On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10094-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 27, 2012 -
Before Judges Reisner and Harris.
In this automobile accident case, plaintiff Dinah Ruiz appeals from a December 22, 2011 order in favor of defendant Menahem A.V. Butavia, denying plaintiff's motion for a new trial or for judgment notwithstanding the verdict. For the reasons that follow, we affirm.
The accident occurred at around midnight on November 30, 2005, as plaintiff was driving her boyfriend's 2003 Nissan Pathfinder sport utility vehicle northbound on the Garden State Parkway in a rainstorm. Defendant's 1983 BMW sedan was behind plaintiff's vehicle, traveling in the same direction. As plaintiff drove up the incline of the Driscoll Bridge, she lost control of her vehicle, and the Pathfinder spun clockwise and crashed into the right-hand guardrail. The central issue in the trial was whether plaintiff lost control of the Pathfinder due to weather and road conditions, or whether defendant's car hit the rear of plaintiff's vehicle and caused the accident.
Plaintiff testified that it was pouring rain, the roadway was deserted, and she was traveling at or below the speed limit in the middle lane. However, as she drove up the incline of the bridge, she saw headlights in her rearview mirror, and perceived that there was a vehicle "coming up fast" in the right lane. According to plaintiff, defendant's car began passing her car on the right side. She stated: "As I'm driving -- up next to me I feel a shove on the back of my car. . . . It started hydroplaning." At that point, she lost control of the Pathfinder, which spun around and hit the guardrail.
After the accident, plaintiff got out of her car and walked over to defendant's car, which was parked ahead of hers on the side of the highway. Defendant let plaintiff sit in his car and helped her to call her boyfriend. When the police arrived, she told them, in response to their questions, that she had not been drinking. However, she did not tell them that defendant hit her car or otherwise caused the accident.
Plaintiff testified that she was in tremendous pain after the accident. She underwent extensive medical treatment for her injuries, which included brain injury and the loss of one eye. She testified that it was not until three weeks after the accident that she started to "recall the accident itself" and "that's when I realized that guy hit me."
On the issue of liability, plaintiff presented testimony from an accident reconstruction expert, Peter Cokelet, who was a former police officer. According to Cokelet, the 2003 Pathfinder was a "four wheel drive slash all wheel drive" vehicle. He explained that in an all wheel drive vehicle, power "is going to the wheels all the time" and an on-board computer would adjust the power between the various wheels if it detected "slippage." According to Cokelet, after he analyzed all of the facts pertinent to the accident, he concluded that plaintiff's vehicle would not have spun out of control without "an outside force" striking it. He explained that, on a wet road, it would require relatively little force to cause the vehicle to go into a spin.
On cross-examination, Cokelet admitted that he had never examined plaintiff's Pathfinder, but instead relied on viewing photographs of the vehicle. However, he had consulted with a mechanic concerning "the operation of the vehicle being all wheel drive." He did not examine any literature about the 2003 Pathfinder to determine whether it was a two-wheel drive vehicle with a switch-activated four wheel drive feature. Cokelet also admitted that he saw no physical evidence of contact between the Pathfinder and defendant's car. He observed damage to the left rear of the Pathfinder, but he assumed that was caused when the vehicle struck the guardrail as it was spinning.*fn1
Trooper Gerard Holtz testified that when he arrived at the accident scene at about 12:15 a.m., it was raining heavily and the road was wet. Plaintiff told him that she did not remember what happened. The Trooper determined at the scene that it was a one-car accident, because he saw no evidence that a second vehicle was involved.
Defendant testified that on the night of the accident, it was very rainy and windy, and the roadway was wet. When he first observed plaintiff's car, it was traveling about ten car lengths ahead of him in the middle lane. He explained that just before the bridge, the highway split, with one branch going "to [Route 440]" and the other going over the bridge. Before the bridge, plaintiff changed lanes to the right. As they went up the incline of the bridge, he saw her vehicle start spinning, hit the guardrail several times as it spun, and come to rest with ...