that
require a retrial.
In January 1995, plaintiffs Joao Neno and Helder Neno were working at a construction site that straddled
both sides of Route One in Princeton. On the day in question, they and several other workers had to walk across
Route One at its intersection with Scudders Mill Road to reach another part of the site. Route One is a four-lane
highway at that intersection and there are no crosswalks.
The workers began to walk through the two southbound lanes of Route One when the traffic light facing
them was green. They walked in front of a truck stopped in the right lane without incident. Another worker who
was in front of plaintiffs successfully crossed the left southbound lane, but when plaintiffs stepped into that second
lane the Route One traffic light turned green. Plaintiffs were hit by a truck driven by defendant Derek Clinton that
was heading southbound on Route One in the left lane. Just prior to the collision, the driver of the truck stopped in
the right-hand lane, William Burnett, saw Clinton look away from the road and into Burnett's driver's side mirror, a
fact Clinton did not dispute. Clinton accelerated prior to reaching the intersection, and was traveling thirty to thirty-
five miles per hour at the time of the collision. Plaintiffs suffered severe injuries.
Officer Kelly, the primary investigating officer, arrived on the scene and interviewed Burnett and another
driver who witnessed the accident as he approached the intersection driving his vehicle in the opposite, northbound
direction. Kelly testified that both witnesses told him that the light facing Route One traffic was green when
defendant's truck struck plaintiffs. The trial court allowed Kelly to testify to the content of the eyewitness
statements over plaintiff's objection because both witnesses would be testifying later in the trial. The trial court also
permitted Kelly to testify, over objection, that in his opinion plaintiffs were at fault because they continued to cross
the road against a red light. The court explicitly refused to qualify Kelly as an expert, instead allowing Kelly to
offer his opinion as a lay witness.
At the conclusion of the trial, the jury returned a verdict of no cause for action, finding that although
Clinton was negligent, his negligence was not a proximate cause of the accident. The Appellate Division majority
affirmed that judgment in an unpublished opinion. A dissenting member determined that the trial court improperly
admitted the opinion of the investigating officer as to the cause of the accident, and concluded that the verdicts were
inconsistent, requiring a retrial. Plaintiffs filed a notice of appeal as of right and a petition for certification. The
Supreme Court granted the petition.
HELD: The admission of the investigating officer's opinion and his testimony reciting the hearsay statements of
witnesses was error. The inconsistency in the verdict demonstrates jury confusion or mistake. A retrial is
warranted.
1. The investigating officer's testimony regarding the eyewitnesses' statements was undoubtedly hearsay. The fact
that the eyewitnesses were scheduled to testify later in trial did not render admissible their hearsay statements. (Pp.
8-9)
2. In a variety of circumstances, an investigating officer's lay opinion may be admissible. Most jurisdictions,
however, do not permit lay opinion testimony that relies on inadmissible hearsay. The Court concludes that a police
officer cannot provide an opinion at trial when that opinion is based primarily on the statements of eyewitnesses.
Any other conclusion would defeat the purpose of the hearsay rule. Here, the hearsay statements of the
eyewitnesses at the scene were critical to the investigating officer's opinion. (Pp. 9-16)
3. For a hearsay error to mandate reversal, there must be a real possibility that the error led the jury to a result it
otherwise might not have reached. Here, the jury heard the substance of the eyewitness statements from a police
officer. A jury's deference to a police officer may have enhanced the credibility of the statements, creating
improper bolstering. The jury also heard the officer's opinion, which was based on the hearsay testimony, that
plaintiffs caused the accident. The jury could have ascribed almost determinative significance to that opinion. The
improperly admitted testimony was clearly capable of producing an unjust result and requires reversal. (Pp. 16-17)
4. The jury here found that defendant was negligent but his negligence was not a proximate cause of the accident.
If defendant was negligent in failing to make proper observations or in failing to properly control his truck, the
Court cannot conceive of any such act that was not also a proximate cause of the accident in these circumstances. If
defendant was negligent, that conduct would have contributed to at least some of plaintiffs' damages.
Apportionment of liability should take place on retrial pursuant to the Comparative Fault Act. (Pp. 17-20)
5. The trial court's initial instructions told the jury that it must determine that defendant was “the” proximate cause
of the accident, rather than “a” proximate cause. The court did subsequently explain that there may be more than
one proximate cause for the accident, and that proximate cause means that the defendant's negligent conduct was a
substantial factor in bringing about the resulting accident. The Court concludes that the recharge cured any possible
defect. The Court offers this observation only as a possible explanation for the inconsistent verdict so that the trial
court can avoid a similar error on remand. The inconsistency that occurred in this case can be avoided by using a
sample verdict form in the Model Jury Charges that simply asks, “Was defendant negligent, which negligence was a
proximate cause of the accident?” (Pp. 20-22)
Judgement of the Appellate Division is REVERSED, and the matter is REMANDED for further
proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA
and ZAZZALI join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
129 September Term 1999
HELDER NENO, JOAO NENO and
MICHELLE NENO,
Plaintiffs-Appellants,
v.
DEREK L. CLINTON and GILSONITE
MUSIC IND., INC.,
Defendants-Respondents,
and
STATE OF NEW JERSEY and "JOHN
DOE", a fictitious name, real
name unknown,
Defendants.
Argued January 17, 2001 -- Decided May 16, 2001
On appeal from and certification to the
Superior Court, Appellate Division.
Arthur J. Messineo, Jr., argued the cause
for appellants Joao Neno and Michelle Neno
and Marc Alan Chase argued the cause for
appellant Helder Neno (Messineo & Messineo
and Chase & Chase, attorneys; Mr. Messineo,
Mr. Chase and Nancy C. Ferro, on the
briefs).
Sara A. Friedman argued the cause for
respondents (Mautone & Horan, attorneys;
Anthony R. Mautone, of counsel and on the
briefs).
PER CURIAM
Plaintiffs sustained serious injuries after being hit as
they walked across a highway intersection by a truck owned by
defendant Gilsonite Music Industries, Inc. (Gilsonite).
Plaintiffs filed suit against Gilsonite and Derek Clinton
(Clinton), the driver of the truck. The jury found that Clinton
was negligent, but that his negligence was not a proximate cause
of the collision, and the Law Division entered judgment for
defendants. The Appellate Division majority affirmed that
judgment in an unpublished opinion. The dissenting member
determined that the trial court improperly had admitted the
opinion of the investigating traffic officer concerning the cause
of the accident. The dissent also concluded that the verdicts
were inconsistent, requiring a retrial. Plaintiffs filed a
notice of appeal as of right, R. 2:2-1(a), and a petition for
certification. We granted the petition, Neno v. Clinton,
165 N.J. 488 (2000), and now reverse.
In January 1995, plaintiffs Joao Neno and Helder Neno were working at a construction site that straddled both sides of Route One in Plainsboro. On the day in question, they and several other workers had to walk across the intersection of Route One, a four-lane highway, and Scudders Mill Road, to reach another part of the site. There are no pedestrian crosswalks at that intersection. The workers began to walk through the first two lanes of Route One south when the traffic light facing them was green. They walked in front of a truck stopped in the right lane without incident. Another worker who was slightly ahead of Joao and Helder successfully crossed the left southbound lane, but when plaintiffs stepped into that second lane the Route One traffic light turned green. Plaintiffs were hit by a truck heading southbound on Route One in the left lane driven by defendant Clinton. Just prior to the collision, the driver of the truck stopped in the right-hand lane, William Burnett, saw Clinton look away from the road and into Burnett's driver's side mirror, a fact that Clinton did not dispute. Clinton accelerated prior to reaching the intersection, and was traveling thirty to thirty-five miles per hour at the time of the collision. Both plaintiffs suffered severe injuries.
Officer Kelly, the primary investigating officer, arrived on the scene after the accident but before Joao and Helder were taken away by ambulance. He interviewed Burnett and Mark Meyer, another driver who witnessed the accident as he approached the intersection driving his vehicle in the opposite, northbound direction.
Kelly testified that Meyer told him that the light facing Meyer's vehicle, which was headed northbound, was green when defendant's truck struck plaintiffs. Meyer's statement established the fact that the light also was green for defendant Clinton as he entered the intersection from the opposite, southbound direction. Officer Kelly also testified that Burnett, the truck driver stopped at the light, told him that the traffic light was green when defendant's truck entered the intersection. The trial court allowed Kelly to testify to the content of the statements of the two eyewitnesses over plaintiffs' objection, concluding that Kelly's testimony was admissible because both Burnett and Meyer would be testifying later in the trial.
The trial court also permitted Kelly to testify, over objection, that in his opinion plaintiffs were at fault because they continued to cross the road against a red light. Officer Kelly's testimony included the following opinion:
[B]ased on all the statements and the investigation that I did at the accident - - of this accident[,] the pedestrians failed to properly cross the intersection. The sequence of events suggest[s] the pedestrians began to cross the roadway after the [Scudders] Mill Road signal turned red and before US Route 1 signal turned green. A slight delay of approximately 4 seconds is utilized where all signals are red. This allows the intersection to clear prior to US Route 1 receiving a green signal.
[Emphasis added.]
The court explicitly refused to qualify Kelly as an expert,
instead allowing him to offer his opinion as a lay witness.
Kelly based that opinion testimony on his investigation of the
scene after the accident and on the eyewitness statements given
to him by Burnett and Meyer.
At the conclusion of the trial, the jury returned a verdict
of no cause for action, finding that although defendant Clinton
was negligent, his negligence was not a proximate cause of the
accident.
Plaintiffs challenge two evidentiary rulings concerning Officer Kelly's testimony. First, they contend that the trial court improperly allowed Kelly to testify to the substance of statements made by Burnett and Meyer at the scene. Second, they assert that the trial court improperly allowed Kelly to testify to his opinion regarding who was at fault in the accident. We address each ruling in turn.
“'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.J.R.E. 801(c). Long considered “untrustworthy and unreliable,” State v. White, 158 N.J. 230, 238 (1999), “[h]earsay is not admissible except as provided by these rules or by other law.” N.J.R.E. 802. The hearsay prohibition “ensure[s] the accuracy of the factfinding process by excluding untrustworthy statements, such as those made without the solemnity of the oath, and not subject to cross-examination . . . or the jury's critical observation of the declarant's demeanor and tone.” State v. Engel, 99 N.J. 453, 465 (1985); see McCormick on Evidence § 245 (5th ed. 1999) (indicating that hearsay statements made out-of-court, not under oath, or not subject to cross-examination may suffer infirmities of perception, memory, and narration if admitted).
One possible exception to the hearsay bar, N.J.R.E. 803(a)(2), allows admission of statements “offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.” Ibid. The scope of the exception encompasses prior consistent statements made by the witness before the alleged “improper influence or motive” to demonstrate that the witness did not change his or her story. See State v. Torres, 313 N.J. Super. 129, 158-59 (App. Div.) (allowing prior consistent statements “to rebut the assertion that [the witness] was fabricating his trial testimony because of a motive to shift the blame to the defendant”), cert. denied, 156 N.J. 425 (1998). A court cannot admit a prior consistent statement unless it falls within the parameters of that hearsay exception.
More importantly, “[a] prior consistent statement offered [solely] to bolster a witness' testimony is inadmissible.” Palmisano v. Pear, 306 N.J. Super. 395, 402 (App. Div. 1997); see also Biunno, supra, comment 4 on N.J.R.E. 607 (noting that “prior consistent statements offered to bolster the credibility of a witness may only be admitted if the requirements of N.J.R.E. 607 are satisfied, i.e., that there has been a charge or suggestion that the testimony of the witness was a fabrication that was belatedly conjured up”); State v. Johnson, 120 N.J. 263, 295 (1990) (holding that “it would be improper to bolster [lay- opinion] testimony by reliance on [a prosecution witness's] qualifications as a fingerprint expert”); State v. Clausell, 121 N.J. 298, 337-38 (1990) (finding that testimony of police sketch artist that widow of victim was “very good” as witness “improperly bolstered the credibility of a key prosecution witness” under predecessor of N.J.R.E. 403, which excludes relevant evidence if “its probative value is substantially outweighed by the risk of undue prejudice”); State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993) (“There is no basis in our law for the expression of an expert opinion as to the truthfulness of a statement by another witness.”)
Burnett's and Meyer's statements, as testified to by Kelly, were undoubtedly hearsay. Kelly testified that Burnett told him that he was stopped at a red light that turned green just prior to the collision. The statement was offered for the substantive truth of the matter, i.e., that the light facing Burnett was initially red, but turned green just before the collision (and therefore that plaintiffs were crossing when faced with a red light). Similarly, Kelly testified that Meyer, the driver approaching the intersection from the opposite direction, told the officer that Meyer had a green light at the time of the accident. The statement was offered to prove Meyer's light was green, and tended to establish that defendant Clinton, who was traveling in the opposite direction from Meyer, also had a green light. As to both Burnett and Meyer, Kelly was permitted to testify to out-of-court statements that were introduced exclusively to prove the truth of those statements. Thus, the trial court improperly admitted those statements because there was no charge of improper influence or motive in this case. The prior consistent statement exception is not applicable to either statement. The fact that Burnett and Meyers were scheduled to testify later in the trial, a fact relied on by the trial court to admit Kelly's opinion, does not render admissible their hearsay statements.
The next question is whether the trial court properly admitted Officer Kelly's lay opinion regarding the cause of the accident, based on the hearsay statements of the eyewitnesses Burnett and Meyer. We conclude, as did the dissent below, that lay opinion based primarily on hearsay statements is inadmissible. Accordingly, the trial court improperly admitted the testimony.
N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.
In a variety of circumstances, New Jersey courts have
concluded that an investigating officer's lay opinion may be
admissible. State v. Locurto,
157 N.J. 463, 471-72 (1999)
(allowing officer to testify that car was speeding); State v.
Haskins,
131 N.J. 643, 649 (1993) (permitting officer to testify
about measurements made between site of alleged drug transaction
and school property); State v. Johnson,
120 N.J. 263, 295 (1990)
(allowing officer to testify about footprint because “footprint
identification is an area in which lay-opinion testimony is
acceptable”); State v. Deluca,
325 N.J. Super. 376, 393 (App.
Div. 1999) (same), certif. granted,
163 N.J. 79 (2000);
Trentacost v. Brussel,
164 N.J. Super. 9, 20 (App. Div. 1978),
aff'd,
82 N.J. 214 (1980) (permitting officer to offer opinion on
high-crime nature of neighborhood); State v. Perez,
150 N.J.
Super. 166, 169 (App. Div.), certif. denied,
75 N.J. 542 (1977)
(permitting officer to offer opinion on voice comparison of
defendant); see also Biunno, Current N.J. Rules of Evidence,
comment 1 to N.J.R.E. 701. This case, however, adds the
additional element of hearsay to the testifying officer's
opinion.
On the issue of the hearsay component of Officer Kelly's lay
opinion, the majority and the dissent below disagreed over the
import of this Court's decision in State v. LaBrutto,
114 N.J. 187 (1989), which overruled Rogalsky v. Plymouth Homes, Inc.,
100 N.J. Super. 501 (App. Div. 1968). In Rogalsky, a case involving
an automobile accident, the plaintiff objected to a police
officer's testimony. The officer first testified to the contents
of a statement given by the defendant some time after the
accident. Id. at 503-04. The court concluded that the statement
was hearsay, not within any recognized exception to the hearsay
bar, and should not have been admitted. Id. at 504. The officer
also gave his opinion, as a lay witness, to the approximate point
of impact. Id. at 504-05. The officer based that opinion on
both his observation of the scene and the statement he took from
the defendant. Id. at 505. The Appellate Division concluded
that the officer's testimony regarding the point of impact was a
proper subject for expert opinion, rather than lay opinion. Id.
at 505-06. Because the trial court had not qualified the officer
as an expert, the Appellate Division concluded that the court
incorrectly admitted the opinion. Id. at 506.
In LaBrutto, we overruled Rogalsky “[t]o the extent that
[it] stands for the proposition that a police officer may not
offer his [or her] point-of-impact opinion” as a lay witness.
LaBrutto, supra, 114 N.J. at 199. In LaBrutto, a police officer
investigated the scene of an accident and at trial offered his
lay opinion concerning the point of impact. Id. at 191-92, 197.
The Court addressed a challenge to that testimony:
We find no reason why an investigating police
officer should not be allowed to testify as a
non-expert based on his own observations
regarding the point of impact of two vehicles
in an automobile accident case. We find no
merit in the position that the police
officer's opinion on the point of impact
should be excluded because it invades the
province of the jury, or that the officer's
testimony is unnecessary because the average
juror can readily determine the point of
impact from the officer's description of the
physical evidence. Nor do we agree that only
a police officer who is qualified as an
accident reconstruction expert can give his
opinion of the point of impact. Contra
Rogalsky v. Plymouth Homes, Inc.,
100 N.J.
Super. 501 (App. Div.), certif. denied,
52 N.J. 167 (1968). To the extent that Rogalsky
stands for the proposition that a police
officer may not offer his point-of-impact
opinion, it is overruled.
[Id. at 199.]
The Court concluded that the officer's opinion testimony was
admissible under the predecessor to N.J.R.E. 701 because it was
based on the officer's own observations at the scene and was
helpful to the jury. Id. at 202.
However, as the dissent below properly concluded, although
LaBrutto overruled Rogalsky, it did not do so “on the point that
the officer was not permitted to base his conclusion on what
others had told him.” In the dissent's view, Rogalsky's
holding that an officer could not offer a lay opinion when that
opinion was based on the hearsay statement of another is still
good law. See Rogalsky, supra, 100 N.J. Super. at 506 (stating
that admission of opinion was error even if officer qualified as
expert, because “it was based, in essential part,” on hearsay
statement). According to the dissent, LaBrutto overruled
Rogalsky on the first point, but not the second and, therefore,
the second prong of the Rogalsky holding rendered Kelly's opinion
testimony inadmissible. The majority, on the other hand, read
Rogalsky to hold only that the point-of-impact testimony is
admissible as expert, rather than lay, opinion. Ibid. (“His
testimony as to the probable point of impact was nothing more nor
less than expert testimony, given by one who concededly is not an
expert.”). The majority below concluded that Rogalsky stood for
no more than LaBrutto overruled.
Neither Rogalsky nor LaBrutto unequivocally indicates which
of the two views is correct. At least one other jurisdiction has
expressly concluded that a testifying police officer cannot
proffer a lay opinion about the cause of an accident when that
opinion is based on hearsay statements from eyewitnesses.
Calhoun v. Chappell,
162 S.E.2d 300, 301 (Ga. 1968) (“A police
officer may not testify on the trial of a tort action resulting
from a motor vehicle collision as to the manner in which the
collision occurred where his testimony is based merely on
statements of what the parties told him, since this is
hearsay.”). Some jurisdictions reject lay opinion testimony
based on inadmissible hearsay while allowing lay opinions when
based on admissible hearsay. See, e.g., United States v. Garcia,
994 F.2d 1499, 1506 (10th Cir. 1993) (admitting witness's opinion
that “your old man” referred to defendant because that statement
was admissible under Federal Rules of Evidence); Henderson v.
State,
113 So. 689, 694 (Fla. 1927) (“Provided he [or she] bases
his [or her] testimony on his [or her] own knowledge and not on
information furnished by another, the opinion, belief, judgment
or impression of an ordinary (non-expert) witness as to the
identity of a person or an object is admissible in evidence.”);
R.A.P. v. State,
575 So.2d 277, 279 (Fla. Dist. Ct. App. 1991)
(holding lay opinion testimony regarding value of damage to
automobile inadmissible when opinion was based on both
observations at scene and hearsay statement); People v. Turner,
235 N.E.2d 317, 321 (Ill. App. Ct. 1968) (holding lay opinion
about identification inadmissible when based on hearsay); but see
Coker v. Burghardt,
833 S.W.2d 306, 310 (Tex. App. 1992) (“Lay
witness opinion may be based on hearsay.”). Thus, in most
jurisdictions, lay opinion testimony that relies on inadmissible
hearsay ordinarily is itself inadmissible.
We conclude, as did the dissent below, that a police officer
cannot provide an opinion at trial when that opinion is based
primarily on the statements of eyewitnesses. Any other
conclusion would allow an officer to subvert the prohibition
against hearsay and pass along the essence of those hearsay
statements to the jury even when the officer is not permitted to
testify to the substance of the witness's statements under the
hearsay rule. Further, the fact that those statements were the
basis for Kelly's lay opinion will not render them admissible
because to do so would defeat the purpose of the hearsay rule.
The purpose of N.J.R.E. 701 is to ensure that lay opinion is
based on an adequate foundation. A lay witness's opinion cannot
rely on the inadequate support of inadmissible hearsay without
the benefit of an exception. Consequently, a police officer
cannot advance an opinion when it is primarily based on the
hearsay statement of an eyewitness.
New Jersey's requirement of personal knowledge also supports
that conclusion. The rule provides, in pertinent part, that “a
witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal
knowledge of the matter.” N.J.R.E. 602. “A person who has no
knowledge of a fact except what another has told him [or her]
does not, of course, satisfy the present requirement of knowledge
from observation.” McCormick on Evidence § 10 (5th ed. 1999);
see also Jacobs v. Walt Disney World,
309 N.J. Super. 443, 454-55
(App. Div. 1998) (holding that hearsay cannot satisfy the basis
for “personal knowledge” certification under Rule 1:6-6). When
the underlying statement is hearsay, there can be no “personal
knowledge” of the substance of the statement, but only knowledge
of the fact that the statement was made.
In this case, Officer Kelly based his opinion concerning
plaintiffs' fault in causing the accident not only on his on-
scene investigation but on Burnett's and Meyer's hearsay
statements. Over objection, Officer Kelly testified:
[B]ased on all the statements and the
investigation that I did at the accident - -
of this accident[,] the pedestrians failed to
properly cross the intersection. The
sequence of events suggest[s] the pedestrians
began to cross the roadway after the
[Scudders] Mill Road signal turned red and
before US Route 1 signal turned green. A
slight delay of approximately 4 seconds is
utilized where all signals are red. This
allows the intersection to clear prior to US
Route 1 receiving a green signal.
[Emphasis added.]
The statements given by Burnett and Meyer at the scene detailed
the timing of the stop lights, a critical element of Kelly's
opinion. Because those statements were hearsay, the dissent
properly concluded that Kelly's opinion was inadmissible.
“For a hearsay error to mandate reversal, '[t]he possibility
[of an unjust verdict] must be real, one sufficient to raise a
reasonable doubt as to whether the error led the jury to a result
it otherwise might not have reached.'” State v. Hightower,
120 N.J. 378, 410 (1990) (quoting State v. Bankston,
63 N.J. 263, 273
(1973)). Officer Kelly testified prior to Burnett's and Meyer's
testimony, giving the jury an opportunity to hear the substance
of their statements from a police officer before hearing their
own accounts. A jury may be inclined to accord special respect
to such a witness. Deference to a police officer in turn may
have enhanced the credibility of the statements of Burnett and
Meyer. It is safe to say that Officer Kelly's testimony created
improper bolstering. Prejudice against plaintiffs may well have
resulted from the admission of those statements. It is true that
prejudice may have been lessened because Burnett and Meyer both
testified at trial, providing plaintiffs an opportunity to
challenge the accuracy of the statements. Officer Kelly based
his opinion on the statements and an investigation that resulted
in a fifteen page report. The trial court improperly admitted
the opinion testimony of Officer Kelly, which squarely pointed to
plaintiffs' fault when he stated that the “sequence of events
suggest[s] the pedestrians began to cross the roadway after the
[Scudders] Mill Road signal turned red and before US Route 1
signal turned green.” That opinion primarily relied on the
witnesses' statements, rather than on the investigation. The
jury heard from a law enforcement officer trained in accident
investigation that he believed plaintiffs caused the accident.
The jury could have ascribed almost determinative significance to
that opinion, which went to the heart of the case. The
improperly admitted testimony was “clearly capable of producing
an unjust result,” R. 2:10-2, requiring reversal.
In Pappas v. Santiago, 66 N.J. 140 (1974), this Court addressed litigation arising out of a two-car collision at an intersection. The jury concluded that one of the drivers, Palmieri, was negligent but that her negligence was not a proximate cause of the collision. Id. at 142. The Court concluded that the verdict required a new trial on Palmieri's negligence and proximate cause:
We do not know from the jury verdict just what negligent conduct or default it found Mrs. Palmieri to be guilty of, but in the circumstances of this case we cannot conceive of any act or omission amounting to negligence on the part of Mrs. Palmieri in the operation of her car that would not have contributed causally to the happening of the accident. On this basis the jury verdict as to Mrs. Palmieri, finding negligence but absence of proximate cause, was patently inconsistent.
[Id. at 143.]
The Appellate Division applied Pappas to another action involving a two-car intersection collision. Giantonnio v. Taccard, 291 N.J. Super. 31, 45 (App. Div. 1996). In Giantonnio, the plaintiff and the defendant were involved in a collision when the plaintiff, as part of a funeral procession, crossed through a signal-controlled intersection and was struck by the defendant. Id. at 37-38. The jury found that the defendant “was negligent in failing to make reasonable observations when entering the intersection, but that such negligence was not a proximate cause of the accident.” Id. at 45. The Appellate Division noted that Pappas involved a similar factual scenario. The court concluded, based on that similarity, that “[a]lthough ordinarily questions of proximate cause are factual ones left to the jury for its determination, the Court's decision in Pappas irresistibly leads to the conclusion that a new trial is required in this case.” Ibid. (citations omitted); see also Menza, supra, 145 N.J. Super. at 45-46 (requiring retrial because verdict that defendant negligently maintained step but that defendant's negligence was not proximate cause of slip and fall was inconsistent).
The dissent in this case concluded that “[i]f defendant was negligent in failing to make proper observations or in failing to properly control his truck, I cannot conceive of any such act that was not also a proximate cause of the accident in these circumstances.” We agree with that conclusion. Assuming that defendant acted negligently, that conduct would have contributed to at least some of plaintiffs' damages. Put another way, if defendant was negligent, he proximately caused at least some of plaintiffs' injuries. Apportionment of liability should take place on retrial pursuant to our Comparative Fault Act. N.J.S.A. 2A:15-5.2
We pause to note that the trial court, in the initial instructions, told the jury that it must determine that defendant was “the” proximate cause of the accident, rather than “a” proximate cause. Plaintiffs objected, but the court declined to correct the charge. That instruction was erroneous. Conklin v. Hannoch Weisman, 145 N.J. 395, 409 (1996) (“The defective portion of the charge . . . incorrectly stated that plaintiffs were required to establish that defendants' negligence was the proximate cause of plaintiffs' losses when in fact and law there may be any number of proximate causes of a given result.”). If the jury followed the court's instruction that defendant had to be “the” proximate cause of the accident, rather than “a” proximate cause, it may have concluded that plaintiffs could not establish that defendant's conduct was “the” proximate cause because plaintiffs' conduct was also “a” proximate cause contributing to the cause of the collision.
Admittedly, the trial court twice mentioned that there may be more than one proximate cause for the accident. In response to a question from the jury, the court subsequently explained proximate cause to mean that “the defendant's negligent conduct was . . . a substantial factor in bringing about the resulting accident,” and stated that the jury had to determine whether “defendant's negligence was a cause of the accident.” Because we consider the jury charge as a whole, Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 464 (2000), we conclude that the charge was not erroneous because the recharge cured any possible defect. We offer these observations only as a possible explanation for the inconsistent verdict so that the trial court can avoid a similar error on remand. The Model Jury Charge on proximate cause succinctly defines the issue and provides the necessary guidance. Model Jury Charges (Civil) §§ 7.10 to 7.14. A sample jury verdict form in the Model Jury Charges simply asks, “Was defendant __________ negligent, which negligence was a proximate cause of the accident?” Model Jury Charges (Civil) § 8.20. That format would likely avoid the inconsistency that occurred in this case.
We therefore conclude that admission of the investigating officer's lay opinion based on the witnesses' hearsay statements and his recitation of those statements was error. We also conclude that the inconsistency in the verdict demonstrates jury confusion or mistake, perhaps caused by the erroneous initial charge.
Reversed and remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA and ZAZZALI join in this opinion.
NO. A-129 SEPTEMBER TERM 1999
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
HELDER NENO, JOAO NENO and
MICHELLE NENO,
Plaintiffs-Appellants,
v.
DEREK L. CLINTON and GILSONITE
MUSIC IND., INC.,
Defendants-Respondents,
and
STATE OF NEW JERSEY and “JOHN
DOE”, a fictitious name, real
name unknown,
Defendants.
DECIDED May 16, 2000
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY