On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-208-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Gilroy and Baxter.
In this first-party automobile accident litigation, defendant New Jersey Manufacturers Insurance Company (NJM) appeals from a March 30, 2007 order that denied its motion for judgment notwithstanding the verdict, a new trial or remittitur. We affirm.
On October 13, 2001, plaintiff Louis J. Bramante, Jr., was involved in an automobile accident with Trina Pierce on Lebanon Road at its intersection with Rogers Road in Deerfield Township.*fn1
Lebanon Road is a main road that runs in an east-west direction with a double yellow line divider and a speed limit of 50 m.p.h. Rogers Road is a side road that intersects Lebanon Road at an angle. Motorists seeking to cross Lebanon Road from Rogers Road must first yield to vehicles on Lebanon Road by stopping at a stop sign.
Plaintiff testified that he looked to the left, to the right, and back to the left before beginning to cross Lebanon Road. According to plaintiff's testimony, a driver who stops at the stop sign on Rogers Road and looks to the left on Lebanon Road is only able to "see down the road for a ways" because the road rises up and then dips down out of sight. Seeing no approaching vehicles, he made a left onto Lebanon Road, with the intention of turning right on Woodruff Road. Woodruff Road is the name of Rogers Road once it reaches the other side of the intersection. Woodruff Road, like Rogers Road, intersects Lebanon at an angle.
As plaintiff was midway through the intersection, he heard the racing of a car engine, looked to his left and observed Pierce's tan Saturn vehicle approaching him traveling east. As Pierce continued to approach, her vehicle accelerated, crossed over the center lines and into the westbound lane. Pierce's vehicle struck the front of plaintiff's truck on the westbound shoulder of Lebanon Road.
Over the objection of NJM, plaintiff was permitted to testify that after the accident he returned to the scene to measure the amount of time it takes to drive from the stop sign on Rogers Road to the point of impact and the amount of time that it takes for a driver to reach the intersection when traveling eastbound from the rise on Lebanon Road to its intersection with Rogers Road. He testified that both take from four to five seconds. Plaintiff also testified that Pierce could have avoided the accident by staying in her own lane and veering to the right onto the eastbound shoulder of Lebanon Road, rather than crossing over into the westbound side of the road. Pierce did not testify at trial because she had no recollection of the accident.
An independent witness, Oscar Pierce, who was not related to Trina Pierce, was traveling on Rogers Road behind plaintiff's vehicle at the time of the accident. Pierce testified that he did not see plaintiff's or Trina Pierce's vehicle prior to the point of impact because he had been "looking in [his] two directions." According to Pierce, the impact between plaintiff's truck and Pierce's Saturn occurred when the rear wheels of plaintiff's truck were near the center double lines on Lebanon Road. Pierce testified that the Saturn seemed to be "doing evasive action" to try to get around plaintiff's truck. According to his testimony, if Pierce had remained in her eastbound lane and dropped to the shoulder on her side of the road, she would have been able to duck around behind the rear of plaintiff's truck without striking it.
After the crash, plaintiff was airlifted to a hospital in Cumberland County. We will describe plaintiff's injuries only briefly because NJM has not challenged on appeal the size of the jury's damages award. Suffice it to say, plaintiff underwent five separate surgeries, which included: the insertion of a large metal plate to repair comminuted fractures to his leg; the later removal of the three screws that held his ankle together; carpal tunnel surgery on both wrists; and surgical repair of shoulder ligaments and removal of a portion of the bone near the shoulder. Chronic pain and migraine headaches led his family doctor to prescribe anti-depressants. For six months following the accident, plaintiff was unable to walk without the use of a wheelchair, crutches or a cane.
At the close of the evidence, the court charged the jury on: a driver's duty to stop or yield the right-of-way before entering an intersection, N.J.S.A. 39:4-144; rates of speed, N.J.S.A. 39:4-98; keeping to the right side of a double yellow line, N.J.S.A. 39:4-82; and keeping to the right at intersections, N.J.S.A. 39:4-83. The judge also instructed the jury on negligence and damages. NJM did not object to any of those instructions.
After deliberating, the jury returned the following verdict: by a vote of eight to zero, Pierce was negligent; by a vote of seven to one, plaintiff was negligent; by a vote of eight to zero, Pierce was eighty-percent responsible for the happening of the accident and plaintiff twenty-percent responsible; and by a vote of seven to one, plaintiff's damages were $400,000. After molding the verdict to reflect plaintiff's liability and prejudgment interest, the judge entered judgment against NJM on March 2, 2007, in the amount of $337,173.
NJM moved for a new trial or in the alternative for remittitur. During the March 30, 2007 argument on its motion for a new trial, NJM argued as plain error warranting a new trial two comments it claimed were made by plaintiff's counsel in his closing argument: that Pierce was speeding and that Pierce intentionally ran her vehicle into plaintiff's. NJM's argument was limited to those two contentions.
In denying NJM's motion for a new trial, the judge observed that plaintiff never argued that Pierce was speeding, but instead merely argued that plaintiff heard the Saturn accelerating. The judge also disagreed with NJM's contention that plaintiff argued to the jury that Pierce intentionally drove her vehicle into plaintiff's. During the argument on NJM's motion for a new trial, the judge commented that he was surprised by the 80/20 liability split in plaintiff's favor and might not have been surprised by an 80/20 split the other way. He nonetheless denied the motion because it did not clearly and convincingly appear that a miscarriage of justice had occurred.
As to the damages award, the judge observed that plaintiff had undergone five different surgical procedures as a result of the accident. The judge also observed that the defense never disputed plaintiff's claim that his injuries were permanent. In denying the motion for remittitur, the judge stated, "I recognize it's in the jury's province . . . and when I compare [the amount of the verdict] to some other verdicts that I've seen, . . . I find . . . nothing wrong in reference to the dollar amount that would cause me [to] think there's ...