May 2, 2008
GERALDINE R. ZESKAND AND SAUL ZESKAND, PLAINTIFFS-APPELLANTS,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 did not submit an expert report in support of his summary judgment motion.
When she granted DiMaiolo's motion, the judge reasoned:
In this case it is Miss Brooks that . . . is the proximate cause of this accident. She came into oncoming traffic, she spun around, she pushed [plaintiff] into the curbing and then probably . . . hit [her] again. And at no time was the DiMaiolo vehicle in contact with [plaintiff]. So the happening of the accident and the impact is first Brooks, then to the concrete abutment and then again by Brooks. DiMaiolo has no proximate cause of this accident and in order to hold somebody in they have [to] proximately cause the accident.
The idea that you're in a zone of danger simply because you're driving on an icy road, that's not the case law. . . . DiMaiolo didn't hit the [plaintiff's] vehicle at all. So the zone of danger argument there--you still have the happening of the accident was proximately caused by Brooks.
[T]here still has to be a proximate cause.
There was no impact between DiMaiolo and [plaintiff] and therefore DiMaiolo is not responsible as a matter of law for any injuries suffered by the plaintiff.
On appeal, plaintiff argues that by granting DiMaiolo's motion for summary judgment, the judge impermissibly invaded the province of a jury. She further maintains that the expert report she presented raised a genuine issue of material fact that required the denial of DiMaiolo's motion. Specifically, she contends:
There is a body of case law dealing with the "zone of danger" concept and the "enhanced hazard" concept in negligence whereby if a tortfeasor confronts an enhanced hazard (in this case horrible road conditions from ice and snow) and negligently creates a Zone of Danger (distance between cars when following too close), he becomes liable for the consequences, i.e. accident, even though he may not have foreseen (foreseeability) the precise type of injury or accident which then occurs.
The judge found that Brooks was THE proximate cause of the accident and dismissed as to DiMaiolo. There is no doubt that Brooks was "a" proximate cause and surely she was the initiating cause of the first impact, but that does not make her the sole proximate cause. When DiMaiolo, who was following too closely (fifteen feet in "horrible" road conditions), hit the Brooks truck and propelled it into the rear of the [plaintiff's] vehicle, a reasonable jury could conclude that DiMaiolo was negligent and that his negligence was "a" proximate cause of the accident. "But for" following too closely, DiMaiolo would not have propelled the Brooks [vehicle] into the rear of [plaintiff's] vehicle.
[B]ut the judge made a factual determination that Brooks was totally responsible for the accident, which should have been a fact issue left to the jury.
DiMaiolo disagrees and argues that: the judge correctly determined that the conduct of defendant Brooks was the sole cause of the December 26, 2004 motor vehicle accident; and that plaintiff's reliance on the concepts of "zone of danger" and "enhanced hazard" should be rejected as inapplicable to the facts of this case. Accordingly, DiMaiolo contends that the motion judge correctly determined that as a matter of law, he was not negligent and was thus entitled to summary judgment.
We review the trial court's grant of summary judgment de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in the light most favorable to plaintiff nonetheless entitle defendant to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In deciding a summary judgment motion, we must apply the standard articulated in Brill. Summary judgment must be granted if the pleadings, discovery and any affidavits or certifications filed in support of or in opposition to the motion reveal no genuine issue of material fact thereby entitling the moving party to judgment as a matter of law. R. 4:46-2(c).
The existence of a genuine issue of material fact requires a critical examination of the record. As the Court held in Brill:
[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. [Brill, supra, 142 N.J. at 540.]
Thus, to prevail on a summary judgment motion, a defendant must show that plaintiff's claim is so deficient or the proofs are so one-sided that the moving party must prevail as a matter of law. Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J. Super. 550, 557 (App. Div. 1997).
We begin our analysis by agreeing with plaintiff's contention that proximate cause is an issue of fact that should generally be resolved by a jury. Davis v. Brooks, 280 N.J. Super. 406, 410 (App. Div. 1993). Moreover, there can be more than one proximate cause of an injury. There is no requirement that a tortfeasor's conduct "be the sole proximate cause of the plaintiff's injury." Id. at 411. As we observed in Davis:
[T]o be a proximate cause, . . . conduct need only be a cause which sets off a foreseeable sequence of consequences, unbroken by any superseding cause, and which is a substantial factor in producing the particular injury. . . . The tortfeasor need not foresee the precise injury; it is enough that the type of injury be within an objective "realm of foreseeability." [Ibid. (quoting from Bendar v. Rosen, 247 N.J. Super. 219, 239 (App. Div. 1991)).]
Indeed, "there may be any number of causes intervening between a negligent act and a final injurious occurrence." Id. at 412. So long as "they are reasonably foreseeable, each intermediate cause may be deemed a proximate result of the first wrongful act." Ibid.
Applying that reasoning here, we cannot conclude that as a matter of law, DiMaiolo was free of negligence. The fact that DiMaiolo's vehicle did not ever strike plaintiff's vehicle, without more, did not entitle him to summary judgment. At appellate oral argument, DiMaiolo's counsel conceded that the mere fact that the DiMaiolo vehicle did not strike plaintiff did not, by itself, entitle him to summary judgment. Indeed, we can conceive of numerous factual scenarios in which a driver's conduct might be so negligent as to cause a second driver to take some action and in so doing to strike a third vehicle. For example, a driver might pull off the shoulder into the lane of travel so abruptly as to cause a second driver to take evasive action and lose control of his car, thereby injuring a third driver. The individual who abruptly pulls out of the shoulder in that example is not free of negligence, and his conduct is indeed a proximate cause of the accident, even though his vehicle did not strike the ultimate injured party. So too here, if DiMaiolo was negligent by driving too closely behind plaintiff's vehicle, his conduct can be considered a cause of the accident even if he did not strike plaintiff's vehicle.
As we observed in Davis, if it was foreseeable that another car could strike plaintiff's vehicle on the icy road, then DiMaiolo's negligence in following too closely can be deemed a proximate cause of Brooks's final impact with the plaintiff's vehicle. See id. at 411. In order for DiMaiolo's negligence to be considered a proximate cause of the accident, it must "only be a cause which sets off a foreseeable sequence of consequences." Id. at 411. It is not necessary for the precise mechanism of injury to be foreseeable as long as the ultimate occurrence was within "an objective realm of foreseeability." Ibid.
Moakes opined that because DiMaiolo was traveling too closely behind plaintiff's vehicle on an icy road, the resulting rebound of Brooks's vehicle after she struck DiMaiolo pushed the Brooks vehicle far enough uphill to make contact with plaintiff's vehicle. He opined that the rebound in question would likely not have occurred had DiMaiolo not been traveling so closely behind plaintiff's vehicle on an icy road.
Causation is an issue of fact for a jury and not an issue of law for the court. Davis, supra, 280 N.J. Super. at 410. Applying the reasoning of Davis, we are satisfied that the expert opinion provided by Moakes was sufficient to raise a genuine issue of material fact as to causation. Under those circumstances, summary judgment should not have been granted. See Brill, supra, 142 N.J. at 540.
Reversed and remanded.