PER CURIAM.
This personal injury action arose out of a collision between the parties' automobiles that occurred when defendant made a left turn in front of plaintiff. Defendant appeals from an order denying her motion for a new trial and for an order vacating the judgment the court entered on the jury's verdict. The jury awarded plaintiff $125,000 in damages, to which the court added a monetary sanction, interest, and costs.
On appeal, defendant argues the court erred by directing a verdict in plaintiff's favor on defendant's claim that plaintiff was negligent. Defendant also alleges the court erred by misstating the law when it charged the jury on the concepts of permanent injury and aggravation of a pre-existing injury. Finding no merit in defendant's arguments, we affirm.
Plaintiff commenced this action by filing a complaint alleging he sustained injuries in an automobile accident caused by defendant's negligence. Defendant answered and alleged, among other separate defenses, plaintiff's comparative negligence. The case was tried before a judge and jury during the first three days in November 2016.
Following the close of all the evidence, the court granted plaintiff's motion for a directed verdict that he was not negligent and dismissed defendant's comparative negligence defense. The court found no evidence from which the jury could have inferred plaintiff was negligent. After the court dismissed defendant's comparative negligence defense, plaintiff moved for a directed verdict on liability. The court granted the motion.
The jury determined plaintiff had sustained a permanent injury and returned a damage verdict in his favor. Defendant filed a motion for a new trial, which the court denied. This appeal followed.
Four witnesses testified at trial: plaintiff, his wife, his medical expert, and defendant's medical expert. Plaintiff was the only witness to give an account of the accident. He testified it happened on Buckelew Avenue in Jamesburg, a few blocks from the home where he had lived for approximately thirty-three years. Northbound Buckelew Avenue — plaintiff's direction of travel — has two lanes at its intersection with Pergola Avenue. At the same location, southbound Buckelew Avenue — defendant's direction of travel — has two lanes, one for through traffic and one for traffic turning left. There are no traffic lights, stop signs, or other traffic control devices for traffic travelling north and south on Buckelew Avenue. The speed limit is thirty-five miles per hour.
On the day of the accident the weather was clear and the road was dry. Plaintiff was driving his Nissan Altima at a speed of thirty miles per hour when defendant, driving her Toyota, made a sharp left turn in front of him to turn onto Pergola Avenue. She did not stop before turning left. When defendant turned in front of him, plaintiff slammed on the brakes and grabbed the wheel but could not avoid the collision. According to plaintiff, "[l]ike one second" elapsed from the time defendant turned sharply in front of him until the impact.
Plaintiff's Altima sustained damage to the passenger side of the front bumper and the front of the car near the passenger-side headlight. Defendant's Toyota sustained damage to the rear passenger side. The damage to defendant's car did not extend to the rear passenger side taillight.
Plaintiff's medical expert, an orthopedic specialist, testified plaintiff sustained permanent injuries to his neck and back as a result of the accident. The doctor testified plaintiff sustained "a chronic post-traumatic cervical and lumbar strain and sprain patterns"; "dis[c] herniations at C4-5, C6-7"; and "cervical facet joint syndrome." The doctor also testified plaintiff "sustained aggravation of pre-existing, quiescent, age-related degenerative dis[c] disease and osteoarthritis of [the] cervical spine." The pre-existing condition was asymptomatic before the accident.
In addition, the expert testified plaintiff sustained a "dis[c] herniation at L4-L5, a lumbar radiculopathy confirmed by. . . EMG." Plaintiff also sustained a lumbar facet joint syndrome. Plaintiff's "pre-existing, age-related, multi-level degenerative dis[c] disease in the lumbar spine" was aggravated as the result of the injuries plaintiff sustained in the accident.
Plaintiff's orthopedic expert acknowledged a possibility that plaintiff's herniated cervical and lumbar discs could have pre-dated the accident and been caused by the degenerative conditions seen in plaintiff's cervical and lumbar spine on magnetic resonance imaging (MRI) scans.
Plaintiff presented proofs as to the course of his medical treatment, including an emergency room hospital visit the day after the accident; chiropractic treatment and physical therapy; and trigger point injections.
Defendant presented the testimony of an orthopedic surgeon who had examined plaintiff at her request. He disputed plaintiff's expert's testimony. According to defendant's orthopedic surgeon, the condition of plaintiff's lumbar and cervical discs, seen on the MRI scans, was due to longstanding disc and bone degeneration, not the trauma from the accident. Defendant's doctor opined plaintiff "did not sustain any permanent injury to his neck or back in that accident."
When defendant rested, plaintiff moved for a directed verdict, seeking dismissal of defendant's comparative negligence defense. The court noted it had listened to defendant's testimony and replayed it earlier in the morning. Giving defendant the benefit of all reasonable inferences from the evidence, the court determined there was no basis to impose liability on plaintiff.
Following the court's ruling, plaintiff moved for a directed verdict on liability. The court found plaintiff's testimony as to how the accident occurred established defendant's liability. Even giving defendant the benefit of all reasonable inferences, no reasonable juror could find otherwise.
Plaintiff was subject to the limitation on lawsuit threshold, N.J.S.A. 39:6A-8(a), and was therefore required to prove he sustained a permanent injury in order to recover for noneconomic loss. The trial court explained the issue to the jury in its charge:
Later, when charging the jury on damages, the court explained:
The court further explained:
On appeal, defendant first argues the trial court erred by directing a liability verdict in favor of plaintiff. She contends reasonable jurors could conclude from the photographic evidence defendant had almost entirely completed her turn and cleared the intersection when the impact occurred, and that "jurors could have concluded that it was not possible that [p]laintiff failed to see [d]efendant's vehicle until one second before impact, as he testified." Defendant also asserts the jury could have disbelieved plaintiff's testimony regarding his speed in view of "his testimony that he `slammed' on his brakes but was still travelling [sic] at about the same speed as he was when he first observed [d]efendant's vehicle."
Last, defendant argues she was prejudiced by the directed verdict and its implications that "she had not only acted unreasonably in causing the accident, but also in contesting the issue in court, thereby wasting the jury's time."
Plaintiff responds that defendant's argument is based on a misstatement of the evidence, namely, that plaintiff failed to observe defendant's Toyota until one second before impact. Plaintiff testified not that he first saw the Toyota one second before impact, but rather one second elapsed between the time defendant suddenly turned and the impact. Plaintiff asserts neither the photographs nor his familiarity with the intersection negates the fact defendant made a sudden left turn in front of him and he had insufficient time to react and avoid the accident. Plaintiff rejects defendant's claim she was somehow prejudiced because she pled plaintiff's comparative negligence but could not prove it.
A party is authorized by
When "reviewing a trial court's decision on a motion for a directed verdict, this court `appl[ies] the same standard that governs the trial courts.'"
Applying these principles to the facts the parties developed in the case before us, we reach the same conclusion the trial court reached: there was no triable issue as to defendant's negligence or plaintiff's comparative negligence.
We begin our analysis with the longstanding proposition that the mere happening of an accident raises no presumption of negligence.
Generally, to prove negligence, a plaintiff must establish a defendant did not take the "precautions a reasonably prudent [person] in the position of the defendant would have taken."
This principle applies to motor vehicle negligence claims.
A driver making a left turn in front of traffic has an elevated duty of care. When a driver seeks to make a left turn across the path of other traffic, the driver has a "duty to await an opportune moment for the turn and `exercise an increased amount of care in proportion to the increased danger' involved in the turn."
If a plaintiff proves a defendant's negligence, the fact-finder's inquiry does not necessarily end there. "Unless public policy dictates otherwise, whenever a plaintiff's conduct contributes to an event negligently caused by a defendant, the plaintiff's comparative fault should be submitted to the factfinder for determination."
In the case before us, the undisputed evidence established defendant violated her duties to wait for an opportune moment to make her left turn and exercise an increased amount of care when turning across traffic. Plaintiff's testimony established defendant, without warning, turned suddenly in front of him. The photographic evidence and damage to the vehicles supported plaintiff's proofs that defendant turned left in front of him, and defendant never argued otherwise. Plaintiff's uncontradicted testimony and the photographic evidence were "so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind."
On the other hand, defendant did not sustain her burden of proving plaintiff's comparative negligence. Her argument to the trial court, as well as the argument in her appellate brief on this point, are based on a faulty factual premise: plaintiff did not see defendant's car until one second before impact. That was not plaintiff's testimony. Rather, he testified perhaps one second elapsed between the inception of defendant's sudden left turn and the impact between the cars.
Defendant presented no evidence as to the distance between her car and plaintiff's at the inception of her turn, the distance traversed by her car during the interval between the inception of her left turn and impact, or her speed. She provided no explanation of a driver's reaction time.
We are also unpersuaded by defendant's argument that she was prejudiced by the directed verdict and the implication she had acted unreasonably both in causing the accident and in contesting her liability. Obviously, a trial court should not submit to the jury claims or defenses unsupported by competent evidence merely because a party has pled a cause of action or affirmative defense she cannot prove.
In her second point, defendant argues the court gave erroneous or confusing jury instructions concerning whether plaintiff had sustained a "permanent injury" and when plaintiff was permitted to recover for pre-existing conditions. We have considered the argument and determined it to be without sufficient merit to warrant discussion in a written opinion.
Affirmed.
