On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8212-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Chambers.
This litigation arises from a motor vehicle accident on Interstate Highway 280 (I-280). Plaintiff Albert Worrill alleged that he sustained injuries as a consequence of the negligent driving of defendant Diego A. Yapo and defendant John Doe, an unknown driver. Worrill's wife, plaintiff Pamela Worrill, sought damages per quod. Plaintiffs' insurer, MetLife Auto & Home (MetLife), was granted leave to intervene. Plaintiffs subsequently filed an amended complaint seeking uninsured motorist coverage from MetLife for damages caused by the unknown driver. Plaintiffs appeal from orders granting summary judgment in favor of Yapo and MetLife.
The evidence submitted on Yapo's and MetLife's motions for summary judgment, viewed as it must be in the light most favorable to plaintiffs, is insufficient to raise a genuine dispute of fact or permit a reasonable jury to find in favor of plaintiffs on their claim against either Yapo or MetLife. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Accordingly, we affirm.
The accident occurred shortly before 11:30 p.m. on a rainy and foggy night. Albert Worrill was driving on I-280. As he described the road conditions at his deposition, water was splashing up on the streets everywhere and the fog was heavy.
He was driving at a speed between forty and fifty miles per hour in the middle lane. He saw "a little red light, a little blinking, . . . the closer [he got] to it[,] it . . . got a little brighter . . . ." Later in the same deposition, however, he said the red lights on the car in front of him were turned on but were not blinking.
Worrill described his driving in the moments before the accident as follows:
I realized it was a car. I slowed down. I applied my brakes to slow down. Looked back [to the] middle lane and side light to see if it was clear for me to get from behind it, [to] try to avoid a collision because it was in the middle lane. . . . This vehicle was [either] sitting in the road [or] either driving very slow.
He explained that because there was a car to his left, which prevented him from moving into that lane, he slowed down, was hit from behind and hit "something." There was no evidence submitted on the motions, other than Worrill's vague suggestion included in the testimony quoted above, to indicate that Yapo was stopped when Worrill's car struck his and not simply driving slowly because of a flat tire.
The impact of the rear-end collision moved Yapo's car into the left lane. There was a second collision involving Yapo's car and two others traveling in that lane. The accident report indicated that there were four vehicles involved in the accident -- Yapo's, Worrill's and two traveling in the left lane. Worrill could not describe the vehicle that struck him and did not know where the driver went after the accident. He did not contend that the vehicle was one of the four identified in the accident report. Further, although Worrill said he believed that he was hit first from behind, he admitted that he was not sure whether he hit the car in front of him before or after he was hit from the rear. The accident report indicates damage to the front of Worrill's car but none in the back. No photograph showing damage to the rear of Worrill's car was submitted on the motion.
On this evidence, a grant of summary judgment in favor of both defendants was proper. The evidence was not adequate to permit a reasonable jury to find in plaintiffs' favor on a claim that either Yapo's negligence or that of a phantom driver contributed to this accident. Rather, Worrill's deposition and the other evidential materials submitted would not support a finding of negligence on the part of anyone other than Worrill. His testimony, even when viewed most favorably to him and his claims, demonstrated nothing other than his failure to maintain adequate distance and a safe speed while approaching another car from behind under dangerous traffic and weather conditions. See N.J.S.A. 39:4-89, Jones v. Bennett, 306 N.J. Super. 476, 480-85 (App. Div. 1998). With respect to the driver of a fifth vehicle, the evidence would not permit a finding that Worrill's car was hit from behind before he struck ...