NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4635-07T14635-07T1

VIRGINIA COCKERLINE, as

General Administratrix and

Administratrix ad Prosequendum

of the ESTATE OF MARK COCKERLINE,

Plaintiff-Respondent/

Cross-Appellant,

v.

ERIKA MENENDEZ,

Defendant,

and

KEVIN CLARK and UNITED PARCEL

SERVICE, INC.,

Defendants-Appellants/

Cross-Respondents.

______________________________________

BRIGITTE NGUYEN,

Plaintiff,

v.

ERIKA M. MENENDEZ, KEVIN CLARK,

and UNITED PARCEL SERVICE, INC.,

Defendants,

and

ERIKA M. MENENDEZ,

Defendant/Third-Party

Plaintiff,

v.

VIRGINIA COCKERLINE, as General

Administratrix and Administratrix ad

Prosequendum of the ESTATE OF

MARK COCKERLINE,

Third-Party Defendant.

______________________________________

Argued October 6, 2009 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Union County, No. L-4172-04.

Caryn L. Lilling (Mauro Goldberg & Lilling)

argued the cause for appellants/cross-respondents (Wilson Elser Moskowitz Edelman & Dicker, and

Ms. Lilling, attorneys; William Riina and Ms.

Lilling, of counsel and on the brief).

Elizabeth H. Hamlin argued the cause for

respondent/cross-appellant (Garrity, Graham,

Murphy, Garofalo & Flinn, attorneys; Ms. Hamlin,

on the brief).

Karen L. Jordan, Deputy Attorney General, argued

the cause for intervenor/cross-respondent State of

New Jersey (Anne Milgram, Attorney General, attorney;

Lewis A. Scheindlin, Assistant Attorney General,

of counsel; Ms. Jordan, on the brief).

The opinion of the court was delivered by

WEFING, P.J.A.D.

Plaintiff filed a wrongful death action following the death of Mark Cockerline on January 2, 2003. The jury returned a verdict in plaintiff's favor, and the trial court entered a judgment in the aggregate amount of $2,331,536.27 against defendants Kevin Clark and his employer, United Parcel Service, Inc. ("UPS"). That sum included $1,500,000 for pain and suffering; the balance represented the jury's award for economic loss and amounts permissible under Rule 4:58, offer of judgment. Defendants Clark and UPS have appealed from that judgment. Plaintiff has cross-appealed, challenging the trial court's post-trial ruling with respect to the validity of the collateral source statute, N.J.S.A. 2A:15-97. After reviewing the record in light of the contentions advanced on appeal, we reverse the judgment and remand for further proceedings; with respect to the cross-appeal, we affirm.

I

The underlying lawsuit was filed to recover damages following the death of Mark Cockerline on the evening of January 2, 2003. The circumstances immediately surrounding Mr. Cockerline's death were unclear as the only person who may have possessed direct knowledge, Brigitte Nguyen, did not testify at trial, and she was not deposed. Her answers to interrogatories were singularly uninformative. Ms. Nguyen had filed her own action for damages, which was consolidated with this lawsuit. It was dismissed, however, when she did not appear for her deposition. Certain statements she made immediately following the accident were admissible at trial as excited utterances. N.J.R.E. 803(c)(2). That ruling is not challenged on appeal.

Ms. Nguyen was a passenger in Mr. Cockerline's car, a blue Audi, as they were driving north on the eastern spur of the Turnpike, toward Secaucus. There was testimony that it had drizzled during the day, but in the evening hours, the drizzle turned to freezing rain, making the roadway slick. At some point, in the vicinity of milepost 110, Cockerline pulled his vehicle onto the shoulder of the Turnpike, closely abutting the right-hand barrier. There was no direct testimony explaining what led Cockerline to pull his car off the roadway.

Kevin Clark was employed as a tractor-trailer driver for UPS. He was working on January 2 and picked up his last load between 7:00 p.m. and 7:15 p.m. He testified that it was drizzling as he headed out to deliver his load to the UPS facility in Secaucus and was driving in the right lane of the Turnpike at fifty to fifty-five miles per hour. He said that shortly after he picked up that load, the precipitation had turned to freezing rain, and he reduced his speed to between thirty and forty miles per hour. Clark said he was heading up a hill toward milepost 110 on the Turnpike, in the right lane, with another tractor-trailer to his left. As he crested the hill, he saw the lights of another vehicle some distance ahead, and he said he applied his brakes to slow down. He said the driver of the tractor-trailer to his left did as well and that when the driver did so, that vehicle slid to its right, sideswiping the cab of Clark's UPS truck. Clark said he counter-steered to maintain control of his tractor-trailer and that the two trucks again came into contact. Clark said that because he needed both hands on the wheel to control his vehicle, he was not able to downshift. Despite his efforts, Clark was not able to stop his truck, and he hit the rear of the car he had been trying to avoid, a Honda, which was driven by Erika Menendez.

Ms. Menendez testified that she had been driving north on the Turnpike from Newark to Secaucus with her sister-in-law and her two young children, both of whom were in car seats in the rear. She said she was driving approximately thirty miles per hour because of the freezing rain and that when she came over the crest of the hill, she saw a car some distance in front of her that was perpendicular to the roadway, in her lane. She also saw another car, a blue Audi, pulled off the road and next to the barrier on the side. She testified that she thought those two vehicles had been involved in an accident and she brought her vehicle to a stop to avoid hitting the car in her lane. She was then struck in the rear by the UPS truck and pushed forward into the car that had blocked her lane. Her car was so severely damaged in this accident that it could not be repaired.

Both the driver of the car that Ms. Menendez struck and the driver of the tractor-trailer that side-swiped Clark'S UPS truck, departed the scene; they were never identified. Throughout the course of the proceedings, both vehicles were referred to as phantom vehicles.

There was testimony that the UPS truck jackknifed, with its trailer going into the shoulder. Clark denied that his truck jackknifed. He said that the trailer swung to the right but did not jackknife. The trailer came to rest near Cockerline's Audi that was stopped on the shoulder.

Clark said he ran from his truck to check on the condition of the people in the Honda and that none appeared to be injured. At that point, Ms. Nguyen came up to Clark and to Joseph Fazio, a passing motorist who stopped to render assistance. Both Clark and Fazio said that Ms. Nguyen was crying and appeared distraught and that she asked them to help her find her boyfriend.

Fazio testified that Nguyen said her boyfriend had jumped over the barrier. He looked over the barrier and saw what appeared to be the body of a man. Fazio called down and received no response. He said he did not tell Ms. Nguyen what he observed but put her in a nearby car to try to calm her down.

At about that time, Trooper Michael Rohrman arrived, having been dispatched in response to a call of several accidents near Turnpike milepost 110. Rohrman also testified that he was approached by a distraught Ms. Nguyen. She told him that she and her boyfriend, Mark Cockerline, had been driving home in his blue Audi when they were involved in an accident and ended up on the shoulder of the road. Their car was so close to the barrier on the right side that she could not open the passenger door. She said that Cockerline got out of the car and was standing near the headlight on the driver's side when he began to yell at her to get out of the car. Rorhman testified that Ms. Nguyen told him that she saw Cockerline move toward the barrier and then jump over it. Plaintiff established that the bridge was approximately one hundred feet from the ground at that point. Rohrman looked over the barrier and saw Cockerline lying face up on soft, marshy ground directly below the Audi and the UPS truck. He immediately summoned an ambulance.

Rohrman examined the UPS truck, Cockerline's Audi and Menendez's Honda. He saw signs that Cockerline's Audi had been sideswiped on the driver's side and that it had been damaged on the passenger's side when it came in contact with the barrier. The UPS truck had damage to the left side of the cab, in the area in which Clark said he had been sideswiped by the other tractor-trailer. The UPS truck also had damage to its front end from striking the Menendez car. The Menendez car had significant rear-end damage from being hit by the UPS truck as well as damage on its right side. No part of the UPS tractor-trailer was touching the Cockerline car, and Rohrman did not see any sign that the UPS tractor-trailer had struck the Cockerline car.

Based upon his visual inspection of the vehicles, Rohrman concluded that Menendez had slid on the ice and struck the Cockerline car and that the accident between Menendez and Cockerline occurred before the accident between Menendez and Clark. He did not believe there was any contact between Clark's truck and the Audi nor that there was any connection between Clark's truck and Cockerline's death. Because of the weather conditions, and the number of accidents at the scene, he did not take any measurements that night.

Plaintiff presented an expert on liability, Steven Schorr, a professional engineer. Although Schorr had experience in accident reconstruction, he did not qualify as an expert in that field in this case. Because of the lack of physical evidence, he was unable to reconstruct the circumstances of Cockerline's death. Schorr limited his testimony to Clark's sight distance as he approached the crest of the hill and the amount of time required for Clark to bring his truck to a halt after seeing the Menendez vehicle ahead of him. Schorr said Clark, at 100 feet from the crest of the incline, would have had a sight distance of 1,000 feet and that if he had been driving forty miles an hour, he should have been able to stop the truck within 385 to 625 feet. He also testified that if Clark had been driving thirty miles an hour, he could have brought his truck to a stop within 283 to 389 feet. Schorr did not express an opinion directly on the question of whether Clark had been negligent in his operation of the tractor-trailer. Nor did he express any opinion on whether the extent of the damage to Menendez's vehicle, or the fact that its occupants evidently were not severely injured, was an indication of Clark's speed at the time of impact.

An autopsy was performed on Cockerline. This revealed that he had multiple rib fractures, that both his femurs were broken, and that his aorta had been completely ruptured. While his skull was not damaged, there was a hematoma to one portion of the brain.

Plaintiff retained Haresh G. Mirchandani, M.D., as an expert in forensic pathology. Dr. Mirchandani reviewed the results of the autopsy and issued a report in which he stated his opinion that Cockerline's legs were broken when he was struck from behind by a vehicle as he was walking. He further stated that these fractures could not have occurred as a result of a fall from such a height.

In his testimony, Dr. Mirchandani said the rupture to the aorta was caused by Cockerline's fall from such a height and that his death was the result of the internal bleeding from the ruptured aorta. He said Cockerline would survive ten to fifteen minutes before bleeding to death. He also explained that Cockerline's chest was crushed and that both his lungs were punctured, depriving him of the ability to breathe. He agreed that the resultant loss of oxygen would lead to death in a shorter time. Dr. Mirchandani explained that the femurs are the strongest bones in the body; this, combined with the fact that there were no fractures to Cockerline's ankles, shin bones or knees, led him to conclude that the fractures to the femurs were not the result of Cockerline's fall. He also testified that Cockerline, with two fractured femurs, would not have been able to move toward the barrier and jump over it.

At the time of the accident, Cockerline was married to Virginia Cockerline, and they had two children who were thirteen and twelve years old when their father died. Cockerline was separated from his wife, and the two were engaged in divorce proceedings when the accident occurred. Plaintiff's claims for economic loss thus encompassed the alimony and child support she would have received if the divorce litigation had proceeded to its anticipated conclusion, as well as the children's claims for the loss of their father's services.

The tractor-trailer that Clark was driving was equipped with an "in-vehicle information system" or "IVIS," which, among other things, recorded the vehicle's speed and brake applications. The UPS protocol called for that information to be stored on a UPS computer for thirty days unless the vehicle had been involved in a "serious" accident. In the case of a "serious" accident, the IVIS data was to be printed out and retained, and no repairs were to be made to the particular vehicle. Clark's truck was repaired several days after the accident and the IVIS data was purged after thirty days.

After the accident, plaintiff notified Cockerline's insurance carrier, Clarendon, of a claim for uninsured motorists (UM) benefits based on the actions of the phantom vehicles on the evening of January 2. When plaintiff filed her suit, she included Erika Menendez as a defendant, as well as a number of John Doe defendants. She also included a claim for spoliation of evidence and fraudulent concealment, based upon UPS's failure to retain the IVIS data.

Clarendon was given leave to intervene in this action. At some point during the pendency of the litigation, plaintiff settled her claim against Menendez. She also settled with Clarendon for UM benefits of $185,000. As part of that settlement, Clarendon agreed to forego any reimbursement from whatever recovery plaintiff might achieve in the litigation. When the matter was finally submitted to the jury, neither Ms. Menendez nor the phantom vehicles were included on the verdict sheet. After deliberations, which spanned four days, the jury returned its verdict.

II

Defendants raise a number of issues on appeal, the first group of which deal with the instructions given to the jury. They contend that the trial court erred in three respects in its charge: its decision to include res ipsa loquitur; its refusal to include the question of the comparative negligence, if any, of the phantom vehicles and Menendez; and its decision to instruct the jury that it could draw an adverse inference from UPS's failure to preserve the IVIS data. For the following reasons we agree with defendants with respect to their first two contentions but not with respect to the third.

A

To prevail on a claim of negligence, a plaintiff must establish that the "defendant breached a duty of reasonable care, which constituted a proximate cause of the plaintiff's injuries." Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984). "Ordinarily, negligence is . . . 'a fact which must be proved and which will never be presumed.'" Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 95 (1999) (quoting Meny v. Carlson, 6 N.J. 82, 91 (1950)).

The principle of res ipsa loquitur, however, creates "an allowable inference of the defendant's want of due care," with respect to an injury-producing occurrence, upon a showing that "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality [causing the injury] was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect." Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958). "The effect of the doctrine is to establish a prima facie case by permitting the jury to infer negligence." Buckelew v. Grossbard, 87 N.J. 512, 526 (1981). "Res ipsa loquitur is not a theory of liability; rather, it is an evidentiary rule that governs the adequacy of evidence in some negligence cases." Myrlak, supra, 157 N.J. at 95 (citing Brown, supra, 95 N.J. at 288).

The fact that there is no explanation for an accident does not, by itself, entitle a plaintiff to invoke res ipsa loquitur. Jimenez v. GNOC Corp., 286 N.J. Super. 533, 545 (App. Div.), certif. denied, 145 N.J. 374 (1996). "Rather, a plaintiff has the burden of producing evidence that reduces the likelihood of other causes so 'that the greater probability [of fault] lies at defendant's door.'" Ibid. (quoting Eaton v. Eaton, 119 N.J. 628, 640 (1990)).

"Res ipsa loquitur is grounded in probability and the sound procedural policy of placing the duty of producing evidence on the party who has superior knowledge or opportunity for explanation of the causative circumstances." Buckelew, supra, 87 N.J. at 526 (citing Bornstein, supra, 26 N.J. at 269). This foundational premise for res ipsa loquitur rests upon one of the doctrine's elements, that the instrumentality causing the injury was within the defendant's exclusive control. Jerista v. Murray, 185 N.J. 175, 192 (2005); Myrlak, supra, 157 N.J. at 95.

At the conclusion of plaintiff's case, defendants moved for a directed verdict, contending that plaintiff had not established a prima facie case of negligence. Plaintiff opposed this motion and asserted that she had established five potential scenarios under which defendants would be liable: that Cockerline was so frightened by the UPS truck swerving toward him that he jumped over the barrier; that some portion of the UPS truck struck Cockerline directly and propelled him over the barrier; that some portion of the UPS truck hit Cockerline's Audi and pushed it into him, propelling him over the barrier; that some portion of the UPS truck hit Menendez's car and pushed it into Cockerline, propelling him over the barrier; or some portion of the UPS truck hit Menendez's car and pushed it into Cockerline's car which in turn struck him, propelling him over the barrier.

During the course of the argument, the trial court ruled that there was no evidence that the UPS truck hit Cockerline or his car and it struck those theories of liability. It held that the only theories of liability supported by the evidence were that Cockerline had jumped out of fear or that the UPS truck hit Menendez's car and pushed it either into Cockerline or into his Audi. As the parties have framed the issues before us, we are not called upon to consider whether the trial court's action was correct.

Further, during the argument, the trial court concluded that plaintiff was entitled to have the jury receive a res ipsa charge. Accordingly, at the end of the case, the trial court gave the following instruction to the jury.

Now with respect to that doctrine of res ipsa loquitur. In any case in which there is a claim that the defendant was negligent, it must be proven to you that the defendant breached the duty of reasonable care which was a proximate cause of the plaintiff's injuries. Generally, the mere fact that an accident happened with nothing more does not provide proof that the accident was a result of negligence.

In a negligence case, the plaintiff must prove that there was some specific negligent act or omission by the defendant which proximately caused the accident. However, in certain circumstances the very happening of an accident may be an indication of negligence. Thus, the plaintiff may, by providing facts and circumstances, establish negligence by circumstantial evidence. If the instrumentality causing the injury was in the exclusive control of the defendant and if the circumstances surrounding the happening were of such a nature that in the ordinary course of events the incident would not have occurred if the person having control of the instrumentality had used reasonable care under the circumstances, the law permits but does not require the jury to infer negligence from the happening of the incident.

Plaintiff's voluntary act or negligen[ce] contributing to the occurrence prevents the inference from being drawn. . . . The mere fact that Mark Cockerline was present, does not defeat the inference. Rather you must find that Mark Cockerline's action or negligence was a proximate cause of the occurrence to prevent an inference.

. . . .

In summary, if you find by the greater weight of the evidence that at the time of the incident the defendant had exclusive control of the instrumentality causing the occurrence, that the circumstances were such that in the ordinary course of events the incident would not have occurred if the defendant had exercised reasonable care and that the plaintiff's voluntary act or negligence did not contribute to the occurrence, then you may infer that the defendant was negligent.

If you do infer that the defendant was negligent, then you should consider the defendant's explanation of the accident. If the explanation causes you to believe that it is no longer reasonable to infer that the defendant was negligent, then the defendant is entitled to your verdict. But if giving fair weight to all of the worthwhile evidence you decide that it is more likely than not that the defendant was negligent, then your verdict should be for the plaintiff.

We agree with defendant that under the evidence presented at trial, res ipsa loquitur was inapplicable because it is impossible to conclude that the instrumentality causing the injury was within defendant's exclusive control. Indeed, it is not even clear what was the instrumentality that caused the injury. Multiple factors were at work, not all of them human; a non-exclusive list includes, in addition to Clark's operation of the UPS truck: the weather; the phantom tractor-trailer that sideswiped the UPS truck, interfering with Clark's ability to bring it to a stop; and the phantom car stopped perpendicular to the flow of traffic which caused Menendez to stop in a lane of traffic.

Further, not only is it unclear from this record what led to Cockerline going over the barrier, it is also unclear when he went over the barrier. There is no evidence that he was still standing on the shoulder as Clark attempted to control his tractor-trailer and bring it to a stop. Ms. Nguyen's statements related during the trial did not include any mention of hearing or seeing a careening tractor-trailer before she saw Cockerline go over the barrier.

Plaintiff's failure to establish this critical element of the doctrine of res ipsa loquitur is fatal to its application to her case. "[B]efore the doctrine of res ipsa loquitur operates to shift the burden of persuasion to the defendant in a negligence case, the plaintiff first must meet all of the elements of the three-part res ipsa loquitur test, and . . . a plaintiff's failure to prove any one of those elements by a preponderance of the evidence renders the doctrine and its concomitant burden-shifting unavailable to that plaintiff." Szalontai v. Yazbo's Sports Caf