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Abad v. Gagliardi

June 24, 2005

GUSTAVO ABAD AND CARMEN ABAD, PLAINTIFFS-APPELLANTS.
v.
ILENE B. GAGLIARDI AND FRANCIS GAGLIARDI, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-9919-01.

The opinion of the court was delivered by: S.L. Reisner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Argued May 3, 2005

Before Judges Stern, Coburn and S.L. Reisner.

Plaintiff, Gustavo Abad, appeals from a jury verdict of no cause for action and the trial judge's denial of his motion for a new trial. We affirm.

I.

This case arises from a collision between a vehicle driven by defendant, Ilene B. Gagliardi, and plaintiff, a pedestrian who was crossing the street. The accident occurred approximately ninety feet from the intersection of Queen Anne Road and Cedar Lane in Teaneck. The intersection is controlled by a traffic light. Although there is a left turn lane on Queen Anne Road, a striped "no traffic" area approximately ninety feet before the intersection prevents vehicles from reaching the left turn lane until they are in relatively close proximity to the intersection.

As was his daily custom, on June 29, 2001, plaintiff took a bus from his home in New York City to his job at Scott Kay Jewelers in Teaneck. He was due at work at 8:00 a.m. Shortly before 8:00 a.m., he got off at the bus stop on Queen Anne Road and began walking toward the intersection at Cedar Lane. According to plaintiff's testimony, when he was about "thirty steps" from the intersection, he noticed that the bus, which was headed north, had stopped for a red light and that the bus had stopped next to the striped "no travel" zone. He therefore believed that he could safely cross Queen Anne Road by walking across the northbound lane in front of the bus to the striped area and then walking across the southbound lane. He admitted that he did not look to his left as he stepped into the striped area, because he assumed that no cars would cross that area. He only looked to the right to see if there were cars approaching in the southbound lane.

Defendant, who was traveling behind the bus and intended to turn left at the intersection, pulled around the bus and through the striped area in order to reach the left turn lane. Plaintiff testified that her car struck him as he was crossing the striped area. She testified that plaintiff stepped from in front of the bus and walked into the side of her car. The jury found both parties negligent, assessing defendant thirty-six percent at fault and plaintiff sixty-four percent at fault, resulting in a verdict of no cause.

In a motion for a new trial, plaintiff contended that the trial judge erroneously charged the jury as to the applicability of N.J.S.A. 39:4-33, concerning the obligation of pedestrians to cross in crosswalks at intersections controlled by a traffic light. Plaintiff asserted that the trial judge should have charged the jury as to N.J.S.A. 39:4-34, concerning crossing at intersections where there is no traffic light, which he contended was applicable because he was not "at" the light-controlled intersection when he crossed the street. Judge Yannotti denied the motion in an oral opinion on June 25, 2004. He concluded that:

The evidence in this case showed that the intersection of Queen Anne Road and Cedar Lane is a controlled intersection with a traffic light and a crosswalk. That intersection is only several car lengths ahead of the place where the plaintiff entered the street. The Court finds that in view of the proximity of the intersection and the crosswalk it was appropriate to charge the jury under N.J.S.A. 39:4-33 because the statute most appropriately addressed the circumstances of this case.

Given the proximity of the controlled intersection Mr. Abad had a duty under the law to cross at the intersection and to cross within the crosswalk. Mr. Abad's interpretation of the law as not applying in the circumstances of this case would make this ...


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