Opinion
DOCKET NO. A-5558-13T2
03-02-2015
DOAA DASHOUSH and MAZEN DIAB, Plaintiffs-Respondents, v. HAROLD GILLIAM AND NEW JERSEY TRANSIT CORPORATION, Defendants-Appellants.
John J. Hoffman, Acting Attorney General, attorney for appellants (Melissa H. Raksa, Assistant Attorney General, of counsel; Carla Pereira, Deputy Attorney General, on the briefs). Joworisak & Associates, LLC, attorneys for respondents (Donald T. Joworisak, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0860-12. John J. Hoffman, Acting Attorney General, attorney for appellants (Melissa H. Raksa, Assistant Attorney General, of counsel; Carla Pereira, Deputy Attorney General, on the briefs). Joworisak & Associates, LLC, attorneys for respondents (Donald T. Joworisak, on the brief). PER CURIAM
By leave granted, defendants New Jersey Transit Corporation (NJ Transit) and Harold Gilliam appeal the Law Division's June 2, 2014 order vacating a jury verdict finding no cause of action with respect to plaintiff Doaa Dashoush's personal injury claim against them and ordering a new trial. We reverse.
Dashoush's husband, plaintiff Mazen Diab, asserted a per quod claim.
I.
We discern the following facts and procedural history from the record on appeal.
On July 21, 2011, at approximately 6:30 p.m., Gilliam was driving a NJ Transit bus without passengers. He entered the New Jersey Turnpike at the Exit 16E interchange, intending to proceed south on the Turnpike. At the same time, Dashoush was driving her car on the Turnpike, proceeding in the same direction.
Gilliam went through the toll booth on the far right. There were nine southbound lanes when Gilliam left the toll booth, and Gilliam was in the far right lane. The lanes then started to merge. By the time the merging was complete, there would only be three travel lanes continuing south. At the point of the final merge, there was a fourth lane, at the far right, which was solely an exit for the Alexander Hamilton Service Area and marked as such.
At the time Gilliam left the toll booth, the traffic was heavy and moving slowly because of the need to merge into three travel lanes. Gilliam continued in the right lane as the other lanes merged together and the roadway narrowed. He reached the point at which the only lanes left were the three southbound travel lanes and the lane into the service area, which was to the right of the travel lanes. Gilliam was driving in the exit lane and needed to merge left so he could get into a travel lane.
As Gilliam continued driving in the exit lane, he looked for an opportunity to merge left into a travel lane. The travel lane was next to him on his left, but separated from the exit lane by a solid white line. Dashoush was driving in the travel lane next to Gilliam. According to Gilliam, he saw Dashoush's car stopped in her lane and believed she intended to allow him into the travel lane.
Gilliam began to move to the left into the travel lane in front of Dashoush. He was almost into the lane when Dashoush blew her horn and accelerated, which caused him to apply his brakes. As a result, Dashoush's car collided with the driver's side of the bus, hitting its rear wheel and bumper. According to Dashoush, the impact and her resulting movement inside of her vehicle resulted in orthopedic injuries.
Dashoush filed suit against Gilliam and NJ Transit in or around February 2012. Following the filing of defendants' answer and completion of discovery, the case was tried over three days in February 2014. Dashoush and her medical expert testified, after which the trial judge denied the defendants' motion for involuntary dismissal. Gilliam and his two medical experts then testified for the defense.
After summations and the jury charge, the jury deliberated for approximately ten minutes. It found that Gilliam was negligent, but that his negligence was not a proximate cause of the accident. The trial judge entered a judgment in favor of NJ Transit and Gilliam.
Dashoush filed a motion for a new trial, arguing that the jury's finding that Gilliam was negligent but that his negligence was not a proximate cause of the accident was inconsistent and should be set aside. Following oral argument on May 15, the trial judge delivered an oral decision explaining his reasons for granting the motion and ordering a new trial. The implementing order was entered on June 2. We granted leave to appeal on July 31.
II.
Defendants argue on appeal that the trial judge erred in granting the motion for a new trial because the jury's verdict was supported by evidence in the record and was not inconsistent.
Rule 4:49-1(a) provides that a trial judge shall grant 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." A jury verdict should be set aside "only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).
A judge may not vacate a jury verdict unless he or she determines "that the continued viability of the judgment would constitute a manifest denial of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). Such a determination must be "carefully reasoned and factually supported (and articulated)," and may be made only after the judge has "canvass[ed] the record and weigh[ed] the evidence." Id. at 597.
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 has been established, 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 Charge (Civil), 6.10, "Proximate Cause — General Charge to Be Given in All Cases" (1998) ("The basic question for you to resolve is whether [Dashoush]'s injury/loss/harm is so connected with the negligent actions or inactions of [Gilliam] that you decide it is reasonable . . . that [Gilliam] should be held wholly or partially responsible for the injury/loss/harm."). The defendant's conduct must be, at the very least, a "substantial factor" in producing the claimed loss. See James v. Arms Tech., Inc., 359 N.J. Super. 291, 311 (App. Div. 2003) (observing that "a tortfeasor will be held accountable if its negligent conduct was a substantial factor in causing the injury even when there are other 'intervening causes which were foreseeable or were normal incidents of the risk created'" (quoting Rappaport v. Nichols, 31 N.J. 188, 203 (1959))).
The issue before us is whether the jury's determination that Gilliam's negligence was not a proximate cause of the accident was "clearly and convincingly," Rule 4:49-1(a), a "manifest denial of justice," Baxter, supra, 74 N.J. at 598. In Neno v. Clinton, 167 N.J. 573, 588 (2001) and Pappas v. Santiago, 66 N.J. 140, 143 (1974), the Supreme Court overturned jury verdicts because there was no conceivable reason for the jury to have found negligence but no proximate cause. If Gilliam's negligence was necessarily a "substantial factor," James, supra, 359 N.J. Super. at 311, in causing the accident, then the verdict was inconsistent and was appropriately set aside. If, however, there is a basis in the record to support a finding that Gilliam's negligence was not a substantial factor in causing the accident, there was no inconsistency and no basis to set the jury verdict aside.
Gilliam testified that
it looked like [Dashoush] had stopped so I could get in because I got the bus up to the back wheel. Then evidently [she] panicked and [she] hit the horn and the gas at the same time and [she] hit the -- behind the wheel, between the wheel and the bumper [she] came on me. When that -- I seen [her] hit the gas I stopped right there, and that's what caused the collision.If the jury believed that testimony, which it was entitled to do, the jury could well have concluded that, even though Gilliam was negligent in staying in the exit lane and then moving left over a solid white line to enter the travel lane, the accident would not have happened had Dashoush not suddenly accelerated into the back of the bus after pausing to allow it to enter her lane.
Dashoush argues that Gilliam's testimony was contradictory and inconsistent with his deposition testimony and should not have been credited, but credibility was a question for the jury.
--------
Based on the testimony, the jury could have found that Dashoush and Gilliam were both negligent, that their negligent acts were proximate causes of the accident, and that Dashoush was more negligent than Gilliam. In that case, Dashoush would not have recovered damages because her apportioned share of the negligence was more than fifty percent. N.J.S.A. 2A:15-5.1. Such a verdict would have been supported by the record.
Similarly, we are satisfied that the record supports a finding that, although Gilliam was negligent, his negligence was not a substantial factor in causing the accident because of Dashoush's overwhelming negligence in accelerating into the bus after it had begun entering her lane. Consequently, this is not a case, like Neno and Pappas, in which there was no conceivable basis in the record for the jury's verdict.
As a result, the jury's verdict was not "clearly and convincingly . . . a miscarriage of justice under the law," Rule 4:49-1(a), and the trial judge erred in granting the motion for a new trial. For that reason, we reverse and remand for entry of a judgment in favor of defendants.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION