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Court Denies Defendant Motorist Request for Mockler Jury Charge

Plaintiff Melissa Presbery was stopped at a red light when she was rear ended by defendant Jason Willitts.  Willitts was unable to stop due to a wet roadway.  The issue in Presbery v. Willitts, 2025 N.J. Super. Unpub. LEXIS 406 (App. Div. Mar. 17, 2025) was whether the trial court correctly denied the defendant’s request for a Mockler jury charge, as well as some other trial errors alleged by the defendant.

According to the defendant’s testimony, he could not recall if it was raining but the roadway was wet because it had rained.  He was in the right hand lane and observed the red traffic light as he approached the intersection where plaintiff was stopped.  He noticed fewer vehicles in the left lane, so he moved into that lane.  As he was slowing down for the red light, he could not control his vehicle and his car hydroplaned, could not stop and he lost control.  His car subsequently collided into the rear of plaintiff’s vehicle.

In his pretrial Memorandum, defendant requested a jury charge pursuant to Mockler v. Russman. The proposed charge would have read as follows: “[i]f a driver is operating [their] car as would a reasonably prudent person under the circumstances, [they are] not to be held negligent merely because [their] car skidded or slid, resulting in damage or injury to another.” 

Following the trial testimony, the court conducted a charge conference to discuss charges to be read to the jury and the defendant again requested the Mockler charge.  The trial court denied the defendant’s request, stating that the jury would get to decide whether defendant was acting as a reasonable and prudent person whether the Mockler charge was there or not.  The trial court judge distinguished Mockler, finding that defendant was aware of the wet roadway, and he did not “suddenly” come upon the condition.

The trial court judge concluded that defense counsel was permitted to argue that defendant was not doing anything wrong and that he was acting as a reasonably prudent person. (There was also an issue with the defendant’s request for an aggravation charge which will not be discussed in this article.)

The jury found in favor of plaintiff and awarded non-economic damages in the amount of $240,000.  Defendant moved for a new trial, arguing that the court made a mistake in not giving the Mockler charge and also improperly utilizing an aggravation charge.

This appeal ensued, with defendant arguing that the court made a mistake in denying his request for a Mockler charge.

The Appellate Division found that Mockler, which was decided over 50 years ago, has never required that a trial court provide the Mockler charge.  The Court found in this case, that the jury did not lack a basis to find defendant’s inability to stop was anything other than negligence.  It was given an appropriate negligence charge regarding the operation of a motor vehicle.  The jury was instructed that automobile drivers are “required to use reasonable care in the control and management of their vehicles.”  As for defendant negotiating the wet roadway, the jury was further instructed that “a driver is required to make such observations for traffic in road conditions, and to exercise such judgment to avoid collision or injury to others on the highway as a reasonably prudent person would have done in circumstances.”

The Appellate Division pointed out that the plaintiff was free to argue in her closing argument that defendant failed to exercise due care, just as defendant was able to argue that he exercised reasonable care under the circumstances, including navigating the wet road.  Hence, the jury was able to consider both parties’ arguments regarding the road conditions and determine whether defendant exercised due care under the circumstances.  Hence, the Appellate Division found that there was no requirement that the Court provide defendant’s personally crafted proposed Mockler charge.

The Court denied the defendant’s other requests as well and upheld the trial court’s decisions, as well as the jury verdict.

Defendant Failed to Timely Demand a Jury Trial

Plaintiff Shree Atulya Realty, LLC filed a lawsuit against defendant Jorlinar Santos concerning the purchase of property from defendant located in Newark.  As part of the purchase, the plaintiff financed directly with the defendant (the seller) a portion of the purchase price with a note and mortgage on the property.  The payments to the seller for this financing were conditioned on certain repairs being completed.  An issue arose as to the required repairs not being completed and, because they were not completed, the plaintiff took the position that no monies were owed and the mortgage should be discharged.  Thereafter, plaintiff filed a lawsuit in the Chancery Division, General Equity Part, seeking to discharge the mortgage and asserted claims for a breach of contract, unjust enrichment and fraud. When the case reached the trial stage, one of the issues in Shree Atulya Realty, LLC v. Santos, 2024 N.J. Super. Unpub. LEXIS 223 (App. Div. Feb. 14, 2024) was whether defendant failed to timely request a jury trial and, as a result, whether this failure constituted a waiver of the right to a trial by jury.

The complaint had been filed in the Chancery Division on June 25, 2018.  On August 16, 2018, defendant filed an Answer, Counterclaim, and Third-Party Complaint against other defendants. Plaintiff had not made a jury demand in the complaint, nor did Defendant request a jury trial at the time his Answer was filed.  On October 24, 2018, the Third-Party Defendants filed an Answer to the Third-Party Complaint, which also did not include a jury demand.

The Court conducted two case management conferences in 2018.  On both occasions, case management orders were issued, providing that if the pleadings did contain a jury demand, any parties seeking a jury trial must file a motion for a jury trial within 10 days of the date of the order or the jury demand would be waived.  No jury demand was made as a result of either case management order.

In February 2019, the parties all filed for a summary judgment.  At that time, defendant also made a request to transfer the case to the Law Division and requested a jury trial.  On March 15, 2019, the Chancery Division denied the parties’ motion for summary judgment without prejudice and also denied defendant’s request for a jury trial.  The judge found the request untimely and waived pursuant to Court Rule 4:35-1(c).  At that time, the court also transferred the case to the Law Division.

Before the case was tried, in May 2020, the defendant filed a motion seeking to vacate the prior order denying his request for a jury trial.  The Law Division found that there was no basis to reconsider the Chancery judge’s determination that defendant had waived the right to a jury trial by failing to make a timely demand.

Thereafter, the case did proceed to a 4-day bench trial with defendant as the only defense witness.  He testified that the Agreement signed at the closing was inconsistent with the terms negotiated by the parties and that he did not agree to make repairs. Nevertheless, he also testified that he completed all the required repairs.

The court found that defendant’s claim that the Agreement was inconsistent with the intent of the parties to lack credibility and did determine that the Agreement was the “‘operative agreement”’ now.  The court also determined that defendant had been required to make the necessary repairs and, with the contingency requiring repairs not met, the judge determined that the mortgage should be discharged and cancelled.  Further, any obligation for plaintiff to pay the note was nullified. 

Therefore, the trial court entered judgment in favor of plaintiff on its claim for a declaratory judgment and discharged and cancelled the mortgage and nullified the note.  The judge ruled that plaintiff had no obligation to pay defendant pursuant to the Agreement, Note, or Mortgage.  All other claims were dismissed and an appeal to the Appellate Division followed.

Among other issues on appeal, defendant argued that the trial court made a mistake in finding he had waived his right to demand a jury trial and by denying reconsideration of that order.  Defendant argued that he was not able to demand a jury trial earlier because jury demands are not permitted in the Chancery Division.  Defendant contended that his right to demand a jury arose when the case was transferred to the Law Division.

The Appellate Division, however, rejected the defendant’s argument that he had not waived his right to demand a jury trial.  The Court cited to the court rule, which stated that any party may demand a trial by jury “by serving upon the other parties a demand therefore in writing not later than ten [days] after the service of the last pleading directed to such issue.”  Further, the Appellate Division noted that per this rule, the failure of a party to serve a jury demand as required would constitute a waiver of trial by jury.

The appeals court found that the defendant did not demand a jury trial until he filed a motion for summary judgment on February 15, 2019.   At that point, it was long after the time to make such a demand had expired.  Further, the Appellate Division noted that a jury trial could be demanded on any legal claim in the Chancery Division.  It noted that the Case Management Orders expressly stated a jury could be demanded in the Chancery Division.  Hence, the Appellate Division found that the lower court had correctly determined that defendant had waived his right to demand a jury trial.

Further, the Appellate Division found that the trial court did not abuse its discretion by finding that defendant failed to establish good cause to relax the court rule, nor did it make a mistake by denying the defendant’s motion for reconsideration of this order.  Thus, the Court upheld the trial court’s decision to deny the defendant the right to a jury trial.

Court Finds That Mode of Operation Doctrine Properly Charged for Slip and Fall Accident

Plaintiff Lavant Jones slipped and fell inside the vestibule of defendant Rite Aid’s Willingboro store.  She slipped on a plastic tablecloth and brochure that had blown off a display table setup by Rite Aid to promote a flu vaccine program.  In Jones v. Rite Aid, 2023 N.J. Super. Unpub. LEXIS 1201 (App. Div. July 17, 2023), Rite Aid contended that the trial court should not have charged the jury with the mode of operation doctrine. 

 The table had a cardboard sign that advertised flu vaccines, brochures, flu vaccine sign-up sheets, and hand sanitizer placed on the tablecloth.  Plaintiff contended that, due to her fall, she suffered injuries to her neck, right shoulder, back, wrists and hand.

Plaintiff testified at trial that she walked into the store with her eyes focused straight ahead.  She fell because she got tangled up with the tablecloth and the cardboard.  She denied seeing the display table near the entrance or the blue tablecloth prior to her fall. 

At the trial, plaintiff’s counsel requested that the mode of operation jury charge be given to the jury.  Defense counsel did not object.  After a four day trial, the jury found that the plaintiff had suffered a permanent injury and awarded her $700,000 in damages, plus pre-judgment interest.

Following the jury award, defendant moved for a new trial, arguing that the jury verdict was “grossly” disproportionate to plaintiff’s injuries and the mode of operation charge was erroneous and resulted in prejudice.  As to the mode of operation jury charge, the trial court judge concluded the charge was appropriate because the brochures were part of the “self-service” setup and used for “self-service purposes.”  The judge found that there was a nexus between the self-service and touching the items on the display table, the hand sanitizer and the brochures moving around, the sign-up sheets and the blowing wind that allowed for the mode of operation charge.

Upon appeal, the Appellate Division considered whether the mode of operation charge was properly given by the trial court judge.  The Court noted that the mode of operation doctrine applies when a “dangerous condition is likely to occur as a result of the nature of the [defendant’s] business, the property’s condition, or a demonstrable pattern of conduct or incidents.”

Further, the Appellate Division noted that “when the defendant’s business has a “self-service method of operation, the defendant is required to anticipate debris falling on the ground because of the carelessness of either customers or employees.”  When plaintiff successfully demonstrates that the mode of operation rule applies, “then an inference of negligence arises and shifts the burden to the defendant to produce evidence that it did all that a reasonably prudent person would do in the light of the risk of injury that the self-service operation presented.”

After considering these principles, the Appellate Division rejected defendant’s contention that the trial court made a mistake in charging the jury on mode of operation.  The Court found that the trial court judge properly concluded that facts supported the mode of operation jury charge.  The trial court judge determined that there was a reasonable factual nexus between the self-service defendant provided, its display items, the heavy hand sanitizer bottle used to prevent items from blowing off the table because of the wind and defendant’s advertisements and brochures for flu shots and vaccines to support the mode of operation charge.  Further, the Appellate Division noted in plaintiff’s testimony that she fell because of the blue tablecloth and brochure.

The Court noted that defendant failed to demonstrate that the blue tablecloth and brochure landed on the floor for reasons unrelated to the wind.  The store’s personnel testified that they were aware of the wind blowing items off the table. The Appellate Division found that the trial court judge properly determined that “the mode of operation charge was appropriate because the brochure on the display table was part of the self-service setup and used for defendant’s self-service purposes.”  Thus, the Appellate Division upheld the trial court’s determination to charge the jury with the mode of operation doctrine.

New Trial Granted Due to Court’s Failure to Provide Six Peremptory Challenges to Defendants

Plaintiff Elaine Kelly was injured in a motor vehicle accident on July 8, 2016 and filed a lawsuit against defendants Norma Marcano and Max Marcano.  The matter was tried before a jury, who unanimously found the accident was caused by the negligence of defendant Max Marcano, found the plaintiff was not comparatively negligent, and awarded plaintiff $140,000 in damages.  The issue in Kelly v. Marcano, (App. Div. Feb 16, 2023) was whether the defendants were deprived of a fair trial when they were only accorded three peremptory challenges, as opposed to the required six peremptory challenges.

This case was initially scheduled for trial on December 14, 2020 but adjourned and relisted for trial several times.  Ultimately, the case was tried on November 1, 2021.  Neither party consented to an expedited jury trial (EJT) but an order for a virtual jury trial was entered which contained several provisions, identifying the trial as an EJT.  Pursuant to this order, each party was limited to three peremptory challenges, as opposed to the six peremptory challenges permitted in a non-expedited trial.

During jury selection, defense counsel exercised the three peremptory challenges.  Following the charge conference, defense counsel moved for a mistrial based on the virtual trial format.  The defendants claimed that the disadvantages in the virtual jury selection, the reduction to the three peremptory challenges and the technical difficulties throughout the virtual trial impacted the presentation of the defendants’ case.  There was some confusion as to the amount of challenges which were to be permitted.  Plaintiff’s counsel was under the impression that each party had six challenges the whole time.  The judge denied the defendants’ motion.  Thereafter, the judge acknowledged the court’s mistake but the trial continued, resulting in the verdict for the plaintiff.

The defendants filed a motion, requesting a new trial, contending that the trial court’s mistake and denial of three peremptory challenges denied defendants a “substantial right” and warranted a new trial.  The defendants also moved on other reasons as well.  The plaintiff argued that even if the trial court order created a misunderstanding as to the amount of peremptory challenges, because defense counsel was silent during jury selection, it was harmless error.  The trial judge decided that a new trial was necessary based upon the issues with regard to the challenges and misunderstandings by counsel and, hence, awarded a new trial.

This decision to award a new trial was appealed by the plaintiff.  The Appellate Division noted that a jury verdict would not be reversed “unless it clearly appears that there was a miscarriage of justice under the law.”  Further, the Court noted that in “evaluating the decision to grant or deny a new trial, an appellate court must give due difference to the trial court’s feel of the case.”

In applying these principles, the Appellate Division found no basis to disturb the trial court’s decision to grant defendants’ motion for a new trial.  The Court noted that after examining the record, it found that the parties did not consent to an EJT and the judge appropriately acknowledged the error limiting each party to three peremptory challenges in the order for the virtual trial.

The Appellate Division was “convinced” that defendants were deprived of a fair trial when they were only accorded three peremptory challenges.  Thus, it found that the trial judge appropriately concluded that the jury verdict resulted in a miscarriage of justice.  Hence, the Court affirmed the trial court’s order granting the defendants a new trial.

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