MALLORY GIACCONE v. DEAN BELDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3533-09T2

MALLORY GIACCONE,

Plaintiff-Appellant,

v.

DEAN BELDEN and KEYSTONE

FREIGHT CORP.,

Defendants-Respondents.

________________________________________________________________

December 6, 2010

Argued November 8, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-241-08.

James J. Uliano argued the cause for appellant (Chamlin, Rosen, Uliano & Witherington, attorneys; John T. Bazzurro, on the brief).

Leonard Leicht argued the cause for respondents (Morgan Melhuish Abrutyn, attorneys; Mr. Leicht, of counsel and on the brief).

PER CURIAM

Plaintiff sued defendant Dean Belden and his employer, Keystone Freight Corp., for injuries she suffered in a vehicular accident. The jury found that Belden was not negligent, and judgment was entered reflecting the no cause for action verdict. Plaintiff's motion for a new trial was denied. She now appeals from the order denying her new trial motion and from the trial court's denial of her request to instruct the jury on the sudden emergency doctrine. We find plaintiff's arguments unpersuasive, and for the reasons that follow, we affirm.

The accident happened on Interstate 95 in South Carolina. At about 3:00 p.m. on April 17, 2007, plaintiff and defendant were both driving in the northbound lanes. The highway has two northbound lanes in that area. The weather was clear and the road was dry. The posted speed limit was seventy miles per hour.

Plaintiff was driving an SUV. Defendant, a professional truck driver, was driving his employer's tractor trailer, commonly referred to as an eighteen wheeler. The trailer was fifty-three feet long. The driver's side of his vehicle was equipped with a rectangular side view mirror as well as two spot mirrors. Both drivers contend they were traveling at seventy miles per hour at the time of the accident.

Defendant was driving in the right lane. As he approached a slower moving vehicle, he intended to pass it. He activated his left turn signal and looked in his side view mirrors. Defendant acknowledged that with all tractor trailers there is a blind spot in the area of the rear of the tractor portion of the vehicle. When defendant looked in his mirrors, he did not see any vehicle in the left lane, and he gradually began to pull into that lane. As he did so, he heard a horn honking. He looked in his mirrors again and saw plaintiff's vehicle slightly forward of the rear tandem axles of the trailer. At this point, defendant's vehicle was approximately halfway into the left lane. Plaintiff's SUV was straddling the left shoulder and the grass center median.

According to plaintiff, she was driving in the left lane uneventfully. Although she repeatedly insisted in her testimony that she never passes tractor trailers because she has been taught that the drivers have a blind spot and might not see a passing vehicle, she contended she was approximately even with the rear tandem axles of the trailer when defendant began to pull into her lane. She acknowledged that defendant's movement into her lane was gradual. She denied seeing defendant's turn signal before he began moving into her lane, although she acknowledged seeing it as the events continued. Plaintiff began honking her horn. She also decided that her best course of action would be to move over to the left to avoid contact with the tractor trailer. She therefore moved over to the center median. Plaintiff agreed that the tractor trailer then began moving back into the right lane. Seeing an overpass abutment in the median ahead of her, plaintiff then turned to the right rather abruptly. She may have again turned to the left to try to position herself on the roadway. In doing so, she lost control of her SUV and it rolled over an undetermined number of times.

The two vehicles never came into contact with each other. Plaintiff was not able to estimate how close they came to each other. Defendant estimated they were never less than two to three feet apart.

Plaintiff argued to the jury that defendant was negligent for failing to make sure the left lane was clear before pulling into it. Defendant argued that he acted reasonably under the circumstances by checking his side view mirrors and gradually beginning to pull into the left lane, and, after hearing a horn and seeing plaintiff's vehicle, immediately pulling back into the right lane. During cross-examination of defendant, plaintiff's counsel asked whether it would be fair to conclude "that when you checked your mirror originally, she was there, she was next to your trailer." Defendant responded: "I can't conclude that because I didn't see her there."

As we stated, the jury found that defendant was not negligent. Therefore, the jury did not continue to answer any further interrogatories about plaintiff's potential comparative negligence, causation, or damages.

Plaintiff moved for a new trial, arguing that the "undisputed facts" rendered it "almost incomprehensible" for the jury to conclude that defendant was not negligent. Plaintiff therefore argued that the verdict was the result of jury mistake, prejudice, passion or partiality. Defendant opposed the motion, arguing that the evidence supported a finding by the jury that defendant acted reasonably under all of the circumstances and was therefore not negligent. We are informed of the parties' positions on the motion because we have been furnished with their motion briefs. However, we have not been furnished with a transcript of the oral argument on the motion, which also presumably included the judge's reasons for denying the motion. We assume for purposes of our analysis that the judge applied the correct standard for considering a new trial motion, agreed with defendant's position, and rejected plaintiff's.

Trial courts may grant a new trial after a jury verdict only 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). The trial court's decision on such a motion will not be disturbed on appeal unless it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1. In making this determination, we defer to the trial court with respect to "intangibles" not transmitted by the record, such as credibility, demeanor, and "feel of the case," but otherwise we 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 (1997); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

Applying this standard, we find no basis for interfering with the trial court's determination. Contrary to plaintiff's argument, the facts were not "undisputed." Defendant never conceded that plaintiff's vehicle was alongside of his trailer and in a position outside of his blind spot when he began to change lanes. Indeed, when asked directly, he rejected that contention. The jury did not have to believe plaintiff's contention that she was alongside of defendant's rear tandem axles when defendant began to change lanes. The jury could have credited defendant's testimony that immediately before he began his lane change he checked his mirrors and the area described by plaintiff was clear. If that were so, plaintiff's vehicle had to be somewhere else when the lane change began, possibly either behind the tractor trailer or further forward in the blind spot.

All that matters for our review is that the evidence provided a rational basis for the jury's finding. It is significant in this regard that the vehicles never came into contact with each other and that defendant's movement of his tractor trailer in making the lane change and returning to his lane were gradual. A jury's verdict should be set aside "only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). We find no error in the trial court's conclusion that there was not a clear miscarriage of justice in this case.

We are also unpersuaded by plaintiff's argument regarding the sudden emergency doctrine. Since the advent of comparative negligence, this doctrine has been recognized as being in disfavor. The charge should not be given in ordinary automobile cases. Finley v. Wiley, 103 N.J. Super. 95, 101-03 (App. Div. 1968). Instead, it should be considered as appropriate only in "the most unusual circumstances." Leighton v. Sim, 248 N.J. Super. 577, 580 (App. Div. 1991). The doctrine is not applicable when a motorist is confronted with "no more than an every day traffic problem for which he [or she] should have been prepared." Finley, supra, 103 N.J. Super. at 103. This is such a case. We find no mistaken exercise of discretion by the trial court in refusing to instruct the jury on the sudden emergency doctrine.