SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1248-17T3

MIRIAM L. CHICAS, a/k/a 

MIRIAM CHICAS,

Plaintiff-Respondent,

v.

TOWN OF KEARNY and 

DEREK P. HEMPHILL,

Defendants-Appellants,

and

JOSE A. MARTINEZ, a/k/a 

JOSE CHICAS,

Defendant-Respondent.

_________________________

JOSE A. MARTINEZ,

Plaintiff-Respondent,

v.

TOWN OF KEARNY and 

DEREK P. HEMPHILL,

Defendants-Appellants.

_________________________________

NOT FOR PUBLICATION WITHOUT THE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.
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A-1248-17T3

Argued November 14, 2018 – Decided

Before Judges Yannotti, Rothstadt, and Gilson.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Docket Nos. L-2516-15 and 

L-4785-15.

Monique D. Moreira argued the cause for appellants 

(Moreira & Moreira, PC, attorneys; Monique D. 

Moreira, on the briefs).

Adam B. Lederman argued the cause for respondent 

Miriam L. Chicas (Davis, Saperstein & Salomon, PC, 

attorneys; Adam B. Lederman and David A. Drescher, 

on the brief).

Antonio D. Arthurs argued the cause for respondent 

Jose A. Martinez (Law Offices of Jeffrey S. Hasson, 

PC, attorneys; Antonio D. Arthurs, on the brief). 

Law Office of Patricia A. Palma, attorneys for 

respondent Jose A. Martinez (Catherine Masterson, on 

the brief).

PER CURIAM

On a snowy night, a Kearny police officer was on patrol in a police 

vehicle. As he came down a street with an incline, he applied the brakes, but 

his car slid through a stop sign and a car driven by plaintiff Jose Martinez

collided with the police vehicle. Plaintiff Miriam Chicas was a passenger in the 

car driven by Martinez. Both Martinez and Chicas were injured and sued the 

police officer and the Town of Kearny, which employed the officer. A jury 

January 10, 2019
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found the officer negligent and solely responsible for the accident. Defendants 

appeal from a January 6, 2017 order denying their motion for summary judgment 

and a July 20, 2017 judgment memorializing the jury verdict. Having reviewed 

the arguments in light of the record and applicable law, we affirm.

I

We take the facts from the record, including the evidence presented at 

trial. On January 2, 2014, weather reports predicted a winter snowstorm. 

Anticipating that the snow might be "heavy" and that road conditions might 

become "hazardous," the Governor declared a state of emergency and authorized 

various state officials to take certain actions if necessary. The declaration did 

not close roads in the state and did not restrict people from driving.

Snow began falling on the evening of January 2, 2014, and continued into 

January 3, 2014. In the early morning hours of January 3, 2014, Kearny Police 

Officer Derek Hemphill was patrolling the streets of Kearny to determine which 

roads needed to be plowed. Officer Hemphill was traveling in a Dodge Durango 

police vehicle. At approximately 1:22 a.m., Officer Hemphill was traveling on 

Laurel Avenue approaching a stop sign at a "T" intersection with Schuyler 

Avenue. As Officer Hemphill applied his brakes, his vehicle skidded and slid 

past the stop sign and into Schuyler Avenue. At approximately the same time, 

plaintiff Martinez was driving a vehicle southbound on Schuyler Avenue, 
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A-1248-17T3

approaching the intersection with Laurel Avenue. Just before Martinez's vehicle 

reached the intersection, Officer Hemphill's vehicle slid into Schuyler Avenue. 

Martinez hit his brakes, but the front of his vehicle collided with the front 

driver's side of Hemphill's vehicle.

Martinez had been driving his sister's car, a Mazda SUV. His sister, 

plaintiff Chicas, was a passenger in the vehicle, sitting in the front seat. A friend

was seated in the rear passenger's side of the vehicle. Martinez and Chicas were 

wearing seatbelts at the time of the collision.

Martinez and Chicas were both injured as a result of the collision. 

Martinez herniated discs in his spine and neck and those injuries required 

medical treatment. He also tore cartilage in his left wrist, which required 

surgery. Chicas injured her neck, lower back, and knee. She required medical 

treatment, which included surgery on her neck and knee.

In 2015, Chicas and Martinez separately sued Kearny and Officer 

Hemphill. In her suit, Chicas also asserted claims against Martinez. Those suits 

were consolidated and the parties engaged in discovery.

During discovery, plaintiffs produced a report on liability prepared by 

Robert Klingen, an expert in accident reconstruction. Klingen opined that 

Officer Hemphill had been driving at twenty-nine miles per hour as he 

approached the stop sign on January 3, 2014. Having reviewed weather reports 
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A-1248-17T3

and various parties' testimony, Klingen pointed out that there was snow on the 

ground and the officer was traveling above the twenty-five-miles-per-hour speed 

limit for Laurel Avenue. Klingen further opined that the officer's rate of speed 

was not appropriate given the snow on the road and the downward incline of

Laurel Avenue. Thus, Klingen opined that Hemphill solely caused the collision 

when his vehicle failed to stop at the stop sign and failed to yield the right-ofway to Martinez's vehicle.

Following the completion of discovery, defendants moved for summary 

judgment contending that plaintiffs' claims were barred by the New Jersey Tort 

Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Defendants also argued that 

Klingen's opinion was a net opinion and he should be precluded from testifying.

After hearing oral argument, the trial court denied the summary judgment 

motion in an order entered on January 6, 2017. The court held that the TCA did 

not apply because Hemphill had been engaged in ministerial actions and none 

of the exemptions under the TCA barred plaintiffs' claims. The trial court also 

held that Klingen's expert opinion was not a net opinion because those opinions 

were based on facts and analysis, including the testimony of the parties at 

depositions, an accident scene inspection, and related analysis.

The parties thereafter agreed to bifurcate liability and damages and, in 

July 2017, the case proceeded to a trial on liability. At the beginning of the 
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liability trial, the court granted an in limine motion filed by plaintiffs and 

precluded defendants from referencing the Governor's declaration of a state of 

emergency. The court ruled that any reference to the state of emergency would 

be substantially more prejudicial than probative because the declaration did not 

prohibit Martinez from driving on January 3, 2014.

During the liability trial, the jury heard testimony from a number of 

witnesses, including plaintiffs, Klingen, Officer Hemphill, and a defense 

liability expert, Mark Marpet. After considering all of the evidence presented, 

the jury returned a verdict for plaintiffs finding Officer Hemphill negligent and 

solely responsible for the accident. On July 20, 2017, the trial court 

memorialized that verdict in a judgment. The judgment also dismissed with 

prejudice Chicas' claims against Martinez.

Thereafter, the parties agreed to resolve damages at a binding arbitration. 

The arbitrator issued his decision on October 27, 2017, and awarded Chicas 

$750,000 and Martinez $625,000.

Defendants now appeal from the order denying them summary judgment 

and the liability judgment. Defendants do not challenge the arbitration award 

on damages.
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II

On appeal, defendants make a number of arguments challenging both the 

denial of their motion for summary judgment and the jury verdict. Those 

arguments can be organized into five issues: (1) whether defendants were 

entitled to judgment as a matter of law based on the TCA; (2) whether plaintiffs' 

expert report should have been barred as a net opinion; (3) whether the trial court 

erred in refusing to allow the jury to consider immunities under the TCA; 

(4) whether the trial court erred in excluding any reference to the state of 

emergency; and (5) whether the trial court erred in denying defendants' request 

for three jury charges. We are not persuaded by any of defendants' arguments

and we discern no error warranting vacating the jury verdict.

A. The TCA

Defendants argue that immunities under the TCA precluded their liability 

as a matter of law. Since these are legal issues, our review is de novo. Templo 

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 

199 (2016) (first citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 

524 (2012); then citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 

140 N.J. 366, 378 (1995)).

"The TCA provides general immunity for all governmental bodies except 

in circumstances where the Legislature has specifically provided for liability." 
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A-1248-17T3

Caicedo v. Caicedo, 439 N.J. Super. 615, 623 (App. Div. 2015) (quoting Kain 

v. Gloucester City, 436 N.J. Super. 466, 473 (App. Div. 2014)). As such, "the 

TCA's dominant theme is immunity, with liability as the exception." Ibid. (first 

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

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

liability exists, '[c]ourts must "recognize[] the precedence of specific immunity 

provisions," and ensure "the liability provisions of the Act will not take 

precedence over specifically granted immunities."'" Patrick ex rel. Lint v. City 

of Elizabeth, 449 N.J. Super. 565, 572 (App. Div. 2017) (alterations in original) 

(quoting Parsons v. Mullica Twp. Bd. of Educ., 440 N.J. Super. 79, 95 (App. 

Div. 2015)). Accordingly, to determine whether a public entity is immune, 

"courts should employ an analysis that first asks 'whether an immunity applies 

and if not, should liability attach.'" Bligen v. Jersey City Hous. Auth., 131 N.J. 

124, 128 (1993) (quoting cmt. on N.J.S.A. 59:2-1(a)). The burden of proof rests 

on the public entity to establish immunity. Caicedo, 439 N.J. Super. at 623

(quoting Kain, 436 N.J. Super. at 473). "Where a public entity is immune from 

liability for injury, so too is the public employee." Id. at 624 (citing N.J.S.A. 

59:3-1(c)).

Defendants argue that three provisions of the TCA provide them with 

immunity. In that regard, they contend that they are protected from liability 
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A-1248-17T3

under (1) the weather condition immunity, N.J.S.A. 59:4-7; (2) the good-faith 

immunity, N.J.S.A. 59:3-3; and (3) the palpably unreasonable standard, N.J.S.A. 

59:3-1(c). We disagree.

1. The Weather Condition Immunity

N.J.S.A. 59:4-7 provides that "[n]either a public entity nor a public 

employee is liable for an injury caused solely by the effect on the use of streets 

and highways of weather conditions." The key word in that immunity is 

"solely." If weather conditions combine with other causes then the weather 

condition immunity will not act as a bar. Dickerson ex rel. Duberson v. Twp. 

of Hamilton, 400 N.J. Super. 189, 198-99 (App. Div. 2008) (quoting McGowan 

v. Borough of Eatontown, 151 N.J. Super. 440, 447 (App. Div. 1977)); see also

Meta v. Twp. of Cherry Hill, 152 N.J. Super. 228, 232 (App. Div. 1977). 

Therefore, the weather condition immunity will not apply to snow- and icerelated accidents where there is evidence that plaintiffs' injuries were caused by 

factors in addition to the weather itself.

Here, there was evidence that the collision was not solely caused by the 

snowy conditions of the roads. Officer Hemphill testified that as he approached

the stop sign at the intersection of Laurel Avenue and Schuyler Avenue, he 

applied his brakes, but his car skidded through the stop sign and proceeded onto 

Schuyler Avenue. While the officer testified that the road had snow on it, he 
10 A-1248-17T3

also testified that he began to apply his brakes approximately 160 feet before 

the stop sign. Plaintiffs submitted an expert report and the expert testified that 

the officer's driving speed and inability to control his vehicle had caused the 

accident. Analyzing the police report, the parties' testimony at depositions, and 

a site inspection, the expert conducted a slide-to-stop calculation. After 

accounting for the downhill grade of Laurel Avenue and the snowy conditions 

of the street, the expert opined that Officer Hemphill was driving at twenty-nine

miles per hour when the speed limit on that road was twenty-five miles per hour.

Based on that evidence, a reasonable jury could conclude that the officer 

had been driving negligently in failing to stop even given the weather conditions. 

Accordingly, there was sufficient evidence presented that weather conditions 

were not the sole cause of the accident. Therefore, defendants were not entitled 

to judgment as a matter of law based on the weather condition immunity.

2. The Good-Faith Immunity

N.J.S.A. 59:3-3 provides that "[a] 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.'" 

Caicedo, 439 N.J. Super. at 624 (alterations in original) (quoting N.J.S.A. 59:3-

2). In Caicedo, we declined to extend the good-faith immunity provision to 
11 A-1248-17T3

police officers acting in situations that do not involve an emergency, "such as 

patrolling the streets or transporting prisoners." Ibid. Accordingly, we held that 

a police officer "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 [a] prisoner 

to the police precinct when [a] collision occurred." Id. at 626.

In that regard, we noted that "[r]ead 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.'" 

Ibid. (quoting Aikens v. Morris, 583 N.E.2d. 487, 493 (Ill. 1991)). 

Consequently, we held that the Legislature did not intend for N.J.S.A. 59:3-3 

"to be construed so broadly." Id. at 627. Instead, "the determination of whether 

a police officer is engaged 'in the execution or enforcement of any law' so as to 

entitle that officer to good-faith immunity under the statute must be made on a 

case-by-case basis." Ibid.

Here, Officer Hemphill testified that he was patrolling the streets of 

Kearny to determine which streets needed to be plowed. He was not responding 

to a report of a crime, an accident, or some other situation requiring his 

immediate attention. Defendants argue that Officer Hemphill was patrolling the 

streets under a state of emergency situation and, therefore, was involved in 

enforcement of the law. As already pointed out, however, the state of emergency 
12 A-1248-17T3

did not close the streets to public use. Instead, the state of emergency authorized 

certain state officials to take actions if appropriate. There was no evidence that 

Officer Hemphill was specifically directed by any state official to conduct the 

patrol that he was engaged in on January 3, 2014. Thus, there was no evidence 

that Officer Hemphill was executing or enforcing any law that would implicate 

the good-faith immunity under the TCA. Accordingly, defendants were not 

entitled to immunity under N.J.S.A. 59:3-3.

3. The Palpably Unreasonable Standard

Defendants also argue that they are entitled to immunity under subsection 

(c) of N.J.S.A. 59:3-1. That provision states, "[a] public employee is not liable 

for an injury where a public entity is immune from liability for that injury." 

Defendants then argue that the Town of Kearny could not be held liable under a 

normal negligence standard. Instead, defendants contend that the Town of 

Kearny could only be liable under a "palpably unreasonable" standard and, 

therefore, plaintiffs needed to show that Officer Hemphill's actions were

palpably unreasonable for liability to attach. The TCA does not support this 

argument.

A public employee is liable for an injury caused by his or her acts or 

omissions to the same extent as a private person unless there is a specific 

immunity granted by the TCA. N.J.S.A. 59:3-1(a). Likewise, "[a] public entity 
13 A-1248-17T3

is liable for injury proximately caused by an act or omission of a public 

employee within the scope of his [or her] employment in the same manner and 

to the same extent as a private individual under like circumstances." N.J.S.A.

59:2-2(a); see also Tice v. Cramer, 133 N.J. 347, 355 (1993) ("The primary 

liability imposed on public entities is that of respondeat superior: when the 

public employee is liable for acts within the scope of that employee's 

employment, so too is the entity[.]")

Defendants cite to Ogborne v. Mercer Cemetery Corp., 197 N.J. 448

(2009) in support of the contention that a heightened "palpably unreasonable" 

negligence standard should apply. In that case, the court used the "palpably 

unreasonable" standard based on N.J.S.A. 59:4-2, which deals with public 

entities' liability for dangerous conditions on public property. See Ogborne, 197 

N.J. at 456-57. That statute is intended to comport with the principles of liability 

used by courts for local public entities in their capacity as landowners. Id. at 

459-60 (citing Margolis & Novack, Claims Against Public Entities, 1972 Task 

Force Comment on N.J.S.A. 59:4-2 (2016)). While N.J.S.A. 59:4-2 has been 

applied broadly, it nevertheless is limited to situations where a dangerous 

condition of public property itself is at issue. Ibid.

Here, plaintiffs are not complaining about the condition of the roads in 

Kearny. Instead, plaintiffs sought to hold Kearny and Officer Hemphill 
14 A-1248-17T3

responsible for the negligence of the officer while he was patrolling in snowy 

conditions. Accordingly, the heightened "palpably unreasonable" standard set 

forth in N.J.S.A. 59:4-2 is inapplicable. Rather, in accord with N.J.S.A. 

59:2-2(a), defendants were subject to liability under the normal negligence 

standard.

B. Plaintiffs' Expert Report

Defendants next argue that they were entitled to summary judgment 

because plaintiffs' expert opinion was a net opinion and, without that expert 

opinion, plaintiffs could not prove liability. The trial court rejected defendants' 

arguments and found the expert opinions were based on facts and data, including 

testimony by the parties, an inspection of the accident scene, a review of weather 

reports, and related analysis. The trial court concluded that the expert opinions 

possessed the "why and wherefores" and, thus, were not inadmissible as net 

opinions.

We review a trial court's decision to admit expert testimony under an 

abuse of discretion standard. Alloco v. Ocean Beach & Bay Club, 456 N.J. 

Super. 124, 142 (App. Div. 2018) (quoting Townsend v. Pierre, 221 N.J. 36, 53 

(2015)). The net opinion doctrine is a "corollary of [N.J.R.E. 703] . . . which 

forbids the admission into evidence of an expert's conclusions that are not 

supported by factual evidence or other data." Quail v. Shop-Rite Supermarkets, 
15 A-1248-17T3

Inc., 455 N.J. Super. 118, 132 (App. Div. 2018) (alterations in original) (quoting 

Pierre, 221 N.J. at 53-54). "[T]he net opinion rule 'requires an expert to give the 

why and wherefore of his or her opinion, rather than a mere conclusion.'" 

Alloco, 456 N.J. Super. at 142 (quoting State v. Townsend, 186 N.J. 473, 494 

(2006)). Experts must "be able to identify the factual bases for their conclusions, 

explain their methodology, and demonstrate that both the factual bases and the 

methodology are reliable." Pierre, 221 N.J. at 55 (quoting Landrigan v. Celotex 

Corp., 127 N.J. 404, 417 (1992)).

Here, we discern no abuse of discretion in the trial court's decision to 

admit the expert opinion by Klingen. Klingen's opinions were based on evidence 

in the record. In that regard, he reviewed a police accident and investigation 

report, interrogatory responses, and deposition testimony by the parties, 

including Officer Hemphill, Martinez, and Chicas. Klingen also conducted a 

physical inspection of the location where the collision occurred and performed 

accident reconstruction analysis, including a slide-to-stop calculation.

Klingen's report and his testimony provided analysis and explained how 

he reached his opinions. Moreover, the analysis and resulting opinions were not 

based on a "personal standard." See Alloco, 456 N.J. Super. at 143 ("A standard 

which is personal to the expert is equivalent to a net opinion." (quoting 

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 373 (2011))). 
16 A-1248-17T3

Instead, the opinions were based on standards used by accident reconstruction 

experts. In that regard, Klingen relied on sources such as traffic accident 

reconstruction manuals, a traffic accident investigation manual, and a manual 

on equations for the traffic crash reconstructionist. In short, Klingen's expert 

opinions were not net opinions.

C. Trial Court's Decision Not To Ask The Jury To Consider 

Immunities Under The TCA

Defendants argue that, at trial, the court erred by instructing the jury to 

determine if defendants were negligent. Defendants contend that the jury should 

have been instructed on the verdict sheet to determine if defendants were 

protected by the three immunities defendants claim precluded their liability 

under the TCA. In other words, having been denied summary judgment on those 

TCA immunities, defendants asked the trial court to allow the jury to consider 

those immunities.

Here, there were no material fact disputes concerning the application of 

the three TCA immunities. Instead, as defendants acknowledged in moving for 

summary judgment, determining whether the three immunities under the TCA 

applied to the facts of this case involved questions of law for the court to decide. 

As we have already determined that the immunities did not apply as a matter of 

law, the trial court correctly refused to submit those legal issues to the jury.
17 A-1248-17T3

D. The State of Emergency

Next, defendants assert that the trial court erred when it granted plaintiffs' 

in limine motion to preclude reference to the Governor's state-of-emergency

declaration. Defendants first contend that the in limine motion was filed late 

and should not have been considered. Second, they argue that, substantively, 

the court erred by precluding references to the state of emergency because such 

evidence was not substantially more prejudicial than probative. We disagree 

with both of these arguments.

Defendants did not challenge the timeliness of the in limine motion in the 

trial court. Accordingly, we decline to consider it for the first time on appeal. 

"[A]ppellate courts will decline to consider questions or issues not properly 

presented to the trial court when an opportunity for such a presentation is 

available." State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson, 

200 N.J. 1, 20 (2009)); Nieder v. Royal Idem. Ins. Co., 62 N.J. 229, 234 (1973). 

Nevertheless, we note that the record reflects that more than seven days before 

trial, plaintiffs served their pre-trial information exchange, which stated that 

they intended to bring an in limine motion to bar any reference to a "statewide 

vehicular ban on the day of the accident[.]" Three days before trial, plaintiffs 

amended their pre-trial information exchange to further clarify that their in 

limine motion would seek to bar "any reference to a 'State of Emergency' and/or 
18 A-1248-17T3

statewide vehicular ban on the day of the accident[.]" Accordingly, defendants 

were on notice prior to trial of the in limine motion and we discern no reversible 

error concerning the timeliness of the motion. See R. 4:25-7(b) (governing the 

exchange of information regarding in limine or trial motions).

Turning to the substance, the trial court determined that the reference to 

the state of emergency would be substantially more prejudicial than probative 

under Rule 403. Specifically, the trial court found that there was no evidence 

that motor vehicles were prohibited from being on the road on the day of the 

accident. Accordingly, the trial court reasoned that the jury could incorrectly 

assume that a state of emergency meant plaintiffs' vehicle should not have been 

on the road and, thus, references to the state of emergency could be confusing.

We review the trial court's decisions to admit or exclude evidence under 

an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. 

Co., 202 N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 

480, 492 (1999)). Accordingly, absent a showing that the court abused its 

discretion, we will not reverse a decision concerning the admission or exclusion 

of evidence unless we conclude that it was so wide of the mark as to bring about 

a manifest injustice. E & H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super. 

12, 24-25 (App. Div. 2018) (citing Griffin v. City of E. Orange, 225 N.J. 400, 

413 (2016)).
19 A-1248-17T3

Under Rule 403, the trial court can exclude relevant evidence "if its 

probative value is substantially outweighed by the risk of (a) undue prejudice, 

confusion of issues, or misleading the jury or (b) undue delay, waste of time, or 

needless presentation of cumulative evidence." N.J.R.E. 403. "The burden lies 

with the party seeking exclusion of the evidence to show that the probative value 

is substantially outweighed by one or more of the factors listed in Rule 403." 

McLean v. Liberty Health Sys., 430 N.J. Super. 156, 167 (App. Div. 2013) 

(citing State v. Morton, 155 N.J. 383, 453 (1998)).

Here, we discern no abuse of discretion in the trial court's decision to 

exclude evidence of the state of emergency. As already noted, the executive 

order declaring a state of emergency did not ban vehicles from traveling on the 

roadways. Instead, it authorized various state officials to take actions if they 

deemed it appropriate depending on how the snowstorm developed. The trial 

court did not abuse its discretion when it found reference to the state of 

emergency would confuse the issues the jury needed to determine and that 

confusion was substantially more prejudicial than probative. Indeed, defendants 

have not articulated how the state of emergency was probative of any issue the 

jury needed to determine.
20 A-1248-17T3

E. Defendants' Requested Jury Charges

Finally, defendants argue that the trial court erred by refusing to give the 

jury three instructions that defendants had requested. Specifically, defendants 

wanted the jury to be read the charges concerning (1) an act of God, Model Jury 

Charge 5.10(E); (2) proximate causation, where there is a claim of concurrent 

cause of harm, Model Jury Charge 6.13; and (3) the duty of a passenger in an 

automobile, Model Jury Charge 7.12.

"A jury is entitled to an explanation of the applicable legal principles and 

how they are to be applied in light of the parties' contentions and the evidence 

produced in the case." Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002) 

(quoting Rendine v. Pantzer, 276 N.J. Super. 398, 431 (App. Div. 1994)). 

Accordingly, a "jury charge must correctly state the applicable law, outline the 

jury's function and be clear in how the jury should apply the legal principles 

charged to the facts of the case at hand." Estate of Kotsovska ex rel. Kotsovska 

v. Liebman, 221 N.J. 568, 591 (2015) (quoting Viscik, 173 N.J. at 18). Courts 

accomplish this goal by tailoring the jury charge to the specific facts of a case. 

Id. at 591-92 (citing Reynolds v. Gonzalez, 172 N.J. 266, 289 (2002)).

In reviewing the adequacy of a jury charge, we consider the charge as a 

whole to determine if any error occurred. See id. at 592; see also State v. 

Figueroa, 190 N.J. 219, 246 (2007) (citing State v. Wilbely, 63 N.J. 420, 422 
21 A-1248-17T3

(1973)). When a party objects to a jury charge at trial, we will reverse on the 

basis of a challenged error "unless the error is harmless." Estate of Kotsovska, 

221 N.J. at 592 (quoting Toto v. Ensuar, 196 N.J. 134, 144 (2008)). "An error 

is harmful only where that error is 'clearly capable of producing an unjust 

result.'" Ibid. (quoting R. 2:10-2). Applying this standard, we discern no 

reversible error in the decision of the trial court to not give these three jury 

charges.

An act of God must be an unexpected event. In that regard, the model 

jury charge explains that "[a]n act of God is an unusual, extraordinary and 

unexpected manifestation of the forces of nature, or a misfortune or accident 

arising from inevitable necessity which cannot be prevented by reasonable 

human foresight and care." Model Jury Charges (Civil), 5.10(E), "Act of God" 

(approved before 1984). The trial court acknowledged that the snow on the day 

of the accident was predicted and Officer Hemphill was aware that he was 

driving on snow-covered roads. Accordingly, the court reasoned that the 

snowfall on the day of the accident was not a phenomenon of weather so 

unpredictable or extensive to constitute an act of God. We discern no reversible 

error in that decision.

Addressing proximate cause, the trial court determined to give the 

proximate cause charge under Model Jury Charge 6.12, rather than the charge 
22 A-1248-17T3

under Model Jury Charge 6.13. Model Jury Charge 6.12 addresses proximate 

cause where there is a claim that concurrent causes of harm were present. Model 

Jury Charges (Civil), 6.12, "Proximate Cause — Where There Is Claim that 

Concurrent Causes of Harm Were Present" (approved May 1998). In contrast, 

Model Jury Charge 6.13 addresses situations involving proximate cause where 

there were concurring causes and there are claims that the specific harm was not 

foreseeable. Model Jury Charges (Civil), 6.13, "Proximate Cause — Where

There Is Claim that Concurrent Causes of Harm Are Present and Claim that 

Specific Harm Was Not Foreseeable" (approved May 1998). We discern no 

reversible error in the court's decision to charge proximate cause under Model 

Jury Charge 6.12, as compared to Model Jury Charge 6.13.

Model Jury Charge 7.12 addresses a situation where a passenger "knows, 

or in the exercise of reasonable care should know, that the driver is incapable of 

operating the automobile or is operating the automobile in a negligent 

manner[.]" Model Jury Charges (Civil), 7.12, "Duty of Passenger in 

Automobile" (approved May 1991). In such circumstances, the jury can then be 

charged that "when it should become apparent to a reasonably careful person 

that the vehicle is being driven negligently, the reasonable passenger must 

protest or otherwise persuade the driver to drive carefully." Ibid.
23 A-1248-17T3

Here, defendants' theory was that Chicas was negligent for getting into the 

car with Martinez a second time. In that regard, the evidence at trial showed 

that Martinez and Chicas had first stopped at Chicas' home, and then continued 

driving to Martinez's home, which was located nearby. Chicas elected to go 

with Martinez on the second trip because Martinez was using her vehicle, and 

she planned to return home with it after dropping him off.

Defendants cite to no law for the proposition that a reasonably careful 

person who is riding in a motor vehicle as a passenger when it is snowing would 

know or should know that the driver is operating the vehicle negligently. 

Accordingly, we discern no reversible error in the trial court's decision not to 

give an instruction concerning the duty of a passenger in an automobile.

In summary, having reviewed the record, including the record at trial, 

defendants were accorded a fair trial. They were charged with negligence, but 

they were afforded a full and fair opportunity to present their defenses. Thus, 

there is no basis to reverse the jury verdict.

Affirmed.