                                NOT FOR PUBLICATION WITHOUT THE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-1568-17T3

MARIE GUERRIER,

          Plaintiff-Appellant,

v.

PABLO LLIGUICHUZHCA
and JLB GENERAL
CONTRACTORS, LLC,

          Defendants,

and

NAOMI ROSENFELD,

     Defendant-Respondent.
___________________________

                    Argued November 27, 2018 – Decided March 29, 2019

                    Before Judges Rothstadt, Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-2644-13.

                    K. Raja Bhattacharya argued the cause for appellant
                    (Bendit Weinstock, PA, attorneys; K. Raja
                    Bhattacharya and Kay A. Gonzalez, on the briefs).
             Richard J. Mirra argued the cause for respondent
             (Hoagland, Longo, Moran, Dunst & Doukas, LLP,
             attorneys; Richard J. Mirra and Kathleen Huntley-
             Robertson, of counsel and on the brief).

PER CURIAM

      In this personal injury action, plaintiff Marie Guerrier appeals from the

Law Division's judgment dismissing her complaint against defendant the late

Naomi Rosenfeld, which it entered after a jury returned a verdict of "no cause."

On appeal, plaintiff argues that the trial court erred by (1) failing to charge the

jury in accordance with Dolson v. Anastasia, 55 N.J. 2 (1969); (2) allowing a

treating psychologist to testify as to her interpretation of a magnetic resonance

image (MRI); and (3) incorrectly charging the jury as to the effect of settling

defendants on the verdict. We reverse and remand for a new trial because the

trial court failed to include a Dolson charge in its instructions to the jury.

      Plaintiff's complaint arose from a July 2011 auto accident in which a

landscaping truck driven by defendant Pablo Lliguichuzhca and owned by

defendant JLB General Contractors, LLC (JLB) made a right-hand turn from the

left lane in front of plaintiff's vehicle, causing her to stop suddenly, at which

point Rosenfeld, who was behind plaintiff, rear-ended plaintiff's vehicle.

Plaintiff alleged that she sustained significant injuries in that accident.



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                                         2
      After plaintiff filed suit in this action, on April 2, 2014, she was involved

in a second crash, this time as a passenger. After she filed suit for damages

arising out of that accident, the trial court consolidated her lawsuits and plaintiff

ultimately settled with Lliguichuzhca, JLB, and all defendants involved in the

second accident. The only claim that was tried was plaintiff's action against

Rosenfeld. Although Rosenfeld participated in pretrial discovery, including

attending a deposition, by the time the case was tried, Rosenfeld had passed

away due to health issues unrelated to the accident.

      On September 28, 2017, plaintiff filed motions in limine seeking among

other relief (1) a jury charge that Rosenfeld was negligent; (2) the barring of

evidence about plaintiff's settlement with other defendants; and (3) the exclusion

of the settling defendants on the verdict sheet. In asking for a jury charge that

Rosenfeld was negligent, plaintiff argued that when a case involves a rear-end

collision, the jury must be charged in accordance with Dolson. According to

plaintiff, there was no question that based on Rosenfeld's deposition testimony,

she was traveling too fast at a distance of twenty feet behind plaintiff, which

was too close under the requirements of the New Jersey Driver Manual. Counsel

for Rosenfeld argued that the unique circumstances of the collision negated the

Dolson requirement.


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                                         3
      On October 11, 2017, relying on our holding in Seoung Ouk Cho v.

Trinitas Regional Medical Center, 443 N.J. Super. 461 (App. Div. 2015), the

trial court denied plaintiff's motion for a Dolson charge, finding that "the

granting of plaintiff's motion would have the effect of negating the defendant's

entire defense as to liability, thus it would be dispositive in nature." The court

reasoned that because "granting a motion [would] result in . . . the suppression

of the defendant's defenses, the motion is subject to [Rule 4:46], which

governs . . . summary judgment motions" and untimely summary judgment

motions could not be made in limine.

      In her trial testimony, plaintiff described the 2011 accident and explained

how JLB's truck made a right turn from the left lane, causing her to suddenly

apply her brakes, which, in turn, caused Rosenfeld's vehicle to collide with the

rear end of plaintiff's vehicle. Plaintiff testified that she blacked out upon

impact, experienced dizziness, fell, and was disoriented immediately afterward.

She described the injuries she sustained to her neck, head, and back, her memory

loss, agitation, headaches, and problems focusing, and her medical treatment

from the day after the accident through the years that followed. In addition to

her testimony, plaintiff produced other fact witnesses and expert opinion




                                                                          A-1568-17T3
                                        4
evidence about the physical and cognitive injuries she suffered as a result of the

accident.

      Rosenfeld's deposition testimony was also introduced into evidence and

read to the jury. According to Rosenfeld's testimony, the rear-end collision was

minor, causing no damage to Rosenfeld's car. Rosenfeld estimated that both she

and plaintiff were traveling at forty-five miles per hour, and that she was

approximately twenty feet behind plaintiff prior to impact. Rosenfeld also

recounted having a conversation with plaintiff immediately after the crash

during which plaintiff remained conscious, did not fall, and asserted that she

was uninjured.

      Also, plaintiff introduced into evidence an excerpt from the New Jersey

Driver Manual. The portion that was admitted described a safe distance between

vehicles traveling at a speed similar to that at which Rosenfeld was estimated to

have been traveling prior to the impact.

      After the presentation of the evidence, the trial court conducted a charge

conference. At that time, plaintiff renewed her request for a Dolson charge. The

trial court relied upon its earlier in limine decision and denied the request. It

stated the following:

            [A]s the Court has previously ruled, Dolson will not be
            charged. This Court will not take from the hands of the

                                                                          A-1568-17T3
                                        5
            jury findings that they should be making at the
            conclusion of all of the evidence whether in fact there
            is liability. And the Dolson charge is equivalent to a
            directed verdict that you must find that the Defendant
            Rosenfeld . . . was liable.

            And they may believe that she was [at a] sufficient
            distance based upon what a reasonably prudent person
            would have done, given her . . . circumstances. They
            may find she was not. But to remove that from their
            hands is inappropriate.

      During the trial court's charge to the jury, it first gave a general

explanation of negligence, then read several relevant motor vehicle and traffic

laws, including N.J.S.A. 39:4-89, which states in pertinent part that "[t]he driver

of a vehicle shall not follow another vehicle more closely than is reasonable and

prudent, having due regard to the speed of the preceding vehicle and the traffic

upon, and condition of, the highway." The court then instructed:

            The statutes in question have set up a standard of
            conduct for the users of our streets and our highways.
            If you find that a defendant has violated—or any party,
            Plaintiff has violated the standard of conduct, such [a]
            violation is evidence to be considered by you in
            determining whether negligence, as I have defined that
            term for you, has been established. You may find that
            such violation constituted negligence on the part of the
            defendant, or you may find that it did not constitute
            such negligence. Your finding on this issue may be
            based on such violation alone, but in the event that there
            is other or additional evidence bearing upon that issue,
            you will consider such violation together with all . . .


                                                                           A-1568-17T3
                                        6
            such additional evidence in arriving at your ultimate
            decision as to defendant's negligence.

            [(Emphasis added).]

      After deliberation, the jury returned a verdict finding that Rosenfeld was

not negligent and that Lliguichuzhca was one hundred percent responsible for

the accident. On November 6, 2017, the court entered a judgment dismissing

plaintiff's complaint with prejudice. This appeal followed.

      On appeal, plaintiff contends that the trial court misapplied our holding in

Cho, which is applicable to summary judgment motions filed in limine, to a

legitimate request for a jury charge that was applicable to the facts developed at

trial. We agree.

      We begin our review by acknowledging "not every improper jury charge

warrants reversal and a new trial." Prioleau v. Kentucky Fried Chicken, Inc.,

223 N.J. 245, 257 (2015). Where a litigant contests a jury instruction at trial,

on appeal, we review challenges to jury charges for harmless error. Estate of

Kotsovska v. Liebman, 221 N.J. 568, 592 (2015). That is, we will "reverse on

the basis of [a] challenged error unless the error is harmless." Ibid. (quoting

Toto v. Ensuar, 196 N.J. 134, 144 (2008)). An error is harmful when it is

"clearly capable of producing an unjust result." Ibid. (quoting R. 2:10-2). In



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                                        7
reviewing such challenges, we "examine the charge as a whole, rather than focus

on individual errors in isolation." Ibid. (quoting Toto, 196 N.J. at 141).

      The importance of correct jury instructions cannot be understated. "A jury

is entitled to an explanation of the applicable legal principles and how they are

to be applied in light of the parties' contentions and the evidence produced in

the case." Prioleau, 223 N.J. at 256 (quoting Viscik v. Fowler Equip. Co., 173

N.J. 1, 18 (2002)). When charging the jury, a court must "set forth in clearly

understandable language the law that applies to the issues in the case." Little v.

Kia Motor Am., Inc., 455 N.J. Super. 411, 436-37 (App. Div. 2018) (quoting

Toto, 196 N.J. at 144); see also Kotsovska, 221 N.J. at 591. A jury charge is the

"road map that explains the applicable legal principles, outlines the jury's

function, and spells out 'how the jury should apply the legal principles charged

to the facts of the case.'" Little, 455 N.J. Super. at 437 (quoting Toto, 196 N.J.

at 144). To create such a roadmap, the court should tailor the jury charge to the

facts of the case. Kotsovska, 221 N.J. at 592. Although it is axiomatic that

accurate and understandable jury instructions are essential to a fair trial, see

Velazquez v. Portadin, 163 N.J. 677, 688 (2000), "a party is not entitled to have

the jury charged in the words of his own choosing." Kaplan v. Haines, 96 N.J.




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                                        8
Super. 242, 251 (App. Div. 1967), aff'd, 51 N.J. 404 (1968), overruled on other

grounds by, Largey v. Rothman, 110 N.J. 204 (1988).

      By requesting a Dolson charge here, plaintiff correctly sought to have the

jury instructed that if it found Rosenfeld violated N.J.S.A. 39:4-89, she was

negligent. In Dolson, the Supreme Court acknowledged that because N.J.S.A.

39:4-89 incorporated the common law standard of care with regard to following

distance, a violation of that statute establishes negligence. Dolson, 55 N.J. at

10-11. In Torres v. Pabon, 225 N.J. 167, 187-88 (2016), the Court addressed a

case where a plaintiff's vehicle struck a defendant's from behind. In its opinion,

the Court discussed the relationship between its holding in Dolson and the

obligation of a trial court to charge its holding in the appropriate circumstances.

The Court reviewed the language of N.J.S.A. 39:4-89 and observed that as stated

in Dolson, the statute "'merely incorporates the common law standard into the

motor vehicle law to authorize penal sanctions for a violation[,]' and that a

driver's conduct contravening that standard 'is negligence and a jury should be

so instructed.'" Id. at 187 (alteration in original). It concluded that "because

N.J.S.A. 39:4-89 imposes a statutory duty of care on a driver following behind

another driver, a finding that the driver violated the duty obviates the need for

further proof of negligence." Ibid. (emphasis added).


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                                        9
      The Court then quoted the appropriate Model Jury Charge. It stated:

            The statutory standard, and the common-law principle
            that it codifies, are incorporated in Model Jury Charge
            (Civil), § 5.30D(2) "Violation of Traffic Act" (August
            1999):

                  In this case, plaintiff argues that defendant
                  was negligent because defendant violated a
                  provision of the motor vehicle laws. The
                  provision referred to, N.J.S.A. 39:4-89, is
                  as follows: The driver of a vehicle shall not
                  follow another vehicle more closely than is
                  reasonable and prudent, having due regard
                  to the speed of the preceding vehicle and
                  the traffic upon, and condition of, the
                  highway.

                  [Id. at 188.]

      The charge described by the Court in Torres, as compared to the one

delivered by the trial court here, was consistent with the instruction to judges

that accompanied the Model Jury Charges. Those instructions stated:

            In some cases, however, an issue may be presented for
            the jury as to whether a violation occurred or whether
            an adequate explanation is to be found in the evidence.
            In such a case where the particular statute violated
            requires a conclusion of negligence the jury should be
            instructed as follows:

                  In this case, plaintiff argues that defendant
                  was negligent because defendant violated a
                  provision of the motor vehicle laws. The
                  provision referred to, N.J.S.A. 39:4-89, is
                  as follows:

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                                      10
                   The driver of a vehicle shall not follow
                   another vehicle more closely than is
                   reasonable and prudent, having due regard
                   to the speed of the preceding vehicle and
                   the traffic upon, and condition of, the
                   highway.

             [Model Jury Charges (Civil), 5.30D, "Violation of
             Traffic Act" (approved Aug. 1999) (emphasis added).]

      In rear-end cases where there is an allegation that a driver violated

N.J.S.A. 39:4-89 that is supported by evidence that the defendant was traveling

too closely behind another vehicle, the jury must be charged that the defendant

is negligent if the jury finds that the defendant followed "more closely than is

reasonable and prudent, having due regard to the speed of the preceding vehicle

and the traffic upon, and condition of, the highway." However, the statute and

the related charge are "not intended to apply indiscriminately to any case in

which the front of one vehicle comes into contact with the rear of another,

irrespective of how the collision occurred." La Mandri v. Carr, 148 N.J. Super.

566, 571 (App. Div. 1977) (declining to apply Dolson where the vehicles were

traveling in different lanes of traffic prior to impact).

      A Dolson charge has been found appropriate in situations similar to the

instant case. It was applied where a vehicle was forced to stop due to a sudden

obstruction in the road and that vehicle was subsequently rear-ended by a


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                                        11
closely-following vehicle. See Paiva v. Pfeiffer, 229 N.J. Super. 276, 282 (App.

Div. 1988) ("The policy and logic of Dolson compels us to conclude that where

a motorist takes evasive action to avoid an accident, which would have

supported a Dolson charge had it occurred, and in doing so rear-ends another

vehicle, the Dolson principles should be charged").        Dolson has also been

applied where a vehicle was traveling forty miles per hour at a distance of fifteen

to twenty feet behind another vehicle, a speed and distance almost identical to

the speed and distance in this case. See Pagano v. McClammy, 159 N.J. Super.

581, 585 (App. Div. 1978) (reversing the denial of plaintiff's motion for a

directed verdict after concluding the sole cause of the accident was defendant's

tailgating in violation of N.J.S.A. 39:4-89). Under the statute, however, speed

and distance alone are not determinative.

      The statutory standard incorporates the traditional reasonably prudent

person test, which is a factual question for the jury to determine. Thus, the jury

here could have found, based on the evidence, that Rosenfeld was not negligent

because she was following plaintiff at a reasonable and prudent distance "having

due regard to the speed of the preceding vehicle and the traffic upon, and

condition of, the highway," thereby accepting defendant's liability defense.

N.J.S.A. 39:4-89. But, the jury could have also found that Rosenfeld violated


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                                       12
the statute, which would have meant that Rosenfeld was negligent. The jury

would then have been required to determine what amount of responsibility, if

any, Rosenfeld bore for the accident as compared to the other defendants. For

that reason, the trial court's charge here was improper and harmful, "clearly

capable of producing an unjust result." See R. 2:10-2.

      Because we are constrained to remand this matter for a new trial, we need

not address plaintiff's remaining contentions.

      The judgment is vacated and the matter is remanded for a new trial. We

do not retain jurisdiction.




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                                      13
