On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-312-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2007
Before Judges Axelrad and Sapp-Peterson.
Plaintiff Anita Rosinola appeals from the order of judgment in favor of defendant Ralph Koehler after a jury returned a verdict finding that plaintiff's negligence was greater than defendant's negligence, and she also appeals from the subsequent order of the Law Division denying her motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. We affirm.
Plaintiff's complaint arises out of a motor vehicle accident that occurred on January 20, 2002. At trial, plaintiff testified that she was operating a Dodge Spirit on Cuthbert Boulevard in Cherry Hill Township and was attempting to merge onto Route 38 East. She described the weather conditions on that day as "cold, but it was sunny and dry." Plaintiff indicated that she was familiar with this point of the road, which was controlled by a yield sign, because she "went down that way at least once a week." Just before the impact, she observed that there were several cars in the merge lane. Because of this traffic, she could not merge onto Route 38 without first stopping. As she slowed to a stop at the yield sign, she was rear-ended by defendant's vehicle with such force that his vehicle bounced off of her vehicle and then struck it a second time, pushing her vehicle forward. Plaintiff claimed that she sustained permanent back and neck injuries as a result of the accident. Under cross-examination, plaintiff acknowledged that her vehicle sustained minor damage.
Defendant testified that he recalled seeing plaintiff's vehicle approximately 150 feet prior to the accident. As both he and plaintiff approached the yield sign, he was approximately three car lengths behind her. Defendant stated that despite the fact that "[t]here was considerable . . . distance to continue to move forward at a slow rate of speed while observing the left bound, the oncoming traffic on Route 38[,]" plaintiff unexpectedly came to a complete stop "a full 60 feet prior to the entrance to the merging lane." Additionally, defendant testified that when plaintiff came to the sudden stop, he was certain there were no cars on the shoulder and, as to the one car he saw in the right lane, "at its rate of speed and our comparative rate of speed it would have passed by[.]"
Defendant testified further that after plaintiff came to an abrupt stop, he applied his brakes and his car began to skid and struck the rear bumper of plaintiff's vehicle. He believed the skidding was caused by "the snow and the sand and salt and whatnot." Following the impact, plaintiff exited her vehicle, checked the rear of her vehicle, and then approached defendant, who was still seated in his vehicle with the windows closed, and proceeded to yell and wave her fists "in the air." Defendant testified that he felt intimidated by plaintiff's actions.
Under cross-examination, defendant acknowledged that during his deposition he testified that he first noticed plaintiff's vehicle when it was 250 yards from Route 38. Additionally, during that deposition testimony, defendant first testified that the accident occurred on a weekday while he was en route to work, but later stated it occurred on a Sunday. Finally, defendant also admitted that during his deposition, when asked whether he spoke with plaintiff after the accident, his response was, "[m]inimally, I didn't get out of my vehicle[,]" and that he made no reference to plaintiff yelling or waving her fists at him.
At the conclusion of the testimonial stage of the trial, plaintiff moved for a directed verdict on liability and defendant moved for a directed verdict on damages. The court denied both motions, reasoning that the jury could reasonably find plaintiff "partially responsible for the accident" and that there was sufficient evidence before the jury to submit the question of damages to the jury as well.
In summation, defense counsel argued that given the length of the access road onto Route 38, the fact that it turns into an additional lane on Route 38, and the absence of any oncoming traffic in the right lane, there was no justifiable reason for plaintiff to have come to a sudden, abrupt stop at the yield sign and, therefore, she was more responsible for the accident. Plaintiff's counsel argued that after years of pretrial discovery, it was outrageous that defendant was "still blaming [his] client for rear-ending her because he wasn't paying attention and he was careless, and he was negligent, and you will hear that the law says when you rear-end somebody, it's your fault."
In the court's charge to the jury, the judge included an instruction on comparative negligence and likewise instructed the jury on the proper allocation of damages should it find liability against plaintiff. The jury returned a verdict finding plaintiff fifty-five percent negligent and defendant forty-five percent negligent. Plaintiff moved for a JNOV or, alternatively, a new trial. The court denied the motion, concluding that although it may have reached a different result, the jury's verdict was not a miscarriage of justice. The judge reasoned that "the jury obviously found [plaintiff's] version less credible than the defendant's version in regard to those key aspects as to the traffic conditions that she was confronted with." The present appeal followed.
On appeal, plaintiff urges (1) because she complied with N.J.S.A. 39:4-144 by stopping, as necessary, at the yield sign, resulting in the rear-end collision, no comparative negligence should have been assessed against her; (2) she is entitled to a new trial due to prejudicial testimony elicited from defendant and improper comments made by defense counsel during summation; and (3) the trial court erred in ...