On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1117-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and J. N. Harris.
After a jury trial of this personal injury case arising out of a motor vehicle accident, plaintiff Andrea Perna*fn1 was awarded a judgment in the amount of $15,064.47, inclusive of prejudgment interest. Plaintiff now appeals, arguing that the original jury verdict in her favor was insufficient. She contends that the jury's modest award of damages must have been influenced by an allegedly-improper instruction given by the trial judge regarding the passing-on-the-right statute, N.J.S.A. 39:4-85. We reject plaintiff's contentions, and affirm.
These are the pertinent facts. On October 12, 2006, plaintiff was merging her Pontiac sedan from Route 70 onto Interstate 295 North ("I-295"), which is three lanes wide at that location. A tractor-trailer owned by defendant Keystone Freight Corporation ("Keystone") was initially in the far right lane of I-295. When the tractor-trailer driver, defendant John J. Williams, spotted plaintiff attempting to merge onto the highway, he temporarily moved the tractor-trailer into the center lane to accommodate the merging vehicle. Plaintiff then got into the far right lane on I-295 and briefly pulled even with the tractor-trailer.
According to plaintiff, she became concerned that she might have been in the blind spot of the tractor-trailer. However, instead of slowing up to let the tractor-trailer get ahead of her, she decided to accelerate to get past the tractor-trailer.
Unfortunately, the tractor-trailer needed to make a prompt exit and it started to move back into the right lane without seeing plaintiff. At that point, a collision ensued.
The sole issue presented on appeal is whether the trial judge erred in charging the jury with the elements of N.J.S.A. 39:4-85, a statute that prohibits passing on the right, except where there is a vehicle making a left hand turn or where there is congestion and "vehicles on the roadway are moving in two or more substantially continuous lines." N.J.S.A. 39:4-85. Neither of those two enumerated statutory exceptions applies here. Plaintiff argues that the jury charge was inappropriate because she was not trying to "pass" the tractor-trailer, but instead was simply continuing in the far right lane that she started in and she had overtaken the tractor-trailer for safety reasons.
When the possibility of referencing the statute in the jury instructions was first raised by defense counsel during the charge conference, the trial judge expressed some initial reservations. Ultimately, however, the judge decided to include the charge.
After brief deliberations, the jury returned a verdict, finding each driver fifty percent at fault, and awarding plaintiff $25,000 in gross damages. The trial judge molded the verdict to calculate the final judgment, decreasing the $25,000 damages award by a factor of fifty percent, then adding prejudgment interest to that discounted sum.
Plaintiff moved for a new trial pursuant to Rule 4:49-1(a). The trial judge denied the application, concluding that plaintiff had failed to demonstrate a miscarriage of justice. This appeal followed.
Our scope of review here is circumscribed. "A motion for a new trial is addressed to the sound discretion of the trial court." Baumann v. Marinaro, 95 N.J. 380, 389 (1984); see also Crawn v. Campo, 136 N.J. 494, 510-12 (1994); Hill v. N.J. Dep't of Corr., 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). The grant or denial of a motion for a new trial should not be disturbed on appeal unless that discretion has been abused. Hill, supra, 342 N.J. Super. at 302; see also R. 2:10-1 (a court's ruling on a new trial motion shall not be reversed "unless it clearly appears that there was a miscarriage of justice under the law").
Rule 4:49-1 states that the court should only grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." That obligation arises whether the motion is based upon a contention that the verdict was against the weight of the evidence, or, as here, "based upon a contention that the judge's initial trial ...