FRANCIS MCCORMACK v. ALTA WILSON
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4443-15T3
FRANCIS MCCORMACK, and
THERESE DUNNE as the parent
and legal guardian of the
incompetent CRYSTAL DUNNE,
Plaintiffs,
and
THERESE DUNNE,
Plaintiff-Appellant,
v.
ALTA WILSON,
Defendant-Respondent,
and
FIRST AMERICUS ENT., INC.,
Defendant.
______________________________
Argued January 17, 2018 – Decided February 13, 2018
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No.
L-0889-08.
Mitchell J. Makowicz, Jr., argued the cause
for appellant (Blume, Forte, Fried, Zerres &
Molinari, attorneys; Mitchell J. Makowicz,
Jr., on the briefs).
Elias Abilheira argued the cause for respondent
(Abilheira & Associates, PC, attorneys; Elias
Abilheira, on the brief).
PER CURIAM
Plaintiff Therese Dunne appeals from an April 1, 2016 order
memorializing a no-cause jury verdict in favor of defendant Alta
Wilson, and a May 13, 2016 order denying plaintiff's motion for
judgment notwithstanding the verdict (JNOV) or, alternatively, a
new trial. We affirm.
I
We discern the following facts from the record. On June 8,
2006, plaintiff and defendant were involved in a motor vehicle
accident. Francis McCormack drove plaintiff's car, which towed a
pop-up camper. Plaintiff and her daughter were passengers in that
car. They were on their way to the Pocono 500 car race. Defendant
drove a tractor-trailer with her daughter in the passenger seat.
Defendant's truck rear-ended the camper towed by plaintiff's car.
The accident occurred during heavy traffic, in the westbound lanes
of Interstate Highway I-80. According to defendant, in the area
where the accident occurred, there are "five lanes and two split
off."
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The trial record contains conflicting accounts of how the
accident occurred. Plaintiff testified as follows:
Q: How did you become aware that something
unusual is happening?
A: Because we came to a full stop.
Q: When you say you came to a full stop, can
you describe how Mr. McCormack stopped
the car?
A: Slowly and gradually, with the thickness
of traffic.
Q: To your perception, did he slam on the
brakes?
A: No.
. . . .
Q. Then what happened?
A: The car I was in came to a stop. Some
long seconds later, I heard the
squealing, loud squealing of brakes. I
turned around to see what would be
happening, and I saw an [eighteen-wheel]
Peterbilt truck barreling down on us too
fast.
Q: Did that truck then hit the back of the
camper?
A: Yes.
Q: What lane was your car in when the
accident happened?
A: I'm not sure.
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Q: Had Mr. McCormack recently changed lanes
before that contact, that impact took
place?
A: No.
Although Mr. McCormack did not testify in court, plaintiff's
counsel read the following excerpt from his deposition testimony
at trial:
Q: Can you describe for us in your terms how
this accident occurred?
A: A mile and a half, mile ahead . . . there was an
accident in progress. Everyone on the road came
to an abrupt but controlled stop. A vehicle came
up behind us and hit us knocking the trailer off
the back end of the car across the road, put us
into a 360. Later on I found out it was a tractor
trailer, Peterbilt.
Defendant testified as follows:
Q: And can you describe to me how the
accident occurred?
A: I saw a car in the left far lane all of
a sudden just swerve and come across and
when it swerved and came across[,] the
other car came across in front of me.
The original car continued to cross and
there was a bus. I don't know if it hit
the bus or if the bus hit somebody else.
I do know there was a bus.
. . . .
Q: [D]uring the [ten] minutes before the
accident was [plaintiff's] car with the
trailer in front of you the entire time?
A: No.
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Q: At some point in time how did it come to
be in front of you?
A: I thought it was caused by the other car
that swerved right.
Q: . . . At some point in time did
[plaintiff's] car move into your lane?
A: Yes.
Q: Which lane did it come from?
A: It came from the left to the center.
Q: Before it moved into your lane . . . was
there traffic in front of you in your
lane?
A: No. We were picking up speed.
Q: Okay.
A: [T]hey were moving away.
Q: Okay.
A: It left a gap.
. . . .
Q: Before [plaintiff's] vehicle moved into
your lane . . . was there sufficient room
between you and the next car in front of
you for you to stop safely for your
speed?
. . . .
A. There was enough room.
Plaintiff's counsel also read into the record the following
excerpt from defendant's answers to interrogatories: "I was
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traveling westbound on I-80 in Netcong, New Jersey when the
accident occurred ahead on the highway. The plaintiff's vehicle
swerved into my lane and braked suddenly."
Defendant provided conflicting testimony on the number of
hours she had driven the day of the accident, whether she took a
break to sleep, and the location of her final destination.
Q. [O]n your direct testimony did you not say
that you took half of your break and slept
while you were in Brooklyn?
A. Yes
Q. Did you not say on your direct that you
were going home that night?
A. Yes.
Q. Did you not say at your deposition five
years ago under oath nothing about sleeping
in Brooklyn?
A. Yes.
Q. But rather that you were almost out of
time and that you were going to stop in
Whitehall, Pennsylvania? Yes?
A. Yes.
Q. Those are two entirely different stories,
aren't they?
A. Yes.
Defendant acknowledged she kept a logbook containing the
number of hours driven and slept; however, she discarded the
logbook before trial. On cross-examination, defendant confirmed
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federal law and her employer required her to maintain the logbook.
She agreed that a logbook is "important because it documents all
the times that you're leaving, stopping and driving and . . .
documents your downtime . . . ." Defendant initially testified
that she "threw everything away after two years," but when pressed,
she admitted she discarded the logbook after she knew about this
lawsuit. When asked to admit that she "consciously" threw out her
logbook, she replied, "Not consciously, no."
Plaintiff also presented the testimony of the New Jersey
State Trooper who responded to the accident scene; however, by
time of trial, he had no recollection of the accident. He
therefore provided testimony based upon his accident report, which
indicates Mr. McCormack stated, "I hit the brakes due to the
accident and was hit from behind." The report indicates defendant
stated, "The car with the trailer hit the brakes and I couldn't
stop in time." Two other cars were involved, one of which had
minor damage. The report fails to confirm Mr. McCormack's
testimony that the car he was driving did "a 360,"1 or defendant's
testimony that another car swerved right just before the collision.
1
The trooper responded, "Yes, sir," when asked, "If somebody
told you their car spun 360 degrees after the impact and the
physical evidence at the scene supported that, would you put that
in your police report?"
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Nor does the report list defendant's daughter as a passenger in
defendant's vehicle.
An ambulance took plaintiff, her daughter and Mr. McCormack
to the hospital. Plaintiff complained of neck, back and shoulder
pain. The hospital discharged all three in the middle of the
night. They spent the rest of the night at a hotel, then rented
an RV in the morning. They stopped at the impound lot holding
plaintiff's car and camper before continuing on to the race.
Plaintiff claims severe injuries from the accident; however,
defendant argues the injuries were pre-existing. Damages are not
at issue on appeal.
At the close of the evidence, plaintiff moved for a directed
verdict on liability, which the court denied, reasoning the jury
needed to resolve factual issues regarding negligence. The trial
judge gave the jury a Dolson2 charge stating, "[F]ollowing another
vehicle more closely than is reasonable and prudent . . . is
negligence . . . on defendant's part." The jury then found
defendant negligent; however, it failed to find defendant's
negligence proximately caused the accident.
2
See Dolson v. Anastasia,
55 N.J. 2, 10-11 (1969) (holding the
failure to maintain a reasonably safe distance behind the
automobile ahead, in violation of
N.J.S.A. 39:4-89, is negligence,
not merely evidence of negligence, and the jury should be charged
accordingly).
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Plaintiff moved for JNOV, or alternatively for a new trial,
arguing defendant's negligence must have been a proximate cause
of the accident. The trial judge denied plaintiff's JNOV motion,
finding reasonable minds could differ as to the cause of the
accident. The judge also denied a new trial reasoning:
[T]he [c]ourt cannot conclude . . . that it
cannot conceive of any such act that was not
also a proximate cause of the accident in
these circumstances. Rather, the [c]ourt can
conceive of a situation where a jury, based
upon the evidence [and] their opportunity to
assess credibility, could find that
[defendant's] negligent conduct was not a
substantial factor in bringing about the
resulting accident. That is, the jury could
have found based upon the evidence that any
negligent conduct was simply remote, trivial
or inconsequential. The [c]ourt can conceive
a situation in which the jury found that the
conduct of the operator of [plaintiff's]
vehicle in swerving into defendant's lane and
abruptly applying the brakes proximately
caused this accident.
II
Plaintiff argues on appeal the trial judge erred in denying
the motion for JNOV. We disagree.
In reviewing a trial court's denial of a motion for JNOV
under Rule 4:40-2, we apply the same standard as the trial court:
"[I]f, accepting as true all the evidence which supports the
position of the party defending against the motion and according
him [or her] the benefit of all inferences which can reasonably
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and legitimately be deduced therefrom, reasonable minds could
differ, the motion must be denied . . . ." Boyle v. Ford Motor
Co.,
399 N.J. Super. 18, 40 (App. Div. 2008) (quoting Verdicchio
v. Ricca,
179 N.J. 1, 30 (2004)). However, we do not defer to the
trial judge's "interpretation of the law and the legal consequences
that flow from established facts." Raspa v. Office of the Sheriff,
191 N.J. 323, 334-35 (2007) (quoting Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
Here, "accepting as true all the evidence which supports"
defendant's case, Boyle,
399 N.J. Super. at 40, the jury could
have found that "the other car that swerved right," as described
by defendant, caused plaintiff's vehicle to swerve into
defendant's lane and abruptly brake, and that any conduct of
defendant was not a substantial factor in causing the accident.
While plaintiff testified that her vehicle did not swerve into
defendant's lane and abruptly brake, defendant testified that
plaintiff's vehicle did. Moreover, the record lacks any direct
evidence that defendant followed too closely, drove too fast, or
failed to pay attention. While the circumstantial evidence in
this case would have supported a verdict in favor of plaintiff,
it did not compel it.
Alternatively, the jury could have found defendant negligent
for discarding her logbook, or for driving too many hours.
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Plaintiff's counsel extensively cross-examined defendant regarding
these issues, and emphasized these points during closing argument:
And then the really interesting thing was
that I asked her all about these questions of
timing, how much time, when did you leave?
And her answers were, you know, all of that
would be in my [logbook]. And under federal
. . . law [logbooks] must be kept. It's
required. And I asked her, where is your
[logbook]? It's gone. What happened to it?
I threw it away. You threw it away? Yes.
When did you throw it away? Last year, before
the deposition in 2010. You threw it away in
2010? Yes. You knew this case was pending?
Yes. . . . So, we know that she threw this
[logbook] out a year before her deposition.
And we know she threw it out after she had
full and complete knowledge that this case was
pending and it would be important.
Defendant disputed the suggestion of plaintiff's counsel that
she "consciously" threw out her logbook. The jury could have
concluded defendant committed a negligent act by discarding her
logbook or by working too many hours; however, any such acts of
negligence did not proximately cause the accident. Because
"reasonable minds could differ" as to the cause of the accident,
the trial court properly denied plaintiff's JNOV motion. See
Boyle,
399 N.J. Super. at 40.
III
Plaintiff further argues the trial judge erred in denying the
motion for a new trial, because the jury's verdict was inconsistent
in finding negligence without proximate cause. We disagree.
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A trial court shall grant a motion for 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). We apply the same standard of review as the trial court,
except we "afford 'due deference' to the trial court's 'feel of
the case,' with regard to the assessment of intangibles, such as
witness credibility." Jastram v. Kruse,
197 N.J. 216, 230 (2008)
(quoting Feldman v. Lederle Labs.,
97 N.J. 429, 463 (1984)).
Proximate causation is a "combination of 'logic, common
sense, justice, policy and precedent' that fixes a point in a
chain of events, some foreseeable and some unforeseeable, beyond
which the law will bar recovery." People Express Airlines, Inc.
v. Consol. Rail Corp.,
100 N.J. 246, 264 (1985) (quoting Caputzal
v. Lindsay Co.,
48 N.J. 69, 77-78 (1966)). In order to determine
whether proximate cause exists, the proper inquiry is "'whether
the specific act or omission of the defendant was such that the
ultimate injury to the plaintiff' reasonably flowed from
defendant's breach of duty." Clohesy v. Food Circus Supermarkets,
Inc.,
149 N.J. 496, 503 (1997) (quoting Hill v. Yaskin,
75 N.J.
139, 143 (1977)). See also Model Jury Charges (Civil), 6.10,
"Proximate Cause — General Charge to Be Given in All Cases" (1998)
("The basic question for you to resolve is whether [plaintiff's]
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injury/loss/harm is so connected with the negligent actions or
inactions of [defendant] that you decide it is reasonable . . .
that [defendant] should be held wholly or partially responsible
for the injury/loss/harm."). The defendant's conduct must amount
to a "substantial factor" in causing the claimed injury. James
v. Arms Tech., Inc.,
359 N.J. Super. 291, 311 (App. Div. 2003).
The issue here is whether the jury finding defendant
negligent, but the negligence not a proximate cause of the
accident, was "clearly and convincingly . . . a miscarriage of
justice." R. 4:49-1(a). Our Supreme Court has overturned similar
jury verdicts where the Court concluded no conceivable reason
existed for the jury to have found negligence but not proximate
cause. Neno v. Clinton,
167 N.J. 573, 588 (2001); Pappas v.
Santiago,
66 N.J. 140, 143 (1974). Neno involved a vehicle-
pedestrian accident where the jury found the defendant negligent,
but not a proximate cause of the accident. Id. at 577, 579. We
affirmed; however, one member dissented, concluding the verdict
was inconsistent. Id. at 577. The Supreme Court agreed with the
dissenting judge, who stated, "I cannot conceive of any such act
that was not also a proximate cause of the accident in these
circumstances." Id. at 588.
Accordingly, if defendant's negligence was necessarily a
"substantial factor" in causing the accident, then the verdict was
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inconsistent and we should set it aside. See James,
359 N.J.
Super. at 311. If, however, the record supports a finding that
defendant's negligence was not necessarily a substantial factor
in causing the accident, the verdict was not inconsistent and
should stand.
Defendant testified that "the other car that swerved right"
caused plaintiff's vehicle to swerve into defendant's lane and
abruptly brake, leaving her insufficient time to stop. If the
jury accepted defendant's testimony on that point, the record
would support a finding that any negligence of defendant was not
a substantial factor in causing the accident. Consequently, this
is not a case, like Neno or Pappas, where no conceivable basis
existed in the record for the jury's verdict.
Plaintiff's counsel also pressed defendant on the number of
hours she had driven that day and how much she had slept, as well
as her failure to preserve her logbook. Therefore, alternatively,
the jury could have concluded that, although defendant was
negligent in driving too many hours or with too little sleep, or
by discarding her logbook, any such negligent acts were not a
substantial factor in causing the accident.
As a result, the jury's verdict was not "clearly and
convincingly . . . a miscarriage of justice under the law," Rule
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4:49-1(a), and the trial judge properly denied the motion for a
new trial.
Affirmed.
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