Tichenor v. Santillo

• Decision Date: 22 May 1987
• Parties: Geraldine H. TICHENOR and Wayne Tichenor, her husband, Plaintiffs-Respondents, v. Jeannie L. SANTILLO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 165

218 N.J.Super. 165

527 A.2d 78

Geraldine H. TICHENOR and Wayne Tichenor, her husband Plaintiffs-Respondents, v. Jeannie L. SANTILLO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted April 13, 1987.

Decided May 22, 1987.

Methfessel & Werbel, Rahway, for defendant-appellant (Mark H. Daaleman, Westfield, on the brief).

Marra, Gerstein & Richman, Edison, for plaintiffs-respondents (Anthony J. Marra, Jr., on the brief).

Before Judges PETRELLA, BILDER and SCALERA.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

In this motor vehicle negligence action the jury rendered a $5,000 verdict ¹ in favor of plaintiffs, but concluded that plaintiff ² Geraldine H. Tichenor was herself 40% negligent. The judge molded the verdict and entered judgments for 60% of $2,500 plus $350 in interest on each. Plaintiffs' subsequent motion for judgment notwithstanding the verdict, or in the alternative a new trial, was granted by an order in which judgment was entered for the full monetary amount, eliminating the jury's determination of negligence attributable to plaintiff.

Defendant appeals on the ground that the judge improperly amended the jury verdict. She argues that the jury's determination that plaintiff was 40% negligent should be reinstated. Plaintiffs oppose the appeal, but argue alternatively that, even assuming the judgment is set aside so as to reinstate the jury verdict, the percentage of negligence should only operate to reduce the claim of the injured plaintiff, and not reduce the per quod award. That issue was not presented to the trial judge when she molded the jury verdict.

The only evidence as to liability at the trial was given by plaintiff and through various photographs and diagrams. The facts are not unduly complicated. On October 6, 1983, at about 2:30 p.m., plaintiff was driving in a northerly direction on Main Street in Metuchen in an area where the posted speed limit is 30 miles per hour. She testified that she observed two very large Public Service trucks parked in the north-bound lane on her right hand side. Defendant Jeannie Santillo was attempting to exit a gasoline station by way of the driveway in front of the parked trucks and her automobile collided with plaintiff's vehicle. Defendant did not testify. Plaintiff testified to a statement she heard defendant make to the police that defendant could not see the road because her view was obstructed by the two Public Service trucks.

Plaintiff said that she was familiar with the gas station on that particular corner and the location of the intersecting street. She was able to observe that one driveway to the gas station was blocked and that only the other driveway was open. She first saw defendant's vehicle when it was about eight feet away. Although she slammed on her brakes, her car made contact with the left front fender of defendant's car. This caused damage to her vehicle's headlights, bumper, grill and hood. She also sustained injury to her neck.

At the end of the case plaintiffs unsuccessfully moved to strike the defense of comparative negligence. Defense counsel argued that it was the jury's function to determine credibility and pointed out that it would have the photograph to compare with the testimony. The judge noted that the jury could find that the plaintiff had not been exercising reasonable caution. It could compare her testimony about her speed with the physical evidence in the photograph.

In denying plaintiff's motion to strike the comparative negligence defense the judge said ... the jury could conclude that the plaintiff having been familiar with this roadway and with the exits of the gas station--she said she went this way every day--and on that day seeing the trucks blocking one exit and the second truck blocking a part of the second exit, I suppose a jury might reasonably conclude that she ought to have been a little more careful in approaching and going past that second exit; that instead of going 28 miles, 25 miles per hour as she said that [was] about what she had reached as she pulled onto Main Street, that she should have been going something like 5 miles, creeping past that blockage. I think that's not--that would not be beyond the realm of reason even without the testimony of the defendant.

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... it is undisputed that one exit was fully blocked, and the second exit was partially blocked; large trucks from the photos, one can see that the roadway is not that wide, and I think a reasonable juror could conclude that she ought to have taken more care going past to make sure she wasn't going to hit someone coming out; so I will deny your motion.

On plaintiff's motion for judgment n.o.v. or for new trial, however, the judge stated that she should have granted plaintiffs' motion to strike the comparative negligence defense when it was originally made. The judge essentially concluded that plaintiff conformed to the standard of conduct of a reasonably prudent person, and that the jury could have reached no other conclusion. She therefore granted the motion for judgment n.o.v.

I

A jury's verdict is not lightly overturned. We are duty bound to give it substantial deference, and we "cannot invade the constitutional office of the jury." Wytupeck v. Camden, 25 N.J. 450, 466, 136 A.2d 887 (1957). Nor do we substitute our judgment for that of the initial finder of fact. Dolson v. Anastasia, 55 N.J. 2, 6, 258 A.2d 706 (1969). Likewise, we do not act as a "thirteenth and decisive juror," ibid., nor the seventh juror in a civil case tried by six jurors. Rather, the jury's verdict "is entitled to very considerable respect." Baxter v. Fairmount Food Co., 74 N.J. 588, 597, 379 A.2d 225 (1977). As stated in Carrino v. Novotny, 78 N.J. 355, 360, 396 A.2d 561 (1979), "a jury verdict, from the weight of evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice."

Clearly, the duty to exercise reasonable care between persons using or about to use a public highway is mutual. Tischler v. Steinholtz, 99 N.J.L. 149, 151, 122 A. 880 (E. & A. 1923); German v. Harris, 106 N.J.L. 521, 523, 148 A. 619 (E. & A. 1930); Van Rensselaer v. Viorst, 136 N.J.L. 628, 631, 57 A.2d 49 (E. & A. 1948). An approaching driver is justified in assuming, until he discovers to the contrary, that all other users of the highway will exercise reasonable care. Toole v. Twentieth Century Operating Co., 121 N.J.L. 244, 248, 1 A.2d 389 (E. & A. 1938); Niles v. Phillips Express Co., 118 N.J.L. 455, 460, 193 A. 183 (E. & A. 1937); Goldstone v. Tuers, 189 N.J.Super. 167, 169, 459 A.2d 691 (App.Div.1983); Matthews v. Nelson, 57 N.J.Super. 515, 518, 155 A.2d 111 (App.Div.1959), certif. den. 31 N.J. 296, 157 A.2d 364 (1960). It is ordinarily for the jury to determine the standard of care of a reasonable man in automobile negligence cases. Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463, 483, 251 A.2d 278 (1969); Ambrose v. Cyphers, 29 N.J. 138, 144-145, 148 A.2d 465 (1959).

Here, even though plaintiff was the only person who testified on the liability aspect of the case, it was clear that she knew that two large utility trucks were parked on her right and blocked one exit of the gas station. She was familiar with that gas station and knew also that the far exit in front of the vehicles was partially blocked. Where the view of a roadway ahead is impaired by an obstruction a driver of a motor vehicle has a duty to exercise care commensurate with the risk of the hazard presented. Finley v. Wiley, 103 N.J.Super. 95, 100-101, 246 A.2d 715 (App.Div.1968); Boody v. Good Bros., 31 N.J.Super. 439, 443, 107 A.2d 31 (App.Div.1954), aff'd o.b. 17 N.J. 393, 111 A.2d 497 (1955). The operator of a motor vehicle in such a situation is required to exercise reasonable care, that is, such care as the existing conditions require, and to have her vehicle under such control as to be able to stop, if necessary, to avoid harm to others on the highway. Osbun v. DeYoung, 99 N.J.L. 204, 208, 122 A. 809 (E. & A. 1923); McGowan v. Barry, 210 N.J.Super. 469, 473, 510 A.2d 95 (App.Div.1986); Greenfield v. Dusseault, 60 N.J.Super. 436, 441, 159 A.2d 433 (App.Div.1960), aff'd 33 N.J. 78, 161 A.2d 475 (1960); Levine v. Scaglione, 95 N.J.Super. 338, 341, 231 A.2d 229 (App.Div.1967). See also Model Civil Charge, Negligence, § 5.18(G)4.

We have canvassed the record in this case, and considered the judge's reasons for setting aside the verdict. No sound basis exists for disturbing the jury's findings and conclusions relating to plaintiff's negligence. Our review of the record satisfies us that the jury could properly have concluded that plaintiff was partially at fault in the situation presented. See Beck v. Washington, 149 N.J.Super. 569, 572, 374 A.2d 478 (App.Div.1977). Accordingly, the trial judge erred in setting aside the jury's determination that plaintiff was 40% negligent.

II

Plaintiffs' alternative argument is that any reduction of the jury award by virtue of negligence on plaintiff's part should not apply to her husband's per quod award, relying on Tornquist v. Perkowski, 208 N.J.Super. 88, 107, 504 A.2d 1226 (Law Div.1984). We disagree, and to the extent that Tornquist is inconsistent with our opinion, we now overrule it. Tornquist considered, but was unable to harmonize, the acknowledged "derivative" nature of a per quod claim with characterization of such a claim as "separate" and "independent." Id. at 96-97, 504 A.2d 1226. Even though loss of consortium may be separate and independent (in the sense of distinct) as an element of a damage claim, it is still derivative and dependent on the degree of negligence of the spouse asserting the personal injury claims.

The judge in Tornquist relied in part on Orr v. Orr, 36 N.J. 236, 176 A.2d 241 (1961). A claim for medical expenses and loss of services had been...