May 12, 2008
YVONNE TORBOR AND AUGUSTINE TORBOR, HER HUSBAND, PLAINTIFFS-APPELLANTS,
UHART BRADNOCK, AND SANTORA ELECTRIC, INC., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-929-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued April 24, 2008
Before Judges Graves and Sabatino.
This case involves a motor vehicle accident, which occurred at the intersection of Lamberton and Federal Streets in the City of Trenton, just before 7:00 a.m. on June 30, 2005. Plaintiff Yvonne Torbor*fn1 appeals from an order granting summary judgment in favor of defendant Uhart Bradnock,*fn2 the driver of the van that struck plaintiff's vehicle, and defendant Santora Electric, Inc., the owner of the van. We reverse.
In response to plaintiff's interrogatories, defendant claimed plaintiff caused the accident by failing to stop at a stop sign on Federal Street before proceeding into the intersection:
The defendant, Uhart Bradnock, was involved in an accident with the plaintiff on June 30, 2005, at the intersection of Federal Street and Lamberton Street, in Trenton, New Jersey. Defendant, Bradnock, was proceeding on the through street when plaintiff neglected a stop sign and pulled into the intersection, causing the collision. The weather on the date of the accident was clear, and the roads were dry.
Defendant also certified he did not see plaintiff's vehicle until it "was approximately ten feet away":
The defendant was traveling approximately 25 to 30 m.p.h. when plaintiff disregarded a stop sign and pulled into the defendant's lane of travel. The defendant immediately applied his brakes and veered to the left to avoid impact. The defendant first saw plaintiff when she was approximately ten feet away, and the time from which the defendant first saw the plaintiff, and the time of impact was only seconds.
However, according to the motor vehicle accident report, defendant told the investigating officer that he observed plaintiff's vehicle "pulling away from a stopped position," as he approached the intersection. Furthermore, plaintiff testified at her deposition that she stopped at the stop sign on Federal Street for several seconds and looked in both directions for traffic on Lamberton Street before she pulled into the intersection:
Q: Why were you stopped for as [long] as 15 to 20 seconds?
A: I wanted to make sure no car [was] coming, cars would pass on my right, and I tried to look everywhere before getting in.
Q: As you were stopped on Federal Street, and you were looking to your right, was there anything that obstructed your view of traffic?
Q: You mentioned that there were some cars parked there?
Q: Were the cars parked on Federal Street or Lamberton Street?
A: On Lamberton Street.
Q: Did the cars that were parked on Lamberton Street, did they obstruct your view of traffic coming on Lamberton Street?
Q: And there was nothing else, as you looked to your right, there was nothing else that obstructed your view?
Q: How about when you were stopped on Federal Street and you looked to your left, was there anything obstructing your view there?
Q: So you were stopped there for 15 to 20 seconds, you were just making sure it was clear?
Q: . . . Mr. [Bradnock] is who I represent. Did you ever see his car prior to this accident?
The trial court's reasons for granting defendant's summary judgment motion included the following:
[T]he plaintiff admittedly proceeded through an intersection even though there was traffic close enough to constitute a hazard. Her saying she didn't see it isn't in and of itself proof that the vehicle wasn't there. It was there. We know it was there. It collided with her car. It was close enough that she really should have seen it.
It seems clear that the defendant's vehicle was in close proximity to plaintiff's vehicle when he first saw her. Thus, her failure to make sure the intersection was clear before proceeding was a proximate cause of the accident. Further, plaintiff's opposition does not establish that defendant was comparatively negligent.
Here, as in Piccone v. Stiles, 329 N.J. Super. 191, 196 (App. Div. 2000), defendant contends "that the jury could not reasonably attribute less than fifty-one percent of fault to plaintiff . . . and, therefore, summary judgment was properly granted." Once again, however, "we fail to see how negligence can be so finely quantified between the drivers." Ibid.
The duty of reasonable care by the operators of motor vehicles on our roadways is mutual and reciprocal, and it "includes making reasonable observations for traffic traveling on an intersection street." Model Jury Charge (Civil), 5.30J, "Duty of Care Proceeding Through Intersection with Green Light [The Favored Driver]" (1977). We conclude from our review of the record that there are material issues of fact as to whether defendant made proper pre-accident observations and whether he took reasonable and effective measures to avoid the accident.
Thus, in our view, the facts are not so "one-sided" that defendant is entitled to prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Reversed and remanded.