Kenneth Mr. Vercammen was included in the 2020 “Super Lawyers” list published by Thomson Reuters.

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Sunday, June 10, 2018


Tried to a jury, this negligence case arose out of a motor vehicle accident in which the defendant driver struck plaintiff, a pedestrian, as he was attempting to walk one February evening across an eight-lane state highway. Plaintiff alleged defendant was not using her headlights and had failed to observe him in the road until it was too late for her to stop. Defendant asserted that plaintiff unreasonably failed to use a nearby crosswalk located up to about 150 feet from where he crossed. The jury found plaintiff was 75% at fault and defendant was 25%, producing a judgment in defendant's favor pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. On appeal, plaintiff argues, among other things, the trial court issued inappropriate jury instructions concerning the traffic laws and should have taken judicial notice concerning the asserted legality of his attempted crossing. Plaintiff further argues the court erred in allowing, over objection, an investigating police officer, who had not witnessed the accident, to render lay opinion testimony estimating the speed of defendant's car under what is known as the "Searle formula." The trial court properly charged the jury in this setting with both N.J.S.A. 39:4-33, which directs that "[a]t intersections where traffic is directed by a police officer or traffic signal, no pedestrian shall enter upon or cross the highway at a point other than a crosswalk," and N.J.S.A. 39:4-34, which provides that, in the absence of a traffic signal or police officer directing traffic, a pedestrian shall cross "where not prohibited, at right angles to the roadway." The question of whether plaintiff was obligated to use the crosswalk was a fact-dependent jury issue, turning on the actual proximity of the crosswalk, the lighting conditions, and whether it was too dangerous to reach from plaintiff's location. The matter was unsuitable for judicial notice under N.J.R.E. 201. The investigating police officer was not designated in discovery as a defense expert and had denied at his deposition having expert status. Given the esoteric nature of the Searle formula, the officer's testimony was inadmissible under the guise of the lay opinion rule, N.J.R.E. 701, but this error was harmless.