On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-1477-02 and L-2892-02.
Before Judges Braithwaite, Lintner and S.L. Reisner.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Mark Edwards, Jr., in his capacity as defendant and third- party defendant appeals, pursuant to leave granted, from an order imposing a duty on him as a rear seat passenger to use an available seatbelt to prevent injury to front seat passenger Jason Opitz. We reverse and remand for further proceedings.
Edwards was a rear seat passenger and plaintiff Opitz was a front seat passenger in a vehicle owned by Joseph McBreen, Jr., and driven by Joseph McBreen, III (McBreen).*fn2 McBreen's car, which was preceding in a southeasterly direction on Bishop Street in Pemberton Township, collided with a truck owned by Mac Rose Contractors, Inc., and driven by Leon Rosenberg*fn3 as it exited a driveway. Edwards and Opitz filed separate suits for their injuries, naming McBreen and Rosenberg as defendants. Opitz later amended his complaint adding Edwards as a defendant, alleging that Edwards's negligent failure to wear a seatbelt caused Edwards to be thrown forward thereby severely injuring Opitz. Thereafter, third-party complaints were filed by both Rosenberg and McBreen seeking contribution against Edwards for Opitz's injuries. Rosenberg and McBreen also asserted affirmative defenses to Edwards's complaint, claiming that Edwards's injuries were caused by his failure to wear a seatbelt. Both suits were eventually consolidated.
On September 23, 2003, Edwards, as plaintiff, filed a motion to strike the third-party complaints and affirmative defenses alleging that he sustained enhanced injuries as a result of his failure to wear a seatbelt. The motion was opposed by both Rosenberg and McBreen. Edwards in his capacity as defendant and third-party defendant in the Opitz suit filed a similar motion returnable on December 5, 2003. Oral argument was held on November 21, at which time both Edwards's defense and plaintiff counsel argued their respective positions. Following argument, the motion judge stated her"tentative disposition" that she"was inclined to deny the motions."
Thereafter, the judge issued a written decision stating:
Under the facts of this case, this court is satisfied that it is appropriate for a jury to determine whether an ordinary prudent person in Edwards's position would have chosen to wear a seatbelt under the circumstances then existing so as to avoid injury to others.
The jury will also have the opportunity to consider, in determining whether reasonable care was exercised,"whether the defendant ought to have foreseen, under the attending circumstances, that the natural and probable consequence of his act or omission to act would have been some injury...." Model Civil Jury Charge 5.11. Because this court is not prepared to say that no duty exists as a matter of law... the motion [to strike] is DENIED. Two orders were signed by the judge memorializing her decision. The first order, filed November 21, 2003, denied Edwards's motion as a plaintiff to strike defendants' claims and defenses. The second, filed on December 5, 2003, denied Edwards's motion to dismiss all claims against him as a defendant and a third-party defendant. On December 20, 2003, Edwards sought leave to appeal from the Order of December 5, pursuant to R. 2:2-4. On January 26, 2004, we granted Edwards's application for leave to appeal the order denying his motion to dismiss the claims against him in the Opitz suit.*fn4 Respondent briefs were submitted by Rosenberg and McBreen. A separate brief was filed on behalf of"plaintiff-respondent" Edwards, contending in part that the order of November 21 denying his motion to strike the affirmative defense that his injuries were caused by his failure to wear a seatbelt was entered in error.
We first dispose of Edwards's assertion respecting the November 21 order. Interlocutory adjudications are appealable only on leave granted pursuant to R. 2:5-6. Granting leave is within our exclusive authority as an exercise of our discretion"in the interest of justice." R. 2:2-4. It is the exclusive prerogative of this court to determine whether extraordinary circumstances are present warranting a piecemeal appeal. See, e.g., Fu v. Fu, 309 N.J. Super. 435, 439-40 (App. Div. 1998), rev'd on other grounds, 160 N.J. 108 (1999); Hallowell v. Am. Honda Motor Co., 297 N.J. Super. 314, 318 (App. Div. 1997); DeFelice v. Beall, 274 N.J. Super. 592, 595 n.1 (App. Div.), certif. denied, 138 N.J. 268 (1994); Kurzman v. Appicie, 273 N.J. Super. 189, 191-92 (App. Div. 1994); Procanik v. Cillo, 226 N.J. Super. 132, 143 n.4 (App. Div.), certif. denied, 113 N.J. 357 (1988); DiMarino v. Wishkin, 195 N.J. Super. 390, 395-96 (App. Div. 1984).
Edwards as plaintiff sought to bypass these procedures by incorporating an appeal from the November 21, 2003, order in his respondent brief. Our calendar is not subject to a party's whim or an attempt to avoid the necessity of a formal motion by boot strapping an issue not presented in an application for leave to appeal dealing with a different, albeit related, issue. At oral argument on appeal, respondent counsel for Edwards, for the first time sought leave to appeal, nunc pro tunc, from the November 21 order, after we pointed out that a formal motion had neither been filed nor granted. We need not decide respondent's belated motion now because had Edwards, as plaintiff, moved pursuant to rule for leave to appeal from the November 21 order, we would have denied the application.
We next address the merits of the motion for leave that is properly before us. On appeal, Edwards contends that there is no duty on the part of a rear seat passenger to wear a seatbelt to prevent injury to a third person occupying the same vehicle. He argues that to impose such a duty would"extend the concept of duty beyond all reasonable and fair bounds, in contradiction of public policy." Secondly, Edwards maintains that the judge improperly left the determination to the jury of whether to impose a duty. We consider these contentions in reverse order.
Generally, under the circumstances present, whether Edwards owed a duty to Opitz and, if so, the extent of that duty is a question of law to be decided by the court. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997); Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996); La Russa v. Four Points at Sheraton Hotel, 360 N.J. Super. 156, 160 (App. Div. 2003); Zielinski v. Prof'l Appraisal Assocs., 326 ...