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Carrino v. Novotny

Decided: January 8, 1979.

MADELINE CARRINO, PLAINTIFF-APPELLANT,
v.
JEFFREY NOVOTNY, CARL MELLONE & SON, INC., ROBERT DE SIMONE, CHOO CHOO CLUB, AND JOHN DOE, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS, AND C.J. MELLONE & SON, INC., DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Hughes and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Hughes, C.J. Schreiber, J., concurring. Justice Clifford joins in this opinion. Clifford and Schreiber, JJ., concurring in the result.

Hughes

[78 NJ Page 357] Plaintiff-appellant, Madeline Carrino (hereafter plaintiff), suffered grievous personal injuries in an automobile collision between a car in which she was a passenger and a commercial van illegally parked on a public street in Lodi, New Jersey. At trial a jury verdict awarded her damages of $185,000 against both her host, Jeffrey Novotny, and the owner of the commercial vehicle, a corporation

variously referred to in some of the pleadings and briefs as Carl Mellone & Son, Inc., C.J. Mellone & Son, Inc. and C.J. Mellone, Inc. (all hereafter "Mellone"). Despite any misnomer, there is no question as to the identity of the corporation as the owner of the vehicle and that it was parked by that corporation by its servant-agent. Judgment was duly entered in accordance with the jury's verdict.

Motions by Mellone for judgment n.o.v. under R. 4:40-2 and for new trial under R. 4:49-1 were duly made, and were considered and denied by the trial judge as memorialized in his formal order:

This matter being opened to the Court * * * on the application of defendant Carl Mellone & Son, Inc., for Judgment N.O.V. [ sic ] pursuant to R. 4:40-2 or in the alternative for an Order setting aside the jury verdict * * * in the sum of $185,000.00, and ordering a new trial as to all issues pursuant to R. 4:49-1, and the Court having reviewed the testimony at trial, the moving papers, and having heard arguments of counsel, and for good cause shown;

IT IS * * * ORDERED that the motions of defendant Carl Mellone & Son, Inc., for Judgment N.O.V. [ sic ] or in the alternative for an Order setting aside the jury verdict and ordering a new trial as to all issues be and the same [are] hereby denied * * *.

The Appellate Division reversed the judgment entered against Mellone on the basis of a brief unpublished per curiam opinion. Because of the importance of its content and scope to the issues we now confront, it is herein reproduced in full:

Plaintiff suffered an accidental personal injury while a passenger in a motor vehicle owned and operated by defendant Novotny at 3:03 a.m. on February 21, 1972. Road conditions were icy, and Novotny's car skidded into a truck owned by defendant C.J. Mellone & Son, Inc. which was parked at the curb.

Following a jury trial, judgment was entered against defendants Mellone and Novotny. This appeal is taken from the judgment against Mellone on the ground that it was entered without proof of negligence. Plaintiff's cause of action against defendant Choo Choo Club was based upon that defendant's alleged negligence in serving intoxicating beverages to Novotny when he was already visibly under the influence. See Rappaport v. Nichols, 31 N.J. 188

(1959). This contention was dismissed by the court on the opening, a ruling which is also appealed only by Mellone.

The plaintiff relied chiefly for her cause of action against Mellone upon a conceded violation of a local ordinance prohibiting street parking by a truck anywhere in the municipality between the hours of 9:00 p.m. and 6:00 a.m. Before us for review is the decision of the trial judge to consider this as evidence of negligence.

It is settled that where a statute or ordinance establishes a certain standard of conduct, one of the class for whose benefit it was enacted obtains the benefit thereof in an action for negligence if the breach of the enactment was the efficient cause of the injury of which he complains. Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 391-393 (1963); Carlo v. The Okonite-Callender Cable Co., 3 N.J. 253, 264 (1949); Moore's Trucking Co. v. Gulf Tire & Supply Co., 18 N.J. Super. 467, 472 (App. Div. 1952). But the provisions of the ordinance must be "germane to the type of hazard involved in the defendant's asserted duty." Rodgers v. Reid Oldsmobile, Inc., 58 N.J. Super. 375, 385 (App. Div. 1959); 2 Restatement of Torts, 2d, ยงยง 286, 288 (1965). The test to be applied therefrom is whether the parking prohibition of the ordinance is addressed to the purpose of traffic safety and therefore germane to any claimed duty owing from the defendant Mellone to the plaintiff.

Whatever may have been the reasons for the ordinance we are satisfied that traffic safety was not one of them. It is applicable throughout the municipality only between the hours of 9:00 p.m. and 6:00 a.m. when traffic is normally lightest. The fact that it applies only to "trucks" does not necessarily imply an intent to safeguard against obstructing the roadway since it makes no attempt to define such a vehicle in terms of a width which would occupy a greater part of the street than a passenger vehicle. Moreover, the element of causation is completely lacking from the circumstances of the accident. It is clear that the collision would have been the same even if the parked vehicle were a passenger car.

We have not overlooked plaintiff's contention that an inference of negligence in its manner of parking was allowable from the posture of the truck with respect to the sidewalk after the accident. We conclude, however, that this evidence was insufficient to support the tendered hypothesis.

Finding no basis in the record for a finding of liability against defendant Mellone the judgment is reversed. In view of this disposition it is unnecessary to deal with this defendant's remaining contentions.

Upon petition of the plaintiff, we granted certification, 73 N.J. 55 (1977), to examine the validity of the Appellate Division reversal of her judgment against Mellone and,

necessarily, the trial court's decision not to disrupt it.*fn1 That reversal was based upon what was deemed to be an insufficiency of evidence to justify the jury's verdict against Mellone. The assessment of the propriety of such reversal obliges us, as it did the trial judge and indeed the Appellate Division in the fulfillment of their respective responsibilities, to canvass the record, not as a pro forma exercise and certainly not to substitute the reviewer's judgment for that of the jury. Rather, this "conscientious effort and diligent scrutiny" has one object -- "to correct clear error or mistake by the jury." Dolson v. Anastasia, 55 N.J. 2, 6 (1969); see State v. Johnson, 42 N.J. 146 (1964). As we have recently held in another context, 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. Baxter v. Fairmont Food Co., 74 N.J. 588 (1977).

These limitations on the scope of appellate review are recognized in R. 2:10 of the Rules Governing Appellate ...


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