SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T1 GERONIMO Q. MINESES, JR., Plaintiff

- Appellant,

v. EDGAR G. CARRERA

- LOPEZ, DONERITE TRUCKING, LLC, and FRANKLIN AGUILAR, Defendants

- Respondents.

______________________________ VILMA MINESES , by her subrogee STATE FARM INDEM NI TY COMPANY, Plaintiff, v. PLAZA INSURANCE COMPANY, Defendant.

___ ___________________________

Argued telephonically June 11 , 2019

– Decided Before Judges Koblitz, Currier and Mayer.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

July 5, 20192 A

- 5625

- 17T1 On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L

- 4381

- 16. Ernest Blair argued the cause for appellant (Karim Arzadi, attorney; Ernest Blair , on the briefs).
Terrence J ohn Bolan argued the cause for respondents (Bolan Jahnsen, attorneys; Terrence J ohn Bolan, on the brief).
P ER CURIAM Plaintiff Geronimo Q. Mineses, Jr. appeals from a June 22, 2018 final judgment after a no cause jury verdict , finding plaintiff failed to prove defendant Edgar G. Carre r a - Lopez 1 was negligent. In addition, plaintiff appeals from a July 20, 2018 order denying his motion for a new trial. We affirm both orders. The jury had to determine whether defendant was liable for an automobile accident occurring on October 19, 2015 . On the liability issue , t he jury heard testimony from plaintiff, defendant, and a police officer who responded to the accident, Officer Christopher Cavallo. Plaintiff testified at trial he was stopped at an intersection in the ce n ter lane of a three

- lane highway. Defendant's tru ck was directly behind his car. When the light turned green, plaintiff stated he began to move forward when he

1 P laintiff named two additional defendants in his complaint . However , counsel and the trial court referred only to defendant Edgar G. Carrera

- Lopez throughout the trial.3 A

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was struck from behind by defendant. The impact caused his car to turn in front of the truck and he was push ed thirty feet

. According to p laintiff , he did not change lanes prior to being struck by the truck. At the scene of the accident,
p laintiff provided a s tatement to the responding police officer

. Defense counsel cross

- examined plaintiff regarding his version of the accident. D efense counsel also read to the jury the portion of plaintiff's deposition explaining the accident. During his deposition, plaintiff testified defendant's truck hit his car near the left rear tire. At trial, plaintiff stated defendant's truck struck the rear o f his car. Officer Cavallo testified he was dispatched to the accident s cene. The officer was un able to recall specific details regarding th is particular incident , but describe d his usual procedure when responding to a motor vehicle accident. Officer Ca vallo explained that he typically takes statements from the individuals involved in an accident. In this case, he created a written report after the accident and referred to the report during his trial testimony

. According to Officer Cavallo , plaintiff said defendant's truck hit his car from behind , causing the car to turn in front of the truck and dragging the car thirty feet. Officer Cavallo testified he also spoke with defendant

. Defendant allegedly t old the officer that he did not real ize plaintiff's car was in front of him4 A

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and his truck hit plaintiff's car from behind. On cross

- examination, Officer Cavallo admitted the parties' statements in his written report were not verbatim.
He also testified that the damage to plaintiff's car wa s located in the "rear driver's side quarter panel or back fender

. " The jury also heard testimony from defendant. According to defendant, prior to the accident, he was stopped at a red light in the center lane . Defendant stated plaintiff's car was t o the right of his truck. When the light turned green , defendant explained "the next thing [he] knew [ plaintiff ] was in front of [ defendant's truck] ." He further testified , "I don't know [why Officer Cavallo wrote the truck hit plaintiff's car from behind ]

. . . , because I told him one thing and what's on the report is something else." After completion of the testimony, the judge conducted a charge conference. Plaintiff requested the judge instruct the jury on N.J.S.A. 39:4

- 89, which requires dr ivers to follow at a reasonable distance. Defendant asked the judge to include a charge based on N.J.S.A. 39:4

- 88(b), which requires drivers
to perform safe lane changes. Plaintiff 's counsel objected to inclusion of the unsafe lane change charge, arguin g there was insufficient evidence to support such a jury instruction

. T he5 A

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judge overruled plaintiff's objection, finding there was sufficient evidence to infer plaintiff failed to change lanes safely

. In the final charge, the judge explained that the ju ry "should consider the [] instructions as a whole, and

. . . not pick out any particular instruction and place undue emphasis upon it." The judge also stated t he jury's decision should be "based solely on the evidence presented and [the judge' s] instructions on the law." In addition, the jury was instructed "to decide which witness [es] to believe and which witnesses not to believe. " Specifically, the judge told the jury to

assess the credibility of the witnesses by examining the witnesses' inter est in the outcome of the case, the accuracy of the witnesses' testimony, and any explanation given by the witness es to explain any inconsistencies in the testimony. With regard to the specific evidence, t he judge explained the case involved

a car accident and plaintiff alleged that defendant was negligent . T he judge told the jury that defendant denied he was negligent and claimed in turn that plaintiff was negligent. T he judge instructed the jury that it would decide the issue of negligence

. The judge further told the jury that a party making an allegation must
prove the allegation by a preponderance of the evidence

. The trial judge stated,6 A

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- 17T1 [i]n this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the fact s necessary to prove

. . . that the defendant was negligent and that said negligence was a proximate cause of the accident. However, t he trial judge omitted a similar inst ruction regarding the defendant ' s burden of proof

. T he judge told the jury both parties " assert that the other party was guilty of negligence in the operation of their automobile , " that each party asserted the other violated a specific motor vehicle statute , and the ju ry could find the violation of a statute co nstitute d negligence. After the judge charge d the jury, plaintiff's counsel requested a sidebar conference. P laintiff argued the judge failed to instruct the jury on defendant ' s burden of proof. During the sidebar colloquy, the judge ruled that the jury was told defendant had the same burden of proof as plaintiff. 2 The judge believed he had instructed the jury properly and denied the request to add to the charge. The jury then deliberated and unanimously found plaintiff failed to prove defendant was negligent

. As a result, t he jury did not consider the remaining questions on the verdict sheet , including the question regarding plaintiff's negligence

.

2 In his merits brief , defendant concedes the judge omitted the portion of the model jury charge related to defendant's burden of proof.7 A

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P laintiff filed a motion for a new trial , arguing the evidence demonstrated defendant was negligent in the operat ion of his truck

. Plaintiff also claimed "[t] here's nothing

. . . offered by the defendant to account for an improper lane change ." Plaintiff asserted the jury overlooked uncontroverted evidence and "[a] terri ble wrong was committed by th[e] jury ."
In a July 20, 2018 order, t he judge denied the new trial motion. He found the testimony and evidence presented at trial allowed the jury to infer plaintiff caused the accident. T he judge therefore did not "find that . . . there was a miscarriage of justice." On appeal, plaintiff argues the judge erred in denying his motion for a new trial. In addition, plaintiff contends it was an error for the judge to charge the jury regarding an unsafe lane change, N.J.S.A. 39:4

- 88(b). Further, plaintiff claims the ju dge erred in failing to charge the jury as to defendant's burden of proof

. Because defendant requested the jury be instructed regarding plaintiff's violation of N.J.S.A 39:4

- 88(b), plaintiff asserts the judge should have
instructed that defendant had the burden of establishing the facts necessary to prove the unsafe lane change allegation against plaintiff. A new trial motion is governed by Rule 4:49

- 1. In accordance with the
rule , "[t]he trial judge shall grant the motion [for a new trial] if, having gi ven8 A

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due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49

- 1(a). A trial court's ruling on a "motion for a new trial wil l not be disturbed unless it clearly appears that there was a miscarriage of justice under the law." Diakamopoulos v. Monmouth Med. Ctr. , 312 N.J. Super. 20, 36 (App. Div. 1998) (citing Caldwell v. Haynes , 136 N.J. 422, 432 (1994)). Jury verdicts are "entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully reasoned and factually supported and articulated determination, after canvassing the record and weighing the evidence, that the conti nued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp.,
Inc. , 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co. , 74 N.J. 588, 597

- 98 (1977)).
J ury trials are the bedrock of our syst em of civil justice , and the jury's fact

- finding function deserves a high degree of respect and judicial deference.
See Caldwell , 136 N.J. at 432. In assessing the strength of the proofs, a jury verdict is "impregnable unless so distorted and wrong, in t he objective and articulated view of a judge, as to manifest with utmost certainty a plain9 A

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miscarriage of justice." Doe v. Arts , 360 N.J. Super. 492, 502

- 03 (App. Div. 2003) (quoting Carrino v. Novotny , 78 N.J. 3 5 5, 360 (1979) ). Applying these principles , we are satisfied the re was ample evidence for the jury to reasonably find plaintiff failed to establish defendant was negligent in the operation of his truck. The damage described by the parties and sh own on the p hoto grap h s was on the driver's side rear panel , not the rear bumper as later claimed by plaintiff. In addition , it was the jury's province to assess the credibility of the parties' inconsistent versions of the accident

. We next consider plaintiff's argument that the judge's instructions to the jury were erroneous. "It is axiomatic that clear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain
error." Das v. Thani , 171 N.J. 518, 527 (2002) (citing State v. Robinson , 165 N.J. 32, 40 (2 001)) . Reversible error " will n ot be found where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect." Fischer v. Canario , 143 N. J. 235, 254 (1996 ) (citing L atta v. Caulfield , 79 N.J. 128, 135 (1979))

. Here, the judge instructed the jury that a party asserting an allegation had the burden of proving the allegation. The judge should have also instructed the10 A

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jury specifically as t o defendant's burden of proof regarding his allegations as the judge did with regard to plaintiff 's burden of proof . But the error is harmless. The first question on the verdict sheet asked whether plaintiff proved defendant was negligent. Having unanim ously answered "no" to that question, the jury did not deliberate on the remaining questions, including whether plaintiff was negligent. The jury never had to decide whether defendant met his burden of proving plaintiff's negligence because plaintiff fail ed to satisfy his burden of proof regarding defendant's negligence. In reviewing the record , the jury charge as a whole adequately conveyed the law regarding negligence

. Because the jury never reached the issue of plaintiff's negligence, the judge's failure to explicitly state defendant had the burden of proving plaintiff's negligence did not confuse or mislead the jury

. Moreover, defense counsel never argued the issue of plaintiff's negligence during summation

. Consequently, w e are satisfied that t he jury was not confused and properly applied the law as instructed by the judge.
W e are satisfied there was sufficient credible evidence to support the jury's verdict and, therefore, we discern no basis for disturbing the judge's denial of plaintif

fs motion for a new trial

. Affirmed.