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Ewing v. Burke

November 09, 1998

GEORGE F. EWING AND ESTHER EWING, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
NORBERT J. BURKE, JR., JOHN DOE, MARY DOE, ABC PARTNERSHIPS, AND XYZ CORPORATIONS, DEFENDANTS-RESPONDENTS.



Before Judges Brochin, Kleiner and Steinberg.

The opinion of the court was delivered by: Steinberg, J.A.D.

[9]    Argued: October 20, 1998

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

George F. Ewing (plaintiff) and Esther Ewing, his wife, who sued per quod, appeal from a judgment entered in favor of defendant based upon a jury verdict of no cause for action. Because of an error in the jury instructions we reverse.

On February 14, 1994, plaintiff was driving a 1986 pick-up truck on Seashore Road, Lower Township, New Jersey when it collided with a vehicle operated by defendant Norbert J. Burke, Jr. At trial plaintiff called the investigating police officer, Patrolman Edward Dougherty, as a witness. Dougherty testified that the road curves in an S-shape in the area of the collision and estimated that the point of impact was 100 feet from the curve. Dougherty also testified that he spoke to defendant after the accident and that defendant stated he pulled out of Sunset Towing to go back on to Seashore Road, looked in his mirror, and did not see anything prior to the collision. Defendant did not specify whether he looked out his rear-view mirror or his side mirror.

Plaintiff also called Charles Matthews, the owner of Sunset Towing, as a witness. Matthews testified that he had been a passenger in defendant's car and that defendant pulled off to the shoulder of the road at Sunset Towing parallel to the parking area in order to permit Matthews to alight. Matthews said he exited the car and started to enter his shop when he heard the collision. He did not witness the accident.

Plaintiff testified that he was driving on Seashore Road around the S-shape curve when he first saw defendant's vehicle in the roadway perpendicular to him. Although he turned his vehicle hard to the left it collided with defendant's vehicle. He said he had no time to avoid the impact. Plaintiff's theory on liability was that defendant was attempting a U-turn on Seashore Road when the collision occurred.

Defendant's theory on liability was that neither party was negligent. In fact, prior to summation, he withdrew his separate defense of plaintiff's comparative negligence. Accordingly, during summation defense counsel argued as follows:

No one likes it when bad things happen to decent people. People don't want to be involved in accidents. I'm sure Mr. Ewing wishes he wasn't in this accident. My client did not want to be in this accident. But accidents do happen and just because an accident happens doesn't mean somebody was negligent.

There's been testimony from the police officer that when he talked to my client after the accident and my client said, I looked in the mirror, I didn't see anything. There [sic] testimony from Mr. Ewing that he talked to my client and he said .. my client said, I looked in the mirror, I didn't see anything. Mr. Ewing has also said, when he came around the curve, he didn't see my client's car until it was already in the road. Mr. Ewing didn't see my client. My client didn't see Mr. Ewing. Accidents happen.

In the course of his charge, after generally instructing the jury on the concept of negligence, the trial Judge instructed the jury as follows:

Given the testimony in this case, ladies and gentlemen, given the weight, whatever kind of weight you would apply to the --- that is what you believe and that what you don't believe, or what you believe the probabilities are, there --- there --- there is the potential to determine that defendant may have been making a U-turn --- may have been making a left turn. The law that I told you applies in those circumstances.

However, more specifically, let me tell you about the following: That the law imposes upon the driver of the motor vehicle the duty to exercise the care that a reasonably prudent person would exercise or would use under all of the circumstances confronting him at the particular time in question. Failure to exercise such care constitutes negligence. Obviously, the risk of harm will vary with the circumstances. In such settings, that risk is greater -- in some settings that risk is greater than in others. And when this is so, a reasonably prudent person will exercise a greater amount of care in proportion to the increased risk. With respect to these left turns and U-turns involving as they do movement across the path of other traffic, the risk of harm is ordinarily increased beyond that which effects or exists when a motor vehicle is proceeding along a direct course. Hence with respect to these kinds of terms [sic], a reasonably prudent person would seek an opportune moment for the turn and would exercise an increased amount of care in proportion to the increased danger. Care commensurate with the risk of danger. Accordingly, the law provides that persons seeking to make this kind of a turn, a U-turn or a left turn, has the duty to seek an opportune moment and to exercise a degree of care in proportion to the increased danger involved in the turn.

In addition, where the view of the roadway ahead is impaired by some obstruction --- because of some kind of an obstruction, there is a duty to exercise care commensurate with the risk of the hazard presented. The operator of a motor vehicle in such a situation is required to exercise reasonable care; that is, such care as the existing conditions require to have his vehicle under such control as to be able to stop, if necessary, to avoid harm to others on the highway. In addition, while operating a vehicle the operator is required to anticipate that others ...


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