JOSEPH CARUSO v. JOSE A. ROSARIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2932-08T22932-08T2

JOSEPH CARUSO,

Plaintiff-Appellant,

v.

JOSE A. ROSARIO,

Defendant-Respondent.

_________________________________

 

Submitted February 24, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5873-06.

Hoogstra, Schwartz & Scerbo, attorneys for appellant (John R. Schwartz, of counsel and on the brief).

Law Offices of Baumann, Lynes and Viscomi, attorneys for respondent (Shaun A. McGinn, on the brief).

PER CURIAM

Joseph Caruso, plaintiff in this personal injury action, appeals a "no cause" judgment entered in favor of defendant, Jose Rosario. The judgment was based upon a jury's determination that defendant was not a proximate cause of the vehicular accident which caused plaintiff's injuries. We affirm.

The accident took place on Division Street in Jersey City on September 10, 2003. A motorized scooter operated by plaintiff, who was then sixteen years old, struck the rear of a Honda Accord sedan driven by defendant. The Honda had come to what defendant described in his trial testimony as a "controlled stop," in order for him to make a right turn into the narrow driveway of a private gym. According to defendant, his Honda had been going only five to ten miles per hour before he began to stop.

Plaintiff, who was following closely behind the Honda, was unable to halt his scooter in time to avoid a collision. He was propelled into the Honda's rear window, breaking the glass and injuring his right arm and other parts of his body. Plaintiff eventually had surgery on his right arm, and he had scarring and other medical consequences.

Plaintiff and defendant had first encountered one another on Eighth Street before they both turned left onto Division Street. Defendant initially observed the scooter in front of him, traveling in the same direction as defendant's Honda down Eighth Street, a one-way thoroughfare. According to defendant, the scooter was weaving from side to side and impeding the Honda's ability to pass. Defendant blew his horn and the scooter moved to the right with sufficient clearance for the Honda. The Honda then passed, and remained in front of the scooter as the two vehicles continued down Eighth Street and then each turned left on Division. According to plaintiff, defendant and a passenger in the Honda both yelled and cursed at him as they passed the scooter.

Shortly after the two parties turned onto Division, plaintiff saw the Honda's brake lights activate. According to plaintiff, he was then approximately twenty feet from the rear of the Honda. Plaintiff applied the brake on his scooter, but he was unsuccessful in avoiding the rear-end collision.

Despite his injuries, plaintiff apparently left the scene of the accident and went home. Defendant then scouted around the neighborhood in an effort to locate the youth. Defendant found plaintiff's house, where he met plaintiff's father. According to the father, defendant told him that he was "just trying to teach him [plaintiff] a lesson" and had not meant to hurt the son. In his own testimony, defendant flatly denied making such statements to the father, contending that he had simply asked the father if plaintiff was hurt and had also asked about who would pay for the shattered windshield.

Plaintiff sued defendant for damages in the Law Division. Plaintiff alleged that defendant had improperly come to a sudden stop on Division, either negligently or perhaps even deliberately in retaliation against plaintiff for weaving in front of him earlier on Eighth Street. Conversely, defendant maintained that he had operated his Honda properly, and that plaintiff was solely responsible for the rear-end collision because he had been following the Honda in his scooter too closely.

Following discovery, a motion judge granted partial summary judgment to defendant as to plaintiff's negligence in following too closely. In the course of her analysis, the motion judge found significant that defendant had applied his brakes twice in order to see into the gym driveway, and that plaintiff therefore should have had ample notice to stop if he had been acting with due care. The motion judge specifically observed that there was "absolutely no way" for plaintiff to have been operating his scooter reasonably, given that he "plowed into the back of [defendant's] vehicle with such force as to propel himself off his [scooter] and into the . . . rear windshield." The motion judge did reserve for the jury, however, questions of defendant's own alleged negligence, proximate cause, and any issues of comparative fault.

At the ensuing trial, the jury heard testimony from the parties and plaintiff's father. They also were presented with videotaped testimony of plaintiff's medical expert, and various exhibits, including accident photographs and assorted medical items. The trial judge instructed the jury, among other things, that "it has already been determined as a matter of law that the plaintiff was negligent, to some degree, on the date in question, in the operation of the scooter." Even so, the judge also advised the jurors that they were still obligated to consider whether defendant himself was negligent and, if so, a proximate cause of the accident.

The jury returned a unanimous verdict. On the first question of the verdict form, the jury found that defendant had been negligent in the operation of his automobile. However, on the second question of the verdict form, the jurors after initially reporting to the court that they were divided four-to-three concluded by a seven-to-zero vote that defendant's negligence was not a proximate cause of the accident. Consequently, the jurors never reached issues of comparative fault or damages. Guided by the verdict, the trial judge entered a no-cause judgment in favor of defendant.

On appeal, plaintiff argues that the motion judge erred in granting partial summary judgment as to his own negligence. Plaintiff further argues that the jury's findings of negligence by defendant but the absence of proximate cause are incompatible, and warrant a new trial. Lastly, plaintiff argues that the verdict is against the weight of the evidence.

With respect to plaintiff's own negligence, we note that plaintiff conceded that his operation of the motorized scooter is subject to the our motor vehicle statutes and relevant case law principles applicable to other motorists. One of those core principles is that a motorist is at fault when he or she follows another vehicle at an unsafe distance, and a rear-end collision ensues. See N.J.S.A. 39:4-89; Dolson v. Anastasia, 55 N.J. 2, 10 (1969); Pavia v. Pfeiffer, 229 N.J. Super. 276, 280 (App. Div. 1988). Even in scenarios in which a vehicle in the lead stops abruptly, the motorist who is following that vehicle must foresee the possibility of such a quick stop and allow sufficient braking space ahead of his own vehicle. Pavia, supra, 229 N.J. Super. at 283.

Having examined the record, as did the motion judge, in a light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); see also R. 4:46-2(c), we are satisfied that partial summary judgment was justifiably entered against plaintiff. The sheer force of plaintiff's impact into the rear of the Honda bespeaks that he was following the Honda too closely at too high a speed. We discern no error in the court's finding that plaintiff was negligent and that his conduct substantially contributed to this rear-end collision.

We also perceive no inconsistency in the jury finding that defendant was likewise negligent but in also finding that his negligence was not a proximate cause of the accident. Negligence and proximate cause are classic and discrete elements of a personal injury case. Weinberg v. Dinger, 106 N.J. 469, 484 (1987). Plaintiff had the burden of proving those discrete elements. It is not at all unusual for jurors in a personal injury case to find that a defendant acted unreasonably in some respect but that his or her conduct did not proximately cause the accident.

Proximate cause requires not only that a defendant's negligence be a "but for" cause of an accident, but also comprise a "substantial factor" in producing the injury. See, e.g., Rappaport v. Nichols, 31 N.J. 188, 203 (1959); Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11 (App. Div.), certif. denied, 156 N.J. 386 (1998). The record here rationally supports the factfinder's assessment that defendant could have been more careful in how he stopped his automobile, but that the manner in which he stopped was not a substantial factor in causing the accident, given plaintiff's following distance and speed.

Lastly, we do not regard the jury's verdict to be against the weight of the evidence. Courts have an exceedingly narrow scope of review of jury verdicts, and we should not set them aside and order a new trial unless there clearly has been a manifest injustice. See R. 4:49-1; Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); see also Kozma v. Starbucks Coffee Co., ____ N.J. Super. ____, ____ (App. Div. 2010) (slip op. at 7-8). No such demonstration was made here. Although plaintiff's claim that defendant admitted to have purposely stopped short, in order to teach him "a lesson", is troubling on its face, the jurors were responsible as factfinders with evaluating the credibility of that hotly-disputed claim. We will not second-guess the jury's credibility determination. Carrino v. Novotny, 78 N.J. 355, 360 (1979).

Moreover, no matter what prompted defendant to stop the Honda in front of the gym driveway in the manner that he did, plaintiff's own lack of care in following too closely fundamentally created a hazardous situation. Under the circumstances, it was not unfair for the jury to hold him responsible for his own injuries.

 
Affirmed.

The record reflects that there is no stop sign or traffic light on Eighth Street at its intersection with Division.

Plaintiff contended that a side mirror on the Honda "grazed" him as it passed, although this contention was disputed. In any event, the alleged contact did not cause plaintiff to lose control of his scooter or cause his injuries.

The trial judge was a different judge than the judge who had ruled on defendant's earlier summary judgment motion.

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A-2932-08T2

March 31, 2010