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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1839-06T11839-06T1 RONYE A. LEDER and HARVEY LEDER, her husband, Plaintiffs-Appellants, v. KUMI L. SARPONG, JACKSON TRUCKING, INC., ANTHONY J. FRESCA, POMPONIO TRUCKING, INC., and CARMEN B. POMPONIO, JR., Defendants, and AMMIE R. CRUZ, Defendant-Respondent. ___________________________________

Submitted October 29, 2007 - Decided. Before Judges Lintner and Graves. On appeal from the Superior Court of New Jersey, Law Division, Mercer County,

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L-240-01. Edward Slaughter, Jr., argued the cause for appellants (Pellettieri, Rabstein and Altman, attorneys; Mr. Slaughter, on the brief). George A. Amacker argued the cause for respondent (David B. Wright & Associates, attorneys; Mr. Amacker, on the brief). PER CURIAM Plaintiff, Ronye Leder, and her husband, Harvey, filed a complaint seeking damages for personal injuries suffered by Ronye in a multi-vehicular collision occurring on Route 130 on June 24, 1999. The complaint named Kumi Sarpong and his employer, Anthony J. Fresca, Carmen B. Pomponio and his employer, and Ammie Cruz as defendants. Plaintiff appeals from the trial judge's denial of her motion for new trial following a jury verdict of no cause for action in favor of defendant. We affirm the judgment of no cause for action and the order denying plaintiff's motion for new trial. At approximately 7:00 a.m. on June 24, 1999, Anthony Fresca attempted to make a U-turn from the northbound to the southbound lanes of Route 130 by crossing the median in an area marked with a no-turn sign. While Fresca was attempting the maneuver, a truck, operated by Kumi Sarpong, traveling in the northbound left lane collided with the driver's side of Fresca's tractor trailer. Sergeant Michael Grischuk arrived at the scene and found Fresca's truck in the median with his trailer blocking the left lane and part of the right northbound lanes. Although Fresca's vehicle was partially in the right lane, vehicular traffic was able to pass by using the right lane and shoulder. Sarpong's truck came to rest partially in the left lane and partially in the median. Carmen Pomponio, who had been following Fresca in the northbound lane, pulled his truck over to the right shoulder, north of the Fresca-Sarpong accident. Approximately five minutes after the Fresca-Sarpong accident and while he was sitting in the driver's seat of his truck, Pomponio "heard something behind [his] vehicle . . . [and saw plaintiff's] car careening out of control towards [his] trailer." Plaintiff testified that she was operating her car in the right northbound lane at thirty-five- to forty-miles-per-hour. All she could remember was seeing trucks out of the corner of her eye before being cut off by a dark SUV. She instinctively turned away from the SUV into Pomponio's truck. She could not remember if she applied her brakes. The front right side of plaintiff's car collided with the left rear portion of Pomponio's trailer. According to Pomponio, he believed plaintiff's car then bounced to the left, coming to rest partially in the left and partially in the right northbound lanes. Pomponio also believed that defendant's and plaintiff's vehicles were "close together" with defendant in the left lane and plaintiff in the right lane. He stated that, when plaintiff's car hit his truck, she bounced to the left and collided with defendant. Defendant remembered driving in the right lane one-half mile before the accident. Defendant testified that
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she was in the right lane immediately before her air bag deployed, stating that she is "always [in] the right lane," and "I know I was most of the time in the right lane." She could not remember seeing the trucks or plaintiff's vehicle swerve to the right and collide with Pomponio's truck. The last thing she remembered was that she was following behind a car about fifteen minutes before the accident. Officer Kenneth Drost responded to the scene of the Pomponio-Leder-Cruz accident. Drost found Pomponio's truck on the shoulder, plaintiff's car "alongside the left rear of the tractor trailer in the right lane facing in a northeasterly direction on an angle," and defendant's car directly behind plaintiff's car in the right lane. Pomponio's vehicle was damaged near its left rear wheels. Plaintiff's vehicle had front-end and right-side damage, and defendant's vehicle had front-end damage. According to Drost, the front-end damage to plaintiff's car was caused by the impact with Pomponio's truck, which caused plaintiff's car to rotate clockwise. He testified that the right-side damage to plaintiff's car was then caused by the collision with defendant's car. He related that plaintiff told him she was cut off by an unknown vehicle and defendant could not give a clear statement as to what happened. Both plaintiff and defendant were taken from the scene by ambulance. On appeal, plaintiff relies on Dolson v. Anastasia, 55 N.J. 2 (1969), asserting that the verdict was against the weight of the evidence. She argues that it is "well settled law" in this state that if the operator of a following vehicle strikes a vehicle in front of it, it is negligent. She maintains that application of N.J.S.A. 39:4-89, which requires a driver to keep a reasonably safe distance within which to stop, applies equally to vehicles that stop as a result of braking as well as those that stop suddenly because of an accident. We disagree. In Dolson, Justice Hall wrote: It is elementary that a following car in the same lane of traffic is obligated to maintain a reasonably safe distance behind the car ahead, having due regard to the speed of the proceeding vehicle and the traffic upon and condition of the highway. Failure to do so resulting in a collision is negligence and a jury should be so instructed. [Dolson, supra, 55 N.J. at 10 (citation omitted).] Thus, Dolson pointed out that N.J.S.A. 39:4-89, which requires a driver not to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the preceding vehicle and the traffic and road conditions, codifies the common law. Therefore, violation of N.J.S.A. 39:4-89 is negligence rather than merely evidence of negligence. Dolson, supra, 55 N.J. at 10-11. In Paiva v. Pfeiffer, 229 N.J. Super. 276, 283 (App. Div. 1988), Pfeiffer was operating a tanker truck in the center lane

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of the Turnpike behind a car-carrier when he observed smoke coming from the carrier's tires, indicating heavy braking. Pfeiffer moved to the right lane where he struck the plaintiff's vehicle in the rear. At the time, the plaintiff was in the process of slowing down, having seen brake lights on the vehicle in front of her and the smoke from the tires of the car-carrier. The trial judge charged sudden emergency rather than Dolson. Reversing, we explained that Pfeiffer "was simply presented with the hard application of brakes by the vehicle preceding him." Ibid. We pointed out that sudden application of brakes is not "unexpected" but "a common traffic situation." Ibid. We concluded that " N.J.S.A. 39:4-89, insofar as it requires a motorist to maintain safe following distances, is founded upon the foreseeability of such braking situations." Ibid. Holding that the judge erred in charging sudden emergency, we explained that that doctrine should not be charged where "'defendant was faced with no more than an everyday traffic problem for which he should have been prepared.'" Ibid. (quoting Finley v. Wiley, 103 N.J. Super. 95, 103 (App. Div. 1968)). The circumstances confronting defendant, as a following vehicle, did not amount to an everyday traffic problem or a foreseeable braking situation. Indeed, the evidence established that plaintiff's vehicle was traveling at thirty-five- to forty-miles-per-hour when she took evasive action and drove into the rear of Pomponio's tractor trailer. Plaintiff's counsel agreed at oral argument on appeal that plaintiff's car came to a more abrupt stop as a result of striking a heavier object at speed, than it would have had she applied her brakes. Relying on the Louisiana Court of Appeal's opinion in Shelmire v. Linton, 343 So.2d 301 (La. App. 1977), plaintiff maintains that she nevertheless is entitled to a verdict under Dolson simply because she was hit by a following vehicle. Plaintiff misreads Shelmire. In Shelmire, the following vehicle, which was traveling at fifty-five- to sixty-miles-per-hour, approached within three car lengths of the preceding vehicle before the driver applied his brakes when he saw the vehicle ahead experiencing mechanical problems. The Louisiana court pointed out that because there was evidence that the operator of the following vehicle did not maintain a safe distance, the sudden emergency caused by the mechanical failure did not relieve the following operator from liability. Id. at 305. Here, the record is bare of any evidence suggesting that defendant, as a following vehicle, was tailgating or following at too close a distance behind plaintiff. Simply stated, there is no evidence respecting the distance defendant was following behind plaintiff. More importantly, the circumstances of the accident do not support a reasonable inference that defendant was following at too close a distance. In La Mandri v. Carr, 148 N.J. Super. 566, 572 (App. Div. 1977), the panel noted that the Dolson charge that following too closely is negligence is not applicable where the impact occurred in the course of taking evasive action. The facts establish that defendant was faced with just such a set of circumstances. Contrary to plaintiff's contention, the mere fact that a following vehicle

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collides with the vehicle ahead does not necessarily lead to the conclusion that there was a violation of N.J.S.A. 39:489. We conclude that the verdict was adequately supported by the evidence and did not amount to a clear and convincing miscarriage of justice under the law. Dolson, supra, 55 N.J. at 6-7. The judge correctly denied plaintiff's motion for new trial. Plaintiff contends in the second point of her appellate brief that the judge improperly applied R. 4:16-1 in permitting defendant to read Pomponio's discovery deposition in lieu of testimony. She claims prejudice because Pomponio testified that defendant was in the left lane rather than the right lane, thus negating her contention that defendant was following behind her in the same lane. Plaintiff's contention is rendered moot because, here, defendant, as a motor vehicle operator following plaintiff in the same lane of traffic, is not liable under Dolson. Affirmed. As Ronye suffered the alleged personal injury as a result of the accident, we refer to her as plaintiff. Plaintiff settled with codefendants Sarpong and Fresca, and her complaint against codefendant Pomponio was dismissed on summary judgment prior to trial. We, therefore, refer to Cruz as defendant. At oral argument on appeal plaintiff concedes that any asserted error concerning the reading of Pomponio's deposition testimony would be rendered moot were we to conclude that as a following vehicle, Dolson would not apply under the circumstances of this case to render defendant liable. (continued) (continued) 9 A-1839-06T1 November 13, 2007 0x01 graphic

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