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Automobiles - Negligence - Cosenza v. McWilliams(A-5615-08T1)

SUPERIOR COURT OF NEW JERSEY

 APPELLATE DIVISION

  DOCKET NO.  A-5615-08T1

JOHN COSENZA,

 Plaintiff-Appellant,

v.

ALAN EUGENE MCWILLIAMS,

HARRISBURG DAIRIES,

     Defendants-Respondents,

and

DEVON MEREDITH COSENZA,

     Defendant.

_____________________________________

Argued May 3, 2010 – Decided May 27, 2010

Before Judges Rodríguez, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3825-06.Craig M. Rothenberg argued the cause for appellant (Law Offices of Craig M. Rothenberg, attorneys; Susan V. Ferreira, on the brief).

Leslie A. Parikh argued the cause for respondents (Gebhardt & Kiefer, P.C., attorneys; Ms. Parikh, on the brief).

PER CURIAM

     Plaintiff John Cosenza appeals from: an order of judgment filed by the Law Division on February 5, 2009, which dismissed all claims against defendants Alan Eugene McWilliams (McWilliams) and Harrisburg Dairies (Harrisburg); and an order dated June 25, 2009, which denied plaintiffs motion for a new trial.  We affirm.

I.

     The following facts are pertinent to our decision.  On May 17, 2005, plaintiff was a passenger in a Sports Utility Vehicle (SUV) being driven by his daughter, Devon Meredith Cosenza (Devon). The SUV was proceeding north in the left lane on Route I-85 in South Hill, Virginia. At that time, McWilliams was operating a tractor-trailer owned by Harrisburg, and was traveling north in the right lane on the same highway.  Plaintiff sustained personal injuries when the SUV collided with McWilliamss tractor-trailer. Plaintiff filed an action against Devon, McWilliams and Harrisburg.

     At the trial, plaintiff testified that, on the date of the accident, the weather was dry and clear.  The SUV was in the left lane of the highway.  At some point, plaintiff observed a large tractor-trailer ahead in the right lane.  Plaintiff said that he observed the tractor-trailers rear tires move into the left lane. Devon turned the SUV to the left. Plaintiff said that he did not recall what happened thereafter.  Plaintiff was injured in the accident and he was taken by helicopter to a hospital.

     McWilliams testified that he is a professional truck driver, and he has been a tractor-trailer driver for twenty-five years. McWilliams stated that the day of the accident was a beautiful, sunny day.  He had traveled to North Carolina to make a delivery and was on his way back to Harrisburg, Pennsylvania.  McWilliams was in the right lane. He testified that his tractor-trailer did not leave that lane. 

     McWilliams stated that, before the accident, he noticed trucks with signs indicating that mowing was in progress ahead.  McWilliams was going to move his tractor-trailer into the left lane but decided not to do so when he checked his rear view mirror and saw a vehicle approaching on the left.  McWilliams began to slow down.  McWilliams said that he was going to let the vehicle pass him on the left and then move to the left lane.  He was traveling at sixty-five miles per hour.

     McWilliams continued on. He then heard the noise of the "rumble strips that are engraved into the side of the road[.]"  McWilliams checked his rear view mirror and saw the vehicle veer to the right and strike his vehicle on the left.  He testified that, to his knowledge, no part of his tractor-trailer was in the left lane. McWilliams further testified that, to his knowledge, he did not move his vehicle sideways to the left at any time. 

     The police report concerning the collision stated that Devon lost control of the SUV and ran off the road to the left.  According to the police report, the SUV traveled about 219 feet before it exited the road. The SUV then traveled 120 feet on the shoulder, before reentering the roadway and traveling fifty-seven feet before it struck the tractor-trailer. The SUV then flipped over several times before coming to rest 153 feet from the point of impact.

     State Trooper Robert W. Hawkins, Jr. (Hawkins) testified that, after the accident, he spoke with Devon in the emergency room of the hospital.  Hawkins asked Devon how fast she had been going.  Devon told Hawkins that she had been traveling seventy- five to eighty miles per hour "most of the way" but she "had slowed down[.]" Hawkins testified that there was no physical evidence at the scene which suggested that the tractor-trailer had left the right lane. 

     Devon testified that she had been traveling about two hours on the highway before the collision.  She took notice of her speed about an hour into the drive.  Devon noticed that she was traveling between seventy and eighty miles per hour. She said that she slowed down to about sixty-five miles per hour, which was the speed limit on the highway.  Devon stated that she was traveling at that speed for over an hour when the accident occurred.

     Devon further testified that, prior to the accident, she was in the left lane and traffic was light.  At some point, she observed the tractor-trailer in the right lane of travel.  It was about one hundred feet ahead of the SUV when she first noticed it.  Devon stated that the trailer suddenly came over into her lane, and the trailer was less that "halfway over" when she turned left to try to avoid it. 

     Devon also testified that she first noticed the trailer entering her lane of travel when it was about "twenty-five feet" away.  She stated that she felt grass on the left hand side and "suddenly" had to turn back to the right. She lost control of the SUV and collided with the tractor-trailer. The SUV moved to the left and flipped over several times before it came to rest. 

     During her deposition, Devon had testified that she was "twenty-five meters" behind the tractor-trailer when it began to move left into her lane of travel.  In her direct testimony, Devon said that she did not know anything about meters. She testified, however, on cross examination that she was familiar with meters since she was in high school. 

     Devon additionally testified that the police report was incorrect because she "never went all the way off the roadway[.]" At her deposition, Devon also had testified that she recalled striking the rear of the trailer but, at trial, she said that she did not believe that she did. 

     In addition, Devon testified that she did not recall that the SUV skid 219 feet in the left lane before it left the roadway. Devon said that she had not driven a motor vehicle on a regular basis in the nine months prior to the accident, and she normally did not drive an SUV. She usually drove a subcompact.

     Plaintiff also presented testimony from Steven Mark Schorr (Schorr), a professional engineer. Schorr was qualified an expert in traffic engineering, highway safety and accident reconstruction.  Schorr testified that, as a result of what is known as "high speed off tracking[,]" McWilliams trailer could have encroached into the left lane even if the tractor did not cross into that lane.  Schorr illustrated his testimony with a computer simulation.

     Defendants presented testimony from John Desch (Desch), a professional engineer, who was qualified to testify as an expert in traffic engineering and accident reconstruction. Desch testified that, at the time of the collision, the Cosenza vehicle was likely traveling at a speed above the speed limit of sixty-five miles per hour. Desch also testified that there was no physical evidence that McWilliams vehicle ever left the right lane prior to the collision. 

In addition, plaintiff presented medical testimony from Dr. Steven Nehmer and Dr. John Greenberg. Defendants did not present any medical testimony. 

     At the charge conference, defendants requested that the court charge the jury in according with Virginias model jury instructions relating to reasonable speed, exceeding the speed limit, the right of a driver to assume that the other driver is not speeding, and the duty of a guest passenger in a speeding vehicle to take action regarding the speed at which the vehicle is traveling. The trial court had previously ruled that the law of Virginia would be applied in this case. 

     The trial court denied the application, finding that there was no specific testimony indicating that Devon had been driving faster than the speed limit. The court noted the Devon testified that she had been traveling faster than the speed limit, but that was about an hour before the collision. The court also noted that McWilliams was unable to estimate the speed of the Cosenza vehicle. The court additionally pointed out that McWilliams testified that, prior to the accident, he slowed his vehicle down and he could have been traveling at fifty or fifty-five miles per hour.

     According to the court, Desch had no idea as to the exact speed that the Cosenza vehicle was traveling. The court concluded that, "to permit [the requested] charge[s] would invite nothing but speculation on behalf of the jury as to whether or not [the Cosenza] vehicle was traveling at a rate of speed in excess of the speed limit[.]"

     Plaintiff also moved to strike the portions of Deschs testimony regarding the speed at which the Cosenza vehicle had been traveling at or about the time of the accident. The court granted the motion and stated that it would instruct the jury to disregard Deschs testimony that the Cosenza vehicle was likely traveling at a speed in excess of the speed limit at the time of the accident.  

     After counsel gave their closing arguments and the court provided its instructions, the jury began its deliberations.  While the jury was deliberating, plaintiff settled his claims against Devon. The jury thereafter returned a verdict finding that Devon had been negligent in the operation of her vehicle and her negligence was a proximate cause of the accident.  The jury also found that McWilliams had not been negligent.  The jury awarded plaintiff $422,000 in damages. On February 5, 2009, the trial court entered a judgment dismissing plaintiffs claims against McWilliams, in accordance with the jurys verdict. 

     Plaintiff subsequently filed a motion for a new trial. The court considered that motion on May 15, 2009, and placed its decision on the record on June 25, 2009, in which it concluded that the motion should be denied.  The court entered an order dated June 25, 2009, memorializing its decision.  This appeal followed.

II.

     Plaintiff argues that the jurys verdict was against the weight of the evidence. Plaintiff contends that the evidence did not support the jurys finding that McWilliams had not been negligent in the operation of his tractor-trailer.  Plaintiff additionally contends that the amount of damages awarded to him shows that the jury failed to abide by the courts instructions. We find no merit in these contentions.

When considering a motion for a new trial, the trial court must determine whether "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). In determining whether to grant a new trial, the trial court may not substitute its own judgment for that of the jury. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). 

 Rather, the trial court must "canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict." Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). A jurys verdict is entitled to a presumption of correctness.  Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). Furthermore, a jurys evaluation of the evidence should be afforded "the utmost regard." Love v. Natl R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004).  

The trial court correctly applied these principles when it denied plaintiffs motion for a new trial. In the decision placed on the record on June 25, 2009, the court found that there was sufficient evidence for the jury to rationally find that McWilliams had not been negligent in the operation of his vehicle. 

The court pointed out that plaintiff had not presented any dispositive proof that McWilliams negligently operated his tractor-trailer. The court noted that the trial testimony of plaintiff and Devon concerning the accident was, in certain respects, "contradictory and/or inconsistent." Moreover, Devons trial testimony was inconsistent with her deposition testimony, as well as information on the police report.

The court also pointed out that both plaintiff and Devon had demonstrated a lack of recollection about critical events that occurred after Devons "evasive maneuver and/or in reaction to [McWilliams] trailer." The court found that this evidence could have affected the jurys assessment of the credibility of plaintiff and Devon, "as well as the reliability of their testimony."

In addition, the court noted that Schorr had presented a computer simulation to show that, based on the laws of physics, it is virtually impossible to keep a tractor-trailer within a single lane of travel, even without any attempt by the driver to change lanes or any improper operation of the vehicle. The court then observed that, based on this evidence, even if the jury determined that McWilliams tractor-trailer passed over into the left lane of travel, it could have found that this was due to the operation of the laws of physics, rather than any negligence on the part of McWilliams. 

In addition, the court noted that it had charged the jury, in accordance with Virginia law, that a vehicle must be driven "as nearly as practical entirely within a single lane, and shall not be moved from such lane until the driver of such vehicle in the exercise of ordinary care ascertains that such movement can be made with safety." The court found that, in light of Schorrs testimony, a reasonable jury could find that McWilliams did, in fact, drive his tractor-trailer "as nearly [as] practical," within a single lane of travel.

We are convinced that the record fully supports the trial courts findings. We are therefore satisfied that there was sufficient evidence in the record from which the jury could reasonably find that McWilliams had not operated his tractor-trailer in a negligent manner. 

Plaintiff further argues that the amount of damages "awarded" to him shows that the verdict was a miscarriage of justice under the law. As we noted previously, plaintiff settled his claims against Devon before the jury returned its verdict. Because the jury did not find McWilliams negligent in this matter, the damages were awarded against Devon.  However, the jurys damage award was moot in light of the settlement. 

Plaintiff nevertheless argues that the damage award was inadequate and establishes that the no-cause verdict against McWilliams was a miscarriage of justice under the law. We disagree.  In our view, the record fully supports the trial courts determination that the damage award represented fair and reasonable compensation, based on the medical evidence in the case. 

     In its decision on plaintiffs motion for a new trial, the court pointed out that plaintiff had sustained a fracture of the thoracic spine and a laceration of the scalp. The court noted that, within five months after the accident, plaintiff had returned to work on a part-time basis as a paperhanger/painter.  The evidence established that plaintiff had a full range of motion in his neck and back and full neurological functioning of the thoracic spine. The court also noted that the evidence showed that the fusion of the thoracic spine had little effect on plaintiffs mobility, since his spine normally has limited range of motion to begin with, as opposed to the other spinal areas.

     Moreover, plaintiffs scalp laceration had completely healed with no visible scarring, except on close inspection of the scalp, and plaintiff had not experienced any residual post-concussion syndrome as of the date of the trial. Plaintiff had normal mental status and behavior, no residual depression and normal neurological functioning. In addition, plaintiff showed no discomfort from the scar, nor was he self-conscious about it. 

We are convinced that the record fully supports the courts finding. We are therefore satisfied that the trial court correctly determined that the damages awarded to plaintiff constituted fair and reasonable compensation for plaintiffs injuries. We reject plaintiffs contention that the damage award of damages indicates that the jury failed to follow the courts instructions and the verdict regarding McWilliams was a miscarriage of justice. 

III.

 Next, plaintiff argues that a new trial was required because of certain comments made by McWilliams attorney in his summation.  Again, we disagree.

As we stated previously, the trial court granted plaintiffs motion to strike Deschs opinion regarding the speed that the Cosenza vehicle had been traveling at or about the time of the accident.  Before the summations, the trial court had instructed the jurors that it had stricken Deschs testimony on this point.  The court also told the jury that it could not consider that testimony in its deliberations.

     During his closing argument, McWilliams attorney argued that the evidence presented during the trial did not establish that McWilliams drove his tractor-trailer negligently. He reviewed the testimony. Among other things, counsel pointed out the inconsistencies between Devons trial testimony and her statements to Trooper Hawkins, her deposition testimony and the physical evidence in the case. Counsel also noted the inconsistencies in Devons statements about the speed at which she had been traveling. McWilliams attorney did not argue that Devon was negligent because she exceeded the speed limit. He did, however, assert that Devons version of the accident made no sense and her statements concerning the accident were not credible. 

     In its decision on plaintiffs motion for a new trial, the court noted that, during the trial, it had only ruled that Deschs testimony regarding the speed of the Cosenza vehicle was not supported by the record. The court pointed out that it had not ruled that the testimony made regarding the speed of the Cosenza vehicle could not be considered by the jury for any purpose.

     The court found that McWilliams attorney had properly argued that Devons statements regarding the speed at which she was traveling had a bearing on the credibility of her other statements regarding the accident. The court added that the speed at which the Cosenza vehicle was traveling had little or no relevance to the issue of McWilliams negligence. The court observed that a finding that Devon had operated the SUV negligently did not preclude a finding that McWilliams also had been negligent in operating his tractor-trailer.

     We are convinced that the record fully supports the courts findings. We are satisfied that the comments by McWilliams attorney regarding the speed at which the SUV was traveling were fair comment on the evidence, and the evidence was relevant to the credibility findings the jury was required to make in this case.  

     Plaintiff also argues that he was denied a fair trial because McWilliams attorney had referred in his summation to plaintiffs and Devons attorneys as the "Cosenza family attorneys."  Plaintiff asserts that this comment gave the jury the impression that he was pursuing his claim in bad faith and he was "in some sort of collusion" with his daughter.  The trial court determined that his remark, although "regretful and somewhat inappropriate" was not prejudicial.

     In our view, the trial court correctly recognized that the comment by McWilliams counsel merely stated what was obvious throughout the trial: that the positions of plaintiff and Devon as to McWilliams alleged negligence were the same. The remark was not meant to disparage plaintiff, Devon or their attorneys.  The trial court properly determined that plaintiff was not prejudiced by the remark. 

     Affirmed.    


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

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