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Schwarze v. Mulrooney

June 25, 1996


On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Approved for Publication June 25, 1996. As Corrected July 29, 1996. Second Correction August 14, 1996.

Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by BAIME, J.A.D.

Plaintiff was injured when his truck collided with defendant's automobile. The impact caused plaintiff's head to be thrown violently forward and then backward. The momentum of the crash also caused a generator plaintiff had left unsecured in the truck's bed to penetrate the cab window and strike the back of his head. Defendant acknowledged that she was partially at fault in causing the accident. However, she contended that plaintiff's negligence in failing to fasten the generator to the truck's bed liner substantially contributed to the injuries he sustained. The trial Judge concluded that plaintiff's negligent failure to secure the generator could not be considered a proximate cause of the accident and, consequently, refused to submit the issue to the jury. The jury returned a substantial verdict in plaintiff's favor. Defendant appeals. The principal question concerns whether comparative negligence principles are applicable to "second collision" injuries - those injuries not directly caused by the crash alone and which could have been avoided had the plaintiff exercised reasonable care for his or her own safety.


Plaintiff was employed as a mechanic by Penske Leasing Company. His duties included repairing leased vehicles whenever they required service. On the morning of the accident, plaintiff arrived at work and was informed by his supervisor that a leased vehicle in Middlesex had a dead battery. Plaintiff gathered his tools and placed them in a pickup truck used by Penske employees to make service calls. This truck was the only service vehicle available at Penske's site. Located in the bed of the truck was a gas-powered motor/generator used for jump starting batteries on heavy commercial vehicles. The generator was approximately three feet by three feet and weighed between 400 and 500 pounds. Normally, the generator was fastened to the truck's bed liner to prevent it from moving while the vehicle was in motion. On this particular day, however, it was not attached, having recently been removed, repaired, and placed in the back of the truck.

At a pretrial hearing, conflicting evidence was presented as to whether plaintiff attempted to correct the problem concerning the unsecured generator. Plaintiff testified that prior to leaving on the service call he noticed that the generator was not secured to the truck bed. He claimed that he brought the matter to the attention of his supervisor, who directed him to proceed with the service call. Plaintiff testified that he left the Penske site without securing the generator because of his supervisor's order. He also claimed that Penske was obligated by contract to either repair a dysfunctional vehicle within two hours or provide a replacement.

Plaintiff offered a markedly different version in his deposition testimony. Specifically, plaintiff testified that he noticed the generator was not secured, took no steps to fasten it although he could have done so, and had no "special reason" for failing to take this course. Plaintiff never mentioned informing his supervisor about the problem. Plaintiff also stated that there was no specific deadline by which he had to arrive at the disabled vehicle and that he anticipated it would only take about fifteen minutes to jump start it.

In any event, while en route to the location of the disabled vehicle, plaintiff turned onto Cindy Court, a narrow street that did not permit passage of two abreast vehicles. He was travelling approximately twenty-five miles per hour. One of the cars parked along the side of the street belonged to defendant, an elementary school teacher living at her parents' home. Defendant entered her vehicle, checked over her left shoulder to determine the existence of oncoming traffic, and pulled her car across the road in order to make a "K-turn." When defendant entered the street, plaintiff was approximately five feet from defendant's car. Plaintiff applied his brakes, causing the pickup truck to lurch to the left and strike the driver's side doors of defendant's automobile. At the moment of impact, plaintiff's head was thrown forward and then back again without contacting any of the truck's interior surfaces. The generator in the truck's bed, however, was thrown forward by the momentum of the crash and penetrated the cab window, striking plaintiff in the back of the head. Plaintiff's head was thrown forward a second time, but he again avoided contact with any part of the truck's interior. Plaintiff was wearing his seat belt at the time of the collision.

Both parties exited their vehicles, verified that neither of them was hurt, and exchanged information. A police officer called to the scene issued a summons to defendant for careless driving, and she subsequently pled guilty to that charge in municipal court. The officer specifically asked plaintiff if he desired an ambulance. Plaintiff declined and returned to work. Later that day, he complained of pain in his neck and was sent to a physician for treatment.

The parties each produced an expert to testify regarding the extent, severity, and permanence of plaintiff's injuries. It was undisputed that plaintiff was diagnosed as suffering from a herniated disc between the fifth and sixth cervical vertebrae. This injury caused him to experience pain in his neck and shoulders, numbness in his right arm, and limited head motion. After physical therapy and other more conservative treatments failed to relieve his symptoms, plaintiff underwent surgery to remove some of the herniated disc material, fuse the two vertebrae together, and relieve some of the pressure on the impinged nerves. Due to his treatment and recovery, plaintiff missed nearly a year of work. Neither expert was able to determine the extent to which the severity of plaintiff's injuries was enhanced by reason of the movement of the generator.

As we noted earlier, the trial Judge denied defendant's request to charge the jury that it could consider plaintiff's negligence in failing to secure the generator in assessing the parties' relative fault. The trial Judge's decision on the subject is not a model of clarity. At the Conclusion of the pretrial hearing, the Judge found that plaintiff lacked the "flexibility" to refuse to perform the work demanded by his employer and, thus, could not be contributorily negligent as a matter of law. In subsequent proceedings, the Judge based her decision upon the absence of testimony that plaintiff knew of the hazards posed by failing to secure the generator to the truck bed. The Judge further reasoned that plaintiff's failure to fasten the generator could not possibly have contributed to the happening of the accident. *fn1 In any event, the jury found that defendant was seventy-five percent at fault and plaintiff was ...

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