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Driver Not Liable for Failing to See or Interpret Another Vehicle’s Swerve as Evidence of a Pedestrian in the Roadway

On a dark Sunday night in early September, 2021, Jeffrey Pooner (Defendant) was driving his Dodge pick-up at about the speed limit of 50 mph westbound on U.S. Route 30 in Hamilton. That night traffic was heavier than normal, lighting was poor, and visibility was “quite difficult” on that stretch of road. After passing the intersection of CR 542, he saw a vehicle directly in front of him and traveling in the same direction change lanes, which he found “unusual.” Immediately after seeing the car change lanes, he saw a “silhouette” appear in front of his truck. He jammed on the brakes but was unable to avoid striking Nancy Martinez (Plaintiff), who was walking across the road after work. An eyewitness traveling in the opposite direction at the same time saw a car ahead of him swerve “pretty aggressively,” causing the witness to change lanes. As he did so, he also saw a “silhouette” crossing from his lane into Defendant’s westbound lane of traffic. The witness remarked to his wife, “Oh my God, this person is gonna get hit!” immediately before Defendant’s vehicle struck Plaintiff. Defendant testified he never saw the “swerve.” The issue in Martinez v. Pooner, 2026 N.J. Super. Unpub. LEXIS 1285 (App. Div. June 15, 2026) was whether Defendant, who was operating his vehicle within the speed limit at night, breached his duty of reasonable care by failing to observe and interpret an oncoming vehicle’s aggressive swerve as a warning of a pedestrian hazard in the roadway.

During discovery, Plaintiff retained an expert engineer to provide a reconstruction of the accident. Using accepted formulae, the expert determined the swerve occurred about 9.1 seconds before, and Defendant was about 700 feet away from, the time and location of the accident. He also concluded Plaintiff’s location would have been within Defendant’s sight distance at that spot. The expert’s opinion stated that, “if” Defendant saw the swerve and acknowledged that it indicated a hazard existed ahead, and “if” he had reacted to the swerve by applying the brakes in a normal manner, based on his location and speed at the time he saw the swerve, he would have had enough time to stop prior to the point of impact and avoid the incident. However, the expert had no opinion that Defendant had an obligation to see the swerve or that, if he had seen the swerve, that would have resulted in him seeing the Plaintiff.

Defendant moved to bar the expert report and for summary judgment. Defendant’s primary argument in his motion for summary judgment was that the expert’s opinion failed to support the Plaintiff’s claim of liability. The expert had to, within a reasonable degree of engineering certainty, establish Defendant “should” have seen the swerve or the Plaintiff, not “if.” By stating his opinion as an “if” Defendant saw the swerve or the Plaintiff, the expert based his opinion on “unsupported speculation and unquantified possibilities.” Because Defendant’s undisputed testimony clearly established he did not see the swerve, this fact eliminated Plaintiff’s expert’s ability to argue “if” he saw the swerve. Plaintiff’s position was that Defendant “could” have seen the swerve, and that was sufficient evidence to establish negligence. The trial court disagreed; Defendant won summary judgment and the Plaintiff appealed.

The Appellate Division upheld the court’s ruling The Appellate Division focused on Defendant’s duty of care towards Plaintiff, a pedestrian walking across a state highway, in the dark, at a location without an intersection or crosswalk. Plaintiff based her entire claim on the sole premise that a swerve 700 feet ahead should have alerted a driver that there was a person crossing the busy street on foot. However, at no time could Plaintiff establish sufficient evidence that Defendant could have, would have, or should have seen the swerve. Indeed, the only testimony on that fact came from Defendant himself, who provided uncontroverted evidence he did not see the swerve. Further, the Plaintiff produced no evidence to show that a prudent driver would have made the connection between the swerve and that a person was walking across the road. The Appellate Division found that Plaintiff’s theory, including the expert’s report, lacked any basis in the evidence in the matter and was nothing but simple speculation, necessitating dismissal.

Court Determines Plaintiff’s Evidence of Black Ice “Conjecture” in Dismissing Complaint

In December, 2020, Plaintiff Gwenevere Love (Love) walked out of an Acme in Audubon and sustained a serious knee injury when she stepped off the curb and slipped. She went to the hospital four hours later and told the ER nurses, as seen in the ER records, she had slipped and fell on black ice. She filed suit against the Acme (and others) for failure to maintain their premises. In her deposition she testified she did not see black ice, or any ice or snow, in the area, but the ground was cold when she landed and she surmised she slipped on black ice. Love produced weather reports that suggested the weather warmed up during the day, melting earlier snow, then re-froze, causing black ice. Acme moved for summary judgment, claiming there was no evidence of notice or that her fall was caused by a dangerous condition. After the trial court granted the motion and Love appealed, the Appellate Division in Love v. Acme Mkts., Inc., 2026 N.J. Super. Unpub. LEXIS 1041 (App. Div. May 20, 2026) had to determine whether the trial court applied the proper standard in reviewing evidence and making inferences in Love’s favor when deciding the motion for summary judgment.

Long-standing New Jersey law holds that summary judgment should be granted if the facts in the matter show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. An issue of fact is not a “genuine” issue of fact if, for the purposes of the motion, it has a single, unavoidable resolution. In reviewing a summary judgment motion, the trial court must consider the competent evidence and draw all reasonable inferences from that evidence in a light most favorable to the non-moving party.

Love’s position was that the evidence established there was a genuine issue of material fact “beyond mere conjecture, speculation, surmise, or guess” that black ice on Acme’s property, and their failure to inspect for it, caused her to fall. She argued that the facts from her deposition testimony and statements she made to ER personnel that she fell on ice, and the weather reports met the standard. She also argued that the trial judge did not properly apply the standard in drawing all reasonable inferences in her favor and to stay out of resolving factual disputes.

The Appellate Division upheld the trial court, finding that it correctly ruled on the evidentiary issues and concluded there was no genuine issue of material fact that Acme was entitled to summary judgment. The Court agreed that Love’s statement in the ER records that she slipped on ice, made four hours after she fell, was inadmissible hearsay. While those records would be admissible for her statements of pain, they would not be admissible for something non-treatment related, such as the presence of snow or what caused her fall. Further, they found her deposition testimony that she slipped on ice speculative. She only concluded she slipped on black ice circumstantially (the ground was cold, her foot slipped) and, more importantly, she did not see any snow or ice on the ground in the area she fell or in the parking lot. The Court found that while the non-moving party is entitled to the benefit of all favorable inferences, there’s a difference between a favorable inference and speculation. Her testimony that she slipped on black ice was mere conjecture and not based on competent evidence to present a genuine issue of fact. As for the weather reports, without an expert to interpret the data included in the weather reports to link it directly to a thaw and refreeze, the court was under no obligation to use that evidence to draw an inference in her favor. This evidence only established the mere possibility that ice caused her fall, and this was not enough to resolve the issue in her favor.

Importantly, the Appellate Division was satisfied with the role the trial court took to distinguish between inferences and conjecture, and did not intrude on the fact-finding duties of the jury. The Court held that when a trial court’s ruling depends on certain evidentiary issues, the trial court must decide on the admissibility of that evidence. The Appellate Division here approved of the trial court’s weighing and sifting of evidence (determining the ER record to be hearsay, the deposition testimony inadmissible speculation, and the weather report’s need to be supported by an expert opinion), and its function here appropriately stopped short of interfering in fact-finding responsibility that is the sole domain of the jury.

A Plaintiff’s Complaints of Pain Without an Objectively Permanent Injury Fails to Meet the Verbal Threshold

In January, 2019, Plaintiff Martchela Popova-Mladenov was injured in a motor vehicle accident when Defendant Jason Coigne swerved into her lane on I-295 in Mount Laurel, causing her to hit him. She complained of neck pain, but she chose not to go to the ER. A month later, complaining of lower back pain, a doctor took an X-ray, which showed “mild degenerative disc disease.” She had a lumbar MRI a few months later, which showed a pre-existing, degenerative condition to her lower back. In 2021, Popova-Mladenov filed a lawsuit against Coigne, alleging she sustained permanent injuries to her lower back. The issue in Popova-Mladenov v. Coigne, 2026 N.J. Super. Unpub. LEXIS 258 (App. Div. Feb. 12, 2026) was whether Popova-Mladenov met the “verbal threshold” and could prove she had sustained a permanent injury through objective clinical evidence, rather than only exhibiting subjective complaints of pain.

New Jersey’s Automobile Insurance Cost Reduction Act (AICRA) allows drivers seeking New Jersey automobile insurance to choose between one of two tort options: “limitation on lawsuit” and “no limitation on lawsuit.” Those who choose the “limitation on lawsuit” option, otherwise known as the “verbal threshold,” can only succeed in a lawsuit for non-economic “pain and suffering”-type damages if their injuries meet the “verbal threshold.” They can do so by proving they have one of several listed injuries, including, among others, a “permanent injury within a reasonable degree of medical certainty.” They also must prove their permanent injury through accepted diagnostic tests, and not entirely upon their subjective responses or complaints of pain.

Prior to trial, both parties obtained experts to offer opinions on Plaintiff’s claims of injuries to her lower back. Plaintiff’s expert, Dr. Joshua Landa, arrived at the conclusion that the accident caused damage to Popova-Mladenov’s lumbar spine, including a permanent aggravation of pre-existing degenerative changes. Defendant Coigne’s expert, Dr. Seven Carl Hausmann concluded that the objective clinical evidence from the MRIs of her lumbar spine showed her condition was “consistent with degenerative spondylosis, which is age-related” and was not due to, and pre-dated, the accident. Plaintiff produced a second report from Dr. Landa to rebut Dr. Hausmann’s conclusions, confirming that the condition of her lower back pre-dated the accident, but that condition made them “susceptible to injury,” and the pain she experienced after the accident had not resolved and was “likely a permanent injury.” The emphasis on “likely,” included in the opinion, is important.

At trial, Dr. Landa testified on Popova-Mladenov’s behalf, stating that though the objective condition of Plaintiff’s spine pre-dated the accident, he confirmed that his opinion that she had a permanent injury was based on her continued, subjective complaints of pain. After Plaintiff had introduced all of her evidence, Coigne asked the court to dismiss Plaintiff’s complaint. He argued that Plaintiff failed to meet the verbal threshold because Dr. Landa could not prove she had a permanent injury based on objective medical evidence, only Plaintiff’s ongoing, subjective pain. The trial court agreed and dismissed Plaintiff’s complaint, and she appealed.

In reviewing the trial court’s opinion, the Appellate Division focused on Dr. Landa’s opinion that Plaintiff “likely” had a permanent injury, and that, after he admitted the MRI established the condition of her lumber spine was degenerative and pre-dated the accident (and could not show objective evidence of an injury caused by this accident), Dr. Landa based his conclusions as to Plaintiff’s permanency for the purposes of the verbal threshold on her complaints of pain alone. The Appellate Division referred to New Jersey Supreme Court precedent, which stated that subjective complaints of pain, “standing alone, are insufficient to satisfy the verbal threshold,” and a plaintiff must present objective clinical evidence from diagnostic tests, like an MRI, establishing a permanent injury.

Here, the Appellate Division concluded that Dr. Landa could not identify anything in Plaintiff’s lumbar MRI that showed objective medical evidence of an injury caused by the accident. As a result, because his conclusion that she sustained a permanent injury to her lower back was based solely on Plaintiff’s own complaints of pain, and no objective diagnostic test, she could not meet the verbal threshold, and the trial court properly dismissed her complaint.

Court Bars Admission of Prior Conviction at Trial

At the federal court personal injury trial in Erodici v. Boardwalk Regency LLC, 2026 U.S. Dist. LEXIS 72542 (D.N.J. Apr. 2, 2026), one of the pre-trial issues raised was whether the prior criminal conviction of Plaintiff Marcus Erodici was admissible. Evidence of prior criminal convictions can be used to attack the credibility of a witness. The Plaintiff filed a pre-trial motion, called an in limine motion, to exclude evidence of Erodici’s prior criminal conviction for racketeering. Defendant Boardwalk Regency argued that it should be permitted as impeachment testimony.

The applicable court rule of evidence governing the admissibility of criminal convictions under both federal and New Jersey state rules of evidence is Rule 609. Pursuant to this rule of evidence, convictions may be used as evidence of truthfulness for impeachment purposes.

However, under the federal rules (Rule 609(b)), if more than 10 years has passed (as of the date of the trial) since the witness’s conviction or release from confinement, whichever is later, then “evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.”

New Jersey has a similar rule of evidence, in determining admissibility under these circumstances, in which the court will consider:

  1. Whether there are intervening convictions for crimes or offenses and, if so, the number, the nature, and seriousness of those crimes or offenses;
  2. Whether the conviction involved a crime of dishonesty, lack of veracity or fraud;
  3. How remote the conviction is in time;
  4. The seriousness of the crime.

In Erodici, Plaintiff argued that evidence of his criminal conviction for racketeering should be precluded because he was released from incarceration 13 years ago and “the probative value of that conviction does not substantially outweigh its prejudicial effect.” Defendant argued that he was released from probation less than 10 years before the trial and, hence, the 10 year rule would not apply.

The Court found that the fact that Plaintiff was only released from probation within the 10 year period had no relevance to the application of this rule. The time period would run from when he was released from custody, not probation.

Under the federal case law, convictions more than 10 years old are presumptively excluded. Evidence of these types of convictions are admitted “very rarely and only in exceptional circumstances.”

Here, the Court found that the evidence of Plaintiff’s conviction must be excluded at trial. Defendant made no argument for why the probative value of his conviction would substantially outweigh the prejudicial effect. And, the District Court found that this was not one of the “exceptional circumstances” meriting the inclusion of such evidence. The Court noted that his racketeering conviction would have little probative value in this premises liability case.

Thus, the District Court granted Plaintiff’s motion to exclude evidence of his racketeering conviction at his personal injury trial.

Court Dismisses Plaintiff’s Personal Injury Lawsuit Due to Inability to Identify Why Floor Was Slippery

Plaintiff Ann Brilliant slipped and fell inside an Outback Steakhouse but did not know how or why she slipped.  She was unable to identify any specific hazardous condition of the floor or deviation from accepted safety standards.  The issue in Brilliant v. Outback Steakhouse of Florida, LLC, 2025 U.S. Dist. LEXIS 87014 (D.N.J. May 7, 2025) was whether summary judgment should be granted to the defendant Outback Steakhouse due to plaintiff’s failure to identify why the floor was slippery and what caused her to fall.

Plaintiff had met her friend Darsell Pigford for dinner at an Outback Steakhouse in Deptford, New Jersey.  As she was walking to her table, she slipped and fell, breaking her arm and leg.

She testified at her deposition that she did not notice any substance on the floor that caused her to slip.  Rather, she guessed that “the floor was slippery because it had a wax residue on it that made it feel like a sheet of ice.”  However, she denied seeing or feeling any wax residue on the floor.  Plaintiff’s friend, Ms. Pigford, also testified in a deposition that she frequently ate at this Outback and that the floor always seemed slippery but, she was unaware of any particular condition that made the floor slippery.  Although, on one of her prior visits, she had apparently alerted restaurant staff about the slipperiness of the floor.

At the conclusion of discovery, Outback moved for summary judgment, arguing that, as a matter of law, no reasonable jury could find that it negligently maintained its floor.  The District Court found that plaintiff could not survive summary judgment “because she has failed to present evidence outside her and her witnesses’ own subjective characterizations that Outback maintained its floor negligently.”

The Court relied on prior New Jersey case law which held that “the mere fact that a plaintiff falls on a waxed floor is not enough to infer negligence; instead, the plaintiff has to show that the way the floor was waxed – in terms of the nature or quantity of the substance used, or in the matter or time of its application – was such a departure from the normal or generally accepted standards as to create a hazard of a tortious character for the lawful users of the premises.” 

Here, plaintiff failed to produce any evidence that the floor was negligently waxed, or that it was waxed at all.  The Court also pointed to out of state decisions in which courts have held that a plaintiff cannot prevail on a negligence claim when she fails to offer any evidence that the floors were excessively slippery, “other than subjective characterizations about the appearance of the floor.”

Plaintiff had also argued that summary judgment should be denied because Outback failed to produce in discovery a completed opening and closing inspection checklist, as well as a completed facilities inspection checklist.  Instead, Outback had only produced a blank version of the opening checklist.  Plaintiff argued that defendant’s failure to preserve these records should create a negative inference that it either never created the records or that the records were destroyed because they were harmful for the defendant. 

The District Court disagreed with that argument.  Plaintiff had never objected in discovery to Outback’s failure to produce these completed versions of the checklist from the day of the accident.  Further, the Court noted that production of the completed checklists, even if they did exist, would not create a triable dispute of fact.  At most, the checklist would establish that inspections were conducted but not what if anything was observed during the inspections, let alone that any hazardous condition was or should have been detected.

The Court concluded that the undisputed evidence was that there was no admissible evidence of a dangerous hazard on the floor and, as such, the argument that any hazard could have been identified or remedied by an inspection procedure was speculative.  Thus, the District Court granted summary judgment and dismissed the complaint.

  • Evidence

Photographs Showing Mopping of Floor and Caution Sign Placed Post-Accident Barred at Trial As Subsequent Remedial Measure

Plaintiff Pauline Jelken fell in a puddle of water in the lobby of the defendant’s Public Storage facility.  After she fell, an employee mopped the puddle and placed a caution sign on the floor.  Plaintiff sued Public Storage for her injuries suffered from the fall. The issue in Luciano v. Public Storage, 2025 N.J. Super. Unpub. LEXIS 383 (App. Div. Mar. 13, 2025) was whether the trial court judge properly barred Jelken from introducing photographs of the post-accident measures undertaken after Jelken fell, specifically the mopping of the floor and the placing of the caution sign. 

On July 4, 2018, Jelken went to defendant Public Storage’s facility with her friend Arlene Castello to retrieve items she had stored there.  It rained that day and she slipped and fell in a puddle of water in the lobby of the premises.  Jelken reported her fall to the defendant’s employee.  Thereafter, an employee mopped the puddle and placed a caution sign on the floor.

Jelken filed a personal injury lawsuit for injuries she suffered in her fall.  The case proceeded to trial and, among other witnesses, the defense presented a forensic engineering expert, Dr. David Behnken, to testify as to the condition of the floor. 

Prior to trial, the defense made two evidentiary motions, ruled upon by the trial court, one of which will be discussed in this blog article.  One of the motions concerned post-accident photos that showed the floor being mopped and a caution sign placed at the scene of the fall. The defendant sought to bar them from being introduced into evidence at the trial. The trial court judge granted that motion.

The trial court judge asked Jelken’s attorney to state the basis for introducing this evidence.  Jelken’s attorney stated that he intended to use the photographs to demonstrate Jelken “got out of the facility safely.”  The trial court judge ruled that the post-accident photographs were inadmissible under the evidentiary rule, N.J.R.E. 407, which barred the introduction of evidence of subsequent remedial measures.

The judge reasoned that the photos went more to the remedial measures that were taken by the defendant after the accident. While pictures of the condition of the floor at the time of the accident would be admissible, the judge found that the mopping and pictures with the signage around it was not the condition of the floor at the time of the accident and barred their admission at trial.

At trial, Jelken’s attorney sought to revisit this ruling after defense counsel gave his opening statement.  During the opening statement, the defense counsel argued that the floor was slip resistant and that you could pour all the water you want on the floor and you could not slip.  Jelken’s attorney made the argument that defendant sought to portray the floor as slip proof and contended that “the photographs demonstrating defendant’s employee mopped the floor and placed a caution sign refuted the floor’s safety.”

The judge restated his pre-trial ruling that the post-accident photographs constituted inadmissible subsequent remedial measures, precluded under N.J.R.E. 407.  The judge further commented that Jelken had the opportunity to call an expert in the matter to indicate that the floor was not slip proof.  The judge also barred Jelken’s attorney from using the photographs of defendant’s post-accident remedial measures to cross-examine defendant’s engineering expert. 

After hearing all of the testimony, the jury found that plaintiff had failed to prove defendant was negligent and found for defendant.  Jelken filed a motion for a new trial based upon the court’s evidentiary rulings.  That motion was denied and this appeal ensued. 

On appeal, Jelken argued that the judge made a mistake in excluding evidence of defendant’s post-accident safety measures.  In considering this argument, the Appellate Division noted that: “while evidence of safety measures taken after an accident may tend to prove or disprove a fact of consequence, New Jersey has a clear and longstanding public policy favoring the immunization of remedial measures from negative inferences.” 

The Court explained that, pursuant to this rule of evidence, evidence of remedial measures taken after an event were not admissible to prove that the event was caused by negligence or culpable contact.  However, evidence of subsequent remedial conduct may be admitted as to other issues such as to establish control over the instrumentality causing the injury, to show defendant’s customary standard of care, to prove the condition existed at the time of the accident, to show that a feasible alternative for avoiding the danger existed at the time, or to attack the credibility of a witness. 

During the appeal, plaintiff argued that the photographs were relevant to show that plaintiff got out of the facility safely, to show the floor was slippery, and to impeach defendant’s engineering expert who testified the floor was highly slip resistant. 

The Appellate Division found that the trial court judge did not abuse his discretion in precluding evidence of the defendant’s post-accident conduct under N.J.R.E. 407.  The photographs, showing the defendant’s employee mopping a puddle and placing a caution sign were changes and repairs made subsequent to the accident, were precautions taken subsequently to prevent recurrence of an injury and were not admissible as showing negligence or as amounting to an admission of negligence. 

Hence, the Court found that absent a proffer of the photographs to prove some other fact in issue, the evidence of subsequent remedial measures could not be used to show negligence.

The Appellate Division also rejected the argument that the photographs were required to prove Jelken exited defendant’s facility safely.  Both plaintiff and her friend who accompanied her testified that they left the facility without further incident.  While photographs showing the condition of the floor at the time of the fall might be relevant to plaintiff’s negligence claim, photographs of the floor after defendant’s employee took action constituted evidence of subsequent remedial measures which were properly precluded under this rule of evidence.

Plaintiff further argued that she intended to use the photographs of defendant’s post-accident conduct to prove the floor was slippery.  The Appellate Division found that the best evidence in support of this contention was the testimony proffered by plaintiff and her friend during the trial.

The Appellate Division further rejected the argument that the evidence of defendant’s subsequent remedial measures should be admissible to impeach defendant’s engineering expert. During direct testimony, the engineering expert was never questioned as to defendant’s post-accident conduct.  During cross-examination, plaintiff’s attorney hypothetically asked the witness if he had been at defendant’s premises at the time of the fall, whether he would have placed a sign warning people to be careful.  He testified that he would not have directed the placement of such a sign. Because Plaintiff’s counsel, not Defendant’s counsel brought up the issue of placement of the sign, the post-accident photos showing the sign could not be used to impeach the expert’s testimony.

Thus, the Appellate Division ruled that this evidentiary ruling was proper by the trial court judge.  The Court found that the denial of Jelken’s new trial motion was not a miscarriage of justice under the law and affirmed the trial court’s decision.  Accordingly, the jury verdict in favor of the defendant was upheld.

New Jersey Supreme Court Determined That Juries Can View Video in Slow Motion

This matter concerns a challenge to the trial court’s decision to permit the jury to replay surveillance video evidence in slow motion and with intermittent pauses during deliberations in a criminal trial.  Although this case involved a criminal matter, the holding may also be utilized in a civil case.  In the case of State v. Knight, 2024 N.J. LEXIS 1174 (Sup. Ct. Dec. 18, 2024), three men were on trial for robbing a victim behind a deli.  The issue in Knight was whether the trial court properly permitted a surveillance video taken from inside the deli, showing four men walking outside past the deli’s back door, to be played in slow motion during deliberations.

Allegedly, three men robbed a victim behind the deli.  The victim identified defendants as two of the robbers.  However, at trial, defendants disputed the identification and their involvement in the robbery.

During the trial, the State presented a surveillance video taken from inside the deli about six seconds in length, that showed, for about two seconds, four men walking outside past the partially obscured window in the deli’s back door.  In addition to playing the video as part of its case and again several times in closing, the State played the video once in slow motion.

During jury deliberations, the jury requested that the video be replayed several more times in slow motion, at other varying speeds, and with intermittent pauses.  Although the defendants objected, the trial court judge permitted those playbacks under her supervision in the court room.  Ultimately, the jury found defendants guilty of armed robbery and other defenses.

This conviction was appealed to the Appellate Division, which affirmed, finding no reversable error concerning the slow-motion video replays.  The Appellate Division held that relevant “surveillance video evidence may be presented during a trial or closing argument . . . in slow motion or at other varying speeds or with intermittent pauses, if the trial court reasonably finds [it] would assist the juror’s understanding of the pertinent events and help them resolve disputed factual issues.”  Further, the Appellate Division found that “trial courts have the discretion to grant a jury’s request during deliberations to replay surveillance videos in such modes one or more times, provided that the playbacks occur in open court under the judge’s supervision and in the presence of counsel.” 

Further, the Appellate Division ruled that the trial court, in exercising its discretion as to whether to permit the replays of the surveillance videos should consider among other things the following:

A.    Whether the video has a soundtrack that contains recorded statements of the filmed persons;

B.    Whether the video is difficult to discern when played only at a normal speed;

C.   Whether the video can assist in resolving disputed issues of identification;

D.   Whether the video bears upon disputed issues of intentionality; and

E.    Whether the video contains content that is particularly disturbing or inflammatory to watch repeatedly in slow motion.

The Supreme Court agreed with the Appellate Division and affirmed substantially for the reasons expressed in the Appellate Division decision.  The Court concurred with the Appellate Division’s list of non-exclusive factors for trial courts to consider in exercising their discretion. 

Further, the Supreme Court noted that watching a video in slow motion is not beyond the ken of an average juror.  It would not require any kind of specialized knowledge.  It would be similar to a case in which the Court had permitted the use of a conventional magnifying glass during deliberations to view a photograph in evidence.  In that case, the Court had determined that the magnifying glass was not new evidence but nearly a commonplace tool familiar to the jury.

Here, the Supreme Court noted that playing in slow motion the same video that was properly admitted into evidence to highlight the action occurring on screen and assist the jury was no different from allowing a jury to use a magnifying glass to inspect a picture.  However, some tools or functions may be so specialized that their usage constitutes an alteration of evidence or creating new evidence.  In those type of situations, the Court noted that an expert may be needed to testify about the modifications.

Thus, the Supreme Court confirmed the Appellate Division and upheld the trial court’s ruling to permit the video to be played back in slow motion.

Appellate Division Reverses Summary Judgment Order Granted Due to Plaintiff’s Medical Experts Failure to Apportion Her Injuries Among Two Accidents and Her Preexisting Condition

Plaintiff Hellen Bayer was in an automobile accident with defendant Michael Roman on November 22, 2017.  The parties contested the severity of the accident, but plaintiff alleged to have suffered injuries to her neck and back.  The issue in Bayer v. Roman, 2024 N.J. Super. Unpub. LEXIS 2605 (App. Div. Oct. 25, 2024) was whether plaintiff’s personal injury claim should have been subject to a summary judgment dismissal due to her failure to present medical testimony apportioning her injuries between her preexisting condition, injuries suffered from the 2017 accident, as well as potential injuries suffered in a subsequent April 2018 automobile accident.

At her deposition, the plaintiff claimed that the force of the impact was a 9 out of 10.  However, she acknowledged that the damage to her car was minimal, and it did not require repairs.  It was her testimony at depositions that her head struck the back of the seat twice, really hard, and that she also felt the impact to her left leg.  She was taken by ambulance to a local hospital where she complained of neck pain, radiating into her left arm with numbness and tingling into her left shoulder.  It was noted that three months previously, she had spinal fusion surgery at L4-L5.

As it turned out, back in December 2014, plaintiff had been diagnosed with a disc herniation at L3-L4 with degenerative disc changes at L5-S1.  Plaintiff had underwent lumbar spinal fusion in August 2017 before her auto accident with defendant Roman.

Plaintiff was also in a subsequent automobile accident in April 2018 when a car she was driving was struck from behind by a car traveling about 40-50 miles per hour.  As a result of the impact, plaintiff struck her head on the seat back.  She treated at a hospital with complaints of headache, neck pain, back pain and new right sided pain and tingling.   

Plaintiff received medical treatment for both her neck and back, as well as treatment for TMJ.  Her orthopedic surgeon, Dr. Meese, noted that plaintiff had been treating for her neck and back from a prior motor vehicle accident but that the 2017 accident exacerbated the pain in her neck and back, causing an acute exacerbation of cervical and lumbar radiculopathy. 

Plaintiff also obtained treatment from a dentist, Dr. Robert Federman for TMJ syndrome.  He noted that she had no preexisting history of dental injuries and concluded that the motor vehicle accident of 2017 was the probable cause for all of her injuries to her TMJ and related teeth. 

Finally, plaintiff treated with Dr. Cohen, who summarized her prior medical records and related her problems to her November 2017 accident.  He performed a Polk analysis (a comparison analysis of injuries from successive accidents) and opined that she had an aggravation and worsening of her preexisting lumbar fusion surgery after the 2017 accident and now suffered a new injury at the L4-5 level. 

However, neither of the reports of Drs. Federman or Cohen referenced the April 2018 accident. But, Plaintiff only claimed personal injuries for the November 2017 accident and did not file a lawsuit regarding the April 2018 collision.

Defendant did not retain a medical expert.  However, defendant did obtain an accident reconstruction expert and a biomechanical expert.  The biomechanical expert opined that plaintiff’s “claims of injury or enhancement of any preexisting condition resulting from the November 22, 2017 accident are inconsistent with the minimal severity of this incident.”

At the end of discovery, defendant filed for a summary judgment, claiming that the record was devoid of any credible evidence that he caused the accident.  He argued that his expert reports demonstrated that plaintiff’s injuries could not have occurred based upon the forces resulting from this type of accident.  Further, he argued that plaintiff’s experts failed to apportion the injuries between the present accident and her preexisting condition, or the present accident and subsequent accident.

The trial court judge granted the motion, dismissing the lawsuit.  The court “was persuaded plaintiff was unable to prove the accident was the proximate cause of her injuries.”  The trial court judge relied upon the uncontested opinion of the defendant’s biomechanical expert that plaintiff’s injuries could not have been caused by this accident.  Further, the trial court noted that the plaintiff’s medical experts failed to explain why the injuries could not have been caused by the later accident and it noted that a Polk analysis was required to prove causation at this stage of the litigation.  Hence, the trial court granted summary judgment because “no rational fact finder could find in plaintiff’s favor on the issue of causation.”

The Appellate Division reversed.  It noted that plaintiff bears the burden of proving defendant’s negligence and that the defendant’s negligence was the proximate cause of the plaintiff’s injury.   It further noted that “a plaintiff seeking recovery for an injury caused by successive accidents must apportion damages between each responsible party.”  The burden to allocate damages is placed on the party in the best position to present evidence.  Hence, the Appellate Division found that “in successive accident cases where a plaintiff seeks to recover from the original tortfeasor, the plaintiff must prove comparative medical evidence ‘to isolate the physician’s diagnosis of the injury or injuries’ attributable to that tortfeasor’s negligent contact.”

But, the Court found that “whether a claimed injury is an aggravation of a preexisting injury, although possibly relevant on the issue of causation at the time of trial, is not an element of proof plaintiff must satisfy at the summary judgment stage.”  The Appellate Division noted that where an aggravation of injuries is claimed, plaintiff’s own testimony may satisfy that burden of establishing sufficient evidence to present a jury question.

Applying these principles, the Appellate Division found that the trial court judge erroneously determined a Polk analysis was required to defeat summary judgment.  Plaintiff had alleged that her injuries were attributable to the November 22, 2017 accident, which did not worsen after the April 2018 collision.  The Court found that plaintiff could testify at trial about the injuries that she allegedly suffered in the November 22, 2017, accident and to the extent to which both accidents, if at all, exacerbated her preexisting condition.  She does retain the burden of proving her injuries were attributable to the first accident.  It would be up to a jury to decide the weight to ascribe the omission of the April 2018 accident from her experts’ reports.

Further, the Appellate Division also found that there were genuine issues of material fact which precluded summary judgment on medical causation.  Plaintiff had testified at deposition as to the severity of the impact which caused her head to strike the seat back.  Although the defendant presented a biomechanical expert that the force was minimal and caused little damage to plaintiff’s vehicle, plaintiff’s failure to proffer a biomechanical or accident reconstruction expert “may be considered by the jury when assessing plaintiff’s proofs, including her testimony.”  However, the Court found that the facts were not so one-sided that defendant was entitled to prevail as a matter of law.

Hence, the Appellate Division reversed and remanded the matter back to the trial court for further proceedings.

Plaintiff’s Bodily Injury Claim Dismissed Due to Failure to Show How a Subsequent Accident Aggravated Pre-existing Injuries From Prior Accident

Plaintiff Tony Polite was involved in two automobile accidents within thirty days.  The first accident occurred on May 15, 2019, and the second one occurred on June 16, 2019.  Plaintiff claimed to have injured his neck, back, left shoulder, and right knee in the first accident and alleged that those injuries became significantly worse following his second accident.  The issue in Polite v. Kahn, 2024 N.J. Super. Unpub. LEXIS 1699 (App. Div. July 18, 2024) was whether plaintiff had provided sufficient proofs to show that the second accident aggravated his pre-existing injuries from his first accident.

In plaintiff’s May accident, he was t-boned from the driver’s side, causing his vehicle to hit a telephone pole.  He suffered injuries to his cervical spine, lumbar spine, left shoulder, and right knee.  He filed a lawsuit against the driver Estell Norman.  One month later on June 16, 2019, he was in a second car accident in which he was injured by defendant Airshad Kahn’s vehicle.  It caused his chin to strike the steering wheel and his right knee to strike under the steering wheel.  He filed the within lawsuit against defendant Kahn.  These two lawsuits were consolidated and discovery ensued.  He claimed that his symptoms from the first accident became significantly worse following his second accident.

Plaintiff treated with a chiropractor (Dr. Funiciello) who prepared a narrative report.  The chiropractor attributed a direct causal link between plaintiff’s injuries and the May accident.  He also opined that his exacerbations were due solely to the severe injuries to his neck and back following the accident in May 2019.  Thereafter, he settled the Norman matter (the first accident).

Plaintiff then obtained chiropractic treatment with Dr. Wael Elkholy for the injuries suffered in the June accident.  His complaints were of his neck, left shoulder, lower back and right knee.

Following the close of discovery, defendant Kahn filed a motion for summary judgment, arguing that plaintiff had not established his injuries were caused by the June accident or that the June accident exacerbated his injuries from the May accident.   Plaintiff relied on the treatment records from Dr. Elkholy and opposed the motion. 

Before the motion was heard, plaintiff returned to Dr. Elkholy to treat his persistent low back pain.  He obtained a second MRI which now showed a new disc herniation at L4-5 and L5-S1 and a new thecal sac decompression at L4-5 was recommended and was subsequently performed in July 2022.  Plaintiff provided a supplemental certification with these additional medical records.  However, the treatment records from Dr. Elkholy did not causally relate plaintiff’s injuries to the June accident, nor did they state that there was exacerbation of his injuries from the May accident.

The trial court judge granted the defendant’s motion for summary judgment.  The judge found that there was a “complete absence of any report showing either causation or exacerbation from the second accident.”  The injuries from the first accident were severe and the judge found they were still severe when the second accident occurred.  He held that the “lack of any reference to a causal connection between the second accident to the plaintiff’s injuries is fatal to the plaintiff’s case.” 

This decision was appealed.  Plaintiff argued that there should be a reversal because of the inference of fact weighed in his favor, which would permit a jury to find his injuries were caused by the June accident.

The Appellate Division rejected that argument.  It found that there can be no inference drawn from the plaintiff’s treatment records and diagnostic tests related to the June accident.  The progress notes did not state that the June accident was the cause of plaintiff’s injuries.  Further, plaintiff submitted no expert report or proof that the injuries he suffered were caused by the June accident.

Even though there was a lack of proof, plaintiff argued that the June accident aggravated his pre-existing injuries from the May accident.  He pointed to the June 2022 MRI which showed two new disc herniations when compared to the May 2019 MRI.  However, neither Dr. Elkholy’s treatment records, nor Dr. Funiciello’s narrative report attributed any portion of plaintiff’s injuries to the June accident.

 Hence, the Appellate Division found that plaintiff failed to show an aggravation of pre-existing injuries.  The Court further noted that plaintiff failed to produce any comparative evidence regarding his injuries from the May and June accidents.

 In conclusion, the Appellate Division found that the plaintiff could not show the causation element of his negligence claim concerning the June accident.  Because plaintiff failed to establish proximate causation, defendant was entitled to summary judgment.  Thus, the Appellate Division affirmed the trial court decision dismissing the lawsuit.

Defense Counsel Permitted To Cross-Examine Plaintiff Concerning Statements Made In Pre-Accident Medical Records

Plaintiff Monica Graham was awarded $325,000 in damages in a lawsuit she filed against defendant Carole Venetianer for injuries she suffered in a car accident with defendant.  Plaintiff filed an appeal of this jury verdict, arguing that defense counsel should not have been permitted to cross-examine her using medical records not admitted into evidence.  The issue in Graham v. Venetianer, 2024 N.J. Super. Unpub. LEXIS 819 (App. Div. May 8, 2024) is whether the trial court made an error in permitting plaintiff to be cross-examined concerning her prior medical history, as well as focusing on her pre-accident admissions in those records during the summation to the jury.

Plaintiff was in an accident with the vehicle driven by the defendant on April 7, 2016.  Following the accident, she treated for spinal injuries, resulting in spinal surgeries performed by a neurosurgeon in 2018 and 2019.  The plaintiff had medical experts testify for her at trial, which did not include her family doctor, Dr. Linda Guirguis.  However, on cross-examination, defense counsel questioned plaintiff about her prior medical history and confronted her with admissions and statements attributed to her about her pain and therapy regimen in Dr. Guirguis’s medical records.  These records were never admitted into evidence.

The trial court found that the defense’s cross-examination of plaintiff regarding her pre-accident medical treatment was proper.  Upon appeal, plaintiff argued that she was unfairly prejudiced by defense counsel’s use during cross-examination of the pre-accident medical records. 

In analyzing the arguments made by the plaintiff, the Appellate Division noted that under the New Jersey Rules of Evidence, there were certain exceptions to the hearsay rule which permitted an out of court statement.  One of the exceptions is statements made for purposes of medical diagnosis or treatment. (N.J.R.E. 803(c)(4)).  Pursuant to this rule, statements made for the purposes of medical diagnosis would be admissible when used to show the existence of a medical issue.

The Appellate Division concluded that the scope of plaintiff’s cross-examination, to the extent it focused on her medical condition prior to her 2016 accident, was permissible.  The defense asked plaintiff to confirm her pre-accident statements to Dr. Guirguis about her prior neck and back pain, pain from sitting and standing while on vacation, two visits to her radiologist, continuous follow up on neck and back complaints and a prescription for pain medication.   The statements made by plaintiff were made to Dr. Guirguis for the purpose of obtaining a medical diagnosis or treatment.

The Appellate Division also found that plaintiff was not unfairly prejudiced by defense counsel’s reference to the same medical records in summation.  First, it noted that plaintiff’s counsel failed to object during the summation.  In the appeal, Plaintiff had targeted that part of defendant’s closing which referenced her visits and physical complaints to her family doctor in 2015.  The Appellate Division found that there was “nothing in defense counsel’s closing that could be characterized as plain error which was clearly capable of leading to an unjust result.”  Thus, the Appellate Division refused to disturb the trial court rulings and the jury verdict. 

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