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Roman v. Mitchell

Decided: March 13, 1980.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 165 N.J. Super. 68 (1979).

For reversal and remandment -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. Opposed -- None. The opinion of the Court was delivered by Sullivan, J. Pashman, J., dissenting in part. Chief Justice Wilentz and Justice Schreiber join in this dissent. Clifford, J., dissenting in part. Justice Schreiber joins in Part I of this opinion.


The suit herein is a tort action filed on behalf of Michael Roman, the infant plaintiff herein, for serious injuries sustained by him in an accident on the New Jersey Turnpike. His mother Carol Roman has joined in the suit.

On September 29, 1973, Michael, then 12 years old, and three young companions pushed their bicycles up on an embankment adjacent to the southbound lanes of the New Jersey Turnpike near Linden and onto the shoulder of the road. They then pedaled a short distance on the shoulder in a southerly direction to a Howard Johnson's restaurant located in a Turnpike service area where they had something to eat. On their way back to where they had entered the Turnpike and while proceeding along the shoulder, they were stopped by a state trooper. According to the trooper, he told told the boys to leave the highway immediately. However, the boys testified at trial that the trooper simply told them "to get off where we had come on."

The trooper did not stay to see to it that the boys followed instructions; instead, he responded to a traffic problem a short distance away. Almost immediately after the officer left and while the boys were still standing on the shoulder, a dump truck owned by Robert M. Mitchell, Jr., and being driven south on the Turnpike by Sherman Wade, lost its two left rear wheels. One of the wheels careened across the roadway onto the shoulder where the boys were standing and struck Michael, seriously injuring him.

At the time, both Mitchell and Wade were employed by the Salvaterra Construction Co., Mitchell as a mason foreman and Wade as a laborer. Salvaterra periodically used Mitchell's truck in its construction work with Mitchell as the operator. On the date of the accident, however, Mitchell had given Salvaterra permission to use the truck and it was being driven by Wade to a Salvaterra construction site when the wheels came off.

Plaintiffs' suit for damages joined Mitchell, Wade and Salvaterra Construction Co. as defendants. At the commencement of the trial, which was limited to the issue of liability, counsel for plaintiffs sought leave to ask the following questions of prospective jurors on their voir dire examinations.

1. Are any of you stockholders or employees of any insurance company which is engaged in the casualty insurance business?

2. Are any of you engaged in the general insurance agency business or are any of you an agent for a casualty insurance company?

3. Have any of you ever worked as a claims investigator or insurance adjuster?

The trial judge denied the request, observing that "you might just as well tell (the jury) now you know the defendant is insured in this case."

At the trial on liability, Mitchell testified that the truck was in his possession 99% of the time and it was, more or less, his responsibility to make sure that the truck was in working order. As a rule, he inspected the lug nuts on the wheels of the vehicle every two or three weeks, but could not remember whether he had made such an inspection within the week preceding the accident. He said that under his arrangement with Salvaterra, inspection and maintenance of the vehicle were his responsibility.

Plaintiffs' expert testified that the standard for safety inspection of wheel lugs on a construction vehicle used on rough terrain with heavy loads required examination "perhaps once a day, once every few days" of use. He expressed the opinion that prior to Wade's driving the truck on the day of the accident, most probably one or more of the lug nuts on the left rear wheels had loosened, causing stresses during use which in turn caused the other lug nuts to loosen or break.

After describing the details of the accident, the infant plaintiff testified that prior to the accident he knew that the Turnpike was a dangerous place for bicyclists and that he had been warned not to ride on heavily traveled streets.

On motion, at the close of evidence, the trial court dismissed the case as to defendants Wade and Salvaterra Construction Co. on the ground that plaintiffs had failed to produce any evidence of negligence on their part.

The accident had occurred a few weeks after the effective date of the New Jersey comparative negligence statute, N.J.S.A. 2A:15-5.1 et seq., and the case was tried under the provisions of that act. Since construction of the statute is a primary issue in the case, its provisions are set forth in full.

N.J.S.A. 2A:15-5.1

Contributory negligence shall not bar recovery in any action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering.

N.J.S.A. 2A:15-5.2

In all negligence actions in which the question of liability is in dispute, the trier of fact shall make the following as findings of fact:

a. The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence, that is, the full value of the injured party's damages;

b. The extent, in the form of a percentage, of each parties' negligence. The percentage of negligence of each party shall be based on 100% and the total of all percentages of negligence of all the parties to a suit shall be 100%.

c. The judge shall mold the judgment from the finding of fact made by the trier of fact.

N.J.S.A. 2A:15-5.3

The party so recovering, may recover the full amount of the molded verdict from any party against whom such recovering party is not barred from recovery. Any party who is so compelled to pay more than such party's percentage share may seek contribution from the other joint tortfeasors.

After the trial court refused to strike the defense of contributory negligence, holding that a jury question was presented, counsel for plaintiffs requested that the jury be charged as to the legal effect of the application of the comparative negligence statute. In essence, the request to charge asked that the jury be

told that for the infant plaintiff to recover, the jury would have to find that the defendant's percentage of negligence was greater than that of the plaintiff, and that the damages awardable to the infant must be diminished in proportion to the amount of negligence attributable to him. The request was denied.

In response to interrogatories submitted to it by the court, the jury found that the accident was caused by the negligence of both the infant plaintiff and defendant Mitchell. It fixed the percentage of negligence of the infant plaintiff at 75% and that of Mitchell at 25%. Based on these findings the trial court molded the verdict and entered judgment for the defendant. N.J.S.A. 2A:15-5.2(c).

The Appellate Division affirmed the judgment in favor of defendant finding no error in any of the rulings made by the trial court. 165 N.J. Super. 68 (1979). Certification was granted by this Court. 81 N.J. 254 (1979). We now reverse and order a new trial.


We agree with the trial court that there was sufficient evidence of Michael's contributory negligence to submit that issue to the jury pursuant to the comparative negligence statute. He deliberately ventured onto the shoulder of the Turnpike knowing that it was a dangerous place for a cyclist and in spite of prior warnings not to ride his bike on heavily traveled streets. Despite his age, Michael was aware of the risks involved and deliberately placed himself in an area of extreme danger. A jury reasonably could have found that his venturing onto the shoulder of the roadway was a proximate cause of the accident.*fn1

Dziedzic v. St. John's Cleaners and Shirt Launderers, Inc., 53 N.J. 157 (1969), cited by plaintiffs, does not support plaintiffs' contention that Michael's presence on the shoulder of the road was not a proximate cause of the accident. See Latta v. Caulfield, 79 N.J. 128, 133-135 (1979).


We conclude that the trial court erred in granting the motion of defendant Salvaterra Construction Co. for an involuntary dismissal. The basis for the dismissal was the court's conclusion that Mitchell as owner of the vehicle had a duty to make safety inspections of the lug nuts ...

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