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.
