CAROLINE A. GIANNINI v. PATRICIA A. LESTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4625-07T14625-07T1

CAROLINE A. GIANNINI and

NICK GIANNINI, her husband,

Plaintiffs-Appellants,

v.

PATRICIA A. LESTER,

KELLY L. BRENNAN, and

FRANCETTA JOHNSON,

Defendants-Respondents.

_____________________________________________________________

 

Argued May 19, 2009 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, Docket No.

L-1857-04.

A. Robert Gloeser argued the cause for appellants

(Lacovara & Gloeser, LLC, attorneys; Mr. Gloeser,

on the brief).

Alexa J. Nasta argued the cause for respondents

Patricia A. Lester and Francetta Johnson (Green,

Lundgren & Ryan, P.C., attorneys; Francis X.

Ryan, of counsel; Ms. Nasta, on the brief).

Steven M. Swain argued the cause for respondent

Kelly L. Brennan (Law Office of Debra Hart,

attorneys; Mr. Swain, on the brief).

PER CURIAM

In this automobile negligence case, which was tried as to liability only, a jury determined that plaintiff Caroline Giannini was seventy-five percent responsible for an accident involving her vehicle and a vehicle driven by defendant Kelly Brennan. Plaintiff appeals from an order dated May 9, 2008, denying her post-trial motion for judgment notwithstanding the verdict or a new trial. We affirm.

Prior to the accident, plaintiff's vehicle, Brennan's vehicle, and a third car driven by defendant Francetta Johnson, were traveling north on Route 42 in Washington Township, New Jersey. At trial, the three drivers gave conflicting testimony regarding the cause of the accident. In addition, the jury heard testimony from another driver, Edward Fortunato, who witnessed the accident, and it also heard testimony from Patricia Lester, who was a passenger in the front seat of the vehicle driven by defendant Johnson.

In its preliminary remarks to the jury panel, the trial court briefly summarized the facts of the case and the conflicting allegations of the parties as follows:

This case involves a motor vehicle accident that happened on August 13th, 2003, in Washington [T]ownship, in the northbound lanes of the Black Horse Pike, also known as Route 42, at approximately 8:40 PM. The location of the accident was close to the area of Ardmour Drive. Caroline Giannini was driving her vehicle north on Route 42 in the left hand lane. As she got close to Ardmour Drive, her vehicle was behind a vehicle operated by Francetta Johnson. Ms. Johnson's vehicle entered the left turn lane for Ardmour Drive, while Ms. Giannini stayed in the left northbound lane of Route 42.

Ms. Giannini contends that as she began passing the slowing Johnson vehicle, Ms. Johnson suddenly swerved to the right, forcing Mrs. Giannini to also swerve to the right to avoid a collision. While Ms. Giannini's vehicle was in the right lane, there was a collision with [the] Brennan vehicle.

Caroline Giannini contends that the accident was caused by the negligent operation of the vehicles driven by Johnson and Brennan. Francetta Johnson contends the accident between the Giannini vehicle and the Brennan vehicle was caused by the negligent operation of the vehicles being driven by Giannini and Brennan, respectively. Kelly Brennan contends that the accident was caused by the negligent operation of the vehicles driven by Johnson and Giannini.

Patrolman Michael Paul testified that on August 13, 2003, at approximately 8:46 p.m., he responded to the scene of a two-car accident where Route 42 intersects with Ardmour Avenue. He testified the speed limit on Route 42 at that location is fifty miles per hour, and his diagram of the intersection was admitted into evidence.

Paul determined the point of impact was in the right-hand lane. Plaintiff told Paul that as she was traveling in the left-hand lane, a white car in the left-turn lane (driven by Johnson) cut in front of her and as she swerved right to avoid the Johnson vehicle, she "was hit by another car." However, at trial, plaintiff testified her car was stopped when it was struck by the Brennan vehicle:

Q. And, when you say [the Johnson vehicle] cut in front of you . . . What did she do?

A. She quickly came in front of me. . . . [H]er car came in front of my car, and I cut my wheel to get out of her way. If not, I would have hit --

Q. And, when you say it came in front of your car, was that -- did it turn right -- did it turn --

A. It turned right into my lane.

Q. And, how far into your lane did it come?

A. It came in my lane three-quarters in my lane.

Q. And, you, in the meantime, did what? Where were your feet? Were they on the gas, on the --

A. I was braking. As soon as I was making the turn, I was braking at the same time.

Q. And, did you get past the vehicle?

A. Yes.

Q. Did you get past it without any impact?

A. Yes.

Q. When you got past it without any impact, then -- then what happened?

A. Well, then I was looking to my right, and I saw headlights. I was already stopped. I grabbed my head, and I heard three bumps. Boom, boom, boom.

. . . .

Q. And, you came to a stop?

A. Yes.

Q. When you heard the three bumps, what part of your car was being impacted?

A. I felt I was being hit from the back to the front. That's how I felt. I didn't see it because my eyes were closed, and I was holding my head.

During cross-examination, plaintiff was asked if there was any reason why she "just didn't continue" driving after she successfully avoided the Johnson vehicle, and she responded:

A. Because, I didn't want to get hit. I didn't know if there was -- I knew there was nothing in front of me, but I didn't know if there was anything behind me.

Q. So, you bring your car to a stop, and then you look around, and then get hit?

A. Uh-huh.

Q. Instead of bringing your car to a stop . . . why didn't you just keep on going in the lane, instead of stopping?

A. Because, I wouldn't go if I don't know if there's anything coming. There wasn't anything in front of me, but I didn't know if there was anything behind me.

Plaintiff's testimony was disputed by Johnson, who denied that her vehicle left its lane, and also by Kelly Brennan, who testified that her vehicle was "sideswiped" by plaintiff's vehicle. In addition, Edward Fortunato, who was driving his vehicle behind plaintiff's vehicle, testified that after plaintiff swerved to avoid the Johnson vehicle, plaintiff's vehicle "hit another vehicle that was in the right lane."

On March 19, 2008, the jury found both Johnson and plaintiff were negligent and that their negligence was a proximate cause of the accident. The jury determined Johnson was twenty-five percent at fault for the accident and plaintiff was seventy-five percent at fault. Brennan was found not to have been at fault. Accordingly, the court entered judgment in defendants' favor.

On May 9, 2008, following oral argument, the trial court denied plaintiff's motion for judgment notwithstanding the verdict or a new trial, stating:

I was the judge that presided and on the request for Judgment N.O.V. or a Motion for a New Trial, certainly I can rely somewhat on the feel of the case.

. . . .

I am not a seventh juror. My own personal beliefs are totally irrelevant. My own beliefs, as far as credibility of any of the particular witnesses, is totally irrelevant.

And it is absolutely irrelevant whether or not I agree with the decision. But what I do have to look at is the legal standard and I have to determine if there was a manifest denial of justice in this case.

And I do not feel as if there was in this case. I believe that, as we've said over and over again, that the jurors as fact finders can believe part of someone's story, just a portion of it or they can totally ignore it.

But if the end result is reasonable, then there has not been a miscarriage of justice. And I do find that, in addition to the direct and circumstantial evidence, that certainly they can make inferences.

That's one of my jury charges and they're allowed to do that. And those inferences would not be speculation.

And therefore, I do find that there was a reasonable verdict rendered in this matter, on the basis of the evidence that was submitted.

And for those reasons then, I am denying the Plaintiff's Motion for a New Trial or Judgment N.O.V.

On appeal, plaintiff presents the following arguments:

POINT I

THE COURT BELOW COMMITTED REVERSIBLE ERROR BY FAILING TO GRANT JUDGMENT N.O.V. FINDING THE APPELLANT CAROLYN GIANNINI NOT NEGLIGENT.

POINT II

THE COURT BELOW COMMITTED REVERSIBLE ERROR BY FAILING TO ORDER A NEW TRIAL.

We conclude that these arguments are without sufficient merit to warrant extended discussion in a written opinion, Rule 2:11-3(e)(1)(E), and we affirm with only the following comments.

When deciding a motion for judgment at trial under Rule 4:40-1 or a motion for judgment notwithstanding the verdict under Rule 4:40-2, "the court must accept as true all the evidence which supports the position of the [parties] defending against the motion and must accord [those parties] the benefit of all legitimate inferences which can be deduced therefrom." Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2009). And if "reasonable minds could differ, the motion must be denied." Dolson v. Anastasia, 55 N.J. 2, 5 (1969). A party is entitled to a new trial "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." R. 4:49-1(a). An appellate court must adhere essentially to the same standard when reviewing a trial court's decision on a new trial motion. R. 2:10-1.

In the present matter, the court found that the jury rendered a reasonable verdict based on the evidence submitted at trial and that determination is fully supported by the record. Accordingly, we affirm substantially for the reasons stated by Judge McMaster in her oral decision on May 9, 2008.

Affirmed.

 

Prior to trial, the claims against Patricia Lester, the owner of the automobile driven by defendant Francetta Johnson, were dismissed because Johnson was not Lester's agent or employee. See Fu v. Fu, 160 N.J. 108, 118 (1999).

Because the claims of Nick Giannini are derivative, we refer to Caroline Giannini as "plaintiff."

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9

A-4625-07T1

July 9, 2009