SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4344-97T2
SAMIR FATTOHI and NAHLA FATTOHI,
his wife,
Plaintiffs-Appellants,
v.
HELEN E. CARDNER,
Defendant-Respondent.
Argued February 9, 1999 - Decided February 22, 1999
Before Judges Keefe and Coburn.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County.
William D. Levinson argued the cause for
appellants (William D. Levinson & Associates,
attorneys; Mr. Levinson on the brief).
Karen M. Cassidy argued the cause for
respondent (Connell, Foley & Geiser,
attorneys; Ms. Cassidy, of counsel and on the
brief).
The opinion of the court was delivered by
COBURN, J.A.D.
In this automobile negligence action, a jury found both
drivers to be at fault, assessing defendant's responsibility at 49" and plaintiff's at 51%. Accordingly, the trial judge entered
judgment for defendant. Plaintiffs moved for a new trial based on
the failure of the judge to incorporate N.J.S.A. 39:4-123(b) into
the jury charge. After the motion was denied, plaintiffs filed
this appeal. Although plaintiffs raised other issues in their
motion, which are again advanced here, we will limit our discussion
to the charging error since it requires the only relief plaintiffs
seek: reversal of the judgment and a new trial.
The accident happened in the morning of February 23, 1995, at
the intersection of Route 130, a four-lane highway divided by a
grass median, and Stults Road. Plaintiff Samir Fattohi was driving
south on Route 130 in the right-hand lane. He testified that his
vehicle was traveling at fifty miles per hour, five miles less than
the speed limit. Defendant Helen E. Cardner was driving west on
Stults Road, a two-way roadway, intending to make a left-hand turn
so that she also could proceed south on Route 130. She said that
when she reached the middle of the intersection she stopped and
determined that Fattohi's car was far enough away to permit her to
safely finish making the left turn. Then, instead of turning into
the left lane of Route 130, she turned into the right lane.
According to Fattohi, he first noticed Cardner's vehicle from a
distance of approximately thirty feet when it appeared in the right
lane in front of his car. Although he tried to avoid her, the
front left of his car struck the right rear of her car.
At plaintiffs' request, the judge instructed the jury to
consider in determining negligence the standard of conduct set
forth in N.J.S.A. 39:4-90, which, in pertinent part, reads as
follows:
The driver of a vehicle within an
intersection intending to turn to the left
shall yield to a vehicle approaching from the
opposite direction which is within the
intersection or so close thereto as to
constitute an immediate hazard, but the driver
having so yielded, and having given a signal
when and as required by law, may make the left
turn; and other vehicles approaching the
intersection from the opposite direction shall
yield to the driver making the left turn.
We pause to note that read literally this statute is
inapplicable to the instant case because the vehicles were not
approaching each other from "opposite direction[s]." See Rudy v.
Thompson,
186 N.J. Super. 359, 362 (App. Div. 1982). However, in
McGowan v. Barry,
210 N.J. Super. 469 (App. Div. 1986), the court
disagreed with Rudy and held, in essence, that the observations
required of a driver by N.J.S.A. 39:4-90 "are not limited to those
vehicles coming in a directly opposite lane of traffic." Id. at
473-74. We agree with McGowan. See also Spillias v. Radics,
65 N.J. Super. 458, 460-61 (App. Div. 1961); Greenfield v. Dusseault,
60 N.J. Super. 436, 441 (App. Div.), aff'd o.b.,
33 N.J. 78 (1960).
In this case, the judge simply read the statute, which may
well have confused the jury since the vehicles did not approach
each other from opposing directions. Furthermore, the judge failed
to provide the jury with the more generalized left-hand turn charge
set forth in Model Jury Charge (Civil) § 5.20C.See footnote 1
It is within this context that we consider plaintiffs'
contention that the trial judge committed plain error in failing
to charge N.J.S.A. 39:4-123(b), which establishes an additional
standard of conduct for drivers making a left-hand turn:
Except as otherwise provided in this
article, the driver of a vehicle intending to
turn at an intersection shall do so as
follows:
. . . .
(b) Left turns on two-way roadways. At
any intersection where traffic is permitted to
move in both directions on each roadway
entering the intersection, an approach for a
left turn shall be made in that portion of the
right half of the roadway nearest the center
line thereof and by passing to the right of
such center line where it enters the
intersection and after entering the
intersection the left turn shall be made so as
to leave the intersection to the right of the
center line of the roadway being entered.
Whenever practicable the left turn shall be
made in that portion of the intersection to
the left of the center of the intersection.
This somewhat convoluted language is clarified by a drawing immediately following the wording of the statute, which demonstrates that defendant Cardner was obliged to turn her car into the left lane of Route 130. Had she followed that course, and had plaintiffs' vehicle remained in the right hand lane, in all likelihood this accident would not have happened. Thus, defendant's failure to comply with this standard of conduct was of great significance to the outcome of the case.
Aware of defendant's responsibility, the jury might have found her entirely at fault and probably would have determined that even if the other driver was partially to blame, his comparative fault was substantially less than defendant's. The failure to charge this statute was aggravated by the reading of N.J.S.A. 39:4-90, in particular its last phrase, which provides that "other vehicles approaching the intersection . . . shall yield to the driver making the left turn." Had plaintiffs' vehicle been proceeding in the left lane of Route 130, the phrase might well be applicable. But since their vehicle was in the right lane, and since the driver had a right to assume that defendant would comply with N.J.S.A. 39:4 123(b), the need to yield was diminished.
In Ewing v. Burke, 316 N.J. Super. 287 (App. Div. 1998), the court discussed the principles governing a plain error review arising from a trial court's failure to charge an applicable Motor Vehicle Code statute:
Ordinarily, the failure to object to jury instructions when given constitutes a waiver of the right to challenge the instruction on appeal. See R. 1:7-2; State v. Chew, 150 N.J. 30, 82, 695 A.2d 1301 (1997). An Appellate Court may reverse only if it finds plain error. State v. Chew, supra, 150 N.J. at 82, 695 A.2d 1301; R. 2:10-2. In fact, the waiver provisions of R. 1:7-2 are expressly made subject to R. 2:10-2. A reviewing court must evaluate the charge in its entirety to determine if, as a whole, it adequately presents the law and does not tend to confuse or mislead the jury. Conklin v. Hannoch Weisman, 145 N.J. 395, 409, 678 A.2d 1060 (1996). If the charge has the tendency to confuse or mislead the jury, there should be a reversal. Ibid. The absence of an objection to the charge may suggest that trial counsel perceived no error or prejudice and, in any event, prevented the trial judge from remedying any possible confusion in a timely fashion. See State v. Wilbely, 63 N.J. 420, 422, 307 A.2d 608 (1973); State v. Macon, 57 N.J. 325, 337, 273 A.2d 1 (1971); Bradford v. Kupper Associates, 283 N.J. Super. 556, 573-74, 662 A.2d 1004 (App. Div. 1995), certif. denied, 144 N.J. 586, 677 A.2d 759 (1996). Nevertheless an improper jury instruction is a poor candidate for application of the harmless error rule, and a charge which misleads a jury will require a reversal and a new trial. Vallejo By Morales v. Rahway Police Dept., 292 N.J. Super. 333, 342, 678 A.2d 1135 (App. Div.), certif. denied, 147 N.J. 262, 686 A.2d 763 (1996).
The Ewing court reversed the judgment and remanded for a new trial because it was satisfied that "the failure to charge the statute unquestionably had the clear capacity to produce an unjust result." Id. at 294. We reach the same conclusion in this case for the reasons stated above.
Reversed and remanded for a new trial.
Footnote: 1 The model charge reads as follows:
The law imposes upon the driver of a motor vehicle
the duty to exercise the care that a reasonably prudent
person would use under all the circumstances confronting
him/her at the particular time in question. Failure to
exercise such care constitutes negligence.
Obviously the risk of harm will vary with the
circumstances. In some settings that risk is greater
than in others, and, when this is so, a reasonably
prudent person will exercise a greater amount of care in
proportion to the increased risk.
With respect to a left-hand turn, involving as it
does a movement across the path of other traffic, the
risk of harm is ordinarily increased beyond that which
exists when a motor vehicle is proceeding along a direct
course. Hence, with respect to a left turn, a reasonably
prudent person would seek an opportune moment for the
turn and would exercise an increased amount of care in
proportion to the increased danger.
Accordingly, the law provides that a person seeking
to do so has the duty to seek an opportune moment and to
exercise a degree of care in proportion to the increased
danger involved in the turn. Therefore, it is for you to
determine whether a reasonably prudent person charged
with that duty would, under the circumstances of this
case, have made the turn when and in the manner in which
the defendant (plaintiff) here did.