On appeal from Superior Court of New Jersey, Law Division, Essex County.
King, Brody and Ashbey. The opinion of the court was delivered by Brody, J.A.D.
[229 NJSuper Page 454] Plaintiff appeals from an order granting defendant Community Coach (defendant) summary judgment in this personal injury negligence action.*fn1 Plaintiff died, of causes unrelated to the claim asserted in this action, after he had furnished certified answers to interrogatories in which he stated how the accident had occurred. Other than plaintiff, there are no known witnesses to the accident. The issue on the motion for summary judgment was whether plaintiff could establish a prima facie case at trial based solely on three statements he made describing how the accident had occurred. The trial judge ruled that two of the statements, one being interrogatory answers, were inadmissible and that the third was not relevant to whether defendant had been negligent. We reverse and remand for a reconsideration of the admissibility of the interrogatory answers.
The trial judge first considered the interrogatory answers. In one answer plaintiff described how the accident had occurred:
On August 20, 1985, between 12:30 and 1:30 a.m., I was getting off of the Community Coach bus on Main Street, Orange, New Jersey near the Orange Diner between Mannor Terrace and Jefferson Street. There were no lights on at the time, and I could not see the steps, which caused me to miss a step and tumble down. I attempted to break my fall with my left hand, which caused my injuries.
Among the negligent acts plaintiff attributed to defendant in the other interrogatory answer is
failure to provide adequate lighting while entering and/or exiting the vehicle; . . .
The judge next considered a statement that purports to be plaintiff's oral account of the accident, recorded in writing by his attorney during an interview two days after the accident allegedly had occurred:
While getting off the bus on Main Street (by a Orange Diner) couldn't see the steps (there was either no lights on them or they were very dim); he missed a step and tumbled down. Back struck the steps -- Used left hand to break his fall. (Left foot missed the step)
The third statement appears in the report of the hospital where plaintiff received emergency treatment. It describes plaintiff's "complaint" as "Twisted his left wrist getting off a bus about 1/2 hour ago."
Although hearsay, each of the statements would be admissible under the Rules of Evidence if it qualified under Evid.R. 63(32), an exception to the hearsay rule. The exception provides:
Subject to Rule 64 [requiring fair notice to an adversary], in a civil proceeding, a statement made by a person unavailable as a witness because of his death is admissible if the statement was made in good faith, upon the personal knowledge of the declarant, and there is a probability from the circumstances that the statement is trustworthy.
The trial judge did not consider the good faith/probable trustworthiness of plaintiff's interrogatory answers because he held that, regardless of their admissibility under the Rules of Evidence, they ...