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Giannini v. Lester

July 9, 2009

CAROLINE A. GIANNINI AND NICK GIANNINI, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
PATRICIA A. LESTER,*FN1 KELLY L. BRENNAN, AND FRANCETTA JOHNSON, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1857-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 19, 2009

Before Judges Skillman and Graves.

In this automobile negligence case, which was tried as to liability only, a jury determined that plaintiff Caroline Giannini*fn2 was seventy-five percent responsible for an accident involving her vehicle and a vehicle driven by defendant Kelly Brennan. Plaintiff appeals from an order dated May 9, 2008, denying her post-trial motion for judgment notwithstanding the verdict or a new trial. We affirm.

Prior to the accident, plaintiff's vehicle, Brennan's vehicle, and a third car driven by defendant Francetta Johnson, were traveling north on Route 42 in Washington Township, New Jersey. At trial, the three drivers gave conflicting testimony regarding the cause of the accident. In addition, the jury heard testimony from another driver, Edward Fortunato, who witnessed the accident, and it also heard testimony from Patricia Lester, who was a passenger in the front seat of the vehicle driven by defendant Johnson.

In its preliminary remarks to the jury panel, the trial court briefly summarized the facts of the case and the conflicting allegations of the parties as follows:

This case involves a motor vehicle accident that happened on August 13th, 2003, in Washington [T]ownship, in the northbound lanes of the Black Horse Pike, also known as Route 42, at approximately 8:40 PM. The location of the accident was close to the area of Ardmour Drive. Caroline Giannini was driving her vehicle north on Route 42 in the left hand lane. As she got close to Ardmour Drive, her vehicle was behind a vehicle operated by Francetta Johnson. Ms. Johnson's vehicle entered the left turn lane for Ardmour Drive, while Ms. Giannini stayed in the left northbound lane of Route 42.

Ms. Giannini contends that as she began passing the slowing Johnson vehicle, Ms. Johnson suddenly swerved to the right, forcing Mrs. Giannini to also swerve to the right to avoid a collision. While Ms. Giannini's vehicle was in the right lane, there was a collision with [the] Brennan vehicle.

Caroline Giannini contends that the accident was caused by the negligent operation of the vehicles driven by Johnson and Brennan. Francetta Johnson contends the accident between the Giannini vehicle and the Brennan vehicle was caused by the negligent operation of the vehicles being driven by Giannini and Brennan, respectively. Kelly Brennan contends that the accident was caused by the negligent operation of the vehicles driven by Johnson and Giannini.

Patrolman Michael Paul testified that on August 13, 2003, at approximately 8:46 p.m., he responded to the scene of a two- car accident where Route 42 intersects with Ardmour Avenue. He testified the speed limit on Route 42 at that location is fifty miles per hour, and his diagram of the intersection was admitted into evidence.

Paul determined the point of impact was in the right-hand lane. Plaintiff told Paul that as she was traveling in the left-hand lane, a white car in the left-turn lane (driven by Johnson) cut in front of her and as she swerved right to avoid the Johnson vehicle, she "was hit by another car." However, at trial, plaintiff testified her car was stopped when it was struck by the Brennan vehicle:

Q: And, when you say [the Johnson vehicle] cut in front of you... What did she do?

A: She quickly came in front of me.... [H]er car came in front of my car, and I cut my wheel to get out of her way. If not, I would have hit --

Q: And, when you say it came in front of your car, was that -- did it turn right -- did it turn --

A: It turned right into my lane.

Q: And, how far into your lane ...


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