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Bollettiero v. Eachus

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 11, 2008

RUTH BOLLETTIERO AND MICHAEL BOLLETTIERO, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
WARD E. EACHUS AND WELLACREST FARMS, INC., DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Camden County, L-2121-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 14, 2008

Before Judges Lisa and Newman.

Plaintiffs Ruth Bollettiero and Michael Bollettiero appeal from an order granting summary judgment to defendants Ward E. Eachus and Wellacrest Farms, Inc. (reference hereinafter will be to defendant, which includes both defendants). We reverse.

Viewing the facts in a light most favorable to plaintiffs as we must do on a summary judgment motion, they may be summarized as follows. At approximately 8 p.m. on a dark, rainy night plaintiffs were driving on Jefferson Road, a two-lane country road in Mantua, when they suddenly encountered six cows, two of whom were in the roadway. The driver Michael Bollettiero slammed on his brakes to avoid contact. Because of the sudden stop, both plaintiffs allegedly sustained injuries.

The incident was not immediately reported. Plaintiffs went on to their dinner engagement at their friend's and later returned home. The next morning they contacted the police asking for an investigation to determine the ownership of the cows. The police responded that they should have called the night it happened, when they might have been in a position to assist. The police did investigate. According to the police report, Mr. William White was interviewed. He told the police that defendant's cows had gotten out of the property and come onto his property. He had helped defendants return the cows to defendant's property. Deposed two and one-half years later, White denied ever having spoken to the police.

At his deposition however, White indicated that he personally spoke to Virgil Eachus after he was contacted by an insurance company representative. According to White, Virgil indicated "that yes, their animals did get out, and a lady came driving down the road, and she knew there weren't any animals that were hit, there weren't any injuries, but I, you know, I was curious. I wanted to know what happened after I got the phone call from this lady."

Virgil and Ward Eachus operate Wellacrest Farms. Their mother is also an officer of the corporation. She owns the farm land and leases it to the corporation. Eachus's Wellacrest Farms is on the same side of the road as White's property. Wellacrest Farms is a dairy farm with approximately five hundred milking cows and another five hundred calves. The calves have access to a thirty acre pasture that abuts Jefferson Road. Since the Eachus' have been on the property from 1940, they have received complaints from neighbors and the police of cows being off their property and onto the roadway. These have been very infrequent, and they have always responded to any complaints. There have also been times when the animals have wandered from the Eachus property onto White's property, who in turn, has helped usher cows back to Eachus's land. The Eachus's properties are fenced in and fences are inspected weekly and also following any type of a storm where damage could occur.

Both Ward and Virgil Eachus admit that a cow could be spooked by a dog or a fox and leave the property. It was also acknowledged that a gate could be accidentally left open by one of their employees and provide an opening for cows to leave the property.

White has leased part of his property to Ken Roberts, who grows soy beans. Roberts also has five to twenty cows on his property. Roberts is not a party to the litigation.

Based on the foregoing factual recitation, the trial judge granted summary judgment. The judge noted that the plaintiffs contended that the unexplained presence of unattended cows raised a prima facie presumption of negligence on the part of defendants. The trial judge, nevertheless, was satisfied after reviewing the papers and weighing all of the inferences in favor of the non-moving party that no genuine issue of material fact remained against defendants as to the threshold issue of ownership of the cows involved in the instant matter. The trial court, therefore, dismissed the action.

On appeal, plaintiffs argue that it may be reasonably inferred that the cows on the roadway belonged to Wellacrest Farms' which housed approximately one thousand cows in their daily operation. They also point out that the unexplained presence of cows on a highway raises a presumption of negligence on the part of the owner, that they were not under proper control and that the owner could be held liable for damages.

This court applies a de novo standard of review in regard to summary judgment motions. Trinity Church v. Atkin Olshin Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)). Rule 4:46-2 provides that a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Appellate courts employ the same standard reviewing summary judgment orders. Prudential Prop. & Cas. Ins. Co. v. Boylan, supra, 307 N.J. Super. at 167 (citing Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989); Brill, supra, 142 N.J. at 539-540). Thus, a reviewing court must decide whether there was a genuine issue of material fact. Ibid. If there is no genuine issue of fact the court will decide whether the trial court's ruling of law was correct. Ibid. Conversely, where there is a genuine dispute as to any material fact, summary judgment is not the proper disposition.

Based on the facts viewed in the light most favorable for plaintiffs, we are satisfied the motion for summary judgment should not have been granted and a material issue of fact as to ownership was sharply disputed. Under the Brill standard, we are persuaded that plaintiffs have shown enough that a reasonable fact finder could conclude that the cows observed in the roadway were owned by defendant. White's deposition testimony recalled the conversation with Virgil Eachus where Virgil admitted that it was brought to his attention that the cows were in the roadway but no accident resulted from their presence. It was also mentioned that the cows had in the past been found on the roadway although it was a very infrequent occurrence. Neighbors and the police have brought these occurrences to the attention of the Eachus'. While the property was fenced, a spooked cow could escape or wander off from a gate accidentally left open. In other words, past history reflected that cows had been observed in the roadway.

We note that there are discrepancies in Michael Bollettiero's description of the size of the cows that were on the roadway which would be more commensurate with the girth of the milking cows who are housed in stables away from the roadway rather than the calves who weighed anywhere between three to five hundred pounds and were in close proximity to Jefferson Road from the adjoining pasture. We also mention that the cows fit the description of the Roberts cows, although they only numbered five to twenty. However, these are issues that can be addressed by the jury in determining ownership.

Moreover, cows unattended on a public roadway pose a hazard to members of the traveling public. Under Vaclavicek v. Olejarz, 61 N.J. 581 (1972), this could establish an inference that defendant was negligent. Therefore, we are persuaded that plaintiffs presented enough evidence to dispute the material issue of ownership of the cows and create an inference of negligence to withstand a summary judgment motion.

Reversed and remanded.

20080611

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