June 13, 2013
LILIAM AMEZQUITA, Plaintiff-Appellant,
MALARIE L. DONAHUE and CARLOS A. ZAPE-HERNANDEZ, Defendants-Respondents, and KEVIN J. DONOHUE, Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2012
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6993-06.
Spevak Law Offices, P.A., attorneys for appellant (Howard H. Sims, on the brief).
Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for respondent Malarie L. Donohue (Chad M. Moore, of counsel; Thaddeus J. Hubert, IV, on the brief).
Leary, Bride, Tinker & Moran, attorneys for respondent Carlos A. Zape-Hernandez (David J. Dering, of counsel and on the brief).
Before Judges Graves and Espinosa.
In this automobile negligence action, plaintiff Liliam Amezquita appeals from an August 10, 2011 order dismissing her complaint after a jury returned a no cause verdict in favor of defendants Malarie L. Donahue and Carlos A. Zape-Hernandez, and from an order denying her motion for a new trial. For the reasons that follow, we affirm.
At approximately 12:49 p.m. on July 25, 2005, Amezquita was a front-seat passenger in an automobile operated by Zape-Hernandez traveling southbound on Rahway Avenue in Avenel. Donahue was driving her vehicle in the opposite direction on Rahway Avenue. Both vehicles were approaching the intersection of Rahway Avenue and Avenel Street. The posted speed limit was thirty-five miles per hour, and the traffic light was green for both drivers. Donahue was making a left-hand turn onto Avenel Street, when the two vehicles collided in the southbound lane of Rahway Avenue. Amezquita claimed she suffered permanent injuries to her head, neck, back, and right knee as a result of the accident.
The first trial, limited to liability only, was held on July 14, 2010. The jury found that neither defendant was negligent. Amezquita then filed a motion for a new trial, which the court granted on August 27, 2010.
The second trial took place in July 2011. Neither plaintiff nor defendants presented expert testimony regarding how the accident occurred. Only Amezquita, Zape-Hernandez, and Donahue described the accident to the jury. Amezquita testified that she did not recall "that much" about the accident and did not remember if she "saw [Donahue's] vehicle before the impact." However, she was able to recall that Zape-Hernandez had a green light and was driving approximately thirty-five or forty miles per hour.
Zape-Hernandez testified he was "about three car lengths away from the light" when he first saw Donahue's vehicle. He further testified he "was doing about the speed limit, 35, a little under." According to Zape-Hernandez, Donahue did not "stop before turning" directly in front of his car. Zape-Hernandez testified he "steered a little bit to the right" and "pressed the gas to try to go around her and it didn't work out that well." He explained that he did not apply his brakes because Donahue's "car was already too close. If [he] would have applied [the] breaks it would have been just a head-on collision. [He] just thought split second if [he] could go around the car maybe it would be less of an impact."
Portions of Donahue's deposition were read to the jury. During her deposition, Donahue recalled that Zape-Hernandez "was coming towards [her] and [she] misjudged the rate of speed that he was coming at. [She] thought he was coming much slower than he was, and thought [she] had plenty of time" to make the turn. At trial, Donahue stated she stopped to allow the car in front of the Zape-Hernandez vehicle to pass through the intersection before turning left onto Avenel Street. Donahue testified she was "about 200 feet" from Zape-Hernandez's car and had "ample room" to make the turn. According to Donahue, Zape-Hernandez was "going faster than [he] should have" and he did not make "efforts to avoid the collision."
During his summation, counsel for Zape-Hernandez argued that his client had no responsibility for the accident because "Ms. Donahue made a sudden left turn in front of him, and he didn't have time to react." On the other hand, Donahue's attorney argued that the accident occurred because Zape-Hernandez "sped up to try to get around" Donahue's car. Additionally, Amezquita's attorney argued that Donahue's left-hand turn "was not done [safely], " and that Zape-Hernandez failed to take appropriate "action to avoid the impact."
The court charged the jury regarding the duty of care a driver must exercise while operating a vehicle. The court instructed that a driver must take "reasonable care to control, to manage, and to operate his or her car. [The driver] must make such observations for traffic and road conditions, and exercise such judgment to avoid collision or injury to others on the road as a reasonably prudent person would have done in the circumstances." Additionally, the court instructed the jury regarding the duty of care required when making a left-hand turn:
Now, with respect to a left hand turn involving as it does a movement across the path of other traffic, the risk of harm is ordinarily increased beyond that which exists when a motor vehicle is proceeding along a direct course. So, with respect to a left turn a reasonably prudent driver would seek an opportune moment for the turn, and would exercise an increased amount of care in proportion to that increased danger involved in the left turn. It is for you to determine whether a reasonably prudent driver charged with that duty would, under the circumstances in this case, have made a left turn in the manner in which Ms. Donahue did here.
Those instructions were consistent with the model jury charges. See Model Jury Charge (Civil), 5.30A, "General Duty Owing" (1999); and Model Jury Charge (Civil), 5.30C, "Left-Hand Turn" (1991).
The jury determined that Amezquita failed to prove by a preponderance of the evidence that either defendant was negligent. Amezquita subsequently filed a motion for a new trial. During oral argument on August 19, 2011, counsel for Amezquita acknowledged the court had "properly charged the jury" and "there was nothing unusual concerning the prosecution of the case on any side."
The trial court concluded the verdict was not a miscarriage of justice and denied the motion, reasoning as follows:
There are some fundamental principles at work here. One of them is that negligence is never presumed, it is proven. What that means is that even the best case can be lost if the jury finds something inappropriate about the testimony of a witness as to liability.
[T]he fact that it was the same vote two years in a row isn't particularly compelling. [The previous judge] felt that there was a basis on which to have a new trial. . . . And now this case was tried on all issues, and the jury rejected the plaintiff's case. That's what litigation is all about.
I might very well have been the dissenter in either trial based on my view of the credibility of the witnesses, but . . . I do not sit as an additional juror. I am satisfied that the arguments posed by [counsel for Donahue] and [counsel for Zape-Hernandez] were sufficient enough to allow the jury to reach a verdict for the defense. It is always the plaintiff's burden to prove a case by a preponderance of the evidence.
Amezquita presents two arguments on appeal. First, the court erred in denying her motion for a new trial because "the verdict was not supported by the evidence." Second, "the omission to charge the 'signal' and 'yield' before turning statutes and the defendants' burden of proof relative to their cross-claims were individually and collectively plain error capable of producing an unjust result." We conclude from our examination of the record that these arguments are "without sufficient merit to warrant discussion in a written opinion, " Rule 2:11-3(e)(1)(E), and affirm with only the following comments.
"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). The trial court's decision on a motion for a new trial will not be reversed "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; see also Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). "A jury verdict should be set aside 'only in cases of clear injustice.'" Little v. KIA Motors Am., Inc., 425 N.J.Super. 82, 92 (App. Div. 2012) (quoting Boryszewksi v. Burke, 380 N.J.Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006)). Although we defer to the trial court with respect to intangibles not transmitted by the record, such as credibility, demeanor, and "feel of the case, " we must make our own independent determination of whether a miscarriage of justice occurred Carrino v Novotny 78 N.J. 355, 360-61 n.2 (1979); Baxter v Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, supra 55 N.J. at 6.
In the present matter the trial judge found that the verdict was not a miscarriage of justice Moreover based on our independent review of the record we find no clear injustice and no basis for a new trial