                                NOT FOR PUBLICATION WITHOUT THE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-5930-17T2

JARRETT C. HYNES,

          Plaintiff-Appellant,

v.

DAVID S. GIBSON,

     Defendant-Respondent.
____________________________

                   Submitted May 28, 2020 – Decided August 14, 2020

                   Before Judges Suter and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hunterdon County, Docket No. L-0165-15.

                   Katharine Leigh Errickson, attorney for appellant.

                   Lamb Kretzer, LLC, attorneys for respondent (John A.
                   Fearns and Robert D. Kretzer, on the brief).

PER CURIAM

          Plaintiff Jarrett C. Hynes appeals from the denial of his motion for a new

trial. He argues the jury verdict constituted a miscarriage of justice because the
trial court erred by charging the jury on comparative negligence and because of

improper comments by defense counsel, which he claims the court's curative

instructions did not remedy. Plaintiff also contends defense counsel should have

been disqualified based on a non-waivable conflict of interest. For reasons that

follow, we affirm the order denying a new trial, finding no miscarriage of

justice.

      The case arises from a road rage incident on April 16, 2013, in

Flemington. Plaintiff was operating his vehicle when he changed from the right

to the center lane after looking in his rearview mirror and putting on his blinker.

He testified, "I didn't see any vehicles." Defendant was operating his van on the

same road, going in the same direction with his wife in the passenger seat. She

testified that "all of a sudden in my peripherals, I saw a car. . . . I realized the

car was so incredibly close to ours that we were probably going to get in an

accident. . . . And I screamed." Defendant beeped the horn, avoiding an

accident, and plaintiff's vehicle pulled in front of defendant's. When plaintiff

stopped at the next light, he heard screaming and saw defendant yelling. He

gave defendant the middle finger. As they proceeded, defendant now was

tailgating him. Plaintiff testified he "softly tapped [his] brake light and brake

checked him." Defendant's wife testified plaintiff gave them the middle finger


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                                         2
"and was kind of doing a bit of a gyration, and it was up and down." Then,

plaintiff was "on and off constant pumping of the brakes; like not just once, not

just twice, but it was like a constant thing." When they reached another stop

light, defendant got out of his van with a window punch and proceeded to shatter

plaintiff's driver's side window.     Although plaintiff saw defendant had

something in his hand resembling a knife, he pushed open his car door and got

out; the two men began to grapple. Plaintiff testified that defendant "lunged at

me and stabbed me" with the window punch. Defendant's wife broke up the

fight. Plaintiff sustained "a small puncture wound" and small cuts from the

window glass. He refused medical assistance at the scene, but later went to the

Hunterdon Medical Center for treatment. 1

      Plaintiff sued defendant in the Law Division in April 2015, for physical

and emotional injuries, alleging intentional assault and battery (count o ne),

negligent assault and battery (count two), and intentional or negligent assault

and/or battery (counts three through seven). Plaintiff contended he developed




1
  Defendant was arrested and charged criminally. He pleaded guilty to third
degree aggravated assault with bodily injury, N.J.S.A. 2C:12-1(b)(7), and was
sentenced to a two-year term of non-custodial probation, a required mental
health evaluation, and a ninety-day suspension of his driver's license, requiring
medical clearance.
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                                       3
psoriasis and suffered from post-traumatic stress disorder (PTSD) as a result of

the incident.

      Defendant's answer raised as an affirmative defense that plaintiff's

negligence "proximately contributed to" the incident. He was represented by

privately retained counsel on the counts of the complaint alleging intentional

actions and by John Fearns, Esq. (insurance counsel), appointed by his insurer,

Liberty Mutual Insurance Company (Liberty Mutual), on the remaining counts

of the complaint.

      The jury awarded plaintiff a judgment of $5000 for pain and suffering,2

finding defendant 52% liable for plaintiff's injuries and plaintiff 48% liable. The

intentional counts of the complaint had been dismissed by motion at the close

of plaintiff's case.

      Plaintiff filed a motion for a new trial, alleging that errors by the trial court

constituted a "manifest injustice."      He contended the trial court erred by

instructing the jury on comparative negligence because that instruction had not

been requested by counsel nor discussed at the pre-charge conference. His




2
  The jury's award did not include any amount for plaintiff's alleged aggravation
of a pre-existing condition.
                                                                               A-5930-17T2
                                          4
counsel argued the case "was always intentional versus straight negligence, not

comparative negligence."

      The court denied the new trial motion on July 13, 2018, finding it was

appropriate to give the comparative negligence charge because of the nature of

the case and because comparative negligence was included as an affirmative

defense in defendant's answer. Plaintiff was given the opportunity to object to

the charge and did so.

      The court found reference to plaintiff's DWI arrest was harmless error,

which was addressed by the court's curative instruction.          Also, the court

considered "fair and appropriate" the manner in which it addressed defense

counsel's comment about plaintiff's treating doctor's failure to appear.

      The court was satisfied there was no miscarriage of justice—even if the

three issues were considered together—as the "case came down to the credibility

of the witnesses." Plaintiff's credibility was adversely affected because he was

not consistent about when his psoriasis condition arose for the first time, and he

claimed PTSD but was not treated for it. The court observed the jury apparently

"believe[d] that [plaintiff] played a significant role in bringing about . . . this

road rage incident by his conduct, which they determined to be negligent leading

up to the confrontation at the street corner."


                                                                           A-5930-17T2
                                         5
      On appeal, plaintiff raises the following issues:

            I.  SINCE A MISCARRIAGE OF JUSTICE
            RESULTED   FROM    THE  TRIAL    COURT
            IMPROPERLY CHARGING THE JURY WITH
            COMPARATIVE NEGLIGENCE, SUA SPONTE,
            AFTER THE PARTIES HAD BOTH RESTED, THE
            COURT SHOULD REVERSE THE TRIAL COURT'S
            DECISION AND GRANT THE PLAINTIFF A NEW
            TRIAL.

            II. THE     DEFENDANT'S     INSURANCE
            ATTORNEY      SHOULD     HAVE      BEEN
            DISQUALIFIED DUE TO HIS CONFLICT OF
            INTEREST THAT COULD NOT BE WAIVED.

            III. DEFENSE COUNSEL'S COMMENTS TO
            PLAINITFF'S EMOTIONAL DAMAGES EXPERT
            ABOUT PLAINTIFF'S SIX-YEAR-OLD DWI,
            COMPLETELY IGNORED THE TRIAL COURT'S IN
            LIMINE MOTION, AND DEFENSE COUNSEL'S
            IMPROPER    COMMENTS   TO    THE JURY
            COMMENTING ON THE REASON PLAINTIFF'S
            TREATING DOCTOR DID NOT TESTIFY,
            CONSTITUTE REVERSIBLE ERROR.

      We review the denial of defendant's motion for a new trial under the same

standard used by the trial court, which is, "whether there was a miscarriage of

justice under the law." Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.

506, 522 (2011). We do so giving "'due deference' to the trial court's 'feel of

the case.'" Ibid. (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)). "A jury

verdict is entitled to considerable deference and 'should not be overthrown


                                                                       A-5930-17T2
                                        6
except upon the basis of a carefully reasoned and factually supported (and

articulated) determination, after canvassing the record and weighing the

evidence, that the continued viability of the judgment would constitute a

manifest denial of justice.'" Id. at 521 (quoting Baxter v. Fairmont Food Co.,

74 N.J. 588, 597-98 (1977)). We must, however, make our own independent

determination of whether a miscarriage of justice occurred. Carrino v. Novotny,

78 N.J. 355, 360 (1979).

      Plaintiff contends the comparative negligence charge should not have

been given. Even if it were appropriate, plaintiff argues for the first time on

appeal, the court should have used Model Jury Charge (Civil), 7.16,

"Negligence—Acts or Misconduct Are Willful, Wanton or Malicious or In

Reckless Disregard Of One's Safety Or Are Intentional Acts," instead of 7.30,

"Comparative Negligence—(Auto)—All Issues."

      In reviewing the adequacy of the court's instructions to the jury, we must

consider the charge as a whole in determining whether it was prejudicial. See

State v. Figueroa, 190 N.J. 219, 246 (2007) (Rivera-Soto, J., dissenting).

"[A]ppropriate and proper [jury] charges are essential for a fair trial." State v.

Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613

(2004)). Model jury charges are often helpful to trial courts performing this


                                                                          A-5930-17T2
                                        7
important function. See Mogull v. CB Commercial Real Estate Grp., Inc., 162

N.J. 449, 466 (2000) (holding that instructions given in accordance with model

charges, or which closely track model charges, are generally not considered

erroneous).

      We are satisfied there was no miscarriage of justice by giving a

comparative negligence charge.        "Comparative negligence is a legislative

amelioration of the perceived harshness of the common-law doctrine of

contributory negligence." Ostrowski v. Azzara, 111 N.J. 429, 436 (1988). "A

second underlying principle of the [Comparative Negligence Act] is the idea that

'every person has an obligation to exercise reasonable care for his or her own

safety. It is only fair that each person only pay for injuries he or she proximately

caused.'" Fernandes v. DAR Dev. Corp., 222 N.J. 390, 407 (2015) (quoting

Waterson v. Gen. Motors Corp., 111 N.J. 238, 267 (1988)).             "A jury may

consider a plaintiff's negligence only when the evidence adduced at trial

suggests that the plaintiff was somehow negligent and that negligence

contributed to the plaintiff's damages." Id. at 408.

      There was evidence in this case that plaintiff's conduct contributed to the

incident. Plaintiff used an offensive finger gesture toward defendant and also

repeatedly stepped on his brake as defendant was near his bumper. Plaintiff did


                                                                            A-5930-17T2
                                         8
not stay in the car after the window was broken but exited and grappled with

defendant, who plaintiff knew had a knife-like object in his hand. Defendant's

affirmative defenses specifically alleged plaintiff's negligence contributed to

causing the incident.

      The trial court is responsible for instructing the jury on the law. See

McDonough v. Jorda, 214 N.J. Super. 338, 346 (App. Div. 1986) (stating, "the

trial judge must prepare a full, complete charge on all facets of the applicable

law"). "The precise language of every jury instruction must be tailored by the

trial judge to fit the particular fact situation and the applicable statutory or

decisional law." Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div.

1999) (quoting Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518, 520

n.1 (Law Div. 1984)).

      We are satisfied given the evidence in the case and the affirmative

defense, that it was not a miscarriage of justice to instruct the jury on

comparative negligence. Plaintiff had the opportunity to object to the charge

and made an objection. The fact that plaintiff did not prevail does not mean

there was error.

      For the first time on appeal, plaintiff contends the trial court should have

instructed the jury under Model Jury Charge 7.16 rather than 7.30. We need not


                                                                          A-5930-17T2
                                        9
consider plaintiff's arguments that were not raised before the trial cour t.

Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973). If we did, however, because this case

involved a road rage incident involving two motor vehicle operators and

included standard allegations involving personal injuries, we think it was not an

abuse of discretion by the trial court to use Model Jury Charge 7.30. Model Jury

Charge 7.30 was more comprehensive and Model Jury Charge 7.16 arguably

might have created confusion by its reference to willful and malicious or

intentional conduct once the court dismissed the intentional causes of action.

      Plaintiff argues defendant's insurance counsel and defendant have an

irreconcilable conflict of interest which requires disqualification of counsel. He

contends defendant's waiver did not satisfy the holdings in Burd v. Sussex

Mutual Insurance Company, 56 N.J. 383 (1970).

      Liberty was proceeding under a reservation of rights because plaintiff's

lawsuit against defendant contained claims alleging both negligent and

intentional conduct. Plaintiff's motion prior to trial to disqualify insurance

counsel was denied on October 27, 2017, because the court found that any

conflict was waived. Defendant submitted a certification, in opposition to the

motion stating he "conferred with personal counsel . . . and [his] assigned


                                                                          A-5930-17T2
                                       10
defense counsel, John A. Fearns, Esq., . . . and ha[s] been fully advised of the

alleged conflict argument presented to the Court. It is my desire to have Mr.

Fearns continue as my counsel throughout the balance of this case."

        Plaintiff's notice of appeal does not list the October 27, 2017 order that

denied his motion to disqualify plaintiff's insurance counsel. 3 "[I]t is only the

judgments or orders or parts thereof designated in the notice of appeal which are

subject to the appeal process and review." Fusco v. Bd. of Educ. of Newark,

349 N.J. Super. 455, 461-62 (App. Div. 2002) (quoting Pressler, Current N.J.

Court Rules, cmt. 6 on R. 2:5–1(f)(3)(i) (2002)).         "The appellant should

explicitly designate all judgments, orders and issues on appeal in order to assure

preservation of their rights on appeal." Id. at 461 n.1. Because plaintiff did not

appeal the October 27, 2017 order, the issue of disqualification is not before us.

        Even if it were, the trial court had ample basis to deny the motion based

on defendant's certification. Defendant submitted a certification to the court

explaining he wanted Fearns to continue as his counsel, and was fully advised

about the conflict argument. Burd recognized an insured could waive a conflict.

56 N.J. at 389-90. "[T]he carrier should not be permitted to assume the defense

if it intends to dispute its obligation to pay a plaintiff's judgment, unless of


3
    The issue is referenced in the Case Information Statement but not the order.
                                                                          A-5930-17T2
                                        11
course the insured expressly agrees to that reservation." Id. at 390. Plaintiff

argues it was Liberty's reservation that created the conflict of interest, but

defendant's reference to "conflict arguments" in his certification was a sufficient

basis for the judge to find consent to representation in this case. We conclude

that plaintiff's further arguments on this point are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

        Plaintiff argues the trial court erred by denying him a new trial based on

a question by defense counsel on cross-examination that referenced a 2007 DWI

arrest, and a comment in his summation about the absence of plaintiff's treating

doctor. We disagree.

        The trial court granted plaintiff's unopposed in limine motion to bar

reference at trial to plaintiff's prior DWI arrest.     Defense counsel's cross-

examined plaintiff's psychological expert Dr. Maureen Santina about specific

stressors plaintiff experienced earlier.     When she requested clarification,

defendant's attorney stated, "[a]n arrest for DWI." Plaintiff's counsel objected

based on the in limine ruling and because she claimed to have reminded counsel

not to mention the DWI charges. Following side-bar, the judge instructed the

jury:

              Ladies and gentlemen, you heard a reference . . . to
              [plaintiff] having an arrest for driving under the

                                                                           A-5930-17T2
                                        12
             influence, DUI. That was back in 2007 and it really has
             – other than the fact that it was referenced in . . . the
             doctor's report as part of some other stressors that had
             to do with . . . some alcohol problems, which you had
             already heard about as well, the fact that he had an
             arrest really has no bearing on this lawsuit. And you
             should disregard the reference to the DUI arrest, okay?

      Then, during summation, defense counsel commented on the absence of

testimony from plaintiff's treating dermatologist. He argued the jury had not

heard from plaintiff's treating dermatologist "because she would testify

consistently with the dermatological expert that you heard from [defendant's

dermatological expert], . . . that there's no evidence in this case - - ." Plaintiff's

counsel objected before the sentence was finished. After a lengthy side-bar, the

court gave a curative instruction.

             Now, the objection was made mid-sentence by . . .
             [plaintiff's counsel] and so [defense counsel] really
             never did complete the statement he was about to make
             about [plaintiff's treating dermatologist's] failure to
             appear. So I'm going to instruct you to disregard
             anything you recall about what was said about [the
             dermatologist's] failure to appear.

      "[W]hen weighing the effectiveness of curative instructions, a reviewing

court should give equal deference to the determination of the trial court. The

adequacy of a curative instruction necessarily focuses on the capacity of the

offending evidence to lead to a verdict that could not otherwise be justly


                                                                              A-5930-17T2
                                         13
reached." State v. Winter, 96 N.J. 640, 647 (1984). The test is whether the error

was "clearly capable of producing an unjust result." State v. Daniels, 182 N.J.

80, 95 (2004) (quoting R. 2:10-2).

      Attorneys are afforded "broad latitude in summation[s]."         Bender v.

Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci v. Oppenheim, 326 N.J.

Super 166, 177 (App. Div. 1999)).           While, the "cumulative effect" of

inappropriate comments can result in a miscarriage of justice, Geler v. Akawie,

358 N.J. Super. 437, 468 (App. Div. 2003) "[f]leeting comments, even if

improper, may not warrant a new trial, particularly when the verdict is fair."

Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009).

      The trial court did not err in denying a new trial on the basis of these

comments. They were isolated and followed by immediate curative instructions.

Plaintiff did not object to the curative instructions that were given or request a

mistrial. In both instances, the court instructed the jury not to consider the

question or comment. It is presumed the jurors followed these instructions.

State v. Loftin, 146 N.J. 295, 390 (1996).        The curative instructions were

sufficiently timely and substantively adequate.

      Plaintiff is dissatisfied with the verdict and bootstraps from this that the

jury was swayed by passion or prejudice. However, there was ample evidence


                                                                          A-5930-17T2
                                       14
to support the verdict based on plaintiff's inconsistent testimony about his

psoriasis condition and based on his conduct during the incident. With respect

to the summation comment, it was incomplete and the court gave an immediate

curative instruction. On this record, the errors cited did not constitute manifest

injustice warranting a new trial particularly in light of the appropriate and timely

curative instructions.

      Affirmed.




                                                                            A-5930-17T2
                                        15
