Modified Jury Charge Permitted Concerning How to Evaluate Motor Vehicle Damage without Photographs of Vehicles

In a published Law Division decision, Abdurraheem v. Koch, 2018 N.J. Super. LEXIS 145 (Law Div. Mar. 19, 2018), the trial judge in an Atlantic County automobile negligence case was asked to modify Model Jury Charge 5.34 “Photographic Evidence in Motor Vehicle Accidents,” when there was testimony as to the damage of the vehicles involved but no photos were introduced into evidence. This issue had never been decided before in any reported case in the state. The trial court, decided under the circumstances, that it was appropriate to give a modified charge to the jury, even without the parties utilizing photos of the vehicles.

Model Jury Charge 5.34 “Photographic Evidence in Motor Vehicle Accidents” is commonly referred to as a “Brenman” charge because it is based upon the Supreme Court’s decision in Brenman v. Demello. In Brenman, the Supreme Court addressed the issue of whether biomechanical expert testimony was required to permit the admission of photographs of motor vehicle damage when the cause of plaintiff’s injuries were at issue. The Supreme Court decided that expert testimony was not required when the photographs were used to show a correlation between the damage to the vehicle and the cause or extent of the injuries claimed by plaintiff.

However, the Supreme Court directed that the trial judge should remind the jury that some bad accidents result in little injury, but some minor accidents result in serious injury, and that, therefore, the level of damage to a vehicle is just one factor to be considered along with all of the other evidence for the jury to determine the level of the plaintiff’s injuries resulting from the accident. The Court referred the matter to the Supreme Court Committee on Model Jury Charges for the formulation of a specific charge (i.e., instruction to a jury as to the law they are to utilize in reaching their verdict).

Accordingly, the Committee created Model Jury Charge 5.34, entitled “Photographic Evidence of Motor Vehicle Accidents.” According to this charge, the jury would be instructed that they “may attribute the weight to the photographs as they deem appropriate taking into consideration all of the other evidence in this case.” Specifically, the jury would be told “in some accidents resulting in extensive vehicle damage, the occupants may suffer minor injuries or no injuries at all. In other accidents where there is no or little apparent vehicle damage, the occupants may suffer serious injuries.”

In Abdurraheem, there was disputed testimony as to the extent of the damage of the vehicles with the plaintiff testifying to significant damage while, on the other hand, the defendant testifying that the impact of the collision was minor. However, neither party had taken photographs of the vehicles after the collision. Despite the lack of photographs, defense counsel emphasized in closing the relative minor impact of the accident and the lack of any significant damage the vehicles to paint a picture of the “trivial incident” incapable of causing permanent injury to the plaintiff. On the other hand, the plaintiff’s counsel argued that the impact was not minor and, in fact, did cause plaintiff to suffer a permanent injury.

As a result of this testimony, the trial court determined that the jury required the same guidance that is provided when photographs are shown and that the standard Brenman charge should be given to the jury with minor modifications. Although the testimony was conflicting, the trial court noted that “juries are always called upon to weigh and balance the evidence and to evaluate the credibility of the witnesses.” It would be up to the jury to weigh the testimony “to decide whether there was minor, moderate or significant damage and, in turn, the correlation between the damage to the vehicles and the cause or extent of plaintiff’s injuries.” The trial court judge believed it would be helpful for the jury to be instructed about how to consider the damage the vehicles with respect to the alleged injuries.

Thus, the court gave a modified charge. He adapted the charge to delete the reference to photographs of the vehicles. He changed the beginning of the charge to instruct the jury that: “There has been testimony in the case regarding the damage to the motor vehicles involved in the accident. The testimony addressed the damage or condition of plaintiff’s and defendant’s vehicles after the impact. As judge of the facts, you may attribute such weight to the testimony as you deem appropriate taking into consideration all of the other evidence in the case.” The rest of the charge remained the same.

The judge noted that the importance of the Brenman charge was not based upon whether the evidence was in the form of photographs but rather to instruct the jury about how to evaluate evidence of motor vehicle damage in relation to the alleged injuries. The trial court found that evidence of vehicle damage being in the form of testimony rather than photographs should not govern whether the charge is given.

Tags: Modified Jury Charge