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Zeskand v. Brooks

May 2, 2008

GERALDINE R. ZESKAND AND SAUL ZESKAND, PLAINTIFFS-APPELLANTS,
v.
MIDGE BROOKS, DEFENDANT, AND MICHAEL VINCENT DIMAIOLO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8054-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 21, 2008

Before Judges S.L. Reisner and Baxter.

Plaintiff Geraldine Zeskand*fn1 appeals from a September 4, 2007 order. That order dismissed her personal injury complaint following a March 16, 2007 order that granted defendant Michael DiMaiolo's motion for summary judgment.*fn2 We reverse and remand for further proceedings consistent with this opinion.

I.

On December 26, 2004, plaintiff was in her automobile proceeding eastbound across an overpass above the Garden State Parkway in Middletown. Defendant Brooks was proceeding in the opposite direction over the overpass when she lost control of her vehicle because of the icy conditions on the roadway. Brooks's vehicle crossed over the centerline and struck plaintiff's vehicle on the front driver's side. That impact propelled plaintiff's vehicle into the concrete abutment on the right side of the roadway. After striking plaintiff's vehicle, the Brooks vehicle then spun around and hit the DiMaiolo vehicle, which was traveling behind plaintiff. When the Brooks vehicle impacted DiMaiolo's vehicle, Brooks was propelled back into the plaintiff's vehicle striking it a second time. The DiMaiolo vehicle did not strike plaintiff's vehicle.

DiMaiolo first saw the Brooks vehicle when it was only fifteen feet, or one car length, away. DiMaiolo testified at his deposition that because he was on the overpass, it was difficult to see oncoming vehicles until he was near the peak of the roadway. DiMaiolo described the weather conditions as "horrible" with snow, sleet and freezing rain sticking to the roadway. The sleet and freezing rain had started fifteen minutes earlier and by the time DiMaiolo reached the overpass, there was a half-inch accumulation of snow and freezing rain.

DiMaiolo's vehicle was fifteen feet behind plaintiff's vehicle when Brooks's vehicle first struck plaintiff. DiMaiolo applied his brakes before Brooks's vehicle struck his. At the time of that impact, DiMaiolo was traveling at a speed of ten to twenty miles per hour.

In opposition to DiMaiolo's motion for summary judgment, plaintiff presented an expert report from Richard C. Moakes, an engineer and accident reconstruction expert. After reviewing deposition testimony, police reports and visiting the scene, Moakes concluded to a reasonable degree of engineering certainty that the final impact between Brooks's and plaintiff's vehicle "was caused by Mr. DiMaiolo unlawfully following too closely behind the [Zeskand] vehicle for the prevailing weather conditions. . . . [B]y following too closely (tailgating), Mr. DiMaiolo created a foreseeable and unnecessary hazard for himself and the other road users around him."

In particular, Moakes concluded that if DiMaiolo was traveling at ten miles per hour, he was "approximately half the distance he should have been behind [plaintiff's vehicle] had the road conditions been dry." Because DiMaiolo testified that he might have been traveling at a speed of twenty miles per hour, Moakes also calculated the distance that DiMaiolo's vehicle should have been behind plaintiff's at a twenty mile per hour speed on a dry road. That calculation revealed that DiMaiolo was "almost one-quarter of the distance he should have been had the road surface been dry."

Accordingly, Moakes concluded that DiMaiolo "created an extremely hazardous condition by following only fifteen feet behind" plaintiff's vehicle and "[t]his hazardous condition was foreseeable to Mr. DiMaiolo being a fully licensed driver who knew that the roads were very slippery." Moakes also concluded that by traveling so close to plaintiff's vehicle, DiMaiolo violated N.J.S.A. 39:4-89, which provides that "[t]he driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of the preceding vehicle and the traffic upon, and condition of, the highway." Ultimately, Moakes opined:

When Mr. DiMaiolo decided to drive across the Red Hill overpass at a distance of 15 feet behind Mrs. Zeskand and at a speed of 10 to 20 miles per hour, he violated the New Jersey Statute 39:4-97.2 in that he operated his vehicle in an unsafe manner with a fifteen feet dangerous zone in front of him that was likely to endanger other people and property. Mr. DiMaiolo should have taken into account the fact that he was operating [his vehicle] on slick, icy roads that would have prevented him from stopping quickly if for some reason [the vehicle] in front of him came to a sudden emergency stop. Such an emergency materialize[d] when the [Brooks vehicle] collided with [plaintiff's vehicle] in front of Mr. DiMaiolo. If Mr. DiMaiolo had been following at a safe distance behind [plaintiff's vehicle], the [Brooks vehicle] would not have contacted the front of [DiMaiolo's] Toyota and also the [Brooks vehicle] would not have been pushed into the rear of [plaintiff's vehicle]. Alternatively, if contact did occur between the [Brooks vehicle] and Mr. DiMaiolo's [vehicle], the resulting rebound from his vehicle would not have pushed the [Brooks vehicle] uphill far enough to make contact with [plaintiff's vehicle].

We will not burden the record with a discussion of the specific engineering calculations Moakes made that included the coefficient of friction and various perception and reaction times. Suffice it to say, those calculations were included in his report and supported his conclusions. DiMaiolo ...


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