DOROTHY A. D'ATTOMA v. RAPHAEL E. BATISTA, JR., RAPHAEL E. BATISTA, SR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5246-02T1

DOROTHY A. D'ATTOMA,

Plaintiff-Appellant,

v.

RAPHAEL E. BATISTA, JR.,

RAPHAEL E. BATISTA, SR.,

Defendants-Respondents.

______________________________________

 

Argued November 16, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, BUR-L-01264-97.

Dorothy A. D'Attoma, appellant, argued the cause pro se.

Steven Antinoff argued the cause for respondents (Parker, McCay, attorneys; Stacy L. Moore, on the brief).

PER CURIAM

Plaintiff appeals a no cause jury verdict in her personal injury automobile accident litigation. The verdict was premised upon the jury's unanimous conclusion that defendant was not negligent whose negligence was a proximate cause of the accident. The accident occurred in Massachusetts and, therefore, the jury instructions included certain Massachusetts motor vehicle provisions. Plaintiff, then represented by counsel, did not, at the time, object. On appeal, however, she contends:

IN THE JUDGE'S CLOSING STATEMENT TO THE JURORS SHE READ THE MASSACHUSETTS STATE LAW REGARDING THE MEDIAN IN THE HIGHWAY AND MADE A COMMENT THAT IT IS AGAINST THE LAW TO BE ON THE MEDIAN. WE BELIEVE THIS MISLED THE JURY. THE ACCIDENT DID NOT HAPPEN ON THE MEDIAN, BUT 300 FEET DOWN THE ROAD. THIS WAS COLLABORATED BY THE WITNESS IN THE CASE.

During oral argument, plaintiff conceded a charge on Massachusetts law was appropriate but objected to the following additional charge:

With respect to entering the highway involving, as a movement into the path of other traffic, the risk of harm is ordinarily increased beyond that which exists when the motor vehicle is proceeding along the regular course of traffic. With respect to entering the highway, a reasonably prudent person would seek an opportune moment to do so and would exercise an increased amount of care in proportion to the increased danger. Accordingly, the law provides that a person seeking to do so has the duty to seek an opportune moment and to exercise a degree of care in proportion to the increased danger involved in the movement. Therefore, it is for you to determine whether a reasonably prudent person charged with that duty would under the circumstance of this case have enteredthe highway when and in the manner in which the plaintiff here did.

[Emphasis added.]

As we understand plaintiff's argument, she contends this additional language, particularly the emphasized language, conveyed to the jury the trial judge's belief in the defendant's version as to the happening of the accident.

We have considered these contentions in light of the record and applicable law. We are convinced they are of insufficient merit to warrant further opinion. R. 2:11-3(e)(1)(B),(E). We add the following brief comments. Plaintiff herself testified that prior to the accident she had to drive onto the median and had merged back into the lane of traffic before the accident thereafter happened. We reject plaintiff's contention that the judge signaled her agreement with defendant's version by way of the additional charge. Telling the jury to consider whether a reasonably prudent driver would under the circumstances have entering the highway "when and in the manner in which the plaintiff here did," leaves it to the jury to determine what that "when and in the manner" was and whether it was what a reasonably prudent driver would have done. Under these circumstances, we see no error in the charge. Moreover, any error would be harmless as the charge concerns plaintiff's potential comparative negligence, an issue the jury never reached.

 
Affirmed.

(continued)

(continued)

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A-5246-02T1

December 2, 2005