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Brimmer v. Melendez

January 10, 2008

CYNTHIA BRIMMER, PLAINTIFF-APPELLANT,
v.
FELIX MELENDEZ, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-2016-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 18, 2007

Before Judges Winkelstein and Yannotti.

Following a jury's defense verdict, plaintiff, Cynthia Brimmer, appeals from the court's March 30, 2007 order denying her motion for a new trial. We affirm.

On October 24, 1999, at approximately 10:30 a.m., plaintiff and defendant were in an automobile accident in the intersection of Liberty Street and South Olden Avenue*fn1 in Trenton. They have different accounts as to how the accident occurred. According to the police report, plaintiff told the investigating officer that she was driving east on Liberty Street when she stopped for a red light at the South Olden Avenue intersection. When the light turned green, the car behind her sounded its horn; plaintiff then went around the car in front of her, which was signaling to turn left, and her car was struck by defendant's van.

Plaintiff testified at trial that the light was green when she entered the intersection. She testified that as the car in front of her was stopped and signaling to turn left at the intersection, she "was going around it" and was moving "forward," presumably to continue straight across the intersection. She saw "out of the side of [her] eye . . . this huge, big, white thing coming" before defendant's vehicle struck her rear driver's side panel, causing her vehicle to spin around twice. She testified that she was "[r]ight in the middle" of the intersection when she was hit by defendant's van.

Plaintiff's friend, Theresa Moran, was in the vehicle with her. Moran testified that after the light at the intersection turned green, plaintiff drove forward into the intersection when the vehicle was hit from the left and spun around.

A witness, Sandra Kantor, told the police officer that she was walking north on Olden Avenue when she observed that the light was red for the cars on Olden Avenue and green for cars on Liberty Street. She told the officer that defendant's vehicle "came through the red light, and struck [plaintiff's vehicle]." Kantor testified at trial that as she was jogging and approaching the intersection, the light for cars on Olden Avenue, which included defendant's van, was red when she witnessed the collision.

Defendant told the police that he was driving south on Olden Avenue and that the light for him, at the intersection with Liberty Street, was green. He told the police that he was going through the intersection when plaintiff's vehicle ran a red light and entered the intersection in front of his vehicle; he tried to stop but could not. He similarly testified at trial that he entered the intersection at a speed of "about twenty-five miles per hour" because his light was green, and that when he reached the intersection he saw plaintiff's car and he hit it on the rear driver's side.

Another witness, Marie Kelly, told the investigating officer that she was driving west on Liberty Street and was stopped at a red light at the South Olden Avenue intersection when plaintiff's vehicle entered the intersection through a red light and was struck by defendant's van. Kelly was traveling on Liberty Street in the direction opposite plaintiff, and she was situated across the intersection from plaintiff. Portions of her deposition were read to the jury at trial because she died before the trial began. Kelly testified at deposition that plaintiff's car went through the red light, stopped in the middle of the intersection, and that plaintiff's hands "went up." Kelly then saw defendant's van, which was traveling on South Olden, unsuccessfully try to stop before hitting plaintiff's car.

Plaintiff called Robert Diszler, the investigating officer, as a witness. Diszler testified that the speed limit on Olden Avenue was twenty-five miles per hour. He observed defendant's vehicle's tire marks*fn2 at the scene of the accident leading "right up to the rear of [defendant's] vehicle." He measured one mark to be seventy feet on the driver's side of defendant's vehicle and another to be thirty feet on the passenger side. He also testified that his sketch of the intersection in his police report shows the positions of the vehicles as he found them after the accident occurred.

Plaintiff offered Lloyd Patton, a traffic accident reconstruction consultant, as an expert witness. Patton, using the police report's description of the tire marks, found that defendant was traveling through the intersection at a speed of at least thirty to thirty-four miles per hour. He made this finding using the average distance of the tire marks, which was fifty feet, and plugging that distance into a "speed formula," the "accepted way of doing skid mark analysis." He also noted that by utilizing only the seventy-foot mark in the formula, he calculated that plaintiff's speed would have been thirty-five to forty miles per hour.

On cross-examination, Patton acknowledged that if he were to calculate defendant's speed based only on the thirty-foot skid mark, it "would be approximately 25 [miles per hour] or it could be more." Plaintiff's counsel's objection to defense counsel's question was overruled, and the court told plaintiff that he "may redirect on the reason why that can or cannot be done." On cross-examination, ...


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