GEORGE LEE, JR. v. JOSEPHINE CALENDAR AND SHANE CALENDAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2831-05T22831-05T2

GEORGE LEE, JR.,

Plaintiff-Appellant,

v.

JOSEPHINE CALENDAR AND

SHANE CALENDAR,

Defendants-Respondents.

_____________________________________________________________

 

Submitted August 29, 2006 - Decided September 8, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3378-03.

Drazin and Warshaw, attorneys for appellant (Richard A. Amdur, Jr., on the brief).

James D. Carton, III, attorney for respondent.

PER CURIAM

Plaintiff, George Lee, Jr., appeals the Law Division's January 20, 2006 order denying plaintiff's motion for a new trial. On January 3, 2006, the Law Division, after a personal injury automobile negligence trial before a jury resulting in a defense verdict, entered an order for judgment of no cause for action in favor of defendants, Josephine Calendar and Shane Calendar. The order memorialized the jury's verdict, in its answers to special jury interrogatories, that defendant was 44% and plaintiff was 56% at fault for the occurrence of the accident. We affirm.

This case arose out of a two car accident that occurred on October 17, 2002, at approximately 10:30 p.m., in Tinton Falls. Plaintiff testified he was traveling on Tinton Avenue, following a friend. The weather conditions were drizzling rain. As he approached the intersection at Tinton Avenue and Sycamore Avenue, at thirty to thirty-five miles per hour, plaintiff intended to make a left hand turn onto Sycamore Avenue. He had his left turn signal on and looked for oncoming traffic before making his left hand turn. The traffic light controlling the intersection was green for both vehicles. Plaintiff testified he never saw defendant's vehicle approaching before impact occurred because defendant's headlights were not on.

Defendant testified that he was proceeding on Tinton Avenue with only his parking lights on. The intersection of Tinton Avenue with Sycamore Avenue was "well lit" at the time. Plaintiff slowed as he approached the intersection, started a left hand turn and then stopped. Defendant applied his brakes and hydroplaned into plaintiff. Defendant conceded his headlights were not on.

At trial, defendant admitted that he was negligent. Therefore, the liability portion of the case was tried to the jury on the issue of whether plaintiff was comparatively negligent and, if negligent, a proximate cause of the accident. If plaintiff were determined to be comparatively negligent, the jury was required to determine the percentage of negligence attributable to both defendant and plaintiff for the occurrence of the accident. The jury found liability on the part of both drivers and found the defendant's percentage of negligence to be 44% and the plaintiff's percentage of negligence to be 56%.

On April 13, 2006, the trial judge denied plaintiff's motion for a new trial brought pursuant to Rule 4:49-1(a). Rule 4:49-1(a) provides that "[T]he trial judge shall grant the motion if, 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."

The accident occurred at a well-lit intersection, which defendant was approaching with his parking lights on. Plaintiff, approaching from the opposite direction of defendant, intended to make a left hand turn. Plaintiff had his headlights on. We are satisfied that there was ample evidence to support the jury's finding that plaintiff was negligent for not observing defendant's car approaching with his parking lights on, even after defendant entered the field of illumination of plaintiff's headlights. According to plaintiff's testimony, he never slowed his speed as he began his left hand turn, and according to defendant's testimony, plaintiff applied his brakes and stopped in defendant's path.

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).

After a thorough review of the record, we are satisfied that the jury was free to accept defendant's version of the facts or a combination of plaintiff's and defendant's facts as to the cause of accident and thus was able to conclude that plaintiff was negligent and a proximate cause of the accident and that plaintiff's negligence was greater than defendant's negligence. The law is clear that "the judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror." Dolson, supra, 55 N.J. at 6. We are convinced, giving due regard to the opportunity of the jury to pass upon the credibility of witnesses, that the jury's verdict did not constitute a miscarriage of justice under the law. See Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977); Law v. Newark Bd. of Educ., 175 N.J. Super. 26, 37-38 (App. Div. 1980).

Affirmed.

 

At the time of the accident, defendant, Shane Calendar, was the driver of a motor vehicle owned by defendant, Josephine Calendar.

(continued)

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A-2831-05T2

 

September 8, 2006