                                NOT FOR PUBLICATION WITHOUT THE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-3396-18T3

MARIANO SIMOTA BAILEY,

          Plaintiff-Respondent,

v.

JACQUELINE M. HENNESSEY,

          Defendant-Appellant,

and

NEW JERSEY PROPERTY-
LIABILITY INSURANCE
GUARANTY ASSOCIATION,

     Defendant.
_____________________________

                    Argued March 3, 2020 – Decided April 8, 2020

                    Before Judges Yannotti, Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-4316-16.

                    Mark S. Hochman argued the cause for appellant (Law
                    Offices of Stephen E. Gertler, attorneys; Mark S.
                    Hochman, on the briefs).
             Robert Howard Baumgarten argued the cause for
             respondent (Ginarte Gallardo Gonzalez Winograd,
             LLP, attorneys; Robert Howard Baumgarten, on the
             brief).

PER CURIAM

      Defendant appeals from the judgment entered after trial awarding plaintiff

damages for personal injuries he sustained in an accident. We reverse and

remand for a new trial on the issue of liability.

                                          I.

      We briefly summarize the salient facts. On July 26, 2014, at around 8:30

p.m., defendant was driving her automobile westbound on Wells Mills Road

(also known as Route 532) in Waretown. At that time, plaintiff and his friend

were riding their bicycles along the Ocean County Rail Trail, a path for

pedestrians and bicyclists that intersects with Wells Mills Road in Waretown.

Defendant's automobile struck plaintiff as he was riding his bicycle across Wells

Mills Road in a marked crosswalk.

      Photographs of the scene were admitted into evidence. The photos show

the trail is controlled by a stop sign, which is situated at the point where the trail

intersects with Wells Mills Road. There are two metal poles in the pavement of

the trail a short distance from the roadway, and the word "STOP" is painted in



                                                                              A-3396-18T3
                                          2
white in large letters on the pavement, along with a white painted line that is

parallel to the road.

      Two parallel, white lines are painted on the pavement of Wells Mills Road

creating a marked crossing for pedestrians and bicyclists. The portion of Wells

Mills Road immediately preceding the point where the trail intersects with the

road is not controlled by any traffic devices or stop signs; however, there are

signs for eastbound and westbound motorists alerting them of the crossing for

pedestrians and bicyclists.

      The accident was recorded by a surveillance camera on a nearby

convenience store, and a video recording was played for the jury. The video

shows that at 8:27:45 p.m., plaintiff's friend approached the stop sign on the

trail. He stopped his bicycle and waited for two cars traveling eastbound to pass.

      Plaintiff's friend then rode his bicycle into the eastbound lane of Wells

Mills Road, where he stopped and waited for two cars traveling westbound to

pass. He then crossed the westbound lane and continued bicycling on the trail.

He finished crossing Wells Mills Road at 8:28:30 p.m.

      Plaintiff appears in the video at 8:28:30 p.m. He is seen riding his bicycle

at a steady pace for twelve seconds. Plaintiff did not stop at the stop sign or the

pavement warning on the trail. He began to cross Wells Mills Road at 8:28:39


                                                                           A-3396-18T3
                                        3
p.m. At that time, defendant's car is seen heading westbound on Wells Mills

Road. Defendant's car struck plaintiff three seconds later.

      Defendant was traveling about eighteen to twenty miles per hour when

she reached the marked crossing. Defendant testified that she did not see

plaintiff or the bicycle. She said her windshield suddenly cracked. She stopped,

exited her car, and saw plaintiff lying in the middle of the road.

      Plaintiff sustained severe permanent injuries in the accident, which

included a subarachnoid hemorrhage, as well as orbital and mandible fractures.

He spent several weeks in a coma in the hospital's intensive care unit. After

plaintiff was released from the hospital, he was transferred to another facility

for three weeks of rehabilitation therapy.

      In July 2016, plaintiff filed a complaint alleging he was injured in the

accident due to defendant's negligence. Defendant filed an answer in which she

denied liability. The matter was later tried before a jury. After the parties

completed the presentation of their evidence, the judge conducted a charge

conference.




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                                        4
      Defendant asked the judge to use a modified version of Model Civil Jury

Charge 5.30H,1 and thereby instruct the jury that a bicyclist has a duty to stop at

a stop sign and make observations before proceeding into the intersecting street.

The judge refused to use the proposed charge but indicated she would instruct

the jury that a bicyclist is required to stop at a stop sign when using the streets

or roadways.

      Defendant also objected to the use of Model Civil Jury Charge 5.32C2,

arguing that the instruction pertained to "pedestrians" and did not apply to

"bicyclists." The judge disagreed. The judge used a modified version of Model

Civil Jury Charge 5.32C in her final instructions, substituting the term

"bicyclist" for "pedestrian."

      The jury found that both defendant and plaintiff were negligent and that

the negligence of each party was a proximate cause of the accident. The jury

apportioned sixty-five percent of the responsibility for the accident to defendant

and thirty-five percent to plaintiff. The jury also awarded plaintiff $1,000,000


1
  Model Jury Charges (Civil), 5.30H, "Duty of Care: Driver of Motor Vehicle
Proceeding Through An Intersection Controlled by a Stop Sign/Flashing Red
Traffic Control Device" (rev. June 2007) (Model Civil Jury Charge 5.30H).
2
  Model Jury Charges (Civil), 5.32C, "Duty of Drivers and Pedestrians Crossing
at Marked or Unmarked Crosswalk" (approved June 2010) (Model Civil Jury
Charge 5.32C).
                                                                           A-3396-18T3
                                        5
for his pain and suffering, impairment, disability, and loss of the enjoyment of

life.

        Thereafter, defendant filed a motion for a new trial on liability, arguing

that the judge erred in her instructions to the jury and that the instructional errors

tainted the jury's verdict. The judge denied the motion. The judge then molded

the damage award based on the jury's allocation of responsibility for the

accident, and entered a final judgment awarding plaintiff $650,000, plus

prejudgment interest. This appeal followed.

        On appeal, defendant argues: (1) the judge erred by providing the jury

with a modified version of Model Civil Jury Charge 5.32C; (2) the judge

erroneously refused to instruct the jury using her proposed modified version of

Model Civil Jury Charge 5.30H; and (3) the errors in the judge's instructions

require reversal of the judgment and a new trial on liability.

                                         II.

        We first consider defendant's contention that the trial judge erred by

providing the jury with a modified version of Model Civil Jury Charge 5.32C.

Defendant argues that the instruction pertains to pedestrians and the judge erred

by applying the instruction to bicyclists.




                                                                              A-3396-18T3
                                          6
      "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 evi dence

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)). The

jury instructions "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." Ibid. (citing Velazquez ex rel. Velazquez v.

Portadin, 163 N.J. 677, 688 (2000)).

      In reviewing the instruction, we must "examine the charge as a whole,

rather than focus on individual errors in isolation." Ibid.     (citing Ryder v.

Westinghouse Elec. Corp., 128 F.3d 128, 137 (3d Cir. 1997)). An incorrect jury

charge constitutes reversible error only "if the jury could have come to a

different result had it been correctly instructed." Ibid. (citing Velazquez, 163

N.J. at 688).

      In her final instructions to the jury on negligence, the trial judge first

discussed the general duties motorists and bicyclists have when they use the

streets and highways of our State. The judge said a motorist and bicyclist "each

has the right to expect that the other will exercise their rights with reasonable

care and subject to the rights of others."


                                                                          A-3396-18T3
                                         7
      The judge described the duties of a motorist. She stated that persons who

drive motor vehicles have a right to enjoy the streets and highways, but they

must make proper and lawful use of this right. A motorist must exercise this

right with reciprocal regard for the rights of others who may be driving or

bicycling upon the highway so as not to negligently injure other persons lawfully

upon our streets.

      The judge further explained that

            [t]his simply means that the driver of an automobile
            upon a public highway is under the duty of exercising
            for the safety of others that degree of care, precaution
            and vigilance in the operation of [his or her] vehicle
            which a reasonably prudent person would exercise
            under similar circumstances. It has sometimes been
            defined as care that is commensurate with the risk of
            danger. Thus, the driver of an automobile is required
            to . . . make such observation[s] for traffic and road
            conditions and to exercise such judgment to avoid
            collision or injury to others on the highway, as a
            reasonably prudent person would have done in the
            circumstances. A motorist is also required to make
            such observations for vehicles or a bicyclist which are
            in or which may come into their path of travel as a
            reasonably prudent person would make. This duty of
            reasonable care by users of the highways is mutual and
            ordinarily each may assume that the other will observe
            that standard of conduct in the use thereof. Negligence
            then is a failure to adhere to this standard of conduct.

      The judge also stated that motorists and bicyclists both "have mutual and

reciprocal rights to use the streets and highways and each has the right to expect

                                                                          A-3396-18T3
                                         8
that the other will exercise their rights with reasonable care and subject to the

rights of others." The judge added that:

            a bicyclist is under a duty to exercise for his own safety
            the care that a reasonably prudent person would
            exercise under all the circumstances confronting him.
            Although his observation[s] need not extend beyond the
            distance within which vehicles moving at lawful speed
            will threaten him, a bicyclist is required to use such
            powers of observation, and to exercise such judgment
            as to how and when to cross a street or highway, as a
            reasonably prudent person would use in the particular
            circumstances.

      The judge stated that in addition to considering the general duties

motorists and bicyclists have when using our streets and highways, the jury

should consider certain statutory provisions "that involve pedestrians crossing

at marked or unmarked crosswalks[,]" which are part of New Jersey law. The

judge cited N.J.S.A. 39:4-36, and stated that the statute provides:

                  That the driver of a vehicle shall yield the right-
            of-way to a pedestrian crossing the roadway within a
            marked crosswalk or within any unmarked crosswalk at
            an intersection.

                  The driver of a vehicle shall stop and remain
            stopped to allow a pedestrian, and, again, when I use
            the word pedestrian, we’re referring to bicyclists
            because that’s what we have in this case, to cross the
            road and within a marked crosswalk, when the
            bicyclists is upon, or within one lane of, half of the
            roadway, upon which the vehicle is traveling or onto
            which the – it is turning. "Half of the roadway" means

                                                                         A-3396-18T3
                                        9
               all traffic lanes conveying traffic is – one direction of
               travel, and includes the entire width of a one-way
               roadway.

                      No bicyclist shall leave a curb or other place of
               safety and walk or run into the path of a vehicle which
               is so close that it is impossible for the driver to yield or
               stop.

                      In the event of a collision between a vehicle and
               a bicyclist within a crosswalk – a marked crosswalk or
               at an unmarked crosswalk – in this case, I don’t think
               it’s disputed that there was a marked crosswalk, there
               shall be a permissive inference that the driver did not
               exercise due care for the safety of the pedestrian.

         The judge said the jury should consider N.J.S.A. 39:4-144. The judge

stated that this statute "addresses stopping or yielding before entering into an

intersection. And it provides in part that no bicyclist shall enter upon an

intersecting street marked with a stop sign unless he has come to a complete

stop."

         The judge told the jury that both statutes establish standards of conduct

for the use of our streets and highways. She stated that, if either party violated

a statute, the jury may consider such violation in determining whether that party

was negligent. The judge instructed the jury that it could find any such violation

"constituted negligence or . . . that it did not cons[titute] negligence."




                                                                              A-3396-18T3
                                          10
      On appeal, defendant argues that the judge erred by instructing the jury

using a modified version of Model Civil Jury Charge 5.32C and applying it to

bicyclists. Defendant contends that under N.J.S.A. 39:4-36, a person driving a

motor vehicle has a duty to stop and remain stopped when a "pedestrian" enters

a marked crosswalk at an intersection. Defendant contends the statute does not

apply to bicyclists.

      We are convinced that the trial judge erred by modifying Model Civil Jury

Charge 5.32C and applying it to bicyclists. N.J.S.A. 39:4-36(a) provides in

pertinent part, that:

              (1) The driver of a vehicle shall stop and remain
             stopped to allow a pedestrian to cross the roadway
             within a marked crosswalk, when the pedestrian is
             upon, or within one lane of, the half of the roadway,
             upon which the vehicle is traveling or onto which it is
             turning. As used in this paragraph, "half of the
             roadway" means all traffic lanes conveying traffic in
             one direction of travel, and includes the entire width of
             a one-way roadway.

             (2) No pedestrian shall leave a curb or other place of
             safety and walk or run into the path of a vehicle which
             is so close that it is impossible for the driver to yield or
             stop.

             (3) Whenever any vehicle is stopped to permit a
             pedestrian to cross the roadway, the driver of any other
             vehicle approaching from the rear shall not overtake
             and pass such stopped vehicle.


                                                                            A-3396-18T3
                                         11
            (4) Every pedestrian upon a roadway at any point other
            than within a marked crosswalk or within an unmarked
            crosswalk at an intersection shall yield the right-of-way
            to all vehicles upon the roadway.

            (5) Nothing contained herein shall relieve a driver from
            the duty to exercise due care for the safety of any
            pedestrian upon a highway.

      When interpreting a statute, we must "determine and give effect to the

Legislature's intent." DYFS v. A.L., 213 N.J. 1, 20 (2013). We first consider

the plain language of the statute because it generally reflects the Legislature's

intent. State v. Frye, 217 N.J. 566, 575 (2014) (citing State v. Gandhi, 201 N.J.

161, 176 (2010)). We give the words of a statute their "ordinary meaning and

significance . . . ." State v. Fuqua, 234 N.J. 583, 591 (2018) (quoting Tumpson

v. Farina, 218 N.J. 450, 467 (2014)). If the plain language of the statute is clear

and unambiguous, "we apply that plain meaning and end our inquiry." Garden

State Check Cashing Serv., Inc. v. Dep't of Banking & Ins., 237 N.J. 482, 489

(2019).

      In N.J.S.A. 39:4-36(c), the Legislature set forth the duties a "driver" of

"vehicles" has when a "pedestrian" enters upon and crosses a "roadway" at a

marked crosswalk. N.J.S.A. 39:4-36(c). N.J.S.A. 39:1-1 defines certain words

and phrases used in Title 39. "Pedestrian" is defined as "a person afoot."

N.J.S.A. 39:1-1. "Driver" is defined as "the rider or driver of a horse, bicycle

                                                                           A-3396-18T3
                                       12
or motorcycle or the driver or operator of a motor vehicle, unless otherwise

specified." Ibid.

      It is clear, therefore, that N.J.S.A. 39:4-26(c) establishes the duties and

responsibilities of "drivers" and "pedestrians," but it does not apply to when a

person riding a bicycle enters upon and crosses a road at a marked crosswalk.

Under those circumstances, a person riding a bicycle is not a "pedestrian" under

N.J.S.A. 39:4-36(c) because a bicyclist is not a "person afoot." N.J.S.A. 39:1-1.

      We conclude the judge erred by modifying Model Civil Jury Charge 5.32C

by substituting "bicyclist" for "pedestrian," and by instructing the jury to

consider N.J.S.A. 39:4-36(a) in its deliberations. We also conclude that the

judge erred by allowing the jury to consider a violation of N.J.S.A. 39:4-36(a)

in determining if defendant was negligent. On remand, the trial judge shall not

include Model Civil Jury Charge 5.32C in the instructions to the jury.

                                      III.

      Defendant also argues that the judge erred by failing to instruct the jury

using a modified version of Model Civil Jury Charge 5.30H. The model charge

sets forth the duties a driver of a motor vehicle has when approaching or

proceeding through an intersection controlled by a stop sign or flashing red

traffic control device. Ibid. The model charge states that the judge may refer to


                                                                         A-3396-18T3
                                      13
either N.J.S.A. 39:4-144 or N.J.S.A. 39:4-110(a), whichever is appropriate.

Ibid.

        Based on the evidence presented at trial, the applicable statute is N.J.S.A.

39:4-144, which states in part:

              No driver of a vehicle . . . shall enter upon or cross an
              intersecting street marked with a "stop" sign unless . . .
              [he] has first brought the vehicle . . . to a complete stop
              at a point within five feet of the nearest crosswalk or
              stop line marked upon the pavement at the near side of
              the intersecting street and shall proceed only after
              yielding the right of way to all vehicular traffic on the
              intersecting street which is so close as to constitute an
              immediate hazard.

        At the charge conference, defendant requested that the judge modify

Model Civil Jury Charge 5.30H to state that:

                    No bicyclist shall enter upon or cross an
              intersecting street marked with a "stop" sign unless:

                     The bicyclist has first brought the bicycle to a
              complete stop at a point within five feet of the nearest
              crosswalk or stop line marked upon the pavement at the
              near side of the intersecting street and shall proceed
              only after yielding the right of way to all vehicular
              traffic on the intersecting street which is so close as to
              constitute an immediate hazard.

        As stated previously, the judge denied the request. The judge decided to

instruct the jury that a bicyclist has a duty to stop at a stop sign before entering

an intersecting street. However, the judge refused to instruct the jury that a

                                                                            A-3396-18T3
                                         14
bicyclist has a continuing duty to make the additional observations required by

N.J.S.A. 30:4-144. The judge stated that such an instruction would conflict with

a driver's obligation to make "reasonable observations" of other vehicles,

bicyclists, "or anything that may come into [the driver's] path."

      On appeal, defendant argues that under N.J.S.A. 39:4-14.1(a), a person

riding a bicycle on our roadways has the same duties as a driver of a motor

vehicle.   Defendant contends the judge correctly instructed the jury that a

bicyclist has a duty to stop at the stop sign before entering an intersecting street.

Defendant argues that the judge also should have instructed the jury that a

bicyclist has a duty to make reasonable observations and yield the right of way

to vehicular traffic, as provided by N.J.S.A. 39:4-144.

      Plaintiff argues that N.J.S.A. 39:4-14.1(a) does not apply in this case

because the Ocean County Rail Trail is not a "roadway," as defined in N.J.S.A.

39:1-1, because it is not "ordinarily used for vehicular travel." We disagree.

When plaintiff rode his bicycle into the crosswalk on Wells Mills Road, he was

riding his bicycle on a "roadway" as that term is defined in N.J.S.A. 39:1-1.

Consequently, he had all of the rights and duties applicable to a driver of a

vehicle, as provided in N.J.S.A. 39:4-14.1(a).




                                                                             A-3396-18T3
                                        15
      Therefore, plaintiff was subject to the standards of conduct set forth in

N.J.S.A. 39:4-144. As applied in this case, the statute precluded plaintiff from

entering or crossing the "intersecting street," which is Wells Mills Road, unless

he first brought his bicycle "to a complete stop at a [stop sign] within five feet"

of the crosswalk or stop line marked on the pavement "at the near side" of the

intersecting street. Ibid. In addition, plaintiff was required to "proceed only

after yielding the right of way to all traffic on the intersecting street which is so

close as to constitute an immediate hazard." Ibid.

      In her instructions to the jury, the trial judge correctly stated "that no

bicyclist shall enter upon an intersecting street marked with a stop sign unless

he has come to a complete stop." However, the judge should have instructed the

jury that the statute also requires that a bicyclist only proceed into the crosswalk

"after yielding the right of way to all traffic on the intersecting street which is

so close as to constitute an immediate hazard." Ibid.

      Therefore, the judge erred by refusing to charge the jury in accordance

with the modified version of Model Civil Jury Charge 5:32A, that defendant

proposed.




                                                                             A-3396-18T3
                                        16
                                        IV.

      Defendant argues that the errors in the jury instructions require a new trial

on liability. As stated previously, in determining whether an error in a jury

instruction is reversible error, we must review the charge in its entirety, rather

than focus on the individual error. Viscik, 173 N.J. at 18 (citing Ryder, 128

F.3d at 137). Furthermore, reversal is warranted "only if the jury could have

come to a different result had it been correctly instructed."         Ibid.    (citing

Velazquez, 163 N.J. at 688).

      We are convinced the judge's erroneous use of the modified version of

Model Civil Jury Charge 5.32H was not harmless. The judge instructed the jury

that the duties of a driver under N.J.S.A. 39:4-36(a) apply and that the jury could

consider a violation of N.J.S.A. 39:4-36(a) as evidence of negligence.

      As we have explained, the instruction was erroneous because N.J.S.A.

39:4-36(a) does not apply to bicyclists. The error was clearly capable of

affecting the jury's determination as to whether defendant was negligent in the

operation of her motor vehicle. The error in the instruction also had the potential

to affect the jury's allocation of responsibility for the accident.

      Furthermore, while the judge correctly instructed the jury that a person

riding a bicycle on a roadway has a duty under N.J.S.A. 39:4-144 to stop at a


                                                                              A-3396-18T3
                                        17
stop sign before entering an intersecting street, the judge erred by failing to

instruct the jury that a bicyclist had a duty to make other observations before

proceeding. The judge should have instructed the jury that after stopping at a

stop sign, a bicyclist may enter the intersection "only after yielding the right of

way to all vehicular traffic on the intersecting street which is so close as to

constitute an immediate hazard."

      The judge's error in failing to instruct the jury as to all of the duties under

N.J.S.A. 39:4-144 was not harmless. The error was clearly capable of affecting

the jury's determination as to whether defendant was negligent, and the jury's

allocation of responsibility for the accident.

      Accordingly, we reverse the judgment entered and remand the matter for

a new trial on the issue of liability in accordance with this opinion. We do not

retain jurisdiction.

      We also direct the Clerk of the Court to provide a copy of our opinion to

the Supreme Court's Committee on Model Civil Jury Charges, and request that

the Committee consider whether to recommend new or modified instructions

with regard to the duties and obligations of persons who ride bicycles on our

streets and highways.




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                                        18
