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Brozek v. Birnbaum

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 21, 2010

WIESLAW BROZEK AND DANIEL BROZEK, PLAINTIFFS-RESPONDENTS,
v.
ALAN D. BIRNBAUM AND HOWARD BIRNBAUM, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-3011-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 23, 2010

Before Judges Skillman and Simonelli.

Defendants Alan and Howard Birnbaum (collectively referred to as defendant) appeal from an amended Special Civil Part judgment awarding plaintiffs Wieslaw and Daniel Brozek (collectively referred to as plaintiff) $5895 for property damage defendant caused to plaintiff's car as a result of a motor vehicle accident.

Evidence adduced at a bench trial revealed that at approximately 8:02 a.m. on October 2, 2007, plaintiff and defendant were traveling northbound on Paramus Road near its intersection with Century Road in Paramus. According to a police report admitted into evidence without objection, the accident was a five vehicle rear-end chain collision. Plaintiff was the driver of the fifth vehicle and defendant was the driver of the fourth vehicle. Vehicles one through four were stopped in traffic when plaintiff's vehicle struck defendant's vehicle in the rear, initiating a chain reaction that caused each vehicle to strike the one in front of it.

In a civilian supplementary report disputing the police report, also admitted into evidence without objection, plaintiff stated that he was traveling on Paramus Road behind defendant's vehicle when he heard defendant's vehicle screech and begin to emanate thick smoke and fishtail. Plaintiff quickly applied his brakes and began moving into the left lane to avoid the accident but was side swiped by the rear of defendant's vehicle. Defendant's vehicle never made contact with the vehicle in front of it and thus, there were actually two accidents: one between vehicles one, two, and three, and the other between plaintiff and defendant.

At trial, several photographs taken by plaintiff of the accident scene were admitted into evidence without objection. They showed thirty-foot long skid marks allegedly made by defendant's vehicle, a six-foot space between where defendant's vehicle and vehicle three came to rest, and no damage to the front of defendant's vehicle. The photographs also showed that defendant's vehicle came to rest facing to the right, at approximately a thirty-degree angle from the line of traffic. The left rear bumper of defendant's vehicle was in contact with the front right corner of plaintiff's vehicle, which had come to rest facing to the left, at approximately a fifteen-degree angle from the line of traffic. Plaintiff's left front tire was in the left lane.

The trial judge found that defendant had been following the vehicles in front of him too closely, "not giving [p]laintiff the opportunity to avoid contact." He then assessed liability at ninety percent against plaintiff and ten percent against defendant and incorrectly entered judgment in plaintiff's favor for $655.71.

Defendant subsequently submitted a proposed judgment and asked the judge to mold the verdict to bar plaintiff from recovery pursuant to the comparative negligence statute, N.J.S.A. 2A:15-5.1, and Van Horn v. Blanchard, 88 N.J. 91 (1981). In response, the trial judge advised the parties that he recalled finding defendant ninety percent negligent and plaintiff ten percent, and that if he had stated differently, he misspoke and committed an error. The judge then modified the order and entered judgment in plaintiff's favor for $5895. The judge subsequently reviewed the trial transcript and exhibits and amended his findings as follows:

[T]he plaintiff's photographs convinced me that this was not a Dolson v. Anastasia[, 155 N.J. 2 (1969)] case where it was a . . . straight rear-end hit. The Court believed after looking at the photographs that the defendant had actually swerved in front of and actually had passed the plaintiff entirely. And that although the hit was to the rear end of the defendant's vehicle, that is, the left rear, it was more on an angle indicating to me that it wasn't a front to rear hit but more of a side swipe type of situation. The Court felt that the plaintiff might have been following a little bit too closely behind the accident. Clearly the defendant was too close to the accident in front of him . . . and that's what caused him to go off to the right and to swerve in front of the plaintiff's vehicle which caused this accident which was actually a second accident. There were five cars involved all together. Cars one, two and three were already engaged in an accident and then four and five, five being plaintiff herein, four being the defendant, caused a second accident.

As a result thereof the Court reduced the amount sought by the plaintiff by ten percent. This was not -- although the Court said it was -- it appeared to be a classic rear-end hit, the Court described it as a little tweak to it and the tweak being that the -- the defendant had actually caused this accident by following too closely to the accident involved in cars one, two and three. And therefore, when he swerved he stopped short.

On appeal, defendants contend that the judge's initial ruling was correct and that judgment should be amended to reflect a finding of no-cause against them or, alternatively, they are entitled to a new trial. We disagree and affirm.

Our review of a judgment entered in a non-jury case is limited. We should not "disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963); see also Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009).

Reviewing the evidence presented at trial, we are satisfied that this was not a classic rear-end collision. Dolson v. Anastasia, 55 N.J. 2, 10 (1969). Rather, the collision occurred primarily as a result of defendant's failure to properly operate his vehicle, causing it to brake suddenly, fishtail, and strike plaintiff's vehicle while plaintiff was attempting to avoid striking defendant's vehicle. Accordingly, the credible evidence in the record supports the judge's ultimate decision that defendant was ninety percent liable for the accident.

Affirmed.

20100421

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