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Aversa v. Passaro

March 26, 2009

JANE T. AVERSA, PLAINTIFF-APPELLANT,
v.
KEVIN M. PASSARO, DEFENDANT-RESPONDENT.
TINA L. MILLER, PLAINTIFF,
v.
JANE AVERSA, KEVIN PASSARO, USAA CASUALTY INSURANCE CO., DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-8787-04 and L-35-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2009

Before Judges Skillman and Graves.

This is an appeal from a judgment in defendant's favor in an automobile negligence action based on a jury verdict of no cause of action.

The accident upon which the action was based occurred around 6 p.m. on January 3, 2003, at the intersection of Washington Avenue and Route 73 in the Borough of Berlin. According to plaintiff, she stopped at a stop sign on Washington Avenue, looked to her left for any oncoming traffic, saw nothing, and then proceeded into the intersection. Her car was struck almost immediately by a pick-up truck being driven by defendant. Plaintiff testified that defendant's headlights must have been off at the time of the accident because she did not see defendant's truck before he struck her despite looking carefully down the road for incoming traffic. As a result of the accident, plaintiff suffered a broken collar bone and a head injury.

Plaintiff's version of the accident was corroborated by the passenger in her car, Tina Miller, who testified that she also looked in the direction of oncoming traffic on Route 73 before plaintiff entered the intersection and saw no headlights approaching plaintiff's car.

Plaintiff's version of the accident was also corroborated by the testimony of an accident reconstruction expert, Jeffrey Grey, who examined the headlights on defendant's truck, which were in the custody of the Berlin Police Department. Both headlights were broken in the accident. Grey testified that the condition of the bulbs inside the headlights showed that the headlights were off at the time of the accident. The details of Grey's expert opinion testimony are not relevant to the issue presented by this appeal.

Defendant testified that he was driving at 40 to 45 m.p.h. at the time of the accident because it was rainy and dark, even though the speed limit on Route 73 is 50 to 55 m.p.h. According to defendant, plaintiff's car suddenly drove into him as he was passing through the intersection. Defendant also testified that his headlights were on at the time of the accident. Defendant did not present any expert opinion testimony disputing the opinions rendered by plaintiff's accident reconstruction expert.

The case was submitted to the jury by jury interrogatories regarding liability only. The first jury interrogatory asked: "Was Defendant, KEVIN PASSARO, negligent, which negligence was a proximate cause of the accident?"

In instructing the jury regarding defendant's negligence in allegedly driving without his headlights, the trial court stated:

In this case in support of the charge of negligence made it is asserted that the defendant violated a provision of the Traffic Act. That provision is known as [N.J.S.A.] 39:3-47, which reads as follows: "No person shall drive, move, park or gain custody of any vehicle or combination of vehicles on any street or highway during the times when lighted lamps are required unless such vehicle or combination of vehicles displays lighted lamps and illuminating devices as here and after in this article required." . . . .

Now, the statutes I've just read*fn1 have set up a standard of conduct for the users of our streets and highways. If you find that the plaintiff or the defendant has violated those standards of conduct such violation is evidence to be considered by you in determining whether negligence, as I have defined that term to you, has been established.

You may find that such violation or violations constituted negligence on the part of the plaintiff or the defendant or you may find that it did not constitute such negligence. Your findings on this issue may be based on such violations alone, but in the event that there is other or additional evidence bearing upon that issue you will consider such violations together with all such additional ...


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