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Mallory Giaccone v. Dean Belden and Keystone Freight Corp

December 6, 2010

MALLORY GIACCONE, PLAINTIFF-APPELLANT,
v.
DEAN BELDEN AND KEYSTONE FREIGHT CORP., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-241-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 8, 2010

Before Judges Lisa and Alvarez.

Plaintiff sued defendant Dean Belden and his employer, Keystone Freight Corp., for injuries she suffered in a vehicular accident. The jury found that Belden was not negligent, and judgment was entered reflecting the no cause for action verdict.

Plaintiff's motion for a new trial was denied. She now appeals from the order denying her new trial motion and from the trial court's denial of her request to instruct the jury on the sudden emergency doctrine. We find plaintiff's arguments unpersuasive, and for the reasons that follow, we affirm.

The accident happened on Interstate 95 in South Carolina. At about 3:00 p.m. on April 17, 2007, plaintiff and defendant were both driving in the northbound lanes. The highway has two northbound lanes in that area. The weather was clear and the road was dry. The posted speed limit was seventy miles per hour.

Plaintiff was driving an SUV. Defendant, a professional truck driver, was driving his employer's tractor trailer, commonly referred to as an eighteen wheeler. The trailer was fifty-three feet long. The driver's side of his vehicle was equipped with a rectangular side view mirror as well as two spot mirrors. Both drivers contend they were traveling at seventy miles per hour at the time of the accident.

Defendant was driving in the right lane. As he approached a slower moving vehicle, he intended to pass it. He activated his left turn signal and looked in his side view mirrors. Defendant acknowledged that with all tractor trailers there is a blind spot in the area of the rear of the tractor portion of the vehicle. When defendant looked in his mirrors, he did not see any vehicle in the left lane, and he gradually began to pull into that lane. As he did so, he heard a horn honking. He looked in his mirrors again and saw plaintiff's vehicle slightly forward of the rear tandem axles of the trailer. At this point, defendant's vehicle was approximately halfway into the left lane. Plaintiff's SUV was straddling the left shoulder and the grass center median.

According to plaintiff, she was driving in the left lane uneventfully. Although she repeatedly insisted in her testimony that she never passes tractor trailers because she has been taught that the drivers have a blind spot and might not see a passing vehicle, she contended she was approximately even with the rear tandem axles of the trailer when defendant began to pull into her lane. She acknowledged that defendant's movement into her lane was gradual. She denied seeing defendant's turn signal before he began moving into her lane, although she acknowledged seeing it as the events continued. Plaintiff began honking her horn. She also decided that her best course of action would be to move over to the left to avoid contact with the tractor trailer. She therefore moved over to the center median. Plaintiff agreed that the tractor trailer then began moving back into the right lane. Seeing an overpass abutment in the median ahead of her, plaintiff then turned to the right rather abruptly. She may have again turned to the left to try to position herself on the roadway. In doing so, she lost control of her SUV and it rolled over an undetermined number of times.

The two vehicles never came into contact with each other. Plaintiff was not able to estimate how close they came to each other. Defendant estimated they were never less than two to three feet apart.

Plaintiff argued to the jury that defendant was negligent for failing to make sure the left lane was clear before pulling into it. Defendant argued that he acted reasonably under the circumstances by checking his side view mirrors and gradually beginning to pull into the left lane, and, after hearing a horn and seeing plaintiff's vehicle, immediately pulling back into the right lane. During cross-examination of defendant, plaintiff's counsel asked whether it would be fair to conclude "that when you checked your mirror originally, she was there, she was next to your trailer." Defendant responded: "I can't conclude that because I didn't see her there."

As we stated, the jury found that defendant was not negligent. Therefore, the jury did not continue to answer any further interrogatories about plaintiff's potential comparative negligence, causation, or damages.

Plaintiff moved for a new trial, arguing that the "undisputed facts" rendered it "almost incomprehensible" for the jury to conclude that defendant was not negligent. Plaintiff therefore argued that the verdict was the result of jury mistake, prejudice, passion or partiality. Defendant opposed the motion, arguing that the evidence supported a finding by the jury that defendant acted reasonably under all of the circumstances and was therefore not negligent. We are informed of the parties' positions on the motion because we have been furnished with their motion briefs. However, we have not been furnished with a transcript of the oral argument on the motion, which also presumably included the judge's reasons for denying the ...


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