On appeal from Superior Court of New Jersey, Law Division, Middlesex County. Decided May 12, 1994. Motion for reconsideration filed May 24, 1994 - Remanded June 20, 1994
Before Judges Petrella, Baime and Villanueva.
The opinion of the court was delivered by
Plaintiffs Gloria Yun (as administrator ad prosequendum of the estate of Chang Hak Yun)*fn2 and Nam Yi Yun, the decedent's widow,*fn3 appeal from a summary judgment dismissing their claims against defendants Ford Motor Company (Ford), Castle Ford (Castle), Universal Motor Coach (Universal), Kim's Mobile Service Center, Inc. (Kim) and Miller Manufacturing Corporation (Miller).
Chang Hak Yun (Chang) was struck by an automobile on the Garden State Parkway while retrieving a spare tire that had fallen off of a Ford van in which he was a passenger. Approximately seven months later, he died of the injuries sustained. Plaintiffs brought suit against the defendants, claiming that the apparatus connecting the spare tire to the rear of the van was defective. Also named as defendants were Precious and Charles Linderman, the driver and owner, respectively, of the other automobile, who are not parties to this appeal. On June 9, 1992, a voluntary dismissal was filed as to Gloria Yun, individually, Pyong Ok Hwang and Yun Cho Shim, Chang's children.
Plaintiffs claimed that the accident was a result of the "negligent manufacture, distribution, service and/or warranty" of the van and its parts by Ford, the manufacturer, and Castle, the dealership. Plaintiffs amended their complaint to add defendants Universal and Kim. Plaintiffs alleged that Universal was "responsible for the [negligent] installation, assembly, manufacture and/or distribution of a conversion kit to the defectively manufactured 1987 Ford van." Plaintiffs contended that Kim had "improperly serviced the 1987 van and caused a hazardous condition to occur." In their third amended complaint plaintiffs alleged that Miller was "responsible for the [defective] manufacture of the spare tire carrier."
Ford, Castle, Universal, Kim and Miller moved for summary judgment to dismiss the complaint. In granting the defendants' motions by order dated September 30, 1992, the Law Division found as a matter of law that there was no proof of proximate cause and that the actions of Chang in seeking to retrieve the spare tire and assembly and that of the driver of the automobile that struck him broke the causal chain. The plaintiffs' complaint against defendants Precious and Charles Linderman was not dismissed because these defendants did not move for summary judgment.
On February 17, 1993, the assignment Judge entered an order of dismissal with prejudice. The order notes that counsel represented to the court that the "within cause has been settled." Plaintiffs' action against the Lindermans was settled in March 1993.
On November 27, 1988, between 11:10 p.m. and 11:40 p.m., Chang was a passenger in a 1987 Ford van owned and driven by his daughter, Yun Cho Shim (Yun), northbound in the local lanes of the Garden State Parkway (Parkway). While driving on the Parkway returning from Atlantic City, Yun heard a "rattling type" noise coming from the rear of the van. According to the plaintiffs, at approximately mile post 50.8 the plastic cover and spare tire
and part of the support bracket which was screwed to the rear of the van, landed directly behind Yun's van and then rolled across both lanes of traffic or were pushed there by another vehicle, ultimately coming to a rest against the wooden guard rail separating the Parkway lanes.
Yun safely drove the van onto the right berm of the highway and stopped. Chang, a rear seat passenger who was sixty-five years old at the time, exited the vehicle, then ran across two lanes of the dark, rain-slicked Parkway and retrieved the spare tire and some of the other parts. During the course of returning back to the Ford van across the Parkway, Chang was struck by the vehicle operated by defendant Precious Linderman. Precious Linderman had been driving northbound in the right lane when she saw and struck Chang as he was crossing the Parkway. After the initial impact, Linderman's vehicle slid on the wet road and struck Chang a second time. Chang died seven months later following a period in which he remained comatose.
After Ford manufactured the van, it was sent to Universal where its chassis was converted and the spare tire assembly installed before it was shipped to Castle. Yun purchased the van from Castle in its completed state. Although the record is not clear, it appears that Miller manufactured the spare tire assembly alleged to have been defective.
On October 27, 1988, approximately one month prior to the subject accident, defendant Kim had serviced the Ford van. According to Kim, Yun and Chang had brought the van to Kim for an oil change and a tune up. Kim changed the oil but advised Chang and his daughter that a tune-up was not necessary. However, Kim also advised them that the front driver's side tire was extremely bald and should not be driven in that condition. Consequently, Chang and his daughter requested Kim to change the tire with the spare located in the bracket on the outside rear of the van. Kim removed the spare tire from the bracket and used it to replace the worn left front tire. Kim thereafter placed the worn tire in the bracket and secured it.
Additionally, Chang and Yun advised Kim that the bracket holding the spare tire was damaged, "bent down," apparently as a result of a motor vehicle accident that occurred several months earlier. Chang and Yun told Kim not to repair same, because they knew where to get the parts and that it was going to be repaired by the dealer and handled through the insurance company of the other driver who was involved in that motor vehicle accident. Kim's work order receipt notes "Bracket Bent down."
Shortly after the accident, on behalf of plaintiffs, Seymour S. Bodner, a consulting engineer, examined the van and the remains of the spare tire assembly. He opined that the bracket frame remained secured to the van's left rear door at its three attachment areas but a portion of the mounting bracket had sheared off from the assembly. Bodner concluded that an aluminum strap, which secured the attached spare tire, was defectively welded to the bracket frame. Consequently, the lower portion of the strap separated from its attachment to the bracket. The resulting "fatigue failure" of the strap then caused it to fracture with only a small portion remaining attached to the bracket.
With a broad brush, plaintiffs seek to reverse the summary judgment granted to all defendants except Lindermans. Plaintiffs in their appellate argument do not even mention any of the defendants by name or capacity, rather they assert that the issue of proximate cause is a question for the jury.
Plaintiffs abandoned their claim against Ford apparently because the evidence showed that the spare tire assembly was not part of the vehicle when it left Ford's factory. At the motion for summary judgment the plaintiffs' attorney specifically told the court that he did "not oppose the motion made by Ford Motor Company." Having so stated, plaintiffs have no standing to appeal against Ford. See Judson v. Peoples Bank and Trust Co., 17 N.J. 67, 75, 110 A.2d 24 (1954); Infante v. Gottesman, 233 N.J. Super. 310, 318-19, 558 A.2d 1338 (App. Div. 1989); Baran v.
Kim, in its motion for summary judgment, relied upon the lack of proximate cause argument made by the other defendants but also asserted that there was no legal basis for plaintiffs' claim against Kim. Furthermore, plaintiffs' expert did not impute any negligence against Kim. Rather, he ...