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Amato v. Federal Express

November 16, 2007

VINCENT AMATO AND IDA LYNN AMATO, PLAINTIFFS-APPELLANTS,
v.
FEDERAL EXPRESS, INC., A CORPORATION; WILLIAM FLANAGAN, INDIVIDUALLY; SEDGWICK CMS, A CORPORATION, DEFENDANTS, AND GENERAL MOTORS CORPORATION, A FOREIGN CORPORATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4223-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 3, 2007

Before Judges Axelrad and Messano.

Plaintiffs Vincent and Ida Lynn Amato appeal from the motion judge's August 22, 2006, order granting defendant General Motors Corporation (GMC) summary judgment.*fn1 In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first decide whether there was a genuine issue of material fact; if not, we then decide whether the motion court's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995):

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.

On the morning of September 24, 2001, plaintiff, who was employed by Federal Express (FEDEX) as a truck driver, was on his way to assist another FEDEX driver complete his rounds. Plaintiff conducted the usual, required pre-trip inspection of his vehicle and, finding nothing amiss, started out on his assignment.

As plaintiff drove to his co-worker's location, traveling at approximately forty miles per hour on a dry road, the front end of the truck inexplicably collapsed and the vehicle bounced up and down along the road for approximately two hundred feet. Plaintiff held on to the steering wheel trying to stabilize himself against the vehicle's violent motion. Ultimately, the truck came to a stop without striking any other vehicles or persons, but plaintiff, nevertheless, suffered injuries as a result. Plaintiff reported the accident to his dispatcher and a tow truck was sent to his location.

Eventually the truck was repaired, reinstated to FEDEX's fleet, and continued in use until May 2003. A FEDEX mechanic showed plaintiff the cause of the accident, a broken right front control arm, which had been preserved by the repairman and placed in the rear of the truck before it was returned. Plaintiff took photographs of the part, but since no one ever requested it be preserved, the control arm was discarded. The vehicle was manufactured by GMC and FEDEX had purchased it brand new from a GMC dealer in October of 1995. During the ensuing years, the truck had been used exclusively by FEDEX for more than 103,000 miles.*fn2 The truck itself was destroyed before plaintiff's lawsuit was filed.

Plaintiff denied ever striking a pothole or any other object with the truck on the day of the accident, and the usual driver of the vehicle, Fred Porrino, who was out of work on the day of the incident, similarly denied having any accident with it. Porrino claimed that he had experienced some trouble with the truck's steering the previous July, however, and had reported the problem. FEDEX's mechanics apparently inspected the truck and found nothing wrong, although Porrino claimed the steering improved thereafter.

Dave Wilson, FEDEX's senior manager of vehicle maintenance, testified in depositions that the company had no set policy for retirement of its vehicles. Although many of the documents regarding the actual maintenance conducted on the truck were destroyed pursuant to the company's document retention and destruction policy, and none existed prior to June 2000, Wilson testified that routine maintenance was regularly conducted every eighty-four days. Wilson had been with FEDEX thirty years and had never seen a control arm fail on any of its trucks. He opined that the part would not normally fail during routine operation of the vehicle, and that the failure was the result of an overload event potentially caused by the truck hitting something with a severe impact.

Reviewing the specific service records for the truck that were available, Wilson noted it had been in a prior accident in August 2000, had been repaired, and was again inspected in-house in January 2001. No significant problems were noted then, or in June 2001 when the truck underwent its last routine maintenance before plaintiff's accident. The records also revealed that the truck received routine lubrication service, which would have included areas around the control arm at the point of its failure. However, Wilson noted that the truck was serviced on nine separate occasions between 2000 and the date of the accident, and claimed in general, that FEDEX routinely performed a "whole host of [services]" on its vehicles "because of the severity of the [usage]."

Victor J. Hakim, GMC's expert and an employee of the company, furnished a report that also attributed the control arm's failure to an "overload impact." Hakim did not cite improper maintenance, or the lack of ...


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