Original WP 5.1
This case can also be found at 361 N.J. Super. 106, 824 A.2d 251.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-6264-00T3
MICHAEL T. ALAPE,
Argued December 18, 2002 - Decided June 9,
Before Judges King, Lisa and Fuentes.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, L-4789-99.
William S. Winters argued the cause for
Robert S. Helwig argued the cause for
respondent (Hoagland, Longo, Moran, Dunst &
Doukas, attorneys; Mr. Helwig, of counsel; J.
Silvio Mascolo, on the brief).
William M. Dellicato, attorney for amicus
curiae Mothers Against Drunk Driving.
The opinion of the court was delivered by
We consider in this appeal whether plaintiff, who was injured
by an allegedly intoxicated hit-and-run driver, presented
sufficient evidence to warrant submission of a punitive damages
claim to the jury. After conducting a pre-trial N.J.R.E. 104(a)
hearing, the trial judge concluded that, although evidence existed
that defendant consumed some alcohol prior to the accident, there
was insufficient credible, admissible evidence from which a jury
could find that defendant was intoxicated at the time of the
accident. He further found an absence of aggravating factors which
would justify submission to the jury of a punitive damages claim.
The judge dismissed plaintiff's count for punitive damages.
We also address a discovery violation asserted by plaintiff.
Defendant admitted liability, and the compensatory claim was tried
as to damages only. Defendant was permitted to play, over
plaintiff's objection, a surveillance videotape of plaintiff that
had not been disclosed prior to trial despite plaintiff's discovery
demand. The jury awarded plaintiff $70,000.
See footnote 11 Plaintiff is
dissatisfied with the compensatory award and claims he was
prejudiced by the non-disclosure of the videotape prior to trial.
Plaintiff's motion for a new trial on both compensatory and
punitive damages was denied, and he now appeals. We reverse on
both issues and remand for a new trial.
We first address the punitive damages issue. Our analysis is
guided by summary judgment principles,
See footnote 22 the ultimate issue being
"whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party, are sufficient
to permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am.,
142 N.J. 520, 540 (1995). On appeal, we apply the
same standard as the trial court. Prudential Property & Cas. Ins.
Co. v. Boylan,
307 N.J. Super. 162, 167 (App. Div. 1998). All
legitimate inferences must be drawn in favor of the non-moving
party. R. 4:46-2(c). In this context, we must determine whether
plaintiff has made out a primafacie case of entitlement to
Viewing the evidential materials most favorably to plaintiff,
these are the facts. On January 12, 1998, at about 5:00 p.m., the
seventeen-year-old plaintiff and his two friends were attempting to
cross Woodbridge Avenue in Edison. They were not at an
intersection. The area is residential. Rush hour traffic was
heavy. Woodbridge Avenue has one lane in each direction, separated
by a double yellow line at this location. A car stopped to allow
the boys to cross, and they entered the roadway in front of that
car from its right.
Defendant was driving behind the car that stopped. Defendant
crossed the double yellow line, passed the stopped car, and cut
back into the right lane. One of the boys successfully jumped
back, and another boy also avoided being hit. Defendant struck
plaintiff, however, with the right front portion of his car,
propelling plaintiff into the air, striking and smashing the right
side of defendant's windshield, and vaulting over the car.
Three eyewitnesses testified at the N.J.R.E. 104(a) hearing:
Robert Ellmyer, who was standing on his front yard adjacent to the
point of impact; Sherine Heikal, a limousine driver proceeding in
the same direction as defendant and directly behind him at the time
of impact; and Eugene Yu, the friend of plaintiff who successfully
jumped out of defendant's path. These three witnesses, all of whom
are independent of each other and two of whom are independent of
plaintiff, estimated defendant's speed to be excessive at the time
of impact. Heikal and Yu said defendant was going about fifty
miles per hour, and Ellmyer estimated defendant's speed at forty to
fifty miles per hour. The posted speed limit is thirty-five miles
See footnote 33
After impact, defendant continued driving without immediately
slowing down. He approached a red light, where several vehicles
were stopped. Defendant stopped in this line of traffic. Heikal
had stopped and exited his vehicle at the accident scene. He and
plaintiff's other friend, Juan Andino, pursued defendant's vehicle
on foot. They caught up to it while stopped in traffic at the red
light. Defendant's windows were closed. Heikal went to the
driver's side window and Andino to the passenger's side.
Heikal banged on the window, yelling to defendant more than
once that he "just hit a kid." Andino was yelling from the
passenger side, "You just hit my friend. You just hit my friend."
Heikal described defendant's reaction: Defendant "just looked at
me like, you know, it was like he was in a different world and he
couldn't understand what I'm saying --" "He just looked at me and
smiled." "When I talked to him, sir, he seemed to me in a
different world. He wasn't there. He wouldn't understand what I'm
saying. All his cheeks were very, very red and his eyes was
completely red. And his head was like, you know, moving around
like it's not stable as a normal person driving a car." Defendant
also looked at Andino, making no response.
See footnote 44 When the light turned
green and traffic began to move, defendant drove away. He left the
scene. Heikal made note of defendant's license plate number and
gave it to the police.
Heikal had observed defendant's driving for about a quarter of
a mile before the accident. He described how defendant used a
left-turn-only lane while approaching an intersection to pass a
line of cars in the straight-only lane. Defendant's car "was
skidding a little bit and then he just cut off in the front of us."
Although the heavy rush hour traffic was moving along at about
twenty-five to thirty miles per hour, defendant was passing other
cars, reaching speeds of "at least 50" miles per hour. Heikal was
directly behind defendant when he saw the car in front of defendant
braking. Instead of slowing down and stopping behind that vehicle,
defendant, traveling at about fifty miles per hour, completely
crossed the double yellow line, passed the vehicle, and then, as he
cut back into the right lane, struck plaintiff.
Defendant was identified through Division of Motor Vehicle
records and located the next day at his home in Piscataway Township
at about 1:00 p.m. Piscataway Officer Douglas Zuber went to
defendant's home and observed the damaged car in front of the
house. From his observations, Zuber believed defendant to be
intoxicated at that time. Defendant admitted to drinking that
morning. When Zuber informed defendant of the purpose of his
visit, defendant said he did not remember having an accident or
hitting anyone the previous day. Defendant told Zuber he sometimes
blacks out. Zuber was concerned for defendant's safety, because
defendant appeared intoxicated, was home alone, and stated he
suffers from blackouts. At Zuber's direction the local ambulance
squad was called and it transported defendant to a hospital. The
Edison police arrived and had defendant's car towed.
Although defendant has steadfastly denied any recollection of
the accident, he does not deny that he was the driver of his car
which struck plaintiff. He pled guilty in municipal court to
charges of careless driving, N.J.S.A. 39:4-97, and failure to
report an accident, N.J.S.A. 39:4-130. These pleas were entered
without a reservation that they could not be used against defendant
in a civil action. R. 7:6-2(a)(1).
Defendant has a history of alcoholism, which predates the
accident by at least three years. He was twice admitted to the
Carrier Clinic before the accident for alcoholism and depression.
On the day after the accident, defendant gave a statement to Edison
Township Officer S. Miller:
He stated that he does not remember being
in Edison or even driving his car . . . . He
stated he has a drinking problem and drank
from 11:00 AM till when he blacked out but
does not remember when. He does not remember
anything that happened during [January 12,
1998]. He stated that he is also on
medication for depression which he took with
In his testimony at the N.J.R.E. 104(a) hearing, defendant
stated he did not believe he blacked out on the date of the
accident. He was unemployed. He admits drinking three or four
beers that morning while working on his car. He contends he came
in the house about noon and, at 3:00 p.m., he picked up his ten-
year-old daughter from school and returned home. He then laid down
on the couch and does not remember anything until the next morning.
He could not say whether he drank any more that afternoon. His
reason for not remembering is that he was drinking.
Defendant acknowledged seeking medical assistance for his
drinking problem from his general practitioner prior to the
accident. The doctor told him he was clinically depressed and was
self-medicating with alcohol. Defendant would self-medicate with
alcohol when he was unemployed. He admitted to self-medicating in
that manner from "Christmastime through January  and I became
employed February 1st." Defendant further described a blackout
resulting from excessive alcohol consumption in October 1997
because he lost his job and learned he was not eligible for
unemployment benefits. On that occasion, defendant admitted
drinking himself "into oblivion." According to defendant, his
reason for drinking during this time period was his unemployed
status. Defendant stated he would typically drink twelve to
eighteen beers per day. In addition, he drank vodka. Although he
denied drinking that much on the date of the accident, he could not
recall how much he did drink.
Defendant further acknowledged he was taking either Depakote
or Paxil for depression. He does not recall whether his
prescription was changed before or after the accident. He denies
being advised by his physician not to mix the medication with
alcohol. He admitted he has since become aware of such
restrictions "[b]ecause now I read the piece of paper that comes
inside the bag with the prescription each time."
A defendant's conduct must be particularly egregious to
support an award of punitive damages. "To warrant a punitive
award, the defendant's conduct must have been wantonly reckless or
malicious. There must be an intentional wrongdoing in the sense of
an 'evil-minded act' or an act accompanied by a wanton and wilful
disregard of the rights of another." Nappe v. Anschelewitz, Barr,
Ansell & Bonello,
97 N.J. 37, 49 (1984) (citing DiGiovanni v.
55 N.J. 188, 191 (1970)).
Something more than the mere commission of a tort is always
required. There must be circumstances of aggravation or outrage,
which may consist of such a conscious and deliberate disregard of
the interests of others that the tortfeasor's conduct may be called
wanton and willful. Lacking this element, mere negligence, however
gross, is generally held not to be enough. Nappe, supra, 97 N.J.
at 50 (citing Giovanni, supra, 55 N.J. at 190 (quoting W. Prosser,
Handbook on the Law of Torts '2, at 9-10 (2d ed. 1955)). A
plaintiff must demonstrate a "deliberate act or omission with
knowledge of a high degree of probability of harm and reckless
indifference to consequences." Berg v. Reaction Motors Div.,
37 N.J. 396, 414 (1962).
"The defendant, however, does not have to recognize that his
conduct is 'extremely dangerous,' but a reasonable person must know
or should know that the actions are sufficiently dangerous." Parks
v. Pep Boys,
282 N.J. Super. 1, 17 (App. Div. 1995) (citing
McLaughlin v. Rova Farms, Inc.,
56 N.J. 288, 306 (1970)). Willful
and wanton misconduct signifies something less than an intention to
hurt. McLaughlin, supra, 56 N.J. at 306. The standard can be
established if the defendant knew or had reason to know of
circumstances which would bring home to the ordinary reasonable
person the highly dangerous character of his or her conduct. Ibid.
With the adoption in 1995 of the Punitive Damages Act (PDA),
N.J.S.A. 2A:15-5.9 to -5.17, the Legislature essentially codified
these common law principles. SeeSmith v. Whitaker,
160 N.J. 221,
242-46 (1999). The statutory standard of proof is:
Punitive damages may be awarded to the
plaintiff only if the plaintiff proves, by
clear and convincing evidence, that the harm
suffered was the result of the defendant's
acts or omissions, and such acts or omissions
were actuated by actual malice or accompanied
by a wanton and willful disregard of persons
who forseeably might be harmed by those acts
or omissions. This burden of proof may not be
satisfied by proof of any degree of negligence
including gross negligence.
"Punitive damages" are defined as those awarded "because of
aggravating circumstances in order to penalize and to provide
additional deterrence against a defendant to discourage similar
conduct in the future." N.J.S.A. 2A:15-5.10. "'Actual malice'
means an intentional wrongdoing in the sense of an evil-minded
act." Ibid. "'Wanton and willful disregard' means a deliberate
act or omission with knowledge of a high degree of probability of
harm to another and reckless indifference to the consequences of
such act or omission." Ibid.
In his punitive damages count, plaintiff does not allege
actual malice. He alleges that defendant's conduct exhibited a
wanton and willful disregard of persons who forseeably might be
harmed. He argues that he has presented sufficient evidence to
enable a jury to rationally find, by clear and convincing evidence,
that defendant was intoxicated, that his intoxication was a cause
of the accident, and that sufficient aggravating circumstances were
present to support a punitive damages award. We agree that a primafacie case is established, warranting submission of this issue to
We initially note that intoxication is not a prerequisite to
a punitive damages claim arising out of a motor vehicle accident.
See,e.g., Smith, supra, 160 N.J. at 221 (affirming punitive
damages award against commercial truck owner that allowed operation
of its truck for one month, knowing it had defective brakes, which
was a cause of the accident). Conversely, a defendant's
intoxication, standing alone, is not sufficient to support a
punitive damages award. McMahon v. Chryssikos,
218 N.J. Super. 571
(Law Div. 1986).
In McMahon, decided before the adoption of the PDA, Judge
Conley canvassed decisions in other jurisdictions and found that
most states that have considered the issue allow a jury to consider
imposition of punitive damages when a defendant becomes voluntarily
intoxicated and then operates a motor vehicle. Id. at 575. Some
states have adopted a perse rule, allowing punitive damages based
on intoxication alone, while others require an additional showing
of aggravating circumstances. Ibid. Judge Conley found the latter
approach to be consistent with New Jersey's punitive damages
jurisprudence. Id. at 579.
The well-reasoned rationale of McMahon gains added support
from the provisions of the PDA. The legislation evinces a
pervasive legislative intent to curb, rather than expand, the
availability of punitive damages. SeeSmith, supra, 160 N.J. at
245-46. The legislative history reflects this intent:
This bill is intended to limit the use
and amount of punitive damages which may be
awarded in a lawsuit. The awarding of
punitive damages was originally intended to
punish defendants for malicious or wanton
actions and to deter others from engaging in
similar activities. However, many persons
believe that in recent years these damages
have been awarded indiscriminately for actions
that are merely careless. This has increased
the number of punitive damage claims and
contributed to the high cost of litigation.
[Sponsor's Statement, Senate No. 1496,
Introduced October 3, 1994.]
To accomplish this purpose, the PDA codifies the need for
clear and convincing evidence and the requirement that no degree of
negligence, including gross negligence, can satisfy the burden of
proof. N.J.S.A. 2A:15-5.12a. It requires consideration of
specified factors to determine whether to award punitive damages,
N.J.S.A. 2A:15-5.12b, and specifies guidelines for determining the
amount of a punitive award, N.J.S.A. 2A:15-5.12c. The Act requires
a compensatory award as a prerequisite and precludes punitive
damages supported only by an award of nominal damages. N.J.S.A.
2A:15-5.13c. Judges are authorized to reduce or eliminate
unreasonable punitive awards. N.J.S.A. 2A:15-5.14a.
Most significantly, the Legislature has imposed a cap on
punitive awards. N.J.S.A. 2A:15-5.14b. We are, of course, mindful
that the cap has certain exceptions, including where a defendant
has been convicted
See footnote 55 of driving while intoxicated, N.J.S.A. 39:4-50,
or refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a.
The Legislature's decision not to cap the amount of punitive
damages in drunk driving cases, however, does not signal a
lessening of the standard for entitlement to recover punitive
damages. Finally, the PDA expressly provides that nothing in it
should "be construed as creating any claim for punitive damages
which is not now available under the law of this State." N.J.S.A.
We reject any suggestion that we should adopt a perse test.
We approve and adopt the McMahon rationale and holding. In the
context of this case, to be entitled to punitive damages, plaintiff
must establish, by clear and convincing evidence, that defendant
was intoxicated, that his intoxication was a cause of the accident,
and that one or more separate aggravating circumstances were
present to establish that defendant's conduct was accompanied by a
wanton and willful disregard of persons who forseeably might be
harmed by his conduct, N.J.S.A. 2A:15-5.12a.
Applying these principles, we are satisfied plaintiff has made
a sufficient showing to reach the jury on his punitive damages
claim. We reach this conclusion by viewing all of the evidence,
together with all reasonable inferences, most favorably to
With a hit-and-run driver who is not apprehended soon after
the accident, proof of intoxication at the time of the accident is
made more difficult. No breath or blood test is available, nor are
the customary psycho-physical tests and observations. Although
more difficult, proof of intoxication is nevertheless possible.
Some of the facts and circumstances, considered in
combination, from which the jury could infer that defendant was
intoxicated at the time of the accident include: (1) defendant's
history of unsuccessfully treated alcoholism; (2) defendant's
admission that he was drinking on the day of the accident and does
not remember how much alcohol he consumed; (3) defendant's
admission that he had a habit of self-medicating to excess with
alcohol during periods of unemployment, State v. Radziwil,
Super. 557 (App. Div. 1989), aff'd o.b.,
121 N.J. 527 (1990), and
that he was in such a period on the date of the accident; (4)
defendant's apparently intoxicated state the next day at about 1:00
p.m., viewed in the context of his admitted alcoholism condition
and self-medicating practice when unemployed; (5) defendant's
admission to the police the next day that on the date of the
accident he "drank from 11:00 a.m. till when he blacked out"; (6)
defendant's erratic driving; (7) defendant's exhibition of signs
commonly associated with intoxication when stopped in traffic
immediately after the accident; and (8) defendant's unexplained
inability to remember the accident or even driving on Woodbridge
Avenue that day.
Driving under the influence of intoxicating liquor, as
proscribed by N.J.S.A. 39:4-50, means the general condition, which
may actually be short of what is commonly referred to as
"intoxication," which renders the driver "so affected in judgment
or control as to make it improper for him to drive on the
highways." State v. Johnson,
42 N.J. 146, 165 (1964). It is a
condition in which the defendant "has imbibed to the extent that
his physical coordination or mental faculties are deleteriously
affected." Ibid. (quoting State v. Emery,
27 N.J. 348, 355
The proffered evidence, if believed, could lead a jury to
reasonably find, by clear and convincing evidence, that defendant
was intoxicated (under the influence of intoxicating liquor) at the
time of the accident, and that defendant's intoxication was a cause
of the accident.
Aggravating circumstances must be evaluated on a case-by-case
basis. McMahon, supra, 218 N.J. Super. at 580. Such circumstances
must demonstrate a wanton and willful disregard of persons who
forseeably might be harmed by defendant's conduct. N.J.S.A. 2A:15-
5.12a. The defendant's conduct must be deliberate, with knowledge
of a high degree of probability of harm and reckless indifference
to the consequences of his conduct. N.J.S.A. 2A:15-5.10.
The non-exclusive list of circumstances prescribed by the PDA
for a determination of entitlement to punitive damages is
instructive. These include the likelihood, at the relevant time,
that serious harm would result from the defendant's conduct,
N.J.S.A. 2A:15-5.12b(1), the defendant's awareness of reckless
disregard of the likelihood that serious harm would arise from his
conduct, N.J.S.A. 2A:15-5.12b(2), and any concealment by the
defendant of his conduct, N.J.S.A. 2A:15-5.12b(4).
Defendant was aware of his alcoholism. He was twice
institutionalized for it and discussed the condition with his
personal physician. He was aware that during periods of
unemployment he drank excessively to self-medicate. He was aware
that he frequently drank to such excess that he would black out.
He drank an unknown quantity of alcohol on the day of the accident.
Driving under such circumstances is an aggravating circumstance.
A defendant cannot shield himself behind a lack of memory induced
by severe intoxication. To allow a defendant to escape liability
for punitive damages on that basis would turn on its head the
concept and purpose of punitive damages - to punish and deter for
egregious wrongdoing. Driving after drinking oneself into a
stupor, to the point of blacking out and not remembering some or
all of what happened, should serve to enhance punitive damages
culpability, not to mitigate or eliminate it.
Driving conduct immediately preceding the accident can
constitute an aggravating factor. Driving while intoxicated at an
excessive speed, in an erratic manner, on a busy street, during
rush hour traffic, carries with it the likelihood, at that time and
place, that serious harm would result. SeeMcMahon, supra, 218
N.J. Super. at 580 n.2 (citing Focht v. Rabada,
268 A.2d 157 (Pa.
Sup. Ct. 1970)).
Leaving the scene is clearly an act of concealment of
defendant's conduct. It also demonstrates indifference to the
consequences of defendant's conduct, by leaving the injured party
lying on the road, rather than stopping to lend assistance. SeeLanglois v. Wolford,
539 S.E.2d 565, 568 (Ga. Ct. App. 2000).
Plaintiff suggests that mixing prescription medication for
depression with alcohol should be an aggravating circumstance.
This may require further factual development of what advice or
warnings were furnished to defendant prior to the accident by his
physician or on labels or written instructions accompanying the
medication, and the effects of mixing these substances.
Potentially, this could be an aggravating circumstance. SeeOlson
781 P.2d 1015, 1020 (Ariz. App. 1989).
The aggravating factors for which we find a sufficient
evidential basis in the record before us warrant submission of
plaintiff's punitive damages claim to the jury. Our discussion
does not preclude any others that may be developed. The need to
deter driving while intoxicated is great. Too many innocent
victims are killed or maimed on our highways with regularity by
drunk drivers. We have described the drunk driver as "one of the
chief instrumentalities of human catastrophe." State v. Grant,
196 N.J. Super. 470, 476 (App. Div. 1984). Our Supreme Court has
observed that "[t]he primary purpose behind New Jersey's drunk-
driving statutes is to curb the senseless havoc and destruction
caused by intoxicated drivers." State v. Tischio,
107 N.J. 504,
512 (1987). Imposition of punitive damages in appropriate cases
will advance the public policy of deterring and reducing this
persistent source of tragedy. The jury might reasonably find that
this defendant is the kind of ticking time bomb deserving of
punishment and in need of deterrence.
See footnote 66
We therefore reverse the trial judge's dismissal of the
punitive damages count and remand for trial for punitive damages.
See footnote 77
This is conditioned, of course, upon plaintiff's successful
recovery on retrial of compensatory damages, N.J.S.A. 2A:15-5.13c,
We next address the discovery violation. Plaintiff suffered
multiple injuries. The initial impact occurred between defendant's
front bumper and plaintiff's left knee. His most significant
injury was to his left knee, which included multiple fractures,
damaged cartilage, damaged ligaments (including the anterior
cruciate ligament), and internal derangement. Plaintiff was
required to use crutches for several months and then used a cane
for the balance of the first year after the accident. He was a
high school senior when the accident happened on January 12, 1998.
He missed the second semester of his senior year and had to
complete high school the following Fall.
Plaintiff's interrogatory answers and the medical reports he
furnished in discovery are replete with references asserting that
plaintiff suffered serious and permanent injuries to his left knee,
resulting in "limited use of his left leg," "loss of the use of his
left leg," loss of ability to "walk properly," and "an antalgic
See footnote 88 apparently favoring the left side." The word "limp" was not
used in describing the condition.
On the first day of trial, May 23, 2001, plaintiff's attorney
described in his opening statement plaintiff's injuries and present
complaints and restrictions, including a limp. After defense
counsel opened, plaintiff's first witness testified for the balance
of the morning session. When the parties returned after the lunch
recess, defense counsel informed plaintiff for the first time that
he was in possession of a videotape, taken over the course of
several days in August 2000, which showed plaintiff walking at
various outdoor locations, with no discernible limp. The videotape
was prepared at the request of the defense and was in defense
counsel's possession since September 2000.
Defense counsel informed the court he had not planned on using
the videotape because he was not aware until plaintiff's opening
that a limp was alleged. Defense counsel claimed surprise about
the allegation of a limp and moved for a mistrial. The judge
denied the motion and ordered that because the videotape had not
been furnished through discovery the defense would not be permitted
to use it at trial.
Plaintiff presented his entire case-in-chief on May 23 and May
24. His treating orthopedist and his treating chiropractor both
described plaintiff's antalgic gait. When plaintiff was asked
whether he presently limps, he responded "Yeah, but I mean, it's
not like, you know, my legs are dragging behind. I mean, it's just
something I had to learn to deal with. It's almost -- it's almost
normal now. It's been so long, you know, it just feels normal, you
know, to be walking that way." He stated that his knees hurt
almost every day, especially his left knee. He stated if he stands
for thirty minutes to an hour he starts to experience pain in his
legs. With respect to his left leg, he stated "I can't stand up
too long or walk around too long or else I'll just start feeling
pain in it." We gather from the colloquy at trial that plaintiff
was limping noticeably during trial.
Plaintiff rested his case at the end of the May 24, 2001
session. He had not seen the videotape. Defense counsel then
renewed his request that he be allowed to present the videotape
during his case. The judge allowed the parties to brief the issue
and argue it at the next session.
Defendant initially argued the videotape had not been
requested in discovery. However, plaintiff had propounded Form C
Uniform Interrogatories, which included: "9. If any . . .
videotapes . . . were made with respect to anything that is
relevant to the subject matter of the complaint, describe [and
furnish them or make them available for inspection and copying.]"
Defendant's next argument was that the videotape was not "relevant"
until plaintiff's opening, when a limp was alleged. The trial
judge rejected this argument, and so do we. Defendant's reliance
on Kiss v. Jacob,
268 N.J. Super. 235 (App. Div. 1993), rev'd. on
138 N.J. 278 (1994) is unavailing; there the
interrogatory requested only photographs, thereby not obligating
the other party to disclose a videotape's existence. Id. at 238-
Having determined there was a discovery violation, the judge
inquired of plaintiff how he was prejudiced. Plaintiff's counsel
noted that he had already rested, and "if the tape is going to be
admissible, I have to call the plaintiff again and we're on the
defensive. It looks like we were trying to cover up something that
we're not trying to cover up . . . . [I]t puts me on the
When asked what he would have done differently, counsel
stated, "Maybe I would ask questions along the line of is your pain
consistent throughout the entire day, are there peaks and valleys.
Is your limp consistent 100 percent of the time or on your way home
from work is it more pronounced than on your way to work." He
concluded, "And beyond those questions, I think that at this point
to do the damage control, it does more damage in and of itself
regardless of what the tape showed."
The judge rejected the argument and allowed the tape to be
played. Plaintiff later testified in rebuttal in an effort to
reconcile what was on the tape with his previous testimony. We
agree with plaintiff. He reasonably relied on the judge's initial
ruling that the tape would not be permitted. Without viewing the
tape, he put in his entire case. Had he known in advance, he
likely would have adjusted his presentation. The judge's reversal
of his earlier order placed plaintiff at a distinct disadvantage,
giving the jury the impression that plaintiff was now scrambling
and engaging in damage control. This was unfair to plaintiff and
had the clear capacity to cause an unjust result. R. 2:10-2; State
57 N.J. 325, 339 (1971). The error was not harmless.
The trial judge, with a feel of the case, acknowledged, in
denying plaintiff's new trial motion, that if it was error to allow
the tape, the error was not harmless:
I will agree, so you don't have to make
this argument, that if I'm not correct and
that it was improper to allow the video, that
that tape certainly had an [e]ffect on the
jurors and it is error, it's error that would
be reversible error, because there's -- in my
own opinion, because that tape, I believe, did
have an impact on the jury because it did
bel[ie] the plaintiff's testimony and the way
he appeared in court, that it, the way he
walked in court and walked from the counsel
table to the jury box. He limped noticeably
then and didn't limp on the tape.
We reverse the compensatory damages judgment and remand for a
Reversed and remanded.
Footnote: 11The gross award was $100,000, which the jury reduced by 30%
because plaintiff contributed to his injuries by unreasonably
failing to follow his doctor's advice. After adding pre-judgment
interest of $10,437.64, R. 4:42-11(b), judgment was entered for
plaintiff against defendant in the amount of $80,437.64.Footnote: 22At an earlier stage of the litigation, a different judge
denied defendant's motion for partial summary judgment, seeking
dismissal of the punitive damages count, and we denied
defendant's motion for leave to appeal. Defendant again raised
the issue at the time of trial, and the trial judge, over
objection, entertained the issue, conducted an N.J.R.E. 104(a)
hearing, and reached a contrary result. Because of our
disposition on the merits of this issue, we do not address
plaintiff's argument under the law of the case doctrine.Footnote: 33Ellmyer and Heikal testified that the posted limit was
thirty-five miles per hour. We note that the police report
states it was twenty-five miles per hour. The officer who
investigated the accident at the scene and authored the report
did not testify at the N.J.R.E. 104(a) hearing. The parties
stipulated that he would testify according to his report, as to
what defendant told him when interviewed the next day.Footnote: 44Heikal opined that defendant was "either drunk or you know,
high." We do not pass upon whether there is sufficient
foundational support for the admissibility of that lay opinion.
N.J.R.E. 701. Whether his opinion is admitted or not, however,
does not impair the admissibility of Heikal's factual
observations of defendant.Footnote: 55Whether the cap exception requires an actual "conviction"
is not before us. We note that in this hit-and-run case, the
local law enforcement authorities chose not to prosecute
defendant for DWI. Law enforcement authorities may choose to
forego such prosecutions for any number of reasons in any case.
Some references in the PDA's legislative history refer more
generally to "drunk driving" as an exception to the cap. Whether
proof of intoxication by clear and convincing evidence in the
punitive damages portion of a civil trial, where there has been
no DWI prosecution or conviction, satisfies the cap exception
must await determination in an appropriate case.Footnote: 66We note that defendant incurred a DWI charge on February 2,
1998, three weeks after this accident. He was convicted of that
charge. No issue has been raised regarding potential
admissibility of this conviction. The issue of potential
admissibility has not been briefed or argued and is not before
us. We do not pass upon it.Footnote: 77Subsequent to the accident, defendant filed a Chapter 7
bankruptcy proceeding, and he was discharged by order of October
27, 1998. A consent order vacating the automatic stay was
entered nuncprotunc on March 9, 1999, authorizing plaintiff "to
institute and prosecute to conclusion one or more actions in the
court(s) of appropriate jurisdiction arising from a January 12,
1998 accident wherein Kayhan Dong sustained personal injuries."
The order further provided that "[t]he recovery from said
action(s) be and hereby is limited to the limits of debtors'
insurance policy(ies)." A provision of the Bankruptcy Code
provides, however, that a debtor is not discharged of any debt
for "personal injury caused by the debtor's operation of a motor
vehicle if such operation was unlawful because the debtor was
intoxicated from using alcohol, a drug or another substance." 11
U.S.C.A. ' 523(a)(9). At the conclusion of the N.J.R.E. 104(a)
hearing, the trial judge found that he was not convinced by a
preponderance of the evidence that defendant was intoxicated at
the time of the accident. He determined, therefore, that the
exclusion from dischargeability did not apply, and accordingly
plaintiff could not pursue a claim for punitive damages, which
are not covered by insurance, or collect any amount, based on
lack of good faith, from defendant's insurer in excess of his
liability insurance coverage. We are of the view that the issue
of whether plaintiff's injuries resulted from defendant's
intoxication should be determined by the jury. This will be
resolved in the punitive damages trial. The ultimate
recoverability of any compensatory or punitive damage award will
be adjudicated after trial in an appropriate forum. If defendant
wishes to seek relief from this determination in the Bankruptcy
Court, either before or after trial, he may pursue such relief.Footnote: 88"Antalgic" means "tending to alleviate pain." Funk &
Wagnalls New Comprehensive International Dictionary of the
English Language (Encyclopedia Edition 1978). In his trial
testimony, plaintiff's treating chiropractor explained that an
antalgic gait is characterized by "leaning away from the area of
discomfort." He stated that plaintiff "was putting more pressure
on his right leg and not putting as much on his left leg and when
he ambulated, he ambulated, I guess, in laymen's terms, [with]
sort of a limp."