SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1762-15T3

MARIANNE MURPHY,

Plaintiff-Appellant,

v.

RAEANN MARTIN,

Defendant-Respondent.

________________________________

Submitted March 13, 2017 – Decided

Before Judges Sabatino, Haas and Currier.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Docket No. 

L-0153-12.

Emolo & Collini, attorneys for appellant (John 

C. Emolo, on the brief).

John C. Prindiville, attorney for respondent.

PER CURIAM

This appeal arises from a jury's no-cause verdict on claims 

brought by plaintiff Marianne Murphy against defendant Raeann 

Martin stemming from a roadway encounter. As a result of that 

encounter, defendant allegedly injured plaintiff and damaged 

plaintiff's car. 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

April 3, 2017
2 A-1762-15T3

Plaintiff sued defendant, claiming negligence, assault, and 

battery. Defendant admitted that her vehicle struck plaintiff's 

open car door while attempting to leave the scene, but asserted 

that her conduct was excusable in light of the volatile situation 

and plaintiff's allegedly threatening behavior.

By agreement of the parties, the trial was bifurcated as to 

liability and then, if necessary, a damages phase. The liability 

phase spanned three days and involved five witnesses.

The sole argument plaintiff raises on appeal is that the 

trial court erred and unduly prejudiced her in reading to the 

jury, over objection, the generally-disfavored model jury charge 

for a "sudden emergency." See Model Jury Charge (Civil), 5:10(g), 

"Sudden Emergency." We agree with plaintiff that, in the factual 

context of this case, the court issued this jury charge 

improvidently. We further agree that the charge had the clear 

capacity to skew the jurors' objective assessment of the evidence. 

Consequently, we reverse the judgment for defendant and remand for 

a new trial.

I.

The principal witnesses in this trial were plaintiff and 

defendant. Their testimony diverged considerably about exactly 

what occurred on the day of the incident.
3 A-1762-15T3

Plaintiff's Version

According to plaintiff, on June 2, 2010, she planned to go 

to the beach in Sandy Hook. She drove her 2001 Chrysler Sebring 

convertible east on Route 36 towards Sandy Hook. She had no 

passengers in her car.

When plaintiff initially entered Route 36, she drove in the 

right lane, but "for whatever reason" moved "eventually" into the 

left lane. "Not very long" after changing to the left lane, 

plaintiff moved back to the right lane. Before doing so, plaintiff 

allegedly "checked all [her] mirrors," "checked that the lane next 

to [her] was clear," and "put [her] blinker on[.]" Plaintiff 

noticed a car in the right lane as she moved into that lane, but, 

by her own estimation, it was "about 10 car lengths back[.]"

According to plaintiff, after she moved into the right lane, 

defendant, who was driving a van, "came up behind [her] and started 

screaming and yelling and cursing and flailing her arms[.]" 

Plaintiff's convertible had the top and windows down. The windows 

in defendant's van were likewise down.

Plaintiff testified that defendant's hostile reaction to her 

lane change made her "[a]bsolutely scared out of [her] wits 
4 A-1762-15T3

terrified." According to plaintiff, defendant was throwing things1

around in her vehicle and did not have her hands on the steering 

wheel. Defendant allegedly was also "punching" the roof of the 

car and the wheel. Plaintiff claimed this behavior continued 

through "several" traffic lights.

Plaintiff eventually stopped at a traffic light. According 

to plaintiff, the van then moved into the left lane and came up 

alongside the convertible. At that moment, there was one car 

behind plaintiff and two cars in front of her, causing her to be 

"boxed in."

According to plaintiff, she then called a friend of her family 

on her cell phone. The friend was a retired police officer who 

had served in another town for twenty-eight years. Plaintiff 

testified that, while she was on the call, defendant continued to 

scream at her. She contends it was loud enough so that the friend

could hear through the phone what defendant was shouting. 

Plaintiff then observed that defendant was "reaching over her 

passenger side," attempting to grab her. She saw that defendant 

had a Snapple bottle "raised by her left arm . . . as if one were 

going to pitch."

 

1 It is unclear what "things" plaintiff was referring to, or if 

that description included the Snapple bottle that she alleges 

defendant later used to threaten her.
5 A-1762-15T3

Plaintiff testified that she put her car in park because she 

was "afraid that [she] was going to roll into the car in front of 

[her] and have an accident." By plaintiff's estimate, her car was 

"a foot and a half" from defendant's lane at the time.

At this point, plaintiff recalled, defendant's van "backed

up and [then] rammed" into her convertible. According to 

plaintiff, the van hit the convertible three times. The impact 

allegedly "ripped" off her car door, leaving it "hanging by one 

hinge." She added that, when the van hit the back of the 

convertible, it caused the latter's door to "pop" open.

Plaintiff testified that after defendant's van struck her 

car, her friend told her to hang up and call 9-1-1, which she 

claims to have done.2 She stated that defendant, by that point,

had proceeded through the traffic light. Plaintiff estimated that 

defendant's van was "about 30 feet away" from her own car on the 

shoulder of the road.

Plaintiff admitted possessing in her car what she described 

as a "trinket" bat, which was next to her by the console. She

explained that she kept that small bat in her car for protection,

after her dog had been attacked by other dogs several months 

 

2 Plaintiff testified that she made several attempts to get a copy 

of the audio recording of the 9-1-1 call, but was unable to obtain 

one.
6 A-1762-15T3

earlier. According to plaintiff, the bat was eight to ten inches 

long, and was similar to, but "a little thicker" than, a pen. 

Plaintiff contended that the bat the defense introduced into 

evidence at trial was inauthentic, and was not the actual one she

had kept in her car.3

Plaintiff claimed that there were as many as eight 

eyewitnesses to the incident. However, she asserted that the 

police officers who responded to the scene did not take down the 

eyewitnesses' information, nor would they "allow" plaintiff to do 

so. One of the officers allegedly "intimidate[ed]" the 

eyewitnesses "with his ticket book" and told them to leave.4

The officers provided plaintiff with a form on which she 

could write a statement about the incident. According to 

plaintiff, she did not fill out the form that day because she was 

"shaking," "in pain," "confused," "in shock," and "hurt."

Plaintiff testified that the officers told defendant, with 

whom they appeared to be "familiar[,]" to leave, but conversely 

 

3 The bat moved in evidence had a tag, indicating it had been 

logged at the Hazlet police station on August 1, 2011, almost a 

year and two months after the accident.

4 Plaintiff filed an internal affairs complaint with the police in 

June 2010 because she claimed she was "unfairly treated" by the 

officers at the scene. However, her complaint was dismissed when 

she failed to appear for an interview. Plaintiff explained that 

she was in the hospital when the police department scheduled the 

interview, and was thus unavailable.
7 A-1762-15T3

told plaintiff to stay. Plaintiff was issued a summons for 

wielding a weapon, after a police officer found the miniature bat 

in her car. That summons was eventually dismissed.

Plaintiff wrote a statement two days after the incident, and 

allegedly attempted to file it with the police multiple times. 

However, according to plaintiff, she was not allowed to file the 

statement until June 21, 2010, because up until that day the police 

report was not done and allegedly "they had nothing to put [her 

statement] with."

Plaintiff's friend also submitted a statement to the police 

soon after the incident, detailing what he had heard during his 

phone call with her on the day of the incident. He testified 

briefly as to those matters in plaintiff's case in chief.

Defendant's Version

According to defendant, the convertible "cut [her] off" in a 

lane change on Route 36 while plaintiff was talking on her cell

phone. Defendant was driving a Chrysler Town and Country van at 

the time. 

After the lane change, the convertible "came to a complete 

stop." Defendant testified that she put her hands up and gestured 

to plaintiff, "What are you doing?" Defendant acknowledged that 

she then "pulled over to the side of [plaintiff's car], rolled 
8 A-1762-15T3

down [her] window," and exclaimed, "[W]hat are you doing, get the 

F--- off the phone[.]" Defendant then "moved on." 

According to defendant, the vehicles thereafter stopped at a

traffic light, with the convertible in the right lane and 

defendant's van in the left lane. Defendant claimed that, at that 

point, plaintiff got out of her car with the miniature bat. 

Plaintiff said, "Did [defendant] want to be beaten and did 

[defendant] want to be arrested[,]" all allegedly while she "held 

the club over [defendant's] windshield." Defendant stated that

she was "scared" as plaintiff did this.

At that point, plaintiff's car door on the driver's side was

open. According to defendant, the door was on an angle and 

intruding into defendant's lane. Defendant claimed that she could 

not see plaintiff's door in front of her car "because [plaintiff's] 

window was down and she was standing at [the van's] windshield." 

Defendant testified that she then thought to herself, "[H]uh, 

she's got a club, I'm getting out of here."

According to defendant, at that point she "[t]urned [her] 

wheel towards the barrier to try to miss [plaintiff] and 

[plaintiff's] door because she was still standing there." 

Defendant testified that

as I caught the door I went about 36, 42 inches 

and I realized I was -- I heard the scraping, 

I went (gasp) and I stopped. I back[ed] up 
9 A-1762-15T3

just a little bit to unhook myself and I pulled 

around and went and pulled over before the 

light[.]

Defendant claimed that she did this because she was "scared, trying 

to get away from [plaintiff]."

Defendant admitted causing damage to plaintiff's car door. 

However, she denied causing the additional damage to the car 

depicted in photographs that were introduced by plaintiff at trial.

According to defendant, after striking plaintiff's car, she 

pulled over to the side of the road. She was "parked on the same 

side of the accident[,]" about ten feet away from plaintiff. 

Defendant then called 4-1-1 to get the number for the Hazlet police 

department. She thereafter spoke with the police, after someone 

at a nearby store apparently called them.

The Police Officers' Testimony

Two Hazlet police officers, one female and one male, were 

called by defendant as trial witnesses. They recounted that they 

had arrived at the scene, and spoke to both drivers. The female 

officer recalled that defendant was "visibly upset" and crying. 

Defendant told the officer about the bat that plaintiff had 

allegedly used to threaten her. The officer then retrieved the 

miniature bat "from in between the driver's seat and the center 

console" of the convertible. 
10 A-1762-15T3

After obtaining defendant's side of the narrative, the female 

officer spoke with plaintiff. However, the officer did not learn 

much from that conversation, because plaintiff was "very vague" 

and "really didn't want to give much information." Plaintiff did 

admit to the officer that she had opened her car door. The male 

officer similarly testified that he spoke to plaintiff, but 

recalled she was not "forthcoming" with her answers.

The male officer testified that, when he arrived, plaintiff's 

car was blocking traffic in the left lane, and other cars could 

not get around her open door. The female officer testified that 

plaintiff's car was "on an angle" and "closer to the left side of 

its lane[,]" but still "within its lane[.]"

According to the female officer, she was not aware of any 

eyewitnesses to the incident being present when the two officers 

arrived. The officer maintained that, contrary to plaintiff's 

claim, she did not tell any witnesses to leave.

The Jury Charge and the Verdict

During the charge conference, defense counsel requested that 

the court instruct the jury with Model Jury Civil Charge 5:10(g), 

addressing a "sudden emergency." Defense counsel argued in this 

regard that defendant had attempted to drive away from the scene 

because she was in fear of plaintiff, who was "out of the car with 

her bat." Although defense counsel conceded that the requested 
11 A-1762-15T3

instruction was "not a favored charge in our law," he argued that 

the circumstances of this automobile accident were not "standard"

and the situation justified the charge.

Plaintiff's counsel strenuously opposed the issuance of the 

sudden emergency charge. He argued that the charge was unduly 

prejudicial to his client and would confuse the jury. He 

maintained that the customary charge for comparative negligence, 

which the court planned to give, provided sufficient guidance to

the jury here in determining whether defendant and plaintiff had 

each acted reasonably under the circumstances. He also argued 

that, if the charge were given for defendant, it must also be 

given for plaintiff.

After reflecting on the matter, the trial court decided to 

charge the jury on only defendant's alleged sudden emergency, and 

included that charge in the final instructions, over plaintiff's 

objection. The court did recognize the charge is generally 

disfavored, but concluded that it was appropriate to give the jury 

in this particular situation of alleged "road rage" between two 

drivers.

During summations, counsel for plaintiff attempted to negate 

the impact of the court's forthcoming charge on sudden emergency. 

He argued that defendant, rather than plaintiff, was the negligent 

party in the overall encounter. More pointedly, he asserted that 
12 A-1762-15T3

defendant herself had created an emergency at the scene through

her own vulgarities and aggressive conduct, which made plaintiff 

fearful. Hence, argued plaintiff's counsel, the damage that 

defendant caused to plaintiff by her own wrongful behavior could 

not be excused.

Defense counsel did not allude to the emergency charge in his 

own closing. We presume he was satisfied that the jury hearing 

the charge from the court itself was sufficient for his own 

tactical advantage.

The jury unanimously found defendant not liable on all three 

counts. This appeal ensued. 

II.

The singular issue before us is whether the trial court erred 

in issuing the sudden emergency charge, and, if so, whether that 

error was sufficiently prejudicial to warrant a new trial.

The sudden emergency doctrine stems from the English common 

law dating back to Jones v. Boyce, 1 Stark. 493, 171 Eng. Rep. 540 

(N.P. 1816), in which the plaintiff had leapt out of a stagecoach 

after being scared by the negligent manner in which the coach was 

being driven. The English court instructed that if the plaintiff 

had acted negligently in leaping from the stagecoach due to a 

perception of a sudden emergency, his negligent conduct could be 

excused. Id., 171 Eng. Rep. at 541. On the other hand, if the 
13 A-1762-15T3

plaintiff's act resulted from a rash apprehension of danger, which 

was not confirmed to exist, he would not be entitled to recover. 

The United States Supreme Court adopted the sudden emergency 

doctrine in Stokes v. Saltonstall, 38 U.S. 181, 10 L. Ed. 115 

(1839). That case likewise involved a passenger who had become 

frightened and leapt from a stagecoach.

For the sudden emergency doctrine to apply, and therefore 

potentially warrant the related jury charge, "a party must have 

been confronted by a sudden emergency over which he had no control, 

without fault on his part." Roberts v. Hooper, 181 N.J. Super.

474, 478 (App. Div. 1981). The doctrine "negates negligence if 

the jury finds that the party chose one of alternative reasonably 

prudent courses of action, even though, by hindsight, another 

course of action would have been safer." Id. at 478-79.

Many years ago, our state adopted this model charge. However, 

over time, the charge has been regarded as unnecessary, confusing, 

and conceptually subsumed within the charge for comparative fault.

The model charge reads as follows:

In connection with the question of 

(contributory) negligence, it has been 

asserted that the defendant (plaintiff) was 

confronted with a sudden emergency. Where a 

person, without any fault on his/her part, is 

confronted with a sudden emergency, that is, 

is placed in a sudden position of imminent 

peril not reasonably to be anticipated, the 

law will not charge him/her with negligence 
14 A-1762-15T3

if he/she does not select the very wisest 

course in choosing between alternative courses 

of action. An honest mistake of judgment in 

such a sudden emergency will not, of itself, 

constitute negligence, although another 

course might have been better and safer. All 

that is required of such a person is that 

he/she exercises the care of a reasonably 

prudent person under like circumstances.

It is for you the jury to determine from 

the evidence whether such an emergency 

existed, whether it arose without the fault 

of that person and whether that person acted 

with due care under the circumstances.

[The following two additional paragraphs may 

be utilized where necessary:]

The law recognizes that one acting in a 

sudden emergency may have no time for thought 

and so cannot weigh alternative courses of 

action but must make a speedy decision which 

will be based on impulse or instinct. What 

is required of a person in such an emergency 

is that he/she act reasonably and with 

ordinary care under such circumstances.

However, if the emergency arose in whole 

or in part by reason of the fault, that is, a 

lack of due care, of that person in the events 

preceding the emergency, then this rule of 

sudden emergency does not apply to excuse 

him/her even though his/her conduct during the 

emergency does meet the standard of reasonable 

care referred to.

[Model Jury Charge (Civil), 5:10(g), "Sudden 

Emergency" (emphasis added).]

In 1995, the Model Civil Jury Charge Committee added a "Note 

to Judges" indicating that the sudden emergency charge is in 

"disfavor." The Note cautions that the modern view is that the 
15 A-1762-15T3

charge is argumentative, confusing, and should be eliminated, 

citing this court's opinion in Finley v. Wiley, 103 N.J. Super.

95 (App. Div. 1968), which criticized the charge. See id. at 103.

In Leighton v. Sim, 248 N.J. Super. 577, 580 (App. Div. 1991), 

we further admonished that the sudden emergency instruction should 

only be given in "the most unusual circumstances." Although 

several states have retained the charge, others have eliminated 

it. See Moran v. Atha Trucking, 208 W. Va. 379, 387-88, 540 S.E.2d 

903, 911-12 (1997) (canvassing the law of various states).

In light of these cautionary developments, we conclude that 

the trial court erred here in acceding to defense counsel's request 

to issue the charge. The charge essentially gives the jury an 

explicit judicial imprimatur that a litigant's conduct in a 

negligence case can be excused if he or she was responding to an 

emergency. 

Here, the emergency was portrayed as, or assumed to be, one 

caused solely by plaintiff. However, viewing the divergent 

testimony of the parties as a whole, plaintiff was arguably as 

much confronted with a "sudden emergency" here as was defendant, 

depending on whose account of events is believed. 

This is not a situation in which an emergency was caused by 

a third party or some external force, such as when a defendant 

driver must change lanes in order to make way for an ambulance and 
16 A-1762-15T3

collides in the process with another vehicle. The alleged 

emergency, if one existed at all, instead was generated by the 

escalating argument between the two drivers, neither of whom was 

manifestly without fault. Indeed, defendant, whose counsel 

requested the charge, herself admitted that she had shouted and 

cursed at plaintiff after being cut off in her lane.

Given the competing proofs, the standard charges on 

negligence and comparative fault sufficed here for the jury to 

fairly weigh the respective behavior of the two actors involved. 

By hearing from the judge's lips the disfavored charge on sudden 

emergency, which was obtained for defendant's sole benefit, the 

jury's objective consideration of the evidence easily could have 

been tainted.

"It is fundamental that '[a]ppropriate and proper charges to 

a jury are essential for a fair trial.'" Velazquez v. Portadin, 

163 N.J. 677, 688 (2000) (alteration in original) (quoting State 

v. Green, 86 N.J. 281, 287 (1981)); see also Washington v. Perez, 

219 N.J. 338, 350-51 (2014) (noting that "[o]ur law has long 

recognized the critical importance of accurate and precise 

instructions to the jury"). "A charge is a road map to guide the 

jury, and without an appropriate charge a jury can take a wrong 

turn in its deliberations[.]" Das v. Thani, 171 N.J. 518, 527 

(2002) (quoting State v. Martin, 119 N.J. 2, 15 (1990)).
17 A-1762-15T3

Although we appreciate the fact that the sudden emergency 

charge remains on the books, and that the trial court responded 

to defense counsel's request in a conscientious manner, we conclude 

that it was harmful error to give the charge in the context of 

this particular case.5 This was not the appropriate rare case 

where the charge was warranted.

The judgment for defendant is reversed, and the matter is 

remanded for a new trial.

 

5 Given the passage of time since it was last studied, we 

respectfully suggest that the Model Civil Charge Committee 

undertake a renewed assessment of the continued need for this 

model charge.