ANTOINETTE TUTTOILMONDO VS. HUNGMO LIN (L-7154-16, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2025-18T4
ANTOINETTE
TUTTOILMONDO,
Plaintiff-Appellant,
v.
HUNGMO LIN,
Defendant-Respondent.
________________________
Argued November 2, 2020 – Decided December 17, 2020
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-7154-16.
Carleen M. Steward argued the cause for appellant
(Fruhschein & Steward, LLC, attorneys; Carleen M.
Steward, of counsel and on the brief).
Lisa R. Marshall argued the cause for respondent (Law
Offices of Viscomi & Lyons, attorneys; Lisa R.
Marshall, on the brief).
PER CURIAM
Plaintiff Antoinette Tuttoilmondo appeals the January 11, 2019 order
denying her motion for a new trial. The jury interrogatories in this personal
injury case did not expressly provide that plaintiff's burden of proof was by a
preponderance of the evidence. Plaintiff contends this omission constituted a
miscarriage of justice. For reasons that follow, we affirm the trial court's order.
We glean the facts from the trial record. On September 11, 2015, plaintiff
was employed as a school crossing guard. She alleges she was struck by a
vehicle driven by defendant Hung-Mo Lin, who did not stop. Plaintiff alleges
she sustained permanent injuries from the accident. Defendant testified she did
not remember hitting anyone in the crosswalk. She received a ticket, however,
for violation of N.J.S.A. 39:4-36 — failure to yield to a pedestrian in a crosswalk
— that she paid.
Plaintiff filed a complaint and jury demand alleging that defendant
operated her vehicle in a negligent and careless manner. The complaint
requested damages for plaintiff's personal injuries. Defendant's answer denied
knowledge of the accident. The case was tried to a jury over a four-day period.
Counsel for plaintiff explained the burden of proof in his opening
statement. "In a civil case, the burden of proof is a preponderance of the
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evidence, more likely than not, [fifty-one] percent." Later in the opening,
counsel explained to the jury:
[T]he preponderance of the evidence is the . . . standard
we have to prove our case by, preponderance of the
evidence, [fifty-one] to [forty-nine], more likely than
not, probably true.
....
It’s not like in the O.J. case; right? The O.J. case is
. . . a criminal case. That was beyond a reasonable
doubt . . . . That's a lot higher standard . . . .
The judge conducted a charge conference near the end of the trial. The
court supplied counsel with a proposed charge and jury verdict sheet. The judge
explained he would be using the preponderance of the evidence standard.
The transcript 1 indicates the proposed verdict sheet included three
questions: "[w]as . . . defendant negligent in the operation of her vehicle? . . .
[W]as the negligence a proximate cause of the accident on September 11, 2015
. . . [D]id plaintiff sustain a permanent injury . . . as a proximate result of the
accident?"
Counsel for plaintiff objected to the verdict sheet:
And — one more thing, Judge. The jury verdict sheet
is kind of confusing in the way it states: "Did
Antoinette Tuttoilmondo, plaintiff, prove that Hung-
1
The verdict sheet was not included in the appendix.
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Mo Lin, defendant was negligent?" I would — I think
they're going to maybe read that [as] did she prove it
was from the — from the witness stand. I think it's
more appropriate to say did plaintiff prove Hung-Mo
Lin. Then they'll think it as — as me and her together.
Or was Hung-Mo Lin negligent. But if you put down
"did Antoinette Tuttoilmondo, plaintiff, prove" I'm
afraid they're going to read that as from — from her
testimony.
The trial judge declined to modify the verdict sheet.
Plaintiff's and defendant's counsel both referred to the burden of proof in
their closing arguments to the jury. Defendant's counsel argued:
I submit to you that the evidence in this case fails to
show that it was my client who was involved in the
accident with the plaintiff. It is the plaintiff's burden of
proof. If it's [fifty/fifty], then . . . you decide in favor
of the defendant. The plaintiff . . . [has] to . . . show
that it's more likely than not that it was my client who
was involved in this accident.
Plaintiff's counsel argued in closing:
I told you earlier that this case is . . . we have to prove
our case by a preponderance of evidence. [Fifty-one]
to [forty-nine]. If Antoinette proves her case by [fifty-
one] to [forty-nine], we've proved our case. I'm saying
we proved it by a lot more, but all she has to prove it is
[fifty-one/forty-nine].
So there's a verdict sheet. This verdict sheet has four
questions. One of them is—same questions I gave you.
Did the defendant cause the accident? Did the accident
cause the injuries? Did the negligence cause the
accident? Did the negligence cause the injuries?
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Following the closing arguments, the trial court instructed the jury on the
law. The court explained that the burden of proof was on plaintiff and that it
could be satisfied by a preponderance of the evidence. The court explained the
preponderance of the evidence standard:
[n]ow, the party with the burden of proof—in this case,
the plaintiff—has to sustain her burden by a standard
called the preponderance of the evidence.
To sustain it, it means the evidence that supports her
claim, the evidence favoring the plaintiff, must be
greater than and be more persuasive in your minds than
contrary evidence. It makes no difference if the weight
is small or large, if—it's like a scale. If the scale tips
in favor of the plaintiff, the plaintiff is entitled to a
verdict. As long as the evidence supporting the claim
weighs heavy in your minds, it is the quality of the
evidence, not the quantity, which governs.
However, if you find that the evidence is equal in
weight—in other words, if you can't tell whether or not
the plaintiff has proven that the defendant was
negligent and that her negligence caused the accident
and her injuries—then your verdict must be for the
defendant.
The trial court referenced the preponderance of the evidence standard
again when instructing the jury on negligence.
[I]f you find that the defendant was negligent and that
the defendant caused injuries to the plaintiff, that the
negligence was a proximate cause of the plaintiff's
injuries, then the plaintiff must prove, in order to
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recover damages for those injuries, by a . . .
preponderance of evidence, that she sustained injuries .
. . which [is] a permanent injury within a reasonable
degree of medical probability.
The court explained to the jury that there was a jury verdict sheet to assist
them and read the questions to the jury as follows:
Question number one. Did Antoinette Tuttoilmondo,
plaintiff, prove that Hung-Mo Lin, defendant, was
negligent at the time of the accident on September 11,
2015?
....
Two. Did Antoinette Tuttoilmondo, plaintiff, prove
that the negligence of . . . Hung-Mo Lin, defendant, was
a proximate cause of the accident?
....
Three. Did Antoinette Tuttoilmondo, plaintiff, prove
that she sustained a permanent injury as a proximate
result of the September 11, 2015 accident?
Following deliberations, the jury returned a no-cause verdict against plaintiff
finding on question one that she was not negligent. The verdict sheet explained
the jury did not have to answer the other questions if number one was "no."
Plaintiff filed a motion for a new trial arguing the verdict sheet was
deficient. Counsel did not mention that preponderance of the evidence was
omitted. He argued that use of the word "prove" in the instructions "means proof
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beyond a reasonable doubt, mathematical proof." He argued "in this case the
word 'prove' raised the standard, and therefore, the jury was not able to go
forward with the . . . rest of the questions."
The trial court rejected plaintiff's arguments. The court found that
[p]roof is what the plaintiff must do. And that's the
charge. It was reiterated in the openings. It was
reiterated in the closings. Both counsel in the openings
and closings gave the burden of proof. The [c]ourt gave
the burden of proof.
To prove does not elevate it in any way. There is no
possibility that any jury would ever be misled into
thinking it became an enhanced burden of proof.
I find that the interrogatory was appropriate, and that
there was no possibility the jury could have been
confused, and, therefore, the motion is denied.
On appeal, plaintiff raises these issues:
POINT I
THE FAILURE TO INCLUDE THE BURDEN OF
PROOF ON THE JURY VERDICT SHEET
RESULTED IN A MISCARRIAGE OF JUSTICE
UNDER THE LAW.
POINT II
A DE NOVO REVIEW OF THE TRIAL JUDGE'S
DECISION IS PROPER WHERE THE ISSUE
INVOLVES A QUESTION OF LAW.
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Our standard of review of a trial court's denial of a motion for a new trial
is "substantially the same as that controlling the trial court except that due
deference should be made to its 'feel of the case,' including credibility."
Feldman v. Lederle Lab'ys., 97 N.J. 429, 463 (1984). "A trial court's
determination is 'not reversed [by an appellate court] unless it clearly appears
that there was a miscarriage of justice under the law.'" Ibid. (alteration in
original) (quoting R. 2:10–1). A miscarriage of justice exists when a "pervading
sense of 'wrongness'" justifies the "undoing of a jury verdict . . . ." Lindenmuth
v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996) (quoting Baxter v. Fairmont
Food Co., 74 N.J. 588, 599 (1977)). It is a verdict that "shock[s] the conscience
of the court and convince[s] it that to sustain the verdict would be manifestly
unjust." Feldman, 97 N.J. at 462 (alterations in original) (quoting Carrino v.
Novotny, 78 N.J. 355, 366 (1979)).
Plaintiff argues the no-cause verdict was a miscarriage of justice because
it was in conflict with the evidence. Plaintiff urges us to review the trial cour t's
denial of a new trial under the de novo standard of review because she contends
a question of law has been raised. Plaintiff argues the verdict sheet should have
said plaintiff had the burden of proof by a preponderance of the credible
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evidence. Without explaining the burden of proof, she contends it is not possible
to know if the jury applied the appropriate burden of proof.
"The court may require a jury to return only a special verdict in the form
of a special written finding upon each issue of fact" by submitting "written
questions which can be categorically or briefly answered . . . ." R. 4:39-1. The
purposes served by jury interrogatories are: "to require the jury to specifically
consider the essential issues of the case, to clarify the court's charge to the jury,
and to clarify the meaning of the verdict and permit error to be localized." Ponzo
v. Pelle, 166 N.J. 481, 490-91 (2001) (quoting Wenner v. McEldowney & Co.,
102 N.J. Super. 13, 19 (App. Div. 1968)). The questions to the jury are to be
clear. Benson v. Brown, 276 N.J. Super. 553, 565 (App. Div. 1994).
"Ordinarily, 'a trial court's interrogatories to a jury are not grounds for reversal
unless they were misleading, confusing, or ambiguous.'" Ponzo, 166 N.J. at 490
(quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997)). In
reviewing the verdict sheet for reversible error, the court "should consider it in
the context of the charge as a whole." Id. at 491. The Court noted in Ponzo that
if the jury charge is "accurate and thorough" that this "often can cure the
potential for confusion that may be present in an interrogatory." Ibid.
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We review this verdict sheet in the context of the jury instructions.
Plaintiff does not argue that the verdict sheet was misleading. Her claim is that
the verdict sheet raised the burden of proof by using the word "prove" and by
omitting the phrase "preponderance of the evidence." Even if counsel intended
this objection to raise the same issue argued on appeal, there is no basis to find
this omission constituted a miscarriage of justice warranting a new trial.
Plaintiff cites no authority that requires the jury verdict sheet to include
the burden of proof in the questions. The judge correctly explained the burden
of proof to the jury. The jury needed to apply only one burden of proof. Both
counsel referenced the burden of proof in their openings; plaintiff's counsel
referenced the burden and the verdict sheet in his closing arguments. They both
discussed what was meant by the preponderance of the evidence. In this context,
where the jury instructions are unchallenged, where the instructions were clear
and thorough, and where the jury verdict sheet was not misleading, plaintiff
simply has not shown there was any error that constituted a miscarriage of
justice.
Plaintiff has taken out of context and misconstrued the trial judge's off -
handed comment to the jury at the outset of the instructions that "[y]ou're not
going to be able to remember everything I tell you . . . ." This statement wa s
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followed by "but between the six of you who are deliberating, all six of you will
remember everything." Our jurisprudence assumes that the jury applies the law
as instructed. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 399 (App. Div.
2006).
Plaintiff argues that because the verdict sheet used the word "prove" that
the jury could apply a burden of proof more stringent than the preponderance of
the evidence. She cites no support for that assumption. The jury was instructed
by the judge on just one burden of proof — preponderance. We have every
reason to think the jury would apply what they were instructed. Ibid.
After carefully reviewing the record and the applicable legal principles,
we conclude that plaintiff's further arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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