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Brower v. Gonnella

Decided: December 31, 1987.

ALICE BROWER AND HERBERT BROWER, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
PETER J. GONNELLA, JR. AND DAVID DUNSKY, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Michels, Shebell and Arnold M. Stein. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

Plaintiffs, Alice Brower, a passenger injured in an automobile collision, and her husband Herbert, who sued per quod, appeal from a jury verdict of no negligence entered in favor of defendants David Dunsky and Peter J. Gonnella, Jr. Plaintiffs allege that their motion "to amend the complaint to name an additional defendant was improperly denied," as were their "motions for judgment and new trial." They also allege that "[t]he trial court's charge to the jury constitutes plain error."

On November 11, 1984, between 8:00 and 8:20 p.m., plaintiff Alice was a passenger in the car driven by her brother-in-law, defendant David Dunsky, as it proceeded along Franklin Avenue in Belleville. It was a "raining and slippery" evening. Dunsky contends that the car in front of him "swerved to the left and stopped" causing him to "hit [his] brakes real hard." The first car was driven by Jane (fictitious first name) Liloia and owned by her husband Mario Liloia. Dunsky avoided contact with the Liloia vehicle; however, almost simultaneous with his stopping his vehicle was struck in the rear by a vehicle driven by defendant Peter Gonnella, Jr.

Dunsky testified that the roads were wet, and that he was traveling about 25 m.p.h. at a distance of approximately two car lengths behind the Liloia vehicle. Gonnella asserted that he too

was aware of the wet road conditions and was also traveling at approximately 25 m.p.h.

Gonnella testified at trial to being "about two car lengths" behind Dunsky, which appeared to contradict his deposition testimony that he was 15 feet behind Dunsky's vehicle. Gonnella denied knowing the length of a car in feet. On cross examination, plaintiffs' attorney elicited that Gonnella is a carpenter and very familiar with measuring distances in feet. The attorney attempted to establish that Gonnella's estimate of 15 feet given during his deposition was the correct distance. Gonnella maintained that "I said two car lengths, and 15 feet was what I thought could have been two car lengths." The impact of the collision pushed the Dunsky vehicle approximately two feet forward but it did not contact the Liloia vehicle even after being pushed by the Gonnella vehicle. After submission to the jury, verdicts of no cause for action were returned in favor of defendants Dunsky and Gonnella.

A recitation of the procedural history of this case is helpful. On May 15, 1985, plaintiffs filed their original complaint against Peter Gonnella, Sr. and Peter Gonnella, Jr. On July 18, 1985, the Gonnellas filed an answer and a third-party complaint against David Dunsky, the driver of the vehicle in which plaintiff was a passenger, and John Doe. Dunsky filed an answer to the third-party complaint, dated August 29, 1985. On May 14, 1986, an order was entered allowing plaintiffs to amend their complaint to name Dunsky as a direct defendant. Trial was scheduled for October 20, 1986, but the case was not reached until December 16, 1986.

On September 11, 1986, plaintiffs filed a motion to amend their complaint to add Jane Liloia as a defendant to the action. This motion was denied on October 24, 1986. On October 20, 1986, plaintiffs filed a separate complaint against Jane Liloia and Mario Liloia, alleging negligence arising out of the same accident. By motion dated November 21, 1986, the Gonnellas filed a motion to allow the filing and service of a

third-party complaint against Jane Liloia and Mario Liloia. An order was entered on December 9, 1986, denying this request.

On December 5, 1986, plaintiffs filed a motion to adjourn the Brower v. Gonnella and Dunsky trial, and to consolidate it with the Liloia trial. The record ...


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