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Caruso v. Rosario

March 31, 2010

JOSEPH CARUSO, PLAINTIFF-APPELLANT,
v.
JOSE A. ROSARIO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5873-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 24, 2010

Before Judges Sabatino and J. N. Harris.

Joseph Caruso, plaintiff in this personal injury action, appeals a "no cause" judgment entered in favor of defendant, Jose Rosario. The judgment was based upon a jury's determination that defendant was not a proximate cause of the vehicular accident which caused plaintiff's injuries. We affirm.

The accident took place on Division Street in Jersey City on September 10, 2003. A motorized scooter operated by plaintiff, who was then sixteen years old, struck the rear of a Honda Accord sedan driven by defendant. The Honda had come to what defendant described in his trial testimony as a "controlled stop," in order for him to make a right turn into the narrow driveway of a private gym. According to defendant, his Honda had been going only five to ten miles per hour before he began to stop.

Plaintiff, who was following closely behind the Honda, was unable to halt his scooter in time to avoid a collision. He was propelled into the Honda's rear window, breaking the glass and injuring his right arm and other parts of his body. Plaintiff eventually had surgery on his right arm, and he had scarring and other medical consequences.

Plaintiff and defendant had first encountered one another on Eighth Street before they both turned left onto Division Street. Defendant initially observed the scooter in front of him, traveling in the same direction as defendant's Honda down Eighth Street, a one-way thoroughfare. According to defendant, the scooter was weaving from side to side and impeding the Honda's ability to pass. Defendant blew his horn and the scooter moved to the right with sufficient clearance for the Honda. The Honda then passed, and remained in front of the scooter as the two vehicles continued down Eighth Street and then each turned left on Division.*fn1 According to plaintiff, defendant and a passenger in the Honda both yelled and cursed at him as they passed the scooter.*fn2

Shortly after the two parties turned onto Division, plaintiff saw the Honda's brake lights activate. According to plaintiff, he was then approximately twenty feet from the rear of the Honda. Plaintiff applied the brake on his scooter, but he was unsuccessful in avoiding the rear-end collision.

Despite his injuries, plaintiff apparently left the scene of the accident and went home. Defendant then scouted around the neighborhood in an effort to locate the youth. Defendant found plaintiff's house, where he met plaintiff's father. According to the father, defendant told him that he was "just trying to teach him [plaintiff] a lesson" and had not meant to hurt the son. In his own testimony, defendant flatly denied making such statements to the father, contending that he had simply asked the father if plaintiff was hurt and had also asked about who would pay for the shattered windshield.

Plaintiff sued defendant for damages in the Law Division. Plaintiff alleged that defendant had improperly come to a sudden stop on Division, either negligently or perhaps even deliberately in retaliation against plaintiff for weaving in front of him earlier on Eighth Street. Conversely, defendant maintained that he had operated his Honda properly, and that plaintiff was solely responsible for the rear-end collision because he had been following the Honda in his scooter too closely.

Following discovery, a motion judge granted partial summary judgment to defendant as to plaintiff's negligence in following too closely. In the course of her analysis, the motion judge found significant that defendant had applied his brakes twice in order to see into the gym driveway, and that plaintiff therefore should have had ample notice to stop if he had been acting with due care. The motion judge specifically observed that there was "absolutely no way" for plaintiff to have been operating his scooter reasonably, given that he "plowed into the back of [defendant's] vehicle with such force as to propel himself off his [scooter] and into the... rear windshield." The motion judge did reserve for the jury, however, questions of defendant's own alleged negligence, proximate cause, and any issues of comparative fault.

At the ensuing trial, the jury heard testimony from the parties and plaintiff's father. They also were presented with videotaped testimony of plaintiff's medical expert, and various exhibits, including accident photographs and assorted medical items. The trial judge*fn3 instructed the jury, among other things, that "it has already been determined as a matter of law that the plaintiff was negligent, to some degree, on the date in question, in the operation of the scooter." Even so, the judge also advised the jurors that they were still obligated to consider whether defendant himself was negligent and, if so, a proximate cause of the accident.

The jury returned a unanimous verdict. On the first question of the verdict form, the jury found that defendant had been negligent in the operation of his automobile. However, on the second question of the verdict form, the jurors--after initially reporting to the court that they were divided four-tothree--concluded by a seven-to-zero vote that defendant's negligence was not a proximate cause of the accident. Consequently, the jurors never reached issues of ...


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