Brian J. Rice v. Christina M. Miller and Richard H. Miller

Submitted by New Jersey Motor Vehicle Accident Lawyer, Jeffrey Hark

On February 8, 2012 around 8:00pm, Brain Rice (plaintiff) was at a pub located on Route 70 in Cherry Hill. Plaintiff randomly decided to go purchase a “Powerball” lottery ticket across the street at the gas station. Plaintiff did not drink the beer he just ordered or put his coat on to walk across the street. It was lightly snowing outside but no snow had accumulated to this point and it was dark outside. Plaintiff started to walk from the Pub to Greentree Road which intersects Route 70 with a traffic light. Plaintiff did not know at the time there was a crosswalk there but in order to get to the gas station you have to cross Greentree Road in two locations. Plaintiff felt that crossing Greentree Road was more dangerous than just crossing right through the middle of Route 70. Plaintiff decided to head more west down the road to cross under a street lamp so he would be more visible. Plaintiff got to the location he wanted to cross at and waited because there were two cars that he saw coming his way. After they passed he started to walk across Route 70 until he was hit by a car. Plaintiff claims he did not see the defendant until, “maybe a couple of seconds” before impact. Plaintiff broke leg and dragged himself off the road after being thrown around eighty feet. Plaintiff claims that he saw the expression of the little girl in the car right before impact. Plaintiff then started to state the defendant did not have her lights on because you could not see through the front window if the lights were on. However, Plaintiff did not bring up the light issue during interrogatories nor did plaintiff mention this during pretrial deposition. During the defendant’s testimony she states, “plaintiff suddenly appeared on the right hand side of her headlights, he was only centimeters away before she hit the brakes as hard as she could.” Both of defendant’s witness’s were in the car and told generally the same story and concluded that the lights of the car had been on with no distractions inside of the vehicle. The jury returned a 7-1 verdict on all questions in reached, “finding that plaintiff and defendant were each negligent and a proximate cause of the accident.” The found plaintiff 75 percent at fault and defendant 25 percent at fault. Plaintiff then moved for a new trial and the court denied. Following the denial plaintiff appealed the decision.

Plaintiff has two arguments which are the trial judge:

1. should have taken judicial notice under the N.J.R.E. 201 that his crossing was lawful and
2. should not have charged the jury with N.J.S.A. 39:4-34, bear upon the analysis.

The issue with this case is in determining the actual distance plaintiff was from the crosswalk. If he was at a reasonable distance the liability would fall more on him than the defendant. During the trial a police officer testified for the defendant. However, plaintiff argues the trial court erred in allowing Sergeant Dolan:

1. to express to the jury, over objection, opinion testimony estimating defendant’s speed at the time of the collision, despite defendant’s failure to designate Dolan as an expert witness; and
2. to rely upon convey the hearsay statement made at the accident scene of other declarants, specifically defendant’s two passengers.

Sergeant Dolan had not observed the accident but he was on duty that night and arrived at the scene. Dolan asked first responder, Officer Ryan Johnston, and other persons at the accident scene and interviewed plaintiff twice at the hospital. Dolan did the measurements at the scene of the crime based on Officer Johnston’s prediction and Dolan knew the “Searle Formula” to calculate speed. Dolan found out that the defendant struck the plaintiff going approximately thirty-two to forty-one miles per hour. Defendant did not expect to designate Dolan as an anticipated expert witness. However, Dolan was not an expert witness but the judge allowed the opinion under the lay opinion rule. There are many issues with allowing lay opinions in trial. In this case the exception of the lean rule is applied which states, “the opinion of a police officer, who had not been appropriately designed by the prosecution before trial as an expert witness, asserting that the defendant had been engaging in hand-to hand drug transactions, was admissible as lay opinion. The court ruled that “Sergeant Dolan’s application of the “Searle formula” extrapolating information to calculate defendant’s speed was too esoteric and too far beyond the “ken” of a layperson to be admissible, without qualifying the officer as an expert witness.” The court affirmed the liability issue but concurred on allowing the officer to testify without being an expert.