On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0822-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Graves.
In this automobile negligence case, plaintiffs Samuel A: Melia and Rosemary M. Melia, who was a passenger in the vehicle driven by her husband, appeal from an order of August 12, 2005, determining they "are subject to the verbal threshold," and a subsequent order dated June 12, 2006, dismissing their complaint with prejudice because they did not have a medical expert to establish permanency. See N.J.S.A: 39:6A-8(a) ("An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.").
In defendants' cross-appeal, which must be addressed if we reverse and remand on plaintiffs' appeal, Dennis Corcoran (Corcoran) and H.G. Edwards & Co. (H.G. Edwards) claim the trial court erred in granting plaintiffs' motion for summary judgment as to liability. Based on our review of the record in light of the arguments presented, we are convinced there are genuine issues of material fact that should not have been resolved by the motion judge. We therefore reverse on plaintiffs' appeal and defendants' cross-appeal and remand for further proceedings consistent with this opinion.
On July 7, 2003, between 4:30 and 5:00 a.m., defendant Corcoran was driving a 1996 Toyota pickup truck northbound on the Garden State Parkway (Parkway), with "an eight foot extension ladder" attached to a ladder rack on the top of the pickup truck. In answers to interrogatories, Corcoran admitted the 1996 Toyota pickup truck was owned by defendant H.G. Edwards, and, at his deposition, Corcoran testified H.G. Edwards is "a trade name for an LLC. The LLC is C. & D. Windows, LLC. I'm the sole principal." H.G. Edwards has six employees, in addition to Corcoran, and it is in the business of selling and installing windows and doors.
According to Corcoran, while he was between Exits 139 and 142 on the Parkway, the ladder fell off the pickup truck and landed on the road. In response to plaintiffs' interrogatories, Corcoran stated it was "early in the morning just as the sun was coming up," when a passing motorist pointed to the roof of his truck, and Corcoran determined "the ladder was no longer on my vehicle." At his deposition, Corcoran testified:
Q: What did you do after coming to the realization that something happened with the ladder?
A: It just so happened that there was an exit ramp. So I exited.
Q: Do you remember what exit that was?
Q: After you got off the exit what did you do?
A: Well, while I was pulling off the exit I looked in the mirror to see if I could see the ladder. I could. So I pulled off the exit ramp in hopes of being able to turn around and get back to the [P]arkway. And I couldn't figure out how to do that.
Q: Okay. So what did you do to try to get the ladder back?
A: Well, when I knew that I couldn't figure out how to get back onto the [P]arkway I called the [S]tate [P]olice to tell them . . . a ladder had fallen off my truck.
Q: And did the [S]tate [P]olice ask you where you were located?
A: Yes. And I believe I told him the street I was on, but I don't recall what street that was.
Q: All right. How did you get off the phone with the [S]tate [P]olice?
A: I just informed them of the ladder and they said they'd take care of it. And I went to work.
Subsequently, Corcoran learned from the State Police "that there was an accident," but the accident "wasn't serious." According to a motor vehicle accident report prepared by a New Jersey State Trooper, at approximately 5:40 a.m. on July 7, 2003, in the vicinity of milepost 139, an automobile driven by Daniel Walsh (Walsh) struck plaintiffs' vehicle as Walsh "attempted to move to the center lane to avoid a ladder in the roadway." The accident report also contains a diagram which shows: (1) there are five northbound lanes at the location of the accident; (2) the metal ladder was located in the fourth lane from the right shoulder of the Parkway; and (3) the right front portion of the Walsh vehicle struck the driver's side of plaintiffs' vehicle while plaintiffs were traveling in the middle lane, or third lane from the right shoulder of the Parkway. The accident report states the "ladder fell from a 1996 Toyota pickup, license plate: X61Y86 (N.J.)," and it identifies Corcoran as the owner of the ladder.
At his deposition, Walsh testified that immediately prior to the accident, he was traveling at approximately fifty-five m.p.h. in the middle lane of the Parkway. Walsh described the events leading up to the accident as follows:
I was driving along the [P]arkway. There was a car ahead of me. Next thing I know the car ahead of me like swerved. And right in front of me was this ladder. I didn't have much time to react. I hit the brakes. . . . I remember hitting the ladder, going toward the right. I don't remember actually jerking my wheel to the right. I just remember hitting the brakes and head[ing] towards that way.
I don't remember me actually hitting . . . the other car. I just remember the collision and me being spun back towards my left. . . .
Q: All right. You mentioned that while you were traveling prior to the accident there was a car in front of you. Is that correct?
Q: That car swerved, correct?
A: Correct. It hit the brakes. Like his brakes lights went on real quick. Then made it to the right I believe.
Q: After the car swerved into the right lane did you notice ...