Rosalie b. Cooper, J.s.c.
Pursuant to R. 4:49-2 plaintiff seeks reconsideration and confirmation of the original jury verdict. On defendant's motion this court entered judgment for defendant n.o.v.
In considering this application, the court is utilizing the standard for granting a judgment n.o.v. approved by the Supreme Court in the case of Johnson v. Salem Corp., 97 N.J. 78, 92 (1984) that such determination must be premised upon a finding by the court that considering as true all of plaintiff's evidence and inferences derived therefrom, a jury could not find the defendant negligent.
The undisputed evidence is that defendant parked both of his vehicles immediately adjacent to his home on the garage apron. One vehicle was a "dump" truck; the other was an Eldorado Cadillac automobile. Both were parked facing the street to allow maximum mobility in view of a predicted snow storm.
In each vehicle defendant had secreted a spare key in a metal magnetized box. In the truck the box was behind the sun visor; in the car the box was located under the hood. Both vehicles were locked. However, defendant had not latched one of the visor windows of the truck. That was done to assure access to the vehicle in the event that the door locks, as had happened in the past, became frozen.
At approximately 1:00 A.M., after the snow storm was in progress, apparently a person or persons unknown, in an attempt to steal the truck, drove it out of the driveway and struck and damaged plaintiff's utility pole which was located directly across the street from defendant's driveway.
Plaintiff commenced this action against defendant for damage to the pole during the attempted theft. Plaintiff alleged that the truck owner was negligent in parking his locked truck where he did, with the side window unlatched.
Without explanation or legal citation of authority to support its position, plaintiff claimed that defendant had an increased duty in this negligence action because the theft was of the truck as opposed to defendant's car. In considering this assertion, it is the conclusion of this court, that given the choice, most people would opt for the Eldorado.
In support of its argument the plaintiffs relied heavily on the fact sensitive case of Hill v. Yaskin, 75 N.J. 139 (1977), which adopted and amplified the case of Zinck v. Whelan, 120 N.J. Super. 432 (App.Div.1972). In both of those cases the trial courts' granting of summary judgments was reversed on the basis of unresolved factual jury issues.
In seeking a judgment n.o.v., in the case at bar defendant cited and relied upon the case of McClain v. Jones, 121 N.J. Super. 38 (App.Div.1972) wherein the trial court's granting of summary judgment was upheld.
In deciding whether material jury questions exist it is obvious that any factual distinctions with regard to precedent cases are of paramount importance. In that context each case should be thoroughly evaluated.
In the Hill case, the car was left in a public parking lot, unlocked, with the key either under the floor mat or behind the sun visor. The car was parked in a high crime area. Evidence was adduced that the car had been ...