Yanoff, J.s.c. (retired and temporarily assigned on recall).
The summary judgment motion in the above matter is unopposed. There are two grounds: one, there is no evidence that the stolen vehicle was being operated at the time of the accident by the agent of defendant Braschi; the second is based on Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992).
The Oswin v. Shaw motion cannot be granted because there simply is not enough information to show that the plaintiff is subject to the verbal threshold. The answers to interrogatories, which were presented without the interrogatories so that it is difficult to know what is involved, state that there is a $200 threshold. The Oswin motion is predicated, of course, on non-monetary considerations. There is nothing to show how the plaintiff comes within the verbal threshold.
The agency motion also cannot be granted. This is an automobile accident case. Defendant, Maria A. Braschi, owner of the automobile, has moved for summary judgment. At issue is whether this defendant may be held liable when it appears established that she was neither driving nor present at the time of the accident. According to the cited police report:
Mr. Juan Velez stated while out looking for his mother-in-law vehicle which was stolen. Along with his wife he spotted the vehicle on Second Ave. Mr. Velez stated unknown driver of veh # 2 made a left off of Second Ave onto Summer Ave and stop. Mr. Velez stated he jump out of his wife veh and ran up to veh # 2 and grab the driver around the neck and pulled himself into the veh and told the suspect to cut the veh off. Driver of the veh pull away at a very fast speed told the pass "If I go you will go with me" . . . . Velez stated he put the car in park and driver of the veh lost control of the veh struck park veh # 1 causing veh # 1 to be
push up against the utility pole veh # 2 spun off of park veh # 1 and hit park veh # 3 faceing south on Summer Ave. Unknown drive of Veh # 2 and front seat passenger fled scene on foot. [sic]
The plaintiff is an additional third party who was not mentioned in the police report.
Counsel for defendant cites cases that hold that a defendant automobile owner cannot be held liable for the negligence of a third party car thief, in the absence of evidence of defendant's negligence in encouraging or allowing this theft. Negri v. Liebl, 251 N.J. Super. 296, 598 A.2d 25 (Law Div. 1991); Jersey Cent. Power v. Weigand, 234 N.J. Super. 514, 560 A.2d 1346 (Law Div.1989).
This is not, however, a standard car theft case. The defendant may not be held liable for the actions of the thief. Yet it is clear from the police report that defendant's son-in-law, Velez, contributed to causing the accident. This raises the question of whether defendant Braschi may be held answerable for her son-in-law's superhero stunt.
In New Jersey, as elsewhere, there is a "rule of law that use of an automobile upon a public highway by one who is not its owner raises a presumption of agency between the operator and the owner." Harvey v. Craw, 110 N.J. Super. 68, 73, 264 A.2d 448 (App. Div.1970).
This presumption is one of fact. It can be rebutted by a defendant-owner where a plaintiff seeks to hold him vicariously liable for the negligence of the driver * * * To prevent the issue of agency from reaching the jury, the owner must show by uncontradicted testimony that no employer-employee or principal-agent relationship existed, or if ...