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Smyth v. Howard

July 6, 2007

MARY SMYTH AND LOUIS SMYTH, PLAINTIFFS-APPELLANTS,
v.
SABRINA D. HOWARD AND TOWNSHIP OF WEST ORANGE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5093-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 22, 2007

Before Judges Coburn, Coleman and Gilroy.

Plaintiff Mary Smyth*fn1 appeals from: 1) the grant of partial summary judgment dismissing her non-economic claims against defendants, Township of West Orange and Police Officer Sabrina D. Howard; 2) trial rulings prohibiting the introduction of post-accident scene photographs and the Township Police Department's internal investigation reports concerning Howard's involvement in the accident; and 3) the jury's verdict on liability, determining plaintiff 58% negligent, and defendant Howard 42% negligent. We affirm.

On May 14, 1999, plaintiff filed a complaint against defendants for personal injuries and non-economic damages under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA), that arose out of a motor vehicle accident between plaintiff and Howard on November 19, 1997, at the intersection of Mt. Pleasant Avenue and Prospect Avenue in West Orange. On November 8, 2001, defendants filed a motion for partial summary judgment, seeking dismissal of plaintiff's non-economic claims, contending that plaintiff had not met the threshold for pain and suffering damages under the TCA, N.J.S.A. 59:9-2d. The motion was granted by order of May 15, 2002. The issue of liability was tried to a jury. The jury found plaintiff 58% negligent and Howard 42% negligent. A confirming judgment of no cause of action was entered on October 7, 2005. Plaintiff filed a motion for judgment notwithstanding the verdict, R. 4:40-2, or in the alternative, for a new trial, R. 4:49-1. The motion was denied by order of November 17, 2005.

On appeal, plaintiff argues:

POINT I

THE COMPARATIVE NEGLIGENCE PERCENTAGES AS FIXED BY THE JURY ARE AGAINST THE WEIGHT OF THE EVIDENCE AND REFLECT AN ERRONEOUS, CONFUSING AND IMPROPER CHARGE.

POINT II

THE VERDICT IS A "QUOTIENT VERDICT" WHICH CANNOT BE PERMITTED TO STAND.

POINT III

THE VERDICT IS AGAINST THE WEIGHT OF THE ...


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