                        NOT FOR PUBLICATION WITHOUT THE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-1762-15T3

MARIANNE MURPHY,

        Plaintiff-Appellant,

v.

RAEANN MARTIN,

     Defendant-Respondent.
________________________________

              Submitted March 13, 2017 – Decided April 3, 2017

              Before Judges Sabatino, Haas and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No.
              L-0153-12.

              Emolo & Collini, attorneys for appellant (John
              C. Emolo, on the brief).

              John C. Prindiville, attorney for respondent.

PER CURIAM

        This appeal arises from a jury's no-cause verdict on claims

brought by plaintiff Marianne Murphy against defendant Raeann

Martin stemming from a roadway encounter.                 As a result of that

encounter,      defendant     allegedly     injured    plaintiff    and   damaged

plaintiff's car.
     Plaintiff sued defendant, claiming negligence, assault, and

battery.     Defendant admitted that her vehicle struck plaintiff's

open car door while attempting to leave the scene, but asserted

that her conduct was excusable in light of the volatile situation

and plaintiff's allegedly threatening behavior.

     By agreement of the parties, the trial was bifurcated as to

liability and then, if necessary, a damages phase.           The liability

phase spanned three days and involved five witnesses.

     The sole argument plaintiff raises on appeal is that the

trial court erred and unduly prejudiced her in reading to the

jury, over objection, the generally-disfavored model jury charge

for a "sudden emergency."      See Model Jury Charge (Civil), 5:10(g),

"Sudden Emergency."     We agree with plaintiff that, in the factual

context    of   this   case,   the   court   issued   this   jury    charge

improvidently.     We further agree that the charge had the clear

capacity to skew the jurors' objective assessment of the evidence.

Consequently, we reverse the judgment for defendant and remand for

a new trial.

                                     I.

     The principal witnesses in this trial were plaintiff and

defendant.      Their testimony diverged considerably about exactly

what occurred on the day of the incident.



                                     2                              A-1762-15T3
     Plaintiff's Version

     According to plaintiff, on June 2, 2010, she planned to go

to the beach in Sandy Hook.        She drove her 2001 Chrysler Sebring

convertible east on Route 36 towards Sandy Hook.               She had no

passengers in her car.

     When plaintiff initially entered Route 36, she drove in the

right lane, but "for whatever reason" moved "eventually" into the

left lane.     "Not very long" after changing to the left lane,

plaintiff moved back to the right lane. Before doing so, plaintiff

allegedly "checked all [her] mirrors," "checked that the lane next

to [her] was clear," and "put [her] blinker on[.]"                  Plaintiff

noticed a car in the right lane as she moved into that lane, but,

by her own estimation, it was "about 10 car lengths back[.]"

     According to plaintiff, after she moved into the right lane,

defendant, who was driving a van, "came up behind [her] and started

screaming    and   yelling   and   cursing   and   flailing   her   arms[.]"

Plaintiff's convertible had the top and windows down.          The windows

in defendant's van were likewise down.

     Plaintiff testified that defendant's hostile reaction to her

lane change made her "[a]bsolutely scared out of [her] wits




                                      3                               A-1762-15T3
terrified." According to plaintiff, defendant was throwing things1

around in her vehicle and did not have her hands on the steering

wheel.   Defendant allegedly was also "punching" the roof of the

car and the wheel.     Plaintiff claimed this behavior continued

through "several" traffic lights.

     Plaintiff eventually stopped at a traffic light.    According

to plaintiff, the van then moved into the left lane and came up

alongside the convertible.     At that moment, there was one car

behind plaintiff and two cars in front of her, causing her to be

"boxed in."

     According to plaintiff, she then called a friend of her family

on her cell phone.    The friend was a retired police officer who

had served in another town for twenty-eight years.       Plaintiff

testified that, while she was on the call, defendant continued to

scream at her.   She contends it was loud enough so that the friend

could hear through the phone what defendant was shouting.

     Plaintiff then observed that defendant was "reaching over her

passenger side," attempting to grab her.    She saw that defendant

had a Snapple bottle "raised by her left arm . . . as if one were

going to pitch."



1
  It is unclear what "things" plaintiff was referring to, or if
that description included the Snapple bottle that she alleges
defendant later used to threaten her.

                                 4                          A-1762-15T3
      Plaintiff testified that she put her car in park because she

was "afraid that [she] was going to roll into the car in front of

[her] and have an accident."     By plaintiff's estimate, her car was

"a foot and a half" from defendant's lane at the time.

      At this point, plaintiff recalled, defendant's van "backed

up   and   [then]   rammed"   into   her   convertible.   According    to

plaintiff, the van hit the convertible three times.         The impact

allegedly "ripped" off her car door, leaving it "hanging by one

hinge."     She added that, when the         van hit the back   of the

convertible, it caused the latter's door to "pop" open.

      Plaintiff testified that after defendant's van struck her

car, her friend told her to hang up and call 9-1-1, which she

claims to have done.2     She stated that defendant, by that point,

had proceeded through the traffic light.       Plaintiff estimated that

defendant's van was "about 30 feet away" from her own car on the

shoulder of the road.

      Plaintiff admitted possessing in her car what she described

as a "trinket" bat, which was next to her by the console. She

explained that she kept that small bat in her car for protection,

after her dog had been attacked by other dogs several months


2
  Plaintiff testified that she made several attempts to get a copy
of the audio recording of the 9-1-1 call, but was unable to obtain
one.


                                     5                          A-1762-15T3
earlier.   According to plaintiff, the bat was eight to ten inches

long, and was similar to, but "a little thicker" than, a pen.

Plaintiff contended that the bat the defense introduced into

evidence at trial was inauthentic, and was not the actual one she

had kept in her car.3

      Plaintiff      claimed   that   there      were    as   many   as     eight

eyewitnesses to the incident.             However, she asserted that the

police officers who responded to the scene did not take down the

eyewitnesses' information, nor would they "allow" plaintiff to do

so.     One     of   the   officers   allegedly         "intimidate[ed]"       the

eyewitnesses "with his ticket book" and told them to leave.4

      The officers provided plaintiff with a form on which she

could   write    a   statement   about     the   incident.      According        to

plaintiff, she did not fill out the form that day because she was

"shaking," "in pain," "confused," "in shock," and "hurt."

      Plaintiff testified that the officers told defendant, with

whom they appeared to be "familiar[,]" to leave, but conversely


3
  The bat moved in evidence had a tag, indicating it had been
logged at the Hazlet police station on August 1, 2011, almost a
year and two months after the accident.
4
  Plaintiff filed an internal affairs complaint with the police in
June 2010 because she claimed she was "unfairly treated" by the
officers at the scene. However, her complaint was dismissed when
she failed to appear for an interview. Plaintiff explained that
she was in the hospital when the police department scheduled the
interview, and was thus unavailable.

                                      6                                   A-1762-15T3
told plaintiff to stay.      Plaintiff was issued a summons for

wielding a weapon, after a police officer found the miniature bat

in her car.   That summons was eventually dismissed.

     Plaintiff wrote a statement two days after the incident, and

allegedly attempted to file it with the police multiple times.

However, according to plaintiff, she was not allowed to file the

statement until June 21, 2010, because up until that day the police

report was not done and allegedly "they had nothing to put [her

statement] with."

     Plaintiff's friend also submitted a statement to the police

soon after the incident, detailing what he had heard during his

phone call with her on the day of the incident.        He testified

briefly as to those matters in plaintiff's case in chief.

     Defendant's Version

     According to defendant, the convertible "cut [her] off" in a

lane change on Route 36 while plaintiff was talking on her cell

phone.   Defendant was driving a Chrysler Town and Country van at

the time.

     After the lane change, the convertible "came to a complete

stop."   Defendant testified that she put her hands up and gestured

to plaintiff, "What are you doing?"    Defendant acknowledged that

she then "pulled over to the side of [plaintiff's car], rolled



                                 7                          A-1762-15T3
down [her] window," and exclaimed, "[W]hat are you doing, get the

F--- off the phone[.]" Defendant then "moved on."

     According to defendant, the vehicles thereafter stopped at a

traffic   light,    with    the   convertible          in       the    right     lane   and

defendant's van in the left lane.             Defendant claimed that, at that

point, plaintiff got out of her car with the miniature bat.

Plaintiff   said,    "Did    [defendant]        want       to    be    beaten     and   did

[defendant] want to be arrested[,]" all allegedly while she "held

the club over [defendant's] windshield."                    Defendant stated that

she was "scared" as plaintiff did this.

     At that point, plaintiff's car door on the driver's side was

open.   According    to    defendant,     the       door    was       on   an   angle   and

intruding into defendant's lane.              Defendant claimed that she could

not see plaintiff's door in front of her car "because [plaintiff's]

window was down and she was standing at [the van's] windshield."

Defendant testified that she then thought to herself, "[H]uh,

she's got a club, I'm getting out of here."

     According to defendant, at that point she "[t]urned [her]

wheel   towards     the    barrier   to       try     to    miss       [plaintiff]      and

[plaintiff's]      door    because   she        was    still          standing    there."

Defendant testified that

            as I caught the door I went about 36, 42 inches
            and I realized I was -- I heard the scraping,
            I went (gasp) and I stopped. I back[ed] up

                                          8                                        A-1762-15T3
          just a little bit to unhook myself and I pulled
          around and went and pulled over before the
          light[.]

Defendant claimed that she did this because she was "scared, trying

to get away from [plaintiff]."

     Defendant admitted causing damage to plaintiff's car door.

However, she denied causing the additional damage to the car

depicted in photographs that were introduced by plaintiff at trial.

     According to defendant, after striking plaintiff's car, she

pulled over to the side of the road.     She was "parked on the same

side of the accident[,]" about ten feet away from plaintiff.

Defendant then called 4-1-1 to get the number for the Hazlet police

department.   She thereafter spoke with the police, after someone

at a nearby store apparently called them.

     The Police Officers' Testimony

     Two Hazlet police officers, one female and one male, were

called by defendant as trial witnesses. They recounted that they

had arrived at the scene, and spoke to both drivers.      The female

officer recalled that defendant was "visibly upset" and crying.

Defendant told the officer about the bat that plaintiff had

allegedly used to threaten her.       The officer then retrieved the

miniature bat "from in between the driver's seat and the center

console" of the convertible.



                                  9                          A-1762-15T3
     After obtaining defendant's side of the narrative, the female

officer spoke with plaintiff.      However, the officer did not learn

much from that conversation, because plaintiff was "very vague"

and "really didn't want to give much information."            Plaintiff did

admit to the officer that she had opened her car door.             The male

officer    similarly   testified   that    he   spoke   to   plaintiff,   but

recalled she was not "forthcoming" with her answers.

     The male officer testified that, when he arrived, plaintiff's

car was blocking traffic in the left lane, and other cars could

not get around her open door.       The female officer testified that

plaintiff's car was "on an angle" and "closer to the left side of

its lane[,]" but still "within its lane[.]"

     According to the female officer, she was not aware of any

eyewitnesses to the incident being present when the two officers

arrived.    The officer maintained that, contrary to plaintiff's

claim, she did not tell any witnesses to leave.

     The Jury Charge and the Verdict

     During the charge conference, defense counsel requested that

the court instruct the jury with Model Jury Civil Charge 5:10(g),

addressing a "sudden emergency."          Defense counsel argued in this

regard that defendant had attempted to drive away from the scene

because she was in fear of plaintiff, who was "out of the car with

her bat."    Although defense counsel conceded that the requested

                                   10                                A-1762-15T3
instruction was "not a favored charge in our law," he argued that

the circumstances of this automobile accident were not "standard"

and the situation justified the charge.

     Plaintiff's counsel strenuously opposed the issuance of the

sudden emergency charge.      He argued that the charge was unduly

prejudicial   to   his   client   and    would   confuse   the   jury.     He

maintained that the customary charge for comparative negligence,

which the court planned to give, provided sufficient guidance to

the jury here in determining whether defendant and plaintiff had

each acted reasonably under the circumstances.             He also argued

that, if the charge were given for defendant, it must also be

given for plaintiff.

     After reflecting on the matter, the trial court decided to

charge the jury on only defendant's alleged sudden emergency, and

included that charge in the final instructions, over plaintiff's

objection.    The court did recognize the charge is generally

disfavored, but concluded that it was appropriate to give the jury

in this particular situation of alleged "road rage" between two

drivers.

     During summations, counsel for plaintiff attempted to negate

the impact of the court's forthcoming charge on sudden emergency.

He argued that defendant, rather than plaintiff, was the negligent

party in the overall encounter.         More pointedly, he asserted that

                                   11                               A-1762-15T3
defendant herself had created an emergency at the scene through

her own vulgarities and aggressive conduct, which made plaintiff

fearful.     Hence, argued plaintiff's counsel, the damage that

defendant caused to plaintiff by her own wrongful behavior could

not be excused.

     Defense counsel did not allude to the emergency charge in his

own closing.    We presume he was satisfied that the jury hearing

the charge from the court itself was sufficient for his own

tactical advantage.

     The jury unanimously found defendant not liable on all three

counts.    This appeal ensued.

                                 II.

     The singular issue before us is whether the trial court erred

in issuing the sudden emergency charge, and, if so, whether that

error was sufficiently prejudicial to warrant a new trial.

     The sudden emergency doctrine stems from the English common

law dating back to Jones v. Boyce, 1 Stark. 493, 171 Eng. Rep. 540

(N.P. 1816), in which the plaintiff had leapt out of a stagecoach

after being scared by the negligent manner in which the coach was

being driven.   The English court instructed that if the plaintiff

had acted negligently in leaping from the stagecoach due to a

perception of a sudden emergency, his negligent conduct could be

excused.    Id., 171 Eng. Rep. at 541.   On the other hand, if the

                                 12                          A-1762-15T3
plaintiff's act resulted from a rash apprehension of danger, which

was not confirmed to exist, he would not be entitled to recover.

     The United States Supreme Court adopted the sudden emergency

doctrine in Stokes v. Saltonstall, 38 U.S. 181, 10 L. Ed. 115

(1839).   That case likewise involved a passenger who had become

frightened and leapt from a stagecoach.

     For the sudden emergency doctrine to apply, and therefore

potentially warrant the related jury charge, "a party must have

been confronted by a sudden emergency over which he had no control,

without fault on his part."    Roberts v. Hooper, 181 N.J. Super.

474, 478 (App. Div. 1981).    The doctrine "negates negligence if

the jury finds that the party chose one of alternative reasonably

prudent courses of action, even though, by hindsight, another

course of action would have been safer."   Id. at 478-79.

     Many years ago, our state adopted this model charge. However,

over time, the charge has been regarded as unnecessary, confusing,

and conceptually subsumed within the charge for comparative fault.

     The model charge reads as follows:

               In connection with the question of
          (contributory)   negligence,   it  has   been
          asserted that the defendant (plaintiff) was
          confronted with a sudden emergency. Where a
          person, without any fault on his/her part, is
          confronted with a sudden emergency, that is,
          is placed in a sudden position of imminent
          peril not reasonably to be anticipated, the
          law will not charge him/her with negligence

                               13                           A-1762-15T3
         if he/she does not select the very wisest
         course in choosing between alternative courses
         of action. An honest mistake of judgment in
         such a sudden emergency will not, of itself,
         constitute   negligence,    although   another
         course might have been better and safer. All
         that is required of such a person is that
         he/she exercises the care of a reasonably
         prudent person under like circumstances.

              It is for you the jury to determine from
         the evidence whether such an emergency
         existed, whether it arose without the fault
         of that person and whether that person acted
         with due care under the circumstances.

         [The following two additional paragraphs may
         be utilized where necessary:]

              The law recognizes that one acting in a
         sudden emergency may have no time for thought
         and so cannot weigh alternative courses of
         action but must make a speedy decision which
         will be based on impulse or instinct. What
         is required of a person in such an emergency
         is that he/she act reasonably and with
         ordinary care under such circumstances.

              However, if the emergency arose in whole
         or in part by reason of the fault, that is, a
         lack of due care, of that person in the events
         preceding the emergency, then this rule of
         sudden emergency does not apply to excuse
         him/her even though his/her conduct during the
         emergency does meet the standard of reasonable
         care referred to.

         [Model Jury Charge (Civil), 5:10(g), "Sudden
         Emergency" (emphasis added).]

    In 1995, the Model Civil Jury Charge Committee added a "Note

to Judges" indicating that the sudden emergency charge is in

"disfavor."   The Note cautions that the modern view is that the

                               14                         A-1762-15T3
charge is argumentative, confusing, and should be eliminated,

citing this court's opinion in Finley v. Wiley, 103 N.J. Super.

95 (App. Div. 1968), which criticized the charge.           See id. at 103.

     In Leighton v. Sim, 248 N.J. Super. 577, 580 (App. Div. 1991),

we further admonished that the sudden emergency instruction should

only be given in "the most unusual circumstances."                 Although

several states have retained the charge, others have eliminated

it. See Moran v. Atha Trucking, 208 W. Va. 379, 387-88, 540 S.E.2d

903, 911-12 (1997) (canvassing the law of various states).

     In light of these cautionary developments, we conclude that

the trial court erred here in acceding to defense counsel's request

to issue the charge.       The charge essentially gives the jury an

explicit   judicial    imprimatur   that   a   litigant's    conduct   in   a

negligence case can be excused if he or she was responding to an

emergency.

     Here, the emergency was portrayed as, or assumed to be, one

caused   solely   by   plaintiff.    However,    viewing    the   divergent

testimony of the parties as a whole, plaintiff was arguably as

much confronted with a "sudden emergency" here as was defendant,

depending on whose account of events is believed.

     This is not a situation in which an emergency was caused by

a third party or some external force, such as when a defendant

driver must change lanes in order to make way for an ambulance and

                                    15                              A-1762-15T3
collides   in    the    process    with   another     vehicle.      The   alleged

emergency, if one existed at all, instead was generated by the

escalating argument between the two drivers, neither of whom was

manifestly      without   fault.      Indeed,    defendant,       whose   counsel

requested the charge, herself admitted that she had shouted and

cursed at plaintiff after being cut off in her lane.

    Given       the    competing    proofs,     the    standard     charges      on

negligence and comparative fault sufficed here for the jury to

fairly weigh the respective behavior of the two actors involved.

By hearing from the judge's lips the disfavored charge on sudden

emergency, which was obtained for defendant's sole benefit, the

jury's objective consideration of the evidence easily could have

been tainted.

    "It is fundamental that '[a]ppropriate and proper charges to

a jury are essential for a fair trial.'"               Velazquez v. Portadin,

163 N.J. 677, 688 (2000) (alteration in original) (quoting State

v. Green, 86 N.J. 281, 287 (1981)); see also Washington v. Perez,

219 N.J. 338, 350-51 (2014) (noting that "[o]ur law has long

recognized      the    critical    importance   of     accurate    and    precise

instructions to the jury").          "A charge is a road map to guide the

jury, and without an appropriate charge a jury can take a wrong

turn in its deliberations[.]"             Das v. Thani, 171 N.J. 518, 527

(2002) (quoting State v. Martin, 119 N.J. 2, 15 (1990)).

                                       16                                 A-1762-15T3
     Although we appreciate the fact that the sudden emergency

charge remains on the books, and that the trial court responded

to defense counsel's request in a conscientious manner, we conclude

that it was harmful error to give the charge in the context of

this particular case.5   This was not the appropriate rare case

where the charge was warranted.

     The judgment for defendant is reversed, and the matter is

remanded for a new trial.




5
  Given the passage of time since it was last studied, we
respectfully suggest that the Model Civil Charge Committee
undertake a renewed assessment of the continued need for this
model charge.

                               17                           A-1762-15T3
