NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6163-12T2

DANNY CAICEDO, an infant by 

his Father and Natural Guardian

SEGUNDO CAICEDO, and 

SEGUNDO CAICEDO, individually,

Plaintiffs-Respondents, 

v.

FABIAN CAICEDO, CITY OF NEWARK

POLICE DEPARTMENT, and CITY OF NEWARK,

Defendants-Appellants.

___________________________________________

Argued February 25, 2015 – Decided

Before Judges Alvarez, Maven, and Carroll.

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, Docket 

No. L-319-11.

Avion M. Benjamin, Assistant Corporation 

Counsel, argued the cause for appellants 

(Anna P. Pereira, Corporation Counsel, 

attorney; Steven F. Olivo, Assistant 

Corporation Counsel, and Ms. Benjamin, on 

the briefs).

Casey J. Woodruff argued the cause for 

respondents (Bramnick, Rodriguez, Mitterhoff,

Grabas & Woodruff, LLC, attorneys; Mr. 

Woodruff, on the brief).

 The opinion of the court was delivered by 

CARROLL, J.A.D. 

APPROVED FOR PUBLICATION

March 17, 2015

APPELLATE DIVISION

March 17, 2015
2 A-6163-12T2

This appeal follows a jury verdict for damages sustained by 

plaintiff Danny Caicedo.1 Plaintiff was severely injured when 

the bicycle he was riding was struck by a police cruiser 

operated by defendant Fabian Caicedo2 while on duty with 

defendant City of Newark Police Department. 

Officer Caicedo had arrested an individual for a disorderly 

persons offense, and was transporting the prisoner to police 

headquarters for processing when he struck plaintiff's bicycle.

At trial, the judge declined to instruct the jury that Officer 

Caicedo was entitled to good-faith immunity under N.J.S.A. 59:3-

3, which provides that "[a] public employee is not liable if he 

acts in good faith in the execution or enforcement of any law."

This appeal requires us to decide whether the statute exempts 

defendants from liability where the police officer had effected 

an arrest and was transporting the prisoner under non-emergent 

circumstances. We decide that it does not. We also reject 

defendants' arguments that the jury's verdict was against the 

weight of the evidence, and that the trial court erred in 

failing to order a new trial or a remittitur. 

 

1 Suit was filed by Segundo Caicedo, individually and as guardian 

for his minor son, Danny Caicedo. For purposes of this opinion 

we refer to Danny Caicedo as plaintiff. 

2 Plaintiff and defendant Fabian Caicedo share a common surname 

but are not related. For clarity we refer to defendant as 

Officer Caicedo.
3 A-6163-12T2

I.

The collision occurred on June 29, 2010, immediately 

following plaintiff's eighth-grade graduation. Plaintiff, 

accompanied by three friends, was heading north on Broadway, a 

busy Newark street with two lanes of traffic in each direction 

and a twenty-five mile-per-hour speed limit. Two of the boys 

were walking, while plaintiff and a friend, M.G., rode their 

bicycles along the shoulder of the roadway. Plaintiff testified 

that he was riding his bike straight, not swerving. M.G. and 

one of the walkers, B.P., both agreed. After a few seconds, 

M.G. crossed the street to return home; a minute or two later,

plaintiff also decided to cross. Plaintiff described the events 

as follows: 

I was continuing to go straight, I was 

talking to them. And then after I said 

[bye], I looked over my shoulder [and] the 

light was still red. There [were] no cars 

in sight, so I decided to cross. 

. . . .

. . . I turned, and all of a sudden, I just 

heard a loud screech[,] . . . and then I 

tried to turn back to the shoulder but it 

was too late, I got hit.

Plaintiff was then struck by Officer Caicedo's police vehicle 

and lost consciousness. 

Plaintiff admitted that he did not cross at an 

intersection, and that he knew this was unsafe. Neither 
4 A-6163-12T2

plaintiff, M.G., nor B.P. heard a horn or siren before the 

collision. B.P., on hearing the brakes screech, turned in time 

to observe the impact. He was ten feet from the collision, and 

estimated that Officer Caicedo's vehicle was travelling at a 

speed of forty to forty-five miles per hour. B.P. based his 

estimate of the vehicle's speed on the screeching noise he 

heard, which lasted "about ten seconds."

M.G. glimpsed Officer Caicedo's car as it neared plaintiff, 

and also estimated that it was travelling at forty to forty-five 

miles per hour. M.G. heard the car brake, but did not see the 

impact. His speed estimate was based on his observation that 

the vehicle was travelling faster than typical Broadway traffic. 

Officer Caicedo, a Newark police detective, had just 

arrested David Petracca, a suspected drug buyer, for wandering, 

and was transporting him back to headquarters in an unmarked 

police cruiser. Officer Caicedo and his partner, Detective 

Misty Camacho, searched Petracca incident to arrest and 

discovered no weapons. Petracca did not resist, struggle, or 

refuse to cooperate either during the arrest or the ride to 

police headquarters. Since the unmarked vehicle had no 

partition, Camacho sat in the rear seat next to Petracca, whose 

hands were cuffed behind him. The detectives were about one 

block from the police station when the collision occurred. 
5 A-6163-12T2

Officer Caicedo testified that he first observed plaintiff 

some forty yards ahead. The officer estimated that he was 

driving about thirty miles per hour. He saw plaintiff moving 

back and forth in a "snake[-]like motion" over both northbound 

lanes of the roadway. Contrary to the other witnesses'

testimony, Officer Caicedo stated that he sounded "one quick 

burst" of his horn and siren when he was about thirty yards from 

plaintiff. After sounding his horn, he saw plaintiff move "all 

the way closer to the curb and [] start[] [to] rid[e] straight." 

At twenty yards, he moved into the left northbound lane to avoid 

plaintiff. According to Officer Caicedo, "[a]s that distance 

closed, the cyclist suddenly just turned in, like ma[d]e a hard 

[] left and turned in front of me. And that's when I swerved 

into oncoming traffic." When he was ten feet away from 

plaintiff, the officer was still travelling at thirty miles per 

hour.3 Faced with oncoming traffic, Officer Caicedo swerved back 

into the northbound lanes, where his front right fender struck

plaintiff's rear tire. When asked why he did not stop on seeing 

plaintiff, Officer Caicedo responded: "I wanted to get back to 

 

3 At trial, when questioned how fast he was traveling, Officer 

Caicedo responded: "I believe it was like [twenty] miles per 

hour." He was then confronted with his deposition testimony 

that he was traveling thirty miles per hour, and conceded he 

"was traveling the same speed at [forty] yards away as [he] was 

at [ten] feet away."
6 A-6163-12T2

[headquarters] due to the fact that we didn't have a cage in the 

car, I wanted to get back safely and my observation was that I 

could safely go around into the second right lane around the 

cyclist."

The other two occupants of the police vehicle also 

testified. Camacho recounted that "as I look[ed] up I [saw] 

that my partner [was] going onto the other side, the opposite 

side of traffic [into] oncoming traffic. And then to avoid 

colliding with oncoming traffic he swerve[d] again towards the 

right, and I remember that's where the impact occurred." 

Petracca testified that before the collision he saw plaintiff 

"just riding kind of in circles on his bicycle." Officer 

Caicedo later "swerved to the left to try to avoid impact and 

stepped on the brakes." Petracca further stated: "I don't 

believe [Officer Caicedo] made it into the other lane of 

traffic, but pretty substantially I would say he swerved to try 

to avoid impact." Neither detective's report recorded that 

Officer Caicedo sounded his horn before the collision. 

Plaintiff suffered a comminuted fracture of his right 

femoral shaft. He underwent two surgeries, physical therapy, 

and treatment for neck and back pain. He suffers from a leglength discrepancy and walks with a permanent limp. 
7 A-6163-12T2

Prior to trial, plaintiff made an in limine motion to bar 

defendants from arguing the good-faith immunity defense. The 

trial judge reserved decision on the motion until she heard the 

police testimony. Ultimately, the judge declined to instruct 

the jury on the defense, reasoning: 

I have found cases that go both ways. Cases 

that would say that this was the 

continuation of an effectuation of an 

arrest. And cases that have said it's just 

merely transporting. Now I note for the 

record, I have no evidence or testimony 

. . . that this was any sort of . . . high 

crime. This was not some internationally 

wanted suspect who was in the back of the 

car. There's no evidence that he struggled.

There was no evidence that he resisted.

Indeed he's charged with wandering[,] a 

disorderly persons offense. 

So even though I don't mean to diminish in 

any way, nor substitute my judgment for the 

police officer['s] sense of danger, I don't 

even have any testimony that [] anybody 

thought they were in much danger. . . . For 

those reasons I don't think the immunity 

[applies.] 

The jury found in plaintiff's favor and apportioned 

negligence at eighty percent to Officer Caicedo and twenty 

percent to plaintiff. The trial court molded the $3,000,000 

verdict accordingly, and judgment was entered in plaintiff's 

favor for $2,400,000. 

Defendants moved for a new trial or, in the alternative, 

for a remittitur. They argued that the verdict was excessive 
8 A-6163-12T2

and against the weight of the evidence. Defendants also 

contended that the court erred in denying the jury instruction 

as to their good-faith immunity defense. While the trial judge 

characterized the verdict as "high," she found no basis to 

disturb it. As to the immunity defense, the judge ruled:

[I]t's clear [that] the testimony of the 

officers if anything supported [] 

plaintiff's position that it was a mere 

transportation function that they were 

providing. There was no[t] one word of 

testimony about the neighborhood being 

something that they were concerned with 

lingering [in] with an arrestee who was a 

buyer []. There was nothing, nothing, 

absolutely nothing said by either officer 

that would indicate they had any sort of 

concerns of safety that were heightened by 

virtue of this being an arrest, versus any 

concerns they'd normally have if they were 

just [] transporting a prisoner. And so for 

those reasons the [c]ourt denied the 

immunity defense. 

. . . I think[,] given the record in this 

case, given the absence of any testimony 

about any concerns that anybody had or 

heightened concerns that would take this 

from a mere transportation to the 

continuation of an arrest, that the 

[c]ourt's initial ruling was the correct and 

accurate one.

II.

On appeal, defendants renew the arguments they advanced in 

their new trial motion. They contend that the trial court erred 

in failing to instruct the jury on good-faith immunity, and that 

the verdict was both against the weight of the evidence and 
9 A-6163-12T2

excessive. Defendants further argue that the trial court erred 

in denying their motion for a new trial or a remittitur. We 

address these arguments in turn. 

A.

We first consider whether defendants enjoyed immunity under 

the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

"The TCA provides general immunity for all governmental bodies 

except in circumstances where the Legislature has specifically 

provided for liability." Kain v. Gloucester City, 436 N.J. 

Super. 466, 473 (App. Div.) (citing N.J.S.A. 59:1-2 and 2-1), 

certif. denied, 220 N.J. 207 (2014). Thus, the TCA's dominant 

theme is immunity, with liability as the exception. D.D. v. 

Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013); 

Rochinsky v. Dep't of Transp., 110 N.J. 399, 408 (1988). "The 

public entity bears the burden of proof for establishing 

immunity. In determining if a public entity is immune, courts 

first identify the culpable cause of the accident and . . . ask 

if that identified cause or condition is one that the 

Legislature intended to immunize." Kain, supra, 436 N.J. Super.

at 473 (citations and internal quotation marks omitted). 

Where a public entity is immune from liability for injury, 

so too is the public employee. N.J.S.A. 59:3-1(c). Pertinent 

to this appeal, N.J.S.A. 59:3-3 specifically provides that "[a] 
10 A-6163-12T2

public employee is not liable if he [or she] acts in good faith 

in the execution or enforcement of any law." The TCA does not, 

however, "exonerate a public employee for negligence arising out 

of his [or her] acts or omissions in carrying out his [or her] 

ministerial functions." N.J.S.A. 59:3-2. 

Defendants argue that they are entitled to the good-faith 

immunity bestowed by N.J.S.A. 59:3-3. They contend that Officer 

Caicedo was enforcing the law when the collision occurred 

because the police had not yet completed the suspect's arrest.

In support of this position they point to the Newark Police 

Department's policy procedures for processing arrests, which 

include transporting a prisoner to the precinct of arrest and 

completing all required reports. 

Plaintiff argues that N.J.S.A. 59:3-3 immunity is 

inapplicable under the facts presented, and that courts have not 

applied it to situations where police are involved in 

ministerial acts, such as patrolling the streets or transporting 

prisoners. Rather, plaintiff contends that this statutory 

immunity attaches only where the police are acting under 

heightened circumstances, including responding to a crime, 

accident, or emergency in progress, or where they are called 

upon to make split-second decisions. 
11 A-6163-12T2

New Jersey caselaw appears to favor plaintiff's position.

See, e.g., Alston v. City of Camden, 168 N.J. 170, 187-88 (2001) 

(applying the immunity to an officer pursuing a drug suspect on 

foot, emphasizing the "split-second judgments" such 

circumstances often require); Canico v. Hurtado, 144 N.J. 361, 

365-66 (1996) (applying the immunity to an officer responding to 

a bank alarm, noting that such responses "often require splitsecond judgments"); Dunlea v. Twp. of Belleville, 349 N.J. 

Super. 506, 509 (App. Div.) (applying the immunity to officers 

responding to a burglary in progress), certif. denied, 174 N.J.

189 (2002). Thus, if the collision here occurred during an 

emergency response, the result would be clear since good-faith 

immunity no doubt "encompass[es] the operation of police 

vehicles by police officers acting within the scope of their 

duties and in response to an emergency." Canico, supra, 144 

N.J. at 366-67. 

As TCA immunity often arises in the context of police 

pursuits, our courts have frequently applied N.J.S.A. 59:5-2(b) 

and 5-2(c) (which, respectively, provide immunity from injuries 

caused by escaping persons and by the pursuit of such persons), 

obviating the need to consider N.J.S.A. 59:3-3 good-faith 

immunity. See, e.g., Tice v. Cramer, 133 N.J. 347, 367 (1993) 

(applying N.J.S.A. 59:5-2(b)(2) and (b)(3) and thus not reaching 
12 A-6163-12T2

the question of good-faith immunity for officers pursuing a 

vehicle that failed to heed their commands); Torres v. City of 

Perth Amboy, 329 N.J. Super. 404, 408 (App. Div. 2000) 

(declining to apply N.J.S.A. 59:5-2(b)(2) to an officer 

"attempt[ing] to close the gap and stop" a speeding but nonfleeing motorist).

Our research has not disclosed any cases in New Jersey 

directly on point with the facts presented here. We do, 

however, draw guidance from cases decided under Illinois tort 

claims legislation similar to the TCA. Marley v. Palmyra, 193 

N.J. Super. 271, 288 (Law Div. 1983). The analogous section of 

the Illinois Local Governmental and Governmental Employees Tort 

Immunity Act provides: "A public employee is not liable for his 

act or omission in the execution or enforcement of any law 

unless such act or omission constitutes willful and wanton 

conduct." 745 Ill. Comp. Stat. 10/2-202 (2014). 

The Illinois Supreme Court considered a substantially 

similar version of this statute in Aikens v. Morris, 145 Ill. 2d 

273, 583 N.E.2d 487 (1991). In Aikens, plaintiff sought to 

recover damages sustained when her automobile was struck by an 

Evanston police squad car. Id. at 275-76, 583 N.E.2d at 488-89.

At the time, the officer was transporting a prisoner from the 

Village of Skokie lockup facility to the Evanston police 
13 A-6163-12T2

department's lockup facility. Ibid. The prisoner had 

previously been arrested, handcuffed, and placed in the back 

seat of the police car. Ibid. According to the officer's 

testimony, he was in "no hurry." Ibid. 

Like the present case, defendants argued that the officer 

was "executing" or "enforcing" a law, citing Illinois statutes 

empowering public officials to move or transfer prisoners. Id.

at 277, 583 N.E.2d at 489. The court disagreed, reasoning that 

the officer's "negligent conduct was not shaped or affected in 

any manner by the nature of duties in either enforcing or 

executing law." Id. at 286, 583 N.E.2d at 494. In declining to 

apply the statutory immunity, the court cited with approval 

Anderson v. Chicago, 29 Ill. App. 3d 971, 331 N.E.2d 243 (1975), 

a case involving "quite similar" circumstances: 

In Anderson, the appellate court viewed a 

record which showed that a police officer 

was transporting, at the time of the 

accident, two juveniles picked up from the 

scene of a disturbance, with another police 

vehicle following and escorting the 

complainant. The Anderson court determined 

that the evidence supported the trial 

court's findings that the officer was not 

enforcing or executing any laws, even though 

he was on duty and in the course of his 

employment. We are similarly compelled.

[Aikens, supra, 145 Ill. 2d at 286, 583 

N.E.2d at 494.] 
14 A-6163-12T2

Taken together, we regard these cases as persuasive authority 

that Officer Caicedo was not acting in the "execution or 

enforcement of any law" so as to afford him immunity under 

N.J.S.A. 59:3-3 while transporting the prisoner to the police 

precinct when the collision occurred. 

Our "primary task" in interpreting statutory language is 

"to effectuate the legislative intent in light of the language 

used and the objects sought to be achieved." Bosland v. Warnock 

Dodge, Inc., 197 N.J. 543, 554 (2009) (citation and internal 

quotation marks omitted). Read literally, N.J.S.A. 59:3-3 could 

be interpreted to immunize all police activities, since 

"virtually every police function or duty is pursuant to some 

legal authorization in the broadest sense." Aikens, supra, 145 

Ill. 2d at 285, 583 N.E.2d at 493. 

We do not believe our Legislature intended N.J.S.A. 59:3-3 

to be construed so broadly. Rather, the determination of 

whether a police officer is engaged "in the execution or 

enforcement of any law" so as to entitle that officer to goodfaith immunity under the statute must be made on a case-by-case 

basis. Were the circumstances such that Officer Caicedo was 

responding, for example, to a crime scene, to an accident call 

with unknown injuries, or to some other situation requiring his 

immediate attention, we have little doubt that the result we 
15 A-6163-12T2

reach would be different. Immunity would also likely attach 

were Officer Caicedo transporting the prisoner for urgent 

medical attention, or if the prisoner was unruly or otherwise 

constituted a dangerous presence in the police vehicle, or if 

the officer was in a dangerous area or needed to hasten his 

departure from a hostile crowd. However, the record here is 

completely devoid of any such emergent circumstances. 

We concede that Officer Caicedo's transport of a suspected 

drug buyer charged with wandering presents a close case. The 

officer was certainly "carrying out" the law when he first 

arrested the suspect. However, the policy concern underlying 

good-faith immunity, that police will be "reluctant to enforce 

the law vigorously for fear of liability" in its absence, is 

simply less compelling during the ensuing transport function.

Tice, supra, 133 N.J. at 351. On this record, we see no reason 

why Officer Caicedo, while transporting the prisoner, should not 

be held to the same standard of care as an ordinary citizen 

operating his or her own motor vehicle on the roadways of this 

State. Accordingly, we discern no policy basis to cloak 

defendants with immunity from liability for the injuries 

sustained by plaintiff during Officer Caicedo's travel to police 

headquarters. 
16 A-6163-12T2

B.

We next turn to defendants' arguments regarding new trial 

and remittitur. We begin by stating certain general principles 

that guide our analysis. We will not reverse a trial court's 

decision to deny a motion for a new trial "unless it clearly 

appears that there was a miscarriage of justice under the law."

R. 2:10-1. That inquiry requires employing a standard of review 

substantially similar to that used at the trial level, "except 

that the appellate court must afford 'due deference' to the 

trial court's '"feel of the case,"' with regard to the 

assessment of intangibles, such as witness credibility."

Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. 

Lederle Labs., 97 N.J. 429, 463 (1984)). See also Carrino v. 

Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 

74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 

(1969). 

Because juries have broad latitude to determine damages, 

"the standard for granting a new trial . . . is necessarily 

high." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). "A 

trial court should not order a new trial or remit a jury's 

damages award unless it is so clearly disproportionate to the 

injury and its sequela . . . that it may be said to shock the 

judicial conscience." Ibid. A court "must be 'clearly and 
17 A-6163-12T2

convincingly' persuaded that it would be manifestly unjust to 

sustain the award." Ibid. (quoting R. 4:49-1(a)). 

In determining whether the denial of remittitur or a new 

trial was proper, this court is bound by the same standards as a 

trial court. Jastram, supra, 197 N.J. at 228-231, 235; Baxter, 

supra, 74 N.J. at 598; McRae v. St. Michael's Med. Ctr., 349 

N.J. Super. 583, 597 (App. Div. 2002). Unless a jury's award of 

damages is so disproportionate to the injury and resulting 

disability, the trial judge should not disturb the award.

Jastram, supra, 197 N.J. at 230; Baxter, supra, 74 N.J. at 595.

Thus, to qualify for remittitur or a new trial, as we have 

noted, "the jury's award must shock the judicial conscience."

McRae, supra, 349 N.J. Super. at 597 (citing Baxter, supra, 74 

N.J. at 596); see Ming Yu He v. Miller, 207 N.J. 230, 252 

(2011). 

Here, the trial judge's ruling is clearly supported by the 

record, and does not amount to an abuse of discretion. The jury 

verdict in this case did not constitute a miscarriage of 

justice, nor did the jury's award of damages "shock the judicial 

conscience." McRae, supra, 349 N.J. Super. at 597. "[T]he 

evidence in support of the jury verdict [was] not 

insufficient[,]" and the trial judge's decision to deny the 

motion for a new trial, or in the alternative, a remittitur, 
18 A-6163-12T2

should not be disturbed. Crego v. Carp, 295 N.J. Super. 565, 

572 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997); Amaru 

v. Stratton, 209 N.J. Super. 1, 7 (App. Div. 1985). 

 We note that the accounts of the parties and their 

respective witnesses as to how the accident occurred were

conflicting, and left the jury with the task of resolving their 

credibility. In challenging the verdict as against the weight 

of the evidence, defendants argue that the limited observations 

testified to by plaintiff and his two teenage witnesses are 

insufficient to establish defendants' liability. However, 

Officer Caicedo testified that he was travelling above the speed 

limit. Despite his claim that he observed plaintiff swerving 

his bicycle back and forth over both northbound lanes, Officer 

Caicedo conceded that he neither slowed nor stopped his police 

vehicle. Thus, even if the jury disregarded the testimony of 

plaintiff and his witnesses, it could have premised its verdict 

of liability on Officer Caicedo's testimony alone. 

With respect to the amount of the jury verdict, plaintiff 

presented evidence that he was treated for his injuries by 

Sanjeev Sabharwal, M.D., a pediatric orthopedic surgeon 

specializing in leg-length discrepancy. Plaintiff was 

hospitalized for four days, and remained on bed rest for five 

months, during which he required assistance with all his bodily 
19 A-6163-12T2

functions. He suffers from a 2.8-centimeter (1.1-inch) leglength discrepancy, resulting in a permanent limp. Dr. 

Sabharwal considered procedures to address this discrepancy, but 

concluded they were too risky. Plaintiff also has permanent 

scars and persistent stiffness, and no longer engages in the 

recreational activities he used to enjoy. In Dr. Sabharwal's 

opinion, plaintiff is now "predisposed to some higher prevalence 

of low back pain, and possibly some premature arthritis of the 

lower extremities." At trial, defendants presented no expert 

testimony contradicting Dr. Sabharwal's findings. 

Defendants maintain, however, that the verdict is excessive 

when compared with damage awards in certain other cases.

Defendants cite examples of lesser verdicts, ranging from 

$90,000 to $1,200,000, based on similar injuries but "much 

stronger proofs" on liability and future employability. 

Plaintiff claims that the cases cited by defendants are 

inapposite, and cites verdicts from other cases with injuries 

similar to those sustained by plaintiff that range between 

$1,700,000 and $11,202,000. 

A trial court may consider comparable verdicts in 

determining whether a jury's award is so "wide of the mark" as 

to shock the judicial conscience. He, supra, 207 N.J. at 258.

We are unpersuaded that the verdicts cited by defendants are 
20 A-6163-12T2

sufficient to override the trial court's considered judgment 

that the award in this case was not "so wide of the mark" as to

call for judicial intervention. Ibid. The judge's 

determination was based on the evidence presented at trial, the 

judge's "feel of the case," and her judicial experience. 

Affirmed.