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Carmen Santana and Jose L. Santana v. Paulo E. Pereira and Michelle D. Muniz

April 11, 2011

CARMEN SANTANA AND JOSE L. SANTANA, PLAINTIFFS-APPELLANTS,
v.
PAULO E. PEREIRA AND MICHELLE D. MUNIZ, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1036-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 28, 2011

Before Judges Lisa and Ostrer.

Plaintiff, Carmen Santana, claimed she suffered personal injuries when the vehicle she was driving was struck in the rear by a vehicle driven by defendant, Paulo E. Pereira.*fn1 Plaintiff sued defendant for her alleged injuries. By consent of the parties, an expedited jury trial was conducted, at which plaintiff, her husband, and defendant provided live testimony, and the police accident investigation report and the report of plaintiff's chiropractor were admitted in evidence. The jury found both drivers negligent, and allocated sixty percent of the fault in causing the accident against plaintiff, and forty percent against defendant. The jury also found that plaintiff did not sustain an injury that was proximately caused by the accident. Plaintiff's motion for a new trial was denied, and this appeal followed.

Plaintiff argues that (1) the court erred in denying her motion for directed findings of negligence and proximate cause against defendant, (2) the court committed plain error by failing to sua sponte charge the jury regarding the obligations of motorists at stop or yield intersections and in following another vehicle at a reasonably safe distance, and (3) the jury's verdicts as to liability and damages were against the weight of the evidence and should have been set aside. Our review of the record persuades us that the trial court did not err in refusing to set aside the jury's verdict finding that plaintiff did not sustain an injury that was proximately caused by the accident. For this reason, there is no basis to reverse the judgment of no cause of action entered on May 26, 2010, or the orders denying plaintiff's motion for a new trial entered on June 8, 2010 and June 23, 2010. Therefore, we affirm.

Because our disposition is based on the jury's finding that plaintiff did not suffer an injury that was proximately caused by the accident, we need not address plaintiff's arguments pertaining to liability. We nevertheless briefly set forth the circumstances of the underlying accident, as described by each party, to give context to our discussion.

On the morning of August 17, 2007, plaintiff was driving an automobile eastbound on Route 440 in Perth Amboy. Defendant was then driving a sport utility vehicle on the same roadway and in the same direction, following plaintiff's vehicle. Both parties were alone in their vehicles. Both parties took the exit ramp leading them onto Pfeiffer Boulevard. A yield sign was posted on the exit ramp, and it was necessary for vehicles exiting Route 440 to merge with traffic on Pfeiffer Boulevard, which was to their right.

As they proceeded down the exit ramp, both parties were traveling at about fifteen miles per hour. Defendant said he was maintaining a distance of twenty-five to thirty feet behind plaintiff. According to plaintiff, after she passed through the yield sign and was merging with traffic, she gradually slowed her vehicle and, while still moving at about fifteen miles per hour, was suddenly struck in the rear by defendant's vehicle. According to defendant, both driver's slowed down to about fifteen miles per hour as they proceeded through the yield sign. They were both "flowing" into the traffic with which they had to merge. Defendant was "checking traffic," presumably glancing to his right, and then noticed that plaintiff had jammed on her brakes and suddenly stopped about one hundred feet past the yield sign. He believed she had either been "cut off" or "spooked" by another vehicle. In any event, defendant immediately jammed on his brakes, but was unable to avoid the collision.

Plaintiff called her husband, who arrived at the scene within minutes. Both parties gave statements to the investigating police officer. Plaintiff said she was not injured and declined any medical treatment. Although her car sustained rear-end damage, it was operable, and her husband drove it to their home. Defendant's vehicle sustained front-end damage, including damage to the radiator, which caused the coolant fluid to leak. Accordingly, it was inoperable and was towed from the scene.

Plaintiff contended that she began to experience pain in her back and neck the next day. Many years prior to this accident, plaintiff had undergone open-heart surgery. Within a relatively short time before this accident, plaintiff had a pacemaker implanted. As a result of her heart condition, plaintiff had been on disability status for many years and was somewhat debilitated. At the time of the accident, plaintiff was fifty-two years old.

The day after the accident, plaintiff visited her cardiologist. He explained to her that because of her heart condition and the medications she was taking for it, she could not take pain medication or other medications. He suggested she see a chiropractor.

Eighteen days after the accident, on September 4, 2007, plaintiff first consulted with a chiropractor, Dr. James C. Wolff. Plaintiff treated with Dr. Wolff for about six-and-one-half months, until she was discharged on March 18, 2008. She reported to Dr. Wolff that she experienced pain in her neck, upper and lower back, and shoulders, as well as headaches. Dr. Wolff did not order x-rays, an MRI, or any other diagnostic tests. Based upon plaintiff's history and his clinical examination, he concluded that plaintiff suffered post-traumatic sprain and strain to her cervical and lumbar spine, thoracic intersegmental dysfunction, cervicobrachil syndrome, myofascitis, and muscle spasm. He provided conservative treatment, "consisting of specific chiropractic spinal adjustments, adjunctive physiotherapeutic, electric muscle stimulation, and exercise rehabilitation." In his report, he opined that plaintiff would be predisposed to future pain and could expect to experience future spinal dysfunction in the form of accelerated degenerative joint disease. He opined that the injuries were caused by the August 17, 2007 accident and were permanent in nature.

Plaintiff was never evaluated or treated by any other physician. She told the jury that her complaints of pain and the limitations on her activities continued to be about the same as during the time she was treating with Dr. Wolff. Yet, she never sought any further treatment. She said she continues to use, on an ...


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