                           NOT FOR PUBLICATION WITHOUT THE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-1248-17T3
 MIRIAM L. CHICAS, a/k/a
 MIRIAM CHICAS,

          Plaintiff-Respondent,

 v.

 TOWN OF KEARNY and
 DEREK P. HEMPHILL,

          Defendants-Appellants,

 and

 JOSE A. MARTINEZ, a/k/a
 JOSE CHICAS,

      Defendant-Respondent.
 _________________________

 JOSE A. MARTINEZ,

          Plaintiff-Respondent,

 v.

 TOWN OF KEARNY and
 DEREK P. HEMPHILL,

      Defendants-Appellants.
 _________________________________
            Argued November 14, 2018 – Decided January 10, 2019

            Before Judges Yannotti, Rothstadt, and Gilson.

            On appeal from Superior Court of New Jersey, Law
            Division, Hudson County, Docket Nos. L-2516-15 and
            L-4785-15.

            Monique D. Moreira argued the cause for appellants
            (Moreira & Moreira, PC, attorneys; Monique D.
            Moreira, on the briefs).

            Adam B. Lederman argued the cause for respondent
            Miriam L. Chicas (Davis, Saperstein & Salomon, PC,
            attorneys; Adam B. Lederman and David A. Drescher,
            on the brief).

            Antonio D. Arthurs argued the cause for respondent
            Jose A. Martinez (Law Offices of Jeffrey S. Hasson,
            PC, attorneys; Antonio D. Arthurs, on the brief).

            Law Office of Patricia A. Palma, attorneys for
            respondent Jose A. Martinez (Catherine Masterson, on
            the brief).

PER CURIAM

      On a snowy night, a Kearny police officer was on patrol in a police

vehicle. As he came down a street with an incline, he applied the brakes, but

his car slid through a stop sign and a car driven by plaintiff Jose Martinez

collided with the police vehicle. Plaintiff Miriam Chicas was a passenger in the

car driven by Martinez. Both Martinez and Chicas were injured and sued the

police officer and the Town of Kearny, which employed the officer. A jury


                                                                        A-1248-17T3
                                       2
found the officer negligent and solely responsible for the accident. Defendants

appeal from a January 6, 2017 order denying their motion for summary judgment

and a July 20, 2017 judgment memorializing the jury verdict. Having reviewed

the arguments in light of the record and applicable law, we affirm.

                                         I

         We take the facts from the record, including the evidence presented at

trial.    On January 2, 2014, weather reports predicted a winter snowstorm.

Anticipating that the snow might be "heavy" and that road conditions might

become "hazardous," the Governor declared a state of emergency and authorized

various state officials to take certain actions if necessary. The declaration did

not close roads in the state and did not restrict people from driving.

         Snow began falling on the evening of January 2, 2014, and continued into

January 3, 2014. In the early morning hours of January 3, 2014, Kearny Polic e

Officer Derek Hemphill was patrolling the streets of Kearny to determine which

roads needed to be plowed. Officer Hemphill was traveling in a Dodge Durango

police vehicle. At approximately 1:22 a.m., Officer Hemphill was traveling on

Laurel Avenue approaching a stop sign at a "T" intersection with Schuyler

Avenue. As Officer Hemphill applied his brakes, his vehicle skidded and slid

past the stop sign and into Schuyler Avenue. At approximately the same time,

plaintiff Martinez was driving a vehicle southbound on Schuyler Avenue,

                                                                          A-1248-17T3
                                         3
approaching the intersection with Laurel Avenue. Just before Martinez's vehicle

reached the intersection, Officer Hemphill's vehicle slid into Schuyler Avenue.

Martinez hit his brakes, but the front of his vehicle collided with the front

driver's side of Hemphill's vehicle.

      Martinez had been driving his sister's car, a Mazda SUV. His sister,

plaintiff Chicas, was a passenger in the vehicle, sitting in the front seat. A friend

was seated in the rear passenger's side of the vehicle. Martinez and Chicas were

wearing seatbelts at the time of the collision.

      Martinez and Chicas were both injured as a result of the collision.

Martinez herniated discs in his spine and neck and those injuries required

medical treatment. He also tore cartilage in his left wrist, which required

surgery. Chicas injured her neck, lower back, and knee. She required medical

treatment, which included surgery on her neck and knee.

      In 2015, Chicas and Martinez separately sued Kearny and Officer

Hemphill. In her suit, Chicas also asserted claims against Martinez. Those suits

were consolidated and the parties engaged in discovery.

      During discovery, plaintiffs produced a report on liability prepared by

Robert Klingen, an expert in accident reconstruction. Klingen opined that

Officer Hemphill had been driving at twenty-nine miles per hour as he

approached the stop sign on January 3, 2014. Having reviewed weather reports

                                                                             A-1248-17T3
                                         4
and various parties' testimony, Klingen pointed out that there was snow on the

ground and the officer was traveling above the twenty-five-miles-per-hour speed

limit for Laurel Avenue. Klingen further opined that the officer's rate of speed

was not appropriate given the snow on the road and the downward incline of

Laurel Avenue. Thus, Klingen opined that Hemphill solely caused the collision

when his vehicle failed to stop at the stop sign and failed to yield the right -of-

way to Martinez's vehicle.

      Following the completion of discovery, defendants moved for summary

judgment contending that plaintiffs' claims were barred by the New Jersey Tort

Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.          Defendants also argued that

Klingen's opinion was a net opinion and he should be precluded from testifying.

      After hearing oral argument, the trial court denied the summary judgment

motion in an order entered on January 6, 2017. The court held that the TCA did

not apply because Hemphill had been engaged in ministerial actions and none

of the exemptions under the TCA barred plaintiffs' claims. The trial cour t also

held that Klingen's expert opinion was not a net opinion because those opinions

were based on facts and analysis, including the testimony of the parties at

depositions, an accident scene inspection, and related analysis.

      The parties thereafter agreed to bifurcate liability and damages and, in

July 2017, the case proceeded to a trial on liability. At the beginning of the

                                                                           A-1248-17T3
                                        5
liability trial, the court granted an in limine motion filed by plaintiffs and

precluded defendants from referencing the Governor's declaration of a state of

emergency. The court ruled that any reference to the state of emergency would

be substantially more prejudicial than probative because the declaration did not

prohibit Martinez from driving on January 3, 2014.

      During the liability trial, the jury heard testimony from a number of

witnesses, including plaintiffs, Klingen, Officer Hemphill, and a defense

liability expert, Mark Marpet. After considering all of the evidence presented,

the jury returned a verdict for plaintiffs finding Officer Hemphill negligent and

solely responsible for the accident.       On July 20, 2017, the trial court

memorialized that verdict in a judgment. The judgment also dismissed with

prejudice Chicas' claims against Martinez.

      Thereafter, the parties agreed to resolve damages at a binding arbitration.

The arbitrator issued his decision on October 27, 2017, and awarded Chicas

$750,000 and Martinez $625,000.

      Defendants now appeal from the order denying them summary judgment

and the liability judgment. Defendants do not challenge the arbitration award

on damages.




                                                                         A-1248-17T3
                                       6
                                        II

      On appeal, defendants make a number of arguments challenging both the

denial of their motion for summary judgment and the jury verdict. Those

arguments can be organized into five issues: (1) whether defendants were

entitled to judgment as a matter of law based on the TCA; (2) whether plaintiffs'

expert report should have been barred as a net opinion; (3) whether the trial court

erred in refusing to allow the jury to consider immunities under the TCA;

(4) whether the trial court erred in excluding any reference to the state of

emergency; and (5) whether the trial court erred in denying defendants' request

for three jury charges. We are not persuaded by any of defendants' arguments

and we discern no error warranting vacating the jury verdict.

      A.    The TCA

      Defendants argue that immunities under the TCA precluded their liability

as a matter of law. Since these are legal issues, our review is de novo. Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

199 (2016) (first citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512,

524 (2012); then citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995)).

      "The TCA provides general immunity for all governmental bodies except

in circumstances where the Legislature has specifically provided for liability."

                                                                           A-1248-17T3
                                        7
Caicedo v. Caicedo, 439 N.J. Super. 615, 623 (App. Div. 2015) (quoting Kain

v. Gloucester City, 436 N.J. Super. 466, 473 (App. Div. 2014)). As such, "the

TCA's dominant theme is immunity, with liability as the exception." Ibid. (first

citing D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013); then

citing Rochinsky v. Dep't of Transp., 110 N.J. 399, 408 (1988)). "Even if

liability exists, '[c]ourts must "recognize[] the precedence of specific immunity

provisions," and ensure "the liability provisions of the Act will not take

precedence over specifically granted immunities."'" Patrick ex rel. Lint v. City

of Elizabeth, 449 N.J. Super. 565, 572 (App. Div. 2017) (alterations in original)

(quoting Parsons v. Mullica Twp. Bd. of Educ., 440 N.J. Super. 79, 95 (App.

Div. 2015)). Accordingly, to determine whether a public entity is immune,

"courts should employ an analysis that first asks 'whether an immunity applies

and if not, should liability attach.'" Bligen v. Jersey City Hous. Auth., 131 N.J.

124, 128 (1993) (quoting cmt. on N.J.S.A. 59:2-1(a)). The burden of proof rests

on the public entity to establish immunity. Caicedo, 439 N.J. Super. at 623

(quoting Kain, 436 N.J. Super. at 473). "Where a public entity is immune from

liability for injury, so too is the public employee." Id. at 624 (citing N.J.S.A.

59:3-1(c)).

      Defendants argue that three provisions of the TCA provide them with

immunity. In that regard, they contend that they are protected from liability

                                                                          A-1248-17T3
                                        8
under (1) the weather condition immunity, N.J.S.A. 59:4-7; (2) the good-faith

immunity, N.J.S.A. 59:3-3; and (3) the palpably unreasonable standard, N.J.S.A.

59:3-1(c). We disagree.

      1.     The Weather Condition Immunity

      N.J.S.A. 59:4-7 provides that "[n]either a public entity nor a public

employee is liable for an injury caused solely by the effect on the use of streets

and highways of weather conditions."         The key word in that immunity is

"solely." If weather conditions combine with other causes then the weather

condition immunity will not act as a bar. Dickerson ex rel. Duberson v. Twp.

of Hamilton, 400 N.J. Super. 189, 198-99 (App. Div. 2008) (quoting McGowan

v. Borough of Eatontown, 151 N.J. Super. 440, 447 (App. Div. 1977)); see also

Meta v. Twp. of Cherry Hill, 152 N.J. Super. 228, 232 (App. Div. 1977).

Therefore, the weather condition immunity will not apply to snow- and ice-

related accidents where there is evidence that plaintiffs' injuries were caused by

factors in addition to the weather itself.

      Here, there was evidence that the collision was not solely caused by the

snowy conditions of the roads. Officer Hemphill testified that as he approached

the stop sign at the intersection of Laurel Avenue and Schuyler Avenue, he

applied his brakes, but his car skidded through the stop sign and proceeded onto

Schuyler Avenue. While the officer testified that the road had snow on it, he

                                                                          A-1248-17T3
                                         9
also testified that he began to apply his brakes approximately 160 feet before

the stop sign. Plaintiffs submitted an expert report and the expert testified that

the officer's driving speed and inability to control his vehicle had caused the

accident. Analyzing the police report, the parties' testimony at depositions, and

a site inspection, the expert conducted a slide-to-stop calculation.          After

accounting for the downhill grade of Laurel Avenue and the snowy conditions

of the street, the expert opined that Officer Hemphill was driving at twenty-nine

miles per hour when the speed limit on that road was twenty-five miles per hour.

      Based on that evidence, a reasonable jury could conclude that the officer

had been driving negligently in failing to stop even given the weather conditions.

Accordingly, there was sufficient evidence presented that weather conditions

were not the sole cause of the accident. Therefore, defendants were not entitled

to judgment as a matter of law based on the weather condition immunity.

      2.    The Good-Faith Immunity

      N.J.S.A. 59:3-3 provides that "[a] public employee is not liable if he [or

she] acts in good faith in the execution or enforcement of any law." "The TCA

does not, however, 'exonerate a public employee for negligence arising out of

his [or her] acts or omissions in carrying out his [or her] ministerial functions.'"

Caicedo, 439 N.J. Super. at 624 (alterations in original) (quoting N.J.S.A. 59:3-

2). In Caicedo, we declined to extend the good-faith immunity provision to

                                                                            A-1248-17T3
                                        10
police officers acting in situations that do not involve an emergency, "such as

patrolling the streets or transporting prisoners." Ibid. Accordingly, we held that

a police officer "was not acting in the 'execution or enforcement of any law' so

as to afford him immunity under N.J.S.A. 59:3-3 while transporting [a] prisoner

to the police precinct when [a] collision occurred." Id. at 626.

        In that regard, we noted that "[r]ead literally, N.J.S.A. 59:3-3 could be

interpreted to immunize all police activities, since 'virtually every police

function or duty is pursuant to some legal authorization in the broadest sense.'"

Ibid.     (quoting Aikens v. Morris, 583 N.E.2d. 487, 493 (Ill. 1991)).

Consequently, we held that the Legislature did not intend for N.J.S.A. 59:3-3

"to be construed so broadly." Id. at 627. Instead, "the determination of whether

a police officer is engaged 'in the execution or enforcement of any law' so as to

entitle that officer to good-faith immunity under the statute must be made on a

case-by-case basis." Ibid.

        Here, Officer Hemphill testified that he was patrolling the streets of

Kearny to determine which streets needed to be plowed. He was not responding

to a report of a crime, an accident, or some other situation requiring his

immediate attention. Defendants argue that Officer Hemphill was patrolling the

streets under a state of emergency situation and, therefore, was involved in

enforcement of the law. As already pointed out, however, the state of emergency

                                                                          A-1248-17T3
                                       11
did not close the streets to public use. Instead, the state of emergency authorized

certain state officials to take actions if appropriate. There was no evidence that

Officer Hemphill was specifically directed by any state official to conduct the

patrol that he was engaged in on January 3, 2014. Thus, there was no evidence

that Officer Hemphill was executing or enforcing any law that would implicate

the good-faith immunity under the TCA. Accordingly, defendants were not

entitled to immunity under N.J.S.A. 59:3-3.

      3.    The Palpably Unreasonable Standard

      Defendants also argue that they are entitled to immunity under subsection

(c) of N.J.S.A. 59:3-1. That provision states, "[a] public employee is not liable

for an injury where a public entity is immune from liability for that injury."

Defendants then argue that the Town of Kearny could not be held liable under a

normal negligence standard. Instead, defendants contend that the Town of

Kearny could only be liable under a "palpably unreasonable" standard and,

therefore, plaintiffs needed to show that Officer Hemphill's actions were

palpably unreasonable for liability to attach. The TCA does not support this

argument.

      A public employee is liable for an injury caused by his or her acts or

omissions to the same extent as a private person unless there is a specific

immunity granted by the TCA. N.J.S.A. 59:3-1(a). Likewise, "[a] public entity

                                                                           A-1248-17T3
                                       12
is liable for injury proximately caused by an act or omission of a public

employee within the scope of his [or her] employment in the same manner and

to the same extent as a private individual under like circumstances." N.J.S.A.

59:2-2(a); see also Tice v. Cramer, 133 N.J. 347, 355 (1993) ("The primary

liability imposed on public entities is that of respondeat superior: when the

public employee is liable for acts within the scope of that employee's

employment, so too is the entity[.]")

      Defendants cite to Ogborne v. Mercer Cemetery Corp., 197 N.J. 448

(2009) in support of the contention that a heightened "palpably unreasonable"

negligence standard should apply. In that case, the court used the "palpably

unreasonable" standard based on N.J.S.A. 59:4-2, which deals with public

entities' liability for dangerous conditions on public property. See Ogborne, 197

N.J. at 456-57. That statute is intended to comport with the principles of liability

used by courts for local public entities in their capacity as landowners. Id. at

459-60 (citing Margolis & Novack, Claims Against Public Entities, 1972 Task

Force Comment on N.J.S.A. 59:4-2 (2016)). While N.J.S.A. 59:4-2 has been

applied broadly, it nevertheless is limited to situations where a dangerous

condition of public property itself is at issue. Ibid.

      Here, plaintiffs are not complaining about the condition of the roads in

Kearny.    Instead, plaintiffs sought to hold Kearny and Officer Hemphill

                                                                            A-1248-17T3
                                        13
responsible for the negligence of the officer while he was patrolling in snowy

conditions. Accordingly, the heightened "palpably unreasonable" standard set

forth in N.J.S.A. 59:4-2 is inapplicable.      Rather, in accord with N.J.S.A.

59:2-2(a), defendants were subject to liability under the normal negligence

standard.

      B.    Plaintiffs' Expert Report

      Defendants next argue that they were entitled to summary judgment

because plaintiffs' expert opinion was a net opinion and, without that expert

opinion, plaintiffs could not prove liability. The trial court rejected defendants'

arguments and found the expert opinions were based on facts and data, including

testimony by the parties, an inspection of the accident scene, a review of weather

reports, and related analysis. The trial court concluded that the expert opinions

possessed the "why and wherefores" and, thus, were not inadmissible as net

opinions.

      We review a trial court's decision to admit expert testimony under an

abuse of discretion standard. Alloco v. Ocean Beach & Bay Club, 456 N.J.

Super. 124, 142 (App. Div. 2018) (quoting Townsend v. Pierre, 221 N.J. 36, 53

(2015)). The net opinion doctrine is a "corollary of [N.J.R.E. 703] . . . which

forbids the admission into evidence of an expert's conclusions that are not

supported by factual evidence or other data." Quail v. Shop-Rite Supermarkets,

                                                                           A-1248-17T3
                                        14
Inc., 455 N.J. Super. 118, 132 (App. Div. 2018) (alterations in original) (quoting

Pierre, 221 N.J. at 53-54). "[T]he net opinion rule 'requires an expert to give the

why and wherefore of his or her opinion, rather than a mere conclusion.'"

Alloco, 456 N.J. Super. at 142 (quoting State v. Townsend, 186 N.J. 473, 494

(2006)). Experts must "be able to identify the factual bases for their conclusions,

explain their methodology, and demonstrate that both the factual bases and the

methodology are reliable." Pierre, 221 N.J. at 55 (quoting Landrigan v. Celotex

Corp., 127 N.J. 404, 417 (1992)).

      Here, we discern no abuse of discretion in the trial court's decision to

admit the expert opinion by Klingen. Klingen's opinions were based on evidence

in the record. In that regard, he reviewed a police accident and investigation

report, interrogatory responses, and deposition testimony by the parties,

including Officer Hemphill, Martinez, and Chicas. Klingen also conducted a

physical inspection of the location where the collision occurred and performed

accident reconstruction analysis, including a slide-to-stop calculation.

      Klingen's report and his testimony provided analysis and explained how

he reached his opinions. Moreover, the analysis and resulting opinions were not

based on a "personal standard." See Alloco, 456 N.J. Super. at 143 ("A standard

which is personal to the expert is equivalent to a net opinion." (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 373 (2011))).

                                                                           A-1248-17T3
                                       15
Instead, the opinions were based on standards used by accident reconstruction

experts. In that regard, Klingen relied on sources such as traffic accident

reconstruction manuals, a traffic accident investigation manual, and a manual

on equations for the traffic crash reconstructionist. In short, Klingen's expert

opinions were not net opinions.

      C.    Trial Court's Decision Not To Ask The Jury To Consider
            Immunities Under The TCA

      Defendants argue that, at trial, the court erred by instructing the jury to

determine if defendants were negligent. Defendants contend that the jury should

have been instructed on the verdict sheet to determine if defendants were

protected by the three immunities defendants claim precluded their liability

under the TCA. In other words, having been denied summary judgment on those

TCA immunities, defendants asked the trial court to allow the jury to consider

those immunities.

      Here, there were no material fact disputes concerning the application of

the three TCA immunities. Instead, as defendants acknowledged in moving for

summary judgment, determining whether the three immunities under the TCA

applied to the facts of this case involved questions of law for the court to decide.

As we have already determined that the immunities did not apply as a matter of

law, the trial court correctly refused to submit those legal issues to the jury.


                                                                            A-1248-17T3
                                        16
      D.    The State of Emergency

      Next, defendants assert that the trial court erred when it granted plaintiffs'

in limine motion to preclude reference to the Governor's state-of-emergency

declaration. Defendants first contend that the in limine motion was filed late

and should not have been considered. Second, they argue that, substantively,

the court erred by precluding references to the state of emergency because such

evidence was not substantially more prejudicial than probative. We disagree

with both of these arguments.

      Defendants did not challenge the timeliness of the in limine motion in the

trial court. Accordingly, we decline to consider it for the first time on appeal.

"[A]ppellate courts will decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a presentation is

available." State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson,

200 N.J. 1, 20 (2009)); Nieder v. Royal Idem. Ins. Co., 62 N.J. 229, 234 (1973).

Nevertheless, we note that the record reflects that more than seven days before

trial, plaintiffs served their pre-trial information exchange, which stated that

they intended to bring an in limine motion to bar any reference to a "statewide

vehicular ban on the day of the accident[.]" Three days before trial, plaintiffs

amended their pre-trial information exchange to further clarify that their in

limine motion would seek to bar "any reference to a 'State of Emergency' and/or

                                                                            A-1248-17T3
                                       17
statewide vehicular ban on the day of the accident[.]" Accordingly, defendants

were on notice prior to trial of the in limine motion and we discern no reversible

error concerning the timeliness of the motion. See R. 4:25-7(b) (governing the

exchange of information regarding in limine or trial motions).

      Turning to the substance, the trial court determined that the reference to

the state of emergency would be substantially more prejudicial than probative

under Rule 403. Specifically, the trial court found that there was no evidence

that motor vehicles were prohibited from being on the road on the day of the

accident. Accordingly, the trial court reasoned that the jury could incorrectly

assume that a state of emergency meant plaintiffs' vehicle should not have been

on the road and, thus, references to the state of emergency could be confusing.

      We review the trial court's decisions to admit or exclude evidence under

an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins.

Co., 202 N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J.

480, 492 (1999)). Accordingly, absent a showing that the court abused its

discretion, we will not reverse a decision concerning the admission or exclusion

of evidence unless we conclude that it was so wide of the mark as to bring about

a manifest injustice. E & H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super.

12, 24-25 (App. Div. 2018) (citing Griffin v. City of E. Orange, 225 N.J. 400,

413 (2016)).

                                                                          A-1248-17T3
                                       18
      Under Rule 403, the trial court can exclude relevant evidence "if its

probative value is substantially outweighed by the risk of (a) undue prejudice,

confusion of issues, or misleading the jury or (b) undue delay, waste of time, or

needless presentation of cumulative evidence." N.J.R.E. 403. "The burden lies

with the party seeking exclusion of the evidence to show that the probative value

is substantially outweighed by one or more of the factors listed in Rule 403."

McLean v. Liberty Health Sys., 430 N.J. Super. 156, 167 (App. Div. 2013)

(citing State v. Morton, 155 N.J. 383, 453 (1998)).

      Here, we discern no abuse of discretion in the trial court's decision to

exclude evidence of the state of emergency. As already noted, the executive

order declaring a state of emergency did not ban vehicles from traveling on the

roadways. Instead, it authorized various state officials to take actions if they

deemed it appropriate depending on how the snowstorm developed. The trial

court did not abuse its discretion when it found reference to the state of

emergency would confuse the issues the jury needed to determine and that

confusion was substantially more prejudicial than probative. Indeed, defendants

have not articulated how the state of emergency was probative of any issue the

jury needed to determine.




                                                                         A-1248-17T3
                                      19
      E.    Defendants' Requested Jury Charges

      Finally, defendants argue that the trial court erred by refusing to give the

jury three instructions that defendants had requested. Specifically, defendants

wanted the jury to be read the charges concerning (1) an act of God, Model Jury

Charge 5.10(E); (2) proximate causation, where there is a claim of concurrent

cause of harm, Model Jury Charge 6.13; and (3) the duty of a passenger in an

automobile, Model Jury Charge 7.12.

      "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." Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)

(quoting Rendine v. Pantzer, 276 N.J. Super. 398, 431 (App. Div. 1994)).

Accordingly, a "jury charge 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." Estate of Kotsovska ex rel. Kotsovska

v. Liebman, 221 N.J. 568, 591 (2015) (quoting Viscik, 173 N.J. at 18). Courts

accomplish this goal by tailoring the jury charge to the specific facts of a case.

Id. at 591-92 (citing Reynolds v. Gonzalez, 172 N.J. 266, 289 (2002)).

      In reviewing the adequacy of a jury charge, we consider the charge as a

whole to determine if any error occurred. See id. at 592; see also State v.

Figueroa, 190 N.J. 219, 246 (2007) (citing State v. Wilbely, 63 N.J. 420, 422

                                                                          A-1248-17T3
                                       20
(1973)). When a party objects to a jury charge at trial, we will reverse on the

basis of a challenged error "unless the error is harmless." Estate of Kotsovska,

221 N.J. at 592 (quoting Toto v. Ensuar, 196 N.J. 134, 144 (2008)). "An error

is harmful only where that error is 'clearly capable of producing an unjust

result.'" Ibid. (quoting R. 2:10-2). Applying this standard, we discern no

reversible error in the decision of the trial court to not give these three jury

charges.

      An act of God must be an unexpected event. In that regard, the model

jury charge explains that "[a]n act of God is an unusual, extraordinary and

unexpected manifestation of the forces of nature, or a misfortune or accident

arising from inevitable necessity which cannot be prevented by reasonable

human foresight and care." Model Jury Charges (Civil), 5.10(E), "Act of God"

(approved before 1984). The trial court acknowledged that the snow on the day

of the accident was predicted and Officer Hemphill was aware that he was

driving on snow-covered roads.      Accordingly, the court reasoned that the

snowfall on the day of the accident was not a phenomenon of weather so

unpredictable or extensive to constitute an act of God. We discern no reversible

error in that decision.

      Addressing proximate cause, the trial court determined to give the

proximate cause charge under Model Jury Charge 6.12, rather than the charge

                                                                        A-1248-17T3
                                      21
under Model Jury Charge 6.13. Model Jury Charge 6.12 addresses proximate

cause where there is a claim that concurrent causes of harm were present. Model

Jury Charges (Civil), 6.12, "Proximate Cause — Where There Is Claim that

Concurrent Causes of Harm Were Present" (approved May 1998). In contrast,

Model Jury Charge 6.13 addresses situations involving proximate cause where

there were concurring causes and there are claims that the specific harm was not

foreseeable. Model Jury Charges (Civil), 6.13, "Proximate Cause — Where

There Is Claim that Concurrent Causes of Harm Are Present and Claim that

Specific Harm Was Not Foreseeable" (approved May 1998). We discern no

reversible error in the court's decision to charge proximate cause under Model

Jury Charge 6.12, as compared to Model Jury Charge 6.13.

      Model Jury Charge 7.12 addresses a situation where a passenger "knows,

or in the exercise of reasonable care should know, that the driver is incapable of

operating the automobile or is operating the automobile in a negligent

manner[.]"    Model Jury Charges (Civil), 7.12, "Duty of Passenger in

Automobile" (approved May 1991). In such circumstances, the jury can then be

charged that "when it should become apparent to a reasonably careful person

that the vehicle is being driven negligently, the reasonable passenger must

protest or otherwise persuade the driver to drive carefully." Ibid.



                                                                          A-1248-17T3
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      Here, defendants' theory was that Chicas was negligent for getting into the

car with Martinez a second time. In that regard, the evidence at trial showed

that Martinez and Chicas had first stopped at Chicas' home, and then continued

driving to Martinez's home, which was located nearby. Chicas elected to go

with Martinez on the second trip because Martinez was using her vehicle, and

she planned to return home with it after dropping him off.

      Defendants cite to no law for the proposition that a reasonably careful

person who is riding in a motor vehicle as a passenger when it is snowing would

know or should know that the driver is operating the vehicle negligently.

Accordingly, we discern no reversible error in the trial court's decision not to

give an instruction concerning the duty of a passenger in an automobile.

      In summary, having reviewed the record, including the record at trial,

defendants were accorded a fair trial. They were charged with negligence, but

they were afforded a full and fair opportunity to present their defenses. Thus,

there is no basis to reverse the jury verdict.

      Affirmed.




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