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Kleinhans v. Ralph Clayton and Sons

April 2, 2008

ROBYN KLEINHANS, PLAINTIFF-APPELLANT,
v.
RALPH CLAYTON AND SONS, INC., AND BRUCE S. DAVIDSON, DEFENDANTS-RESPONDENTS, AND MICHAEL J. MACIEJCZYK, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3238-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 10, 2007

Before Judges S. L. Reisner and Gilroy.

This is a personal injury automobile negligence action. Plaintiff Robyn Kleinhans appeals from the November 13, 2006, order of the Law Division, dismissing her personal injury complaint against defendants Ralph Clayton and Sons, Inc., and Bruce S. Davison, based on a jury verdict of no cause for action. We affirm.

Plaintiff does not challenge the verdict on the grounds that it was against the weight of the evidence. Accordingly, we set forth the following brief synopsis of the liability testimony adduced at trial to set this appeal in context. We will discuss additional facts as necessary, when addressing the issues raised on appeal.

On November 3, 2004, at approximately 11:25 a.m., plaintiff was a passenger in a motor vehicle operated by defendant Michael J. Maciejczyk.*fn1 Maciejczyk's vehicle was traveling southbound on Route 18 in Tinton Falls in the right-hand lane, just north of the intersection of Route 18 and State Highway 36, when plaintiff and Maciejczyk observed a cement truck entering onto Route 18 from an onramp on the right side of the highway. The cement truck was owned by defendant Ralph Clayton and Sons, Inc., and was operated by its employee, defendant Bruce S. Davidson. After plaintiff and Maciejczyk observed the truck enter onto Route 18 at an approximate speed of 20 m.p.h., Maciejczyk pulled his vehicle into the left-hand lane, intending to bear left onto State Highway 36, when he and plaintiff suddenly felt an impact on the right side of their motor vehicle, causing the vehicle to flip over.

Contrary to plaintiff and Maciejzcyk's version of events, Davidson testified that he proceeded onto Route 18, traveling at a speed of approximately 25 m.p.h.; moved from the entrance ramp onto the right-hand lane on Route 18, having made observations in his rear view mirror and having used his directional signals; and thereafter, proceeded into the left-hand lane of Route 18. As Route 18 approaches the intersection of State Highway 36, the left-hand lane becomes a middle lane, with the roadway widening on the left via a third lane of travel. Individuals, traveling in the middle lane, can bear left onto State Highway 36, or proceed straight in a southerly direction on Route 18. Davidson remained in the middle lane, intending to proceed southbound on Route 18. Davidson testified that after he traveled a short distance in the middle lane, his truck was struck in the left rear by plaintiff's vehicle, which was in the process of passing him in the far left-hand lane, intending to proceed eastbound onto Route 36.

On appeal, plaintiff argues:

POINT I.

THE TRIAL COURT'S DENIAL OF PLAINTIFF'S REQUEST TO INTRODUCE EVIDENCE OF DEFENDANT DAVIDSON'S PRIOR CRIMINAL CONVICTIONS WAS A MISTAKEN EXERCISE OF DISCRETION AND SHOULD BE REVERSED.

POINT II.

THE TRIAL COURT'S ALLOWING OF KENNETH ERICKSON TO TESTIFY OVER THE OBJECTION OF PLAINTIFF'S COUNSEL WAS A MISTAKEN EXERCISE OF ...


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