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Wlasiuk v. McElwee

November 01, 2000

THOMAS WLASIUK, JR., PLAINTIFF-APPELLANT,
v.
JAMES J. MCELWEE, CHRISTINE MCELWEE, CHRISTINE HOGAN, JAMES HOGAN, JOHN DOE, (A FICTITIOUS NAME) STATE FARM INSURANCE COMPANY AND STATE FARM INDEMNITY COMPANY, JOINTLY, SEVERALLY AND INDIVIDUALLY, DEFENDANTS-RESPONDENTS.



Before Judges Keefe, Eichen and Steinberg.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: September 20, 2000

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

Plaintiff Thomas Wlasiuk, Jr., appeals from the entry of summary judgment in favor of defendants James McElwee (McElwee) and State Farm Indemnity Company (State Farm). *fn1 Plaintiff was a passenger in an automobile operated by McElwee when he was shot during an aborted robbery by an unknown assailant. McElwee had permitted the assailant to enter the vehicle. Plaintiff sued McElwee for personal injuries. He also sued State Farm, seeking uninsured motorist coverage under the State Farm uninsured motorist clause of which plaintiff was a third party beneficiary.

The motion judge granted McElwee's motion for summary judgment on the ground that he did not owe a duty to plaintiff under the circumstances. The Court found that McElwee had no duty to foresee that plaintiff would be shot. The motion judge raised the issue of McElwee's duty sua sponte, inasmuch as McElwee had moved for summary judgment on another ground not relevant to this opinion. Summary judgment was also entered in favor of State Farm because McElwee's insured vehicle was the only vehicle involved in the case. Accordingly, the motion judge found that State Farm's uninsured motorist endorsement was inapplicable by its clear terms.

On appeal, plaintiff challenges both rulings. With respect to the claim against State Farm, the claim is so clearly without merit that a written opinion discussing the issue is not warranted. R. 2:11-3- (e)(1)(E). Therefore, the principal question to be decided on appeal is whether McElwee owed a duty to plaintiff.

Because this matter was decided on a motion for summary judgment, we are required to view the facts in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Therefore, we assume the following facts to be true.

McElwee and plaintiff were friends. On January 1, 1996, when the incident occurred McElwee was 18 years old and plaintiff was 16 years old. They had known each other for two years. On the evening in question, plaintiff made arrangements with McElwee to drive him to a female friend's home. Plaintiff obtained directions from his friend. McElwee independently obtained directions when he telephoned plaintiff's friend to ensure that there would be a date for him at her home. After comparing the directions and seeing that they were identical, McElwee disposed of his copy and relied on plaintiff's copy.

When the two young men began their trip to South Orange, McElwee proceeded on Stuyvesant Avenue, which runs from the center of Union to the Irvington border. McElwee then came to a fork in the road at which point the two began to argue over which way to turn. According to plaintiff, "By the time we had recalled what the street was it was too late, he [defendant] had gone into a bad neighborhood."

After the two acknowledged they were "lost," plaintiff asked McElwee to pull over so he could call his friend for further directions. At about 7:30 p.m. McElwee pulled into a parking lot. On the right of the lot was a McDonalds restaurant and across the street was a food store. There were people coming and going from McDonalds, and there were people hanging out in front of the food store.

Plaintiff got out of the car and called his friend from a payphone. His friend informed him that they were in a "bad section" of Irvington/Newark. Plaintiff obtained directions and walked back toward the car. McElwee already had exited the vehicle and met plaintiff on his way back to the car. The two then entered the car, with plaintiff telling McElwee to leave right away because there were "drug dealers and stuff" in the area.

Shortly thereafter, they noticed a man approaching the car from behind. Plaintiff stated that this made him "nervous." Plaintiff said to McElwee, "Go, just go!" However, McElwee got "nervous" and stopped the car because he wanted to see what the man wanted.

At this point, McElwee got out of the car and approached the man. The two introduced themselves and the man said he could get them to their South Orange destination in exchange for a ride. McElwee then returned to the car and asked plaintiff what he thought of the man's proposal. Plaintiff responded, "No don't. I just found out where we are, don't let this guy in the car." McElwee replied, "What could it hurt?" Plaintiff countered, "It could hurt a lot. We're not in Union . . . we don't know what could happen . . . . This place is worse ...


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