ANTHONY SCIOLA v. DUNG NGUYEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANTHONY SCIOLA,

Plaintiff-Appellant,

v.

DUNG NGUYEN,

Defendant,

and

GEORGE SCHLUE, JR.,

Defendant-Respondent.

___________________________

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3562-09.

Timothy J. McIlwain, attorney for appellant.

Cascio & Callegher, attorneys for respondent (Stephen C. Wolf, on the brief).

PER CURIAM

In this automobile accident case, plaintiff appeals from the entry of a directed verdict obtained by defendant George Schlue, Jr. ("Schlue") pursuant to Rule 4:37-2(b), and denial of plaintiff's motion for reconsideration. We reverse and remand for a new trial.

Plaintiff was a passenger in a Ford Ranger driven by Schlue. Defendant Dung Nguyen ("Nguyen") was driving an Acura Legend (the "Acura"). Plaintiff sustained injuries as a result of an intersection accident between these two vehicles. Nguyen settled with plaintiff, and plaintiff and Schlue then tried the case on all issues.1

Plaintiff introduced evidence at trial showing that the vehicles collided in the intersection. Schlue testified that the light was green for him as he approached the intersection. Schlue observed the Acura's headlights on his left when it was approximately 100 feet from the intersection, but he did not apply his brakes because he assumed that the Acura would stop before it reached the intersection. Schlue and plaintiff were talking together as they approached the intersection. There was damage to the side of Schlue's vehicle and both vehicles' front bumpers.

After plaintiff rested, Schlue's counsel moved for a directed verdict. He contended that Schlue had the green light and that Schlue made sufficient observations as he proceeded through the intersection. Plaintiff's counsel opposed the motion, arguing that the property damage to the vehicles suggested that both drivers were inattentive. He also contended that Schlue had enough time to brake before entering the intersection, was distracted by talking to plaintiff, and failed to make reasonable observations. The judge stated that

[a]s [Schlue's vehicle] approached [the intersection], he was looking around, he was looking at the green light, the light was green and he saw the [Acura] coming from his left . . . approximately 100 feet away.

. . . .

Were [Schlue and plaintiff] talking? Yes, . . . but neither [party] indicated that there was [an] excessive amount of talking, or anything that would even draw an inference that somehow [Schlue] was distracted.

. . . .

A hundred feet is not a lot of time to react, so that even if [Schlue] did see the [Acura] 100 feet away, I don't think that's a reasonable inference [that Schlue] could have stopped within that time period.

. . . .

Whether you consider that [Schlue's] vehicle was hit from the side or whether you consider that [Schlue's] vehicle [struck] the passenger side of the [Acura], it indicates in either fashion that [Nguyen] was ignoring the light.

The judge then granted defendant's motion for a directed verdict and dismissed plaintiff's complaint with prejudice. He denied plaintiff's motion for reconsideration.

On appeal, plaintiff argues that the judge misapplied the law governing involuntary dismissals by substituting his judgment for that of the jury, that he erred by preventing plaintiff's counsel from reading the deposition testimony from Nguyen demonstrating that Schlue ran through a red light, and that he erred by not requiring Nguyen to testify. We need not reach plaintiff's second and third contentions because we conclude, based on the trial evidence, that defendant was not entitled to a directed verdict.

Pursuant to Rule 4:37-2(b), a defendant may move for involuntary dismissal of a plaintiff's claims "on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." Dismissal is not appropriate where the plaintiff established a prima facie case, meaning "'any evidence including any favorable inference to be drawn therefrom which could sustain a judgment in plaintiff's favor.'" Perez v. Professionally Green, LLC, 215 N.J. 388, 404 (2013) (citation omitted). The court may grant the motion if, when viewing the evidence in the light most favorable to the plaintiff, "no rational jury could conclude from the evidence that an essential element of the plaintiff's case is present." Id. at 407 (citation omitted). An appellate court must review a trial judge's decision to grant involuntary dismissal de novo, applying the same standard as the trial court. See Epperson v. Wal-Mart Stores, Inc., 373 N.J. Super. 522, 527 (App. Div. 2004).

Here, even if Schlue had the green light, he admitted to seeing the Acura when it was approximately 100 feet from the intersection, he did not apply his brakes to avoid the collision, he was talking to plaintiff as they approached the intersection, and the property damage to the vehicles could suggest that both drivers were negligent. Applying these well-settled standards, we conclude that the judge erred by dismissing the complaint and preventing the jury from deliberating and reaching a verdict.

Reversed and remanded for a new trial on all issues.

1 At trial, the judge would not allow plaintiff's counsel to read to the jury deposition testimony from Nguyen that purportedly would have established that Schlue had a red light.