Why can’t I tell the jury “My car is TOTALED” as a result of the crash caused the defendant?

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark

Kuzian v. Tomaszewski. New Jersey trial court decision Atlantic County February 19, 2019. Approved for publication

In this case the plaintiff was asked on direct examination by his attorney whether his car was “totaled” as a result of the crash. The defense attorney objected to this question and the trial judge sustained the objection. The court viewed the issue as whether or not there is a relationship between a car being “totaled”, i.e. a total loss, and the personal injuries plaintiff suffered as a result of that exact damage to the vehicle.  The plaintiff’s attorney argued the nature and extent of a collision and its corresponding impact on the plaintiffs injuries should be considered by the jury pursuant to New Jersey Supreme Court decision Brenman v. DeMello, 191 N.J. 18 (2006). The judge determined the jury should not hear the answer to this question and whether or not a vehicle is ‘totaled’ does not have any tendency to prove or disapprove the ultimate issue of fact in question; whether plaintiff suffered a permanent injury pursuant to the verbal threshold statute.

As a general matter the court reviewed New Jersey Rule of Evidence 401 addressing relevancy. It reads “All evidence shall be considered relevant. Relevancy has to do with whether the evidence preferred “renders the desired inference more probable than it would be with outside evidence”. In other words evidence is not relevant if it lacks probative value or does not ‘justify any reasonable inference’ as to the fact in question.  Conversely, if evidence does support the existence of a specific fact, even remotely, it is relevant and admissible.

In the motor vehicle case lawsuit either party can use actual photographs, provided the correct foundation has been established, of the vehicles involved in the accident to depict and draw inferences there from. Obviously this cuts both ways if the photographs present significant or substantial damage or little or no damage to said vehicle. The Supreme Court did establish a jury charge with regards to photographs as a result as well. The ultimate issue in the jury charge is that the jury is entitled to give the photographs whatever weight they deem appropriate because those photographs are one factor to be considered along with our other evidence when determining whether the plaintiff suffered a permanent injury. New Jersey Model Jury Charge 5.34.

This trial judge distinguish between photos of a vehicle and the question regarding whether the vehicle was “totaled”.  The defense successfully argued that merely because a car is ‘totaled’ does not create an inference of injury. Just  because a car is “totaled” when the cost of repair exceeds the value of the vehicle. This is subjective to the age, miles, usage and condition of the vehicle vis-à-vis the repairs needed. In addition the exact criteria for deciding if a car shall be considered ‘totaled’ varies from insurance company to insurance company and may be dictated by state statute or regulation. In this case the plaintiff’s attorney did properly introduce photographs into evidence depicting the damage however the next question he asked regarding the ‘total loss’ of the vehicle was prohibited.  Arguably this line of reasoning shall also apply to a defense attorney when arguing that the damages were not so substantial to the vehicle to declare it a total loss as well.

Posted in

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

Leave a Comment