On appeal from Superior Court of New Jersey, Law Division, Camden County.
Before Judges Havey and Landau.
On leave granted, plaintiff Mark Michell appeals from an order
awarding to defendants John Ash (Ash) and Power House Equipment, Inc.
(PHE) summary judgment in his action arising out of a motor vehicle
The opinion of the court was delivered by: The opinion of the court was delivered by Landau, J.A.D.
For purposes of the motion, the following facts must be accepted:
On June 8, 1995, plaintiff was operating his vehicle on Route 130 southbound in Pennsauken Township, Camden County, New Jersey. A white Oldsmobile was immediately ahead. The Oldsmobile stopped short to avoid hitting a boxed transformer which had just fallen into the center of the roadway from a pick-up truck driven by Ash and owned by PHE. There was no contact. Plaintiff was able to stop without hitting the Oldsmobile. Immediately thereafter, however, plaintiff's car was struck in the rear by defendant Charles Burroughs' vehicle. There was a second impact when a fourth vehicle operated by defendant David Grambine struck Burroughs' vehicle, driving it again into plaintiff's vehicle.
The Judge determined that although Ash and PHE were chargeable with negligence in respect of the dropped transformer, their negligence could not have been a proximate cause of the double impact accident. He reasoned that as the first driver and plaintiff were able safely to bring their cars to a halt in the roadway, a jury could not objectively conclude that the negligence of Ash and PHE was a proximate cause of the double rear end hits by the following cars. Summary judgment was accordingly granted to those defendants.
We believe that the question of whether the negligence of Ash and PHE was a substantial contributing factor in causation presented a factual issue which should have precluded summary judgment, and so, reverse and remand.
The two following cars that hit plaintiff's car were concededly negligent under the well established doctrine set forth in Dolson v. Anastasia, 55 N.J. 2 (1969). That the first two vehicles were able to stop, however, does not rule out a fact-finder's assessment that the box which fell presented a substantial enhancement of the risks of travel for all cars in the southbound lane of Route 130, which foreseeably could cause a pile-up accident. While the two cars which were in the best position to observe the falling object were able to bring their cars to a halt, those cars were also forced to stop in the middle of a heavily travelled road, increasing the risks for those following.
The first two drivers were, on these facts, free of negligence. Nonetheless, had they merely stopped together to talk in the middle of Route 130, could it have been said that such negligence did not constitute a substantial proximate cause of a collision occurring because a following car was negligently unable to ...