Day on Torts
Walk into any courtroom in the state in any given week and there is a one-day trial underway in a soft tissue injury case. A defense lawyer is standing before the jury, waving a photograph of the plaintiff’s vehicle and saying "How can the plaintiff be hurt? The rear bumper of her car was barely dented!"
Can a defense lawyer do that? Can he or she argue that the plaintiff was not hurt because the property damage is minimal? Or does a defendant need expert testimony to make that argument? Indeed, does the defendant need expert testimony to even introduce the photos in such a case (assume no claim for property damage)? How are those photos relevant?
The New Jersey Supreme Court has just ruled that such photos are admissible and that it is permissable for defense counsel to make an argument like the one suggested above. Why?
"[B]ecause, in most cases, there is a relationship between the force of impact and the resultant injury, and the extent of that relationship remains in the province of the factfinder. We acknowledge those instances where slight force causes grave injury — a simple misstep off a sidewalk curb resulting in a compound, complex fracture of the leg –- as well as those where great force results in little or no injury — the child who miraculously survives a fall out of a high-rise window, or the driver who walks away unscathed from a hideous car crash. Those instances inhabit, however, the margins of common knowledge. Juries are entitled to infer that which resides squarely in the center of everyday knowledge: the certainty of proportion, and the resulting recognition that slight force most often results in slight injury, and great force most often is accompanied by great injury."
The Court did note that "a party opponent remains free to offer expert proofs for the purpose of persuading the factfinder to overcome an absence of proportionality between the force of the impact and the cause and severity of the resulting injuries. Conversely, a party proponent may tender its own expert proofs to further support the proposition in its case-in-chief — either that slight impact force results in no or slight injury, or that great impact force results in great injury — or to rebut its opponent’s assertions. Such expert proofs, however, address the weight to be given to photographs of impact, not their admissibility."
However, the Court went on to say as follows: "[W]e acknowledge those cases outside the heartland of common knowledge where slight force causes great injury or where great force causes little injury. In order to account for those possibilities, where photographs of vehicle damage are admitted, the trial judge should remind the jury that some bad accidents result in little injury, that some minor accidents result in serious injury, and that, therefore, the level of damage to a vehicle is but one factor to be considered, along with all of the other evidence, in determining the level of plaintiff’s injuries resulting from the accident."
The case is Brenman v. Demello, A-13-06 (N.J.S.C. May 30, 2007). Read the opinion here.