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Keith Carter v. Zhenglin Yan

March 16, 2011

KEITH CARTER, PLAINTIFF-APPELLANT,
v.
ZHENGLIN YAN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3742-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 1, 2010

Before Judges Axelrad and Lihotz.

Following trial on plaintiff's action to recover for personal injuries stemming from a motor vehicle collision, the jury found defendant was not negligent and returned a verdict of no cause of action. The court dismissed plaintiff's complaint with prejudice. Plaintiff argues the trial court erred in instructing the jury and in denying his motion for a new trial or entry of a judgment notwithstanding the verdict (JNOV). We disagree and affirm.

On the morning of March 16, 2007, the vehicle operated by defendant rear-ended the vehicle driven by plaintiff, as it was stopped on Woodland Avenue at its intersection with Randolph Road in Plainfield. Woodland Avenue is an undivided roadway with a single lane in each direction. At the time of the accident, the road conditions were poor, as it had started snowing. Defendant was traveling in the slushy conditions, driving approximately twenty miles per hour, and encountered a curve on Woodland Avenue. As he was coming out of the curve, he noticed plaintiff's vehicle was stopped at the intersection waiting to turn left onto Randolph Road, which he approximated was twelve feet immediately ahead of his car. Defendant applied his brakes, but the road conditions impeded his ability to stop his car. Defendant attempted to turn his vehicle to the right to avoid contact, however his car slid and the driver's side of defendant's vehicle struck the rear passenger's side of plaintiff's vehicle.

Following the accident, plaintiff exited his car and spoke to defendant. The parties agreed to pull onto Randolph Road and plaintiff called the police. When the police investigation was completed, both parties drove from the scene. Plaintiff later filed his complaint seeking damages suffered as a result of the accident.

Plaintiff's proofs included photographs of the roadway and his testimony regarding the curved portion of Woodland Avenue, stating it ends between 500-600 feet from the intersection where his vehicle was stopped. Plaintiff argued defendant failed to observe his vehicle and negligently operated his car based upon the weather conditions encountered. Plaintiff's case included evidence of his medical treatment and expert testimony regarding the neck and back injuries he experienced as a result of the vehicles' collision. Defendant testified, presented his expert witness and introduced photographs of the parties' vehicles.

The jury returned a verdict in favor of the defendant, finding he was not negligent. Thereafter, plaintiff moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. These requests were denied on April 30, 2010. This appeal followed.

"The standard for our setting aside a verdict already sustained by the trial judge is high." Horn v. Vill. Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993). This is because a jury verdict is entitled to a presumption of correctness, Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), and we must afford "the utmost regard" to a jury's evaluation of the disputed factual issues. Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). Our Supreme Court has characterized "the standard for authorizing a new trial as one that requires a determination that the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality.'" Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). Accordingly, in our review, we will not set aside a jury's verdict "unless, 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. Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969) (quoting R. 4:49-1(a)).

Like the trial judge considering such a request, we do not "balance the persuasiveness of the evidence on one side as against the other[.]" Dolson, supra, 55 N.J. at 6. Instead, viewing "the evidence in the light most favorable to the party opposing the motion for relief[,]" Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325 (App. Div. 2010), we consider "whether reasonable minds might accept the evidence as adequate to support the jury verdict." Dolson, supra, 55 N.J. at 6. Finally, "'because reasonable people may disagree about inferences which may be drawn from common facts, neither a trial judge nor an appellate court may reweigh the evidence and impose a new verdict simply because they disagree with the jury's decision.'" Crego v. Carp, 295 N.J. Super. 565, 578 (App. Div. 1996). See also Sun Source, Inc. v. Kuczkir, 260 N.J. Super. 256, 267 (App. Div. 1992) (holding that a "judgment notwithstanding the verdict must be denied if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ").

On appeal, plaintiff raises two arguments in support of his request for a new trial. First, he asserts the trial court erred in instructing the jury by including an unavoidable accident charge. Second, he claims the court erred in not granting a new trial when defendant's expert stated plaintiff was taking methadone, in violation of an agreement to exclude information regarding plaintiff's prior drug use.

Plaintiff first asserts the trial judge erred in instructing the jury. Because there were no objections by plaintiff to the court's charge, we review the first argument under the plain error standard of review. See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008); Das v. Thani, 171 N.J. 518, 525 (2002). Plain error occurs when the error prejudicially affects the substantial rights of a party, and is sufficiently grievous to convince us that the error possessed a clear capacity to bring about an unjust result. R. 2:10-1; Caldwell v. Haynes, 136 N.J. 422, 432 (1994). This standard governs because a failure to object deprives the court of an opportunity to make a prompt correction and additionally suggests counsel did not perceive a potential for prejudice from the error. Aly v. Garcia, 333 N.J. Super. 195, 205 n.2 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001). To fully understand the challenge, it is necessary to provide additional factual context.

At the conclusion of the second day of trial, plaintiff, relying on Dolson, supra, sought a directed verdict on liability, arguing defendant was following plaintiff's car in a single traffic lane, yet failed to maintain a reasonably safe distance between the vehicles. Defendant opposed the motion, asserting a dispute as to whether his conduct was reasonable had been presented. Defendant argued that, like the defendant in Mockler v. Russman, 102 N.J. Super. 582 (App. Div. 1968), certif. denied, 53 N.J. 270 (1969), the accident was caused by the skidding of an automobile due to the snow covered roadway, which does not in itself justify an inference of negligence. Judge Rea denied the ...


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