On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-240-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges Lintner and Graves.
Plaintiff, Ronye Leder, and her husband, Harvey, filed a complaint seeking damages for personal injuries suffered by Ronye*fn1 in a multi-vehicular collision occurring on Route 130 on June 24, 1999. The complaint named Kumi Sarpong and his employer, Anthony J. Fresca, Carmen B. Pomponio and his employer, and Ammie Cruz as defendants.*fn2 Plaintiff appeals from the trial judge's denial of her motion for new trial following a jury verdict of no cause for action in favor of defendant. We affirm the judgment of no cause for action and the order denying plaintiff's motion for new trial.
At approximately 7:00 a.m. on June 24, 1999, Anthony Fresca attempted to make a U-turn from the northbound to the southbound lanes of Route 130 by crossing the median in an area marked with a no-turn sign. While Fresca was attempting the maneuver, a truck, operated by Kumi Sarpong, traveling in the northbound left lane collided with the driver's side of Fresca's tractor trailer. Sergeant Michael Grischuk arrived at the scene and found Fresca's truck in the median with his trailer blocking the left lane and part of the right northbound lanes. Although Fresca's vehicle was partially in the right lane, vehicular traffic was able to pass by using the right lane and shoulder. Sarpong's truck came to rest partially in the left lane and partially in the median. Carmen Pomponio, who had been following Fresca in the northbound lane, pulled his truck over to the right shoulder, north of the Fresca-Sarpong accident.
Approximately five minutes after the Fresca-Sarpong accident and while he was sitting in the driver's seat of his truck, Pomponio "heard something behind [his] vehicle . . . [and saw plaintiff's] car careening out of control towards [his] trailer." Plaintiff testified that she was operating her car in the right northbound lane at thirty-five- to forty-miles-per-hour. All she could remember was seeing trucks out of the corner of her eye before being cut off by a dark SUV. She instinctively turned away from the SUV into Pomponio's truck. She could not remember if she applied her brakes. The front right side of plaintiff's car collided with the left rear portion of Pomponio's trailer. According to Pomponio, he believed plaintiff's car then bounced to the left, coming to rest partially in the left and partially in the right northbound lanes. Pomponio also believed that defendant's and plaintiff's vehicles were "close together" with defendant in the left lane and plaintiff in the right lane. He stated that, when plaintiff's car hit his truck, she bounced to the left and collided with defendant.
Defendant remembered driving in the right lane one-half mile before the accident. Defendant testified that she was in the right lane immediately before her air bag deployed, stating that she is "always [in] the right lane," and "I know I was most of the time in the right lane." She could not remember seeing the trucks or plaintiff's vehicle swerve to the right and collide with Pomponio's truck. The last thing she remembered was that she was following behind a car about fifteen minutes before the accident.
Officer Kenneth Drost responded to the scene of the Pomponio-Leder-Cruz accident. Drost found Pomponio's truck on the shoulder, plaintiff's car "alongside the left rear of the tractor trailer in the right lane facing in a northeasterly direction on an angle," and defendant's car directly behind plaintiff's car in the right lane. Pomponio's vehicle was damaged near its left rear wheels. Plaintiff's vehicle had front-end and right-side damage, and defendant's vehicle had front-end damage. According to Drost, the front-end damage to plaintiff's car was caused by the impact with Pomponio's truck, which caused plaintiff's car to rotate clockwise. He testified that the right-side damage to plaintiff's car was then caused by the collision with defendant's car. He related that plaintiff told him she was cut off by an unknown vehicle and defendant could not give a clear statement as to what happened. Both plaintiff and defendant were taken from the scene by ambulance.
On appeal, plaintiff relies on Dolson v. Anastasia, 55 N.J. 2 (1969), asserting that the verdict was against the weight of the evidence. She argues that it is "well settled law" in this state that if the operator of a following vehicle strikes a vehicle in front of it, it is negligent. She maintains that application of N.J.S.A. 39:4-89, which requires a driver to keep a reasonably safe distance within which to stop, applies equally to vehicles that stop as a result of braking as well as those that stop suddenly because of an accident. We disagree.
In Dolson, Justice Hall wrote:
It is elementary that a following car in the same lane of traffic is obligated to maintain a reasonably safe distance behind the car ahead, having due regard to the speed of the proceeding vehicle and the traffic upon and condition of the highway. Failure to do so resulting in a collision is negligence and a jury should be so instructed. [Dolson, supra, 55 N.J. at 10 (citation omitted).]
Thus, Dolson pointed out that N.J.S.A. 39:4-89, which requires a driver not to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the preceding vehicle and the traffic and road conditions, codifies the common law. Therefore, violation of N.J.S.A. 39:4-89 is negligence rather than merely evidence of negligence. Dolson, supra, 55 N.J. at 10-11.
In Paiva v. Pfeiffer, 229 N.J. Super. 276, 283 (App. Div. 1988), Pfeiffer was operating a tanker truck in the center lane of the Turnpike behind a car-carrier when he observed smoke coming from the carrier's tires, indicating heavy braking. Pfeiffer moved to the right lane where he struck the plaintiff's vehicle in the rear. At the time, the plaintiff was in the process of slowing down, having seen brake lights on the vehicle in front of her and the smoke from the tires of the car-carrier. The trial judge charged sudden emergency rather than Dolson. Reversing, we explained that Pfeiffer "was simply presented with the hard application of brakes by the vehicle preceding him." Ibid. We pointed out that sudden application of brakes is not "unexpected" but "a common traffic situation." Ibid. We concluded that "N.J.S.A. 39:4-89, insofar as it requires a motorist to maintain safe following distances, is founded upon the foreseeability of such braking situations." Ibid. Holding that the judge erred in charging ...