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Cosenza v. McWilliams

May 27, 2010

JOHN COSENZA, PLAINTIFF-APPELLANT,
v.
ALAN EUGENE MCWILLIAMS, HARRISBURG DAIRIES, DEFENDANTS-RESPONDENTS, AND DEVON MEREDITH COSENZA, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3825-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 3, 2010

Before Judges Rodríguez, Yannotti and Chambers.

Plaintiff John Cosenza appeals from: an order of judgment filed by the Law Division on February 5, 2009, which dismissed all claims against defendants Alan Eugene McWilliams (McWilliams) and Harrisburg Dairies (Harrisburg); and an order dated June 25, 2009, which denied plaintiff's motion for a new trial. We affirm.

I.

The following facts are pertinent to our decision. On May 17, 2005, plaintiff was a passenger in a Sports Utility Vehicle (SUV) being driven by his daughter, Devon Meredith Cosenza (Devon). The SUV was proceeding north in the left lane on Route I-85 in South Hill, Virginia. At that time, McWilliams was operating a tractor-trailer owned by Harrisburg, and was traveling north in the right lane on the same highway. Plaintiff sustained personal injuries when the SUV collided with McWilliams's tractor-trailer. Plaintiff filed an action against Devon, McWilliams and Harrisburg.

At the trial, plaintiff testified that, on the date of the accident, the weather was dry and clear. The SUV was in the left lane of the highway. At some point, plaintiff observed a large tractor-trailer ahead in the right lane. Plaintiff said that he observed the tractor-trailer's rear tires move into the left lane. Devon turned the SUV to the left. Plaintiff said that he did not recall what happened thereafter. Plaintiff was injured in the accident and he was taken by helicopter to a hospital.

McWilliams testified that he is a professional truck driver, and he has been a tractor-trailer driver for twenty-five years. McWilliams stated that the day of the accident was a beautiful, sunny day. He had traveled to North Carolina to make a delivery and was on his way back to Harrisburg, Pennsylvania. McWilliams was in the right lane. He testified that his tractor-trailer did not leave that lane.

McWilliams stated that, before the accident, he noticed trucks with signs indicating that mowing was in progress ahead. McWilliams was going to move his tractor-trailer into the left lane but decided not to do so when he checked his rear view mirror and saw a vehicle approaching on the left. McWilliams began to slow down. McWilliams said that he was going to let the vehicle pass him on the left and then move to the left lane. He was traveling at sixty-five miles per hour.

McWilliams continued on. He then heard the noise of the "rumble strips that are engraved into the side of the road[.]" McWilliams checked his rear view mirror and saw the vehicle veer to the right and strike his vehicle on the left. He testified that, to his knowledge, no part of his tractor-trailer was in the left lane. McWilliams further testified that, to his knowledge, he did not move his vehicle sideways to the left at any time.

The police report concerning the collision stated that Devon lost control of the SUV and ran off the road to the left. According to the police report, the SUV traveled about 219 feet before it exited the road. The SUV then traveled 120 feet on the shoulder, before reentering the roadway and traveling fifty-seven feet before it struck the tractor-trailer. The SUV then flipped over several times before coming to rest 153 feet from the point of impact.

State Trooper Robert W. Hawkins, Jr. (Hawkins) testified that, after the accident, he spoke with Devon in the emergency room of the hospital. Hawkins asked Devon how fast she had been going. Devon told Hawkins that she had been traveling seventy-five to eighty miles per hour "most of the way" but she "had slowed down[.]" Hawkins testified that there was no physical evidence at the scene which suggested that the tractor-trailer had left the right lane.

Devon testified that she had been traveling about two hours on the highway before the collision. She took notice of her speed about an hour into the drive. Devon noticed that she was traveling between seventy and eighty miles per hour. She said that she slowed down to about sixty-five miles per hour, which was the speed limit on the highway. Devon stated that she was traveling at that speed for over an hour when the accident occurred.

Devon further testified that, prior to the accident, she was in the left lane and traffic was light. At some point, she observed the tractor-trailer in the right lane of travel. It was about one hundred feet ahead of the SUV when she first noticed it. Devon stated that the trailer suddenly came over into her lane, and the trailer was less that "halfway over" when she turned left to try to avoid it.

Devon also testified that she first noticed the trailer entering her lane of travel when it was about "twenty-five feet" away. She stated that she felt grass on the left hand side and "suddenly" had to turn back to the right. She lost control of the SUV and collided with the tractor-trailer. The ...


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