Plaintiffs sustained serious injuries after being hit as they walked across a highway intersection by a truck owned by defendant Gilsonite Music Industries, Inc. (Gilsonite). Plaintiffs filed suit against Gilsonite and Derek Clinton
I
In January 1995, plaintiffs Joao Neno and Helder Neno were working at a construction site that straddled both sides of Route One in Plainsboro. On the day in question, they and several other workers had to walk across the intersection of Route One, a four-lane highway, and Scudders Mill Road, to reach another part of the site. There are no pedestrian crosswalks at that intersection. The workers began to walk through the first two lanes of Route One south when the traffic light facing them was green. They walked in front of a truck stopped in the right lane without incident. Another worker who was slightly ahead of Joao and Helder successfully crossed the left southbound lane, but when plaintiffs stepped into that second lane the Route One traffic light turned green. Plaintiffs were hit by a truck heading southbound on Route One in the left lane driven by defendant Clinton. Just prior to the collision, the driver of the truck stopped in the right-hand lane, William Burnett, saw Clinton look away from the road and into Burnett’s driver’s side mirror, a fact that Clinton did not dispute. Clinton accelerated prior to reaching the intersection, and was traveling thirty to thirty-five miles per hour at the time of the collision. Both plaintiffs suffered severe injuries.
Officer Kelly, the primary investigating officer, arrived on the scene after the accident but before Joao and Helder were taken away by ambulance. He interviewed Burnett and Mark Meyer, another driver who witnessed the accident as he approached the intersection driving his vehicle in the opposite, northbound direction.
Kelly testified that Meyer told him that the light facing Meyer’s vehicle, which was headed northbound, was green when defendant’s truck struck plaintiffs. Meyer’s statement established the fact that the light also was green for defendant Clinton as he entered the intersection from the opposite, southbound direction. Officer Kelly also testified that Burnett, the truck driver stopped at the light, told him that the traffic light was green when defendant’s truck entered the intersection. The trial court allowed Kelly to testify to the content of the statements of the two eyewitnesses over plaintiffs’ objection, concluding that Kelly’s testimony was admissible because both Burnett and Meyer would be testifying later in the trial.
The trial court also permitted Kelly to testify, over objection, that in his opinion plaintiffs were at fault because they continued to cross the road against a red light. Officer Kelly’s testimony included the following opinion:
[BJased, on all the statements and the investigation that I did at the accident — of this aceident[] the pedestrians failed to properly cross the intersection. The sequence of events suggests] the pedestrians began to cross the roadway after the [Seudders] Mill Road signal turned red and before U.S. Route 1 signal turned green. A slight delay of approximately 4 seconds is utilized where all signals are red. This allows the intersection to clear prior to U.S. Route 1 receiving a green signal.
[Emphasis added.]
At the conclusion of the trial, the jury returned a verdict of no cause for action, finding that although defendant Clinton was negligent, his negligence was not a proximate cause of the accident.
II
Plaintiffs challenge two evidentiary rulings concerning Officer Kelly’s testimony. First, they contend that the trial court improperly allowed Kelly to testify to the substance of statements made by Burnett and Meyer at the scene. Second, they assert that the trial court improperly allowed Kelly to testify to his opinion regarding who was at fault in the accident. We address each ruling in turn.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
N.J.R.E.
801(c). Long considered “untrustworthy and unreliable,”
State v. White,
158
N.J.
230, 238,
One possible exception to the hearsay bar,
N.J.R.E.
803(a)(2), allows admission of statements “offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.”
Ibid.
The scope of the exception encompasses prior consistent statements made by the witness before the alleged “improper influence or motive” to demonstrate that the witness did not change his or her story. See
State v. Torres,
313
N.J.Super.
129, 158-59,
More importantly, “[a] prior consistent statement offered [solely] to bolster a witness’ testimony is inadmissible.”
Palmisano v. Pear,
306
N.J.Super.
395, 402,
Burnett’s and Meyer’s statements, as testified to by Kelly, were undoubtedly hearsay. Kelly testified that Burnett told him that he was stopped at a red light that turned green just prior to the collision. The statement was offered for the substantive truth of the matter, i.e., that the light facing Burnett was initially red, but turned green just before the collision (and therefore that plaintiffs were crossing when faced with a red light). Similarly, Kelly testified that Meyer, the driver approaching the intersection from the opposite direction, told the officer that Meyer had a green light at the time of the accident. The statement was offered to prove Meyer’s light was green, and tended to establish that defendant Clinton, who was traveling in the opposite direction from Meyer, also had a green light. As to both Burnett and Meyer, Kelly was permitted to testify to out-of-court statements that were introduced exclusively to prove the truth of those statements. Thus, the trial court improperly admitted those statements because there was no charge of improper influence or motive in this case. The prior consistent statement exception is not applicable to either statement. The fact that Burnett and Meyer were scheduled to testify later in the trial, a fact relied on by the trial court to admit Kelly’s opinion, does not render admissible their hearsay statements.
The next question is whether the trial court properly admitted Officer Kelly’s lay opinion regarding the cause of the accident, based on the hearsay statements of the eyewitnesses Burnett and Meyer. We conclude, as did the dissent below, that lay opinion based primarily on hearsay statements is inadmissible. Accordingly, the trial court improperly admitted the testimony.
N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness’ testimony or in determining a fact in issue.
In a variety of circumstances, New Jersey courts have concluded that an investigating officer’s lay opinion may be admissible.
State v. Locurto,
157
N.J.
463, 471-72,
On the issue of the hearsay component of Officer Kelly’s lay opinion, the majority and the dissent below disagreed over the import of this Court’s decision in
State v. LaBrutto,
114
N.J.
187,
In
LaBrutto,
we overruled
Rogalsky
“[t]o the extent that [it] stands for the proposition that a police officer may not offer his [or her] point-of-impaet opinion” as a lay witness.
LaBrutto, supra,
114
N.J.
at 199,
We find no reason why an investigating police officer should not be allowed to testify as a non-expert based on his own observations regarding the point of impact of two vehicles in an automobile accident case. We find no merit in the position that the police officer’s opinion on the point of impact should be excluded because it invades the province of the jury, or that the officer’s testimony is unnecessary because the average juror can readily determine the point of impact from the officer’s description of the physical evidence. Nor do we agree that only a police officer who is qualified as an accident reconstruction expert can give his opinion of the point of impact. Contra Rogalsky v. Plymouth Homes, Inc., 100 N.J.Super. 501,242 A.2d 655 (App.Div.), certif. denied, 52 N.J. 167,244 A.2d 298 (1968). To the extent that Rogalsky stands for the proposition that a police officer may not offer his point-of-impact opinion, it is overruled.
[Id. at 199,553 A.2d 335 .]
The Court concluded that the officer’s opinion testimony was admissible under the predecessor to
N.J.R.E.
701 because it was based on the officer’s own observations at the scene and was helpful to the jury.
Id.
at 202,
However, as the dissent below properly concluded, although
LaBrutto
overruled
Rogalsky,
it did not do so “on the point that the officer was not permitted to base his conclusion on what others had told him.” In the dissent’s view, Rogalsky's holding that an officer could not offer a lay opinion when that opinion was based on the hearsay statement of another is still good law. See
Rogalsky, supra,
100
N.J.Super.
at 506,
Neither
Rogalsky
nor
LaBrutto
unequivocally indicates which of the two views is correct. At least one other jurisdiction has expressly concluded that a testifying police officer cannot proffer a lay opinion about the cause of an accident when that opinion is based on hearsay statements from eyewitnesses.
Calhoun v. Chappell,
117
Ga.App.
865,
We conclude, as did the dissent below, that a police officer cannot provide an opinion at trial when that opinion is based primarily on the statements of eyewitnesses. Any other conclusion would allow an officer to subvert the prohibition against hearsay and pass along the essence of those hearsay statements to the jury even when the officer is not permitted to testify to the substance of the witness’s statements under the hearsay rule. Further, the fact that those statements were the basis for Kelly’s lay opinion will not render them admissible because to do so would defeat the purpose of the hearsay rule. The purpose of N.J.R.E. 701 is to ensure that lay opinion is based on an adequate foundation. A lay witness’s opinion cannot rely on the inadequate support of inadmissible hearsay without the benefit of an exception. Consequently, a police officer cannot advance an opinion when it is primarily based on the hearsay statement of an eyewitness.
New Jersey’s requirement of personal knowledge also supports that conclusion. The rule provides, in pertinent part, that “a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”
In this case, Officer Kelly based his opinion concerning plaintiffs’ fault in causing the accident not only on his on-scene investigation but on Burnett’s and Meyer’s hearsay statements. Over objection, Officer Kelly testified:
[Biased on all the statements and the investigation that I did at the accident — of this accident!,] the pedestrians failed to properly cross the intersection. The sequence of events suggests] the pedestrians began to cross the roadway after the [Scudders] Mill Road signal turned red and before U.S. Route 1 signal turned green. A slight delay of approximately 4 seconds is utilized where all signals are red. This allows the intersection to clear prior to U.S. Route 1 receiving a green signal.
[Emphasis added.]
The statements given by Burnett and Meyer at the scene detailed the timing of the stop lights, a critical element of Kelly’s opinion. Because those statements were hearsay, the dissent properly concluded that Kelly’s opinion was inadmissible.
“For a hearsay error to mandate reversal, ‘[t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.’ ”
State v. Hightower,
120
N.J.
378, 410,
Ill
Finally, the jury here found that defendant was negligent but that his negligence
In
Pappas v. Santiago,
66
N.J.
140,
We do not know from the jury verdict just what negligent conduct or default it found Mrs. Palmieri to be guilty of, but in the circumstances of this ease we cannot conceive of any act or omission amounting to negligence on the part of Mrs. Palmieri in the operation of her ear that would not have contributed causally to the happening of the accident. On this basis the jury verdict as to Mrs. Palmieri, finding negligence but absence of proximate cause, was patently inconsistent.
[Id. at 143,329 A.2d 337 .]
The Appellate Division applied
Pappas
to another action involving a two-car intersection collision.
Giantonnio v. Taccard,
291
N.J.Super.
31, 45,
The dissent in this case concluded that “[i]f defendant was negligent in failing to make proper observations or in failing to properly control his truck, I cannot conceive of any such act that was not also a proximate cause of the accident in these circumstances.” We agree with that conclusion. Assuming that defendant acted negligently, that conduct would have contributed to at least some of plaintiffs’ damages. Put another way, if defendant was negligent, he proximately caused at least some of plaintiffs’ injuries. Apportionment of liability should take place on retrial pursuant to our Comparative Fault Act. N.J.S.A. 2A:15-5.2.
We pause to note that the trial court, in the initial instructions, told the jury that it must determine that defendant was “the” proximate cause of the accident, rather than “a” proximate cause. Plaintiffs objected, but the court declined to correct the charge. That instruction was erroneous.
Conklin v. Hannoch
Weisman,
145
N.J.
395, 409,
Admittedly, the trial court twice mentioned that there may be more than one proximate cause for the accident. In response to a question from the jury, the court subsequently explained proximate cause to mean that “the defendant’s negligent conduct was ... a substantial factor in bringing about the resulting accident,” and stated that the jury had to determine whether “defendant’s negligence was a cause of the accident.” Because we consider the jury charge as a whole,
Mogull v. CB Commercial Real Estate Group, Inc.,
162
N.J.
449, 464,
IV
We therefore conclude that admission of the investigating officer’s lay opinion based on the witnesses’ hearsay statements and his recitation of those statements was error. We also conclude that the inconsistency in the verdict demonstrates jury confusion or mistake, perhaps caused by the erroneous initial charge.
Reversed and remanded for further proceedings consistent with this opinion.
For reversal and remandment — Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA and ZAZZALI — 7.
Opposed — none.