October 15, 2008
BELA MUKHOTI, PLAINTIFF-APPELLANT,
MERCEDES-BENZ OF CHERRY HILL, DAIMLERCHRYSLER CORPORATION, DEFENDANTS, AND MERCEDES-BENZ USA, LLC, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1310-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2008
Before Judges Fisher and Baxter.
Plaintiff Bela Mukhoti alleged she was injured when her vehicle, designed and manufactured by defendant Mercedes-Benz USA, LLC,*fn1 backed down her driveway after she attempted to remove the ignition key and bumped against the gear shift, unintentionally causing it to shift from park to reverse. We affirm the summary judgment entered in defendant's favor because plaintiff's expert provided only a net opinion in asserting a link between the alleged defect and plaintiff's injuries.
The familiar standard that governed the trial judge's resolution of defendant's summary judgment precluded a resolution of any material factual disputes, but permitted entry of summary judgment if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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." R. 4:46-2. As explained in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995): 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. . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact. . . .
As a result, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. In reviewing a trial court's entry of summary judgment, we are bound by the same standard. Prudential Prop. & Cas. Co., Inc. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Whether summary judgment was appropriate in this case turns on a precise understanding of how plaintiff, as the motion's opponent, alleged the incident in question occurred. As a result, we are chagrined by plaintiff's failure to present in her brief a statement of her version of the facts in the manner required by rule.
The brief of a party to an appeal must contain a concise statement of the facts "material to the issues on appeal supported by references to the appendix and transcript," and "shall be in the form of a narrative chronological summary incorporating all pertinent evidence." R. 2:6-2(a)(4). The following is plaintiff's entire statement of facts:
On or about February 20, 2004, the plaintiff, then 72, had parked her 2000 Mercedes-Benz E320W at the top of the inclined driveway of her home, left the car running for about ten minutes, returned, entered the car sitting half-way in the drivers seat, with her left foot on the ground, touched the brake with her right foot and was attempting to remove the keys from the ignition when she inadvertently shifted the car out of park, the car suddenly started to roll backwards down the driveway, causing her to be dragged from the car onto the ground and sustain injuries to her right shoulder, neck and back. It was evening, the weather was clear and the road condition was non-contributory. On or about May 23, 2004, after having recently returned home from extensive rehabilitation, plaintiff fell on her front yard and broke her ankle, due to lack of mobility, balance, instability from the initial injury. (Pa214-284)
Certainly, plaintiff's three-sentence statement of facts is concise. Indeed, since the second sentence relates to the irrelevant weather and road conditions, and the third sentence refers to a subsequent injury, plaintiff has succinctly described the incident in question in a single sentence. We have no quarrel with the statement's brevity. But plaintiff's citation to the record for each relevant fact consists of a single reference at the end of her attorney's three-sentence statement of facts to "Pa214-284," which refers to 71 pages of the appendix. It is bad enough that plaintiff has referred us to 71 pages in support of the information contained in three sentences, but, in fact, because nearly every one of those 71 pages contains four transcript pages, plaintiff has actually referred us to the entirety of her 278-page deposition.
Obviously, plaintiff has provided an inadequate link between her statement of facts and the record on appeal. Plaintiff should have made reference to a specific part of the record for each relevant fact mentioned. By failing to adhere to the requirements of our rules, plaintiff has relegated the court to examining her entire deposition in search of confirmation for the factual assertions contained in her brief. This is unacceptable.*fn2
We have in the past refused to consider briefs that have strayed so wide of the standards of proper advocacy imposed by our court rules. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 155 n.4 (App. Div. 2005); Dougherty v. N.J. State Parole Bd., 325 N.J. Super. 549, 553 (App. Div. 1999). Despite our temptation to follow that course in the matter at hand, we nevertheless proceed to a consideration of the appeal's merits.
A review of plaintiff's lengthy deposition reveals certain clear aspects of her version of the occurrence.*fn3 Plaintiff claims to have driven to her home, stopped her vehicle in the driveway, shifted the transmission into park, and momentarily entered her home, leaving the engine running; she did not deploy the parking brake. A short time later, plaintiff returned to the vehicle, opened the driver's door, and sat on the driver's seat. With the driver's door open, her left leg outside the vehicle, her left foot on the ground and her right foot on the brake, plaintiff leaned around the steering wheel to turn the key to the off position and remove it from the ignition.*fn4
Plaintiff claims that during this process her right arm somehow bumped the gear shift, which sat in the center console between the front seats, causing the vehicle to shift from park to reverse. No one disputes that plaintiff's right foot was on the brake as she reached for the ignition key, because the vehicle's brake transmission shift interlock (BTSI)*fn5 would not have permitted the transmission to be shifted out of park and into reverse. The vehicle then rolled back down the driveway in reverse and, plaintiff jumped or was somehow ejected from the vehicle, which allegedly caused her injuries. Plaintiff never, despite repeated questions on the point during her lengthy deposition, provided a clear understanding of whether or not she had taken her right foot off the brake before the vehicle rolled backward down the driveway.
Plaintiff argues from these circumstances that the vehicle was defective because the gearshift's design permitted her awkward attempt to remove the ignition key to cause a shifting of the transmission from park to reverse. In responding to defendant's summary judgment motion, plaintiff sought to support her theory by providing an expert's report and his deposition testimony. Although defendant has forcefully argued an utter lack of methodology underlying the expert's claim of a defect, we need not consider that point. Instead, we conclude that the summary judgment may be sustained even if we were to assume that the vehicle's "gated" gearshift,*fn6 and the absence of an additional button, which would have to be deployed before the gearshift could be moved, rendered the vehicle defective.
Plaintiff's expert opined that because the design of the vehicle's gearshift permitted a shift of the transmission from park to reverse in a single movement instead of two separate "movements," it did not preclude accidental and unexpected shifting of the vehicle's gears. The expert explained that he examined the vehicle and determined that although the gated feature appeared to require a shift from park to reverse by moving the stick to the right and then down, in fact the act could be performed in a single movement of the stick in a 60° degree angle from park to reverse.
Even if we were to assume a defective gearshift, because its design permits gears to be shifted without two distinct movements, we nevertheless must recognize, as did the trial judge, that the record lacks proof of a link between this alleged defect and the cause of plaintiff's injuries. All that may be found in plaintiff's opposition to summary judgment that came the closest to suggesting a link is the emphasized portion in the following statement, which appears in plaintiff's response to defendant's statement of undisputed facts:
It is admitted that [p]laintiff attempted to remove the key from the ignition of [the vehicle] while the car was in Park and she was sitting half-way in the driver[']s seat with her left foot on the driveway and by habit her right foot on the service brake applied/depressed with enough force to allow the gear shift to disengage -- which activated the [BTSI], a technology which forces drivers to depress the service brake pedal, and thus off the accelerator, when shifting out of Park -- when while leaning to the right to remove the key, her right arm inadvertently/unintentionally moved the gear shift lever out of Park. Not realizing that the car had been shifted out of Park, and still trying to take the key out of the ignition, the car began to roll backwards down the driveway, despite her right foot being on the service brake pedal (but apparently not with sufficient force to apply the brake), she became startled and panicked -- everything went "crazy" -- as she was dragged down the driveway, which caused her to be thrown from the car and land in the street.
Although the record contains sworn statements from plaintiff as to most of the above recitation of her version of the occurrence, we have not found in plaintiff's 278-page deposition, and plaintiff has not provided a reference, to support the contention that, when the vehicle rolled backward down the driveway, plaintiff's right foot was on the brake pedal but not sufficiently depressed to engage the brakes; indeed, the phrase in the above statement, which plaintiff italicized, asserts only that such an event "apparently" occurred. This is argument, not fact. The italicized portion is not based on plaintiff's testimony, but on counsel's words, which, whether sworn or not, have no evidential value and cannot defeat summary judgment. Brundage v. Estate of Carambio, 195 N.J. 575, 609 (2008); Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S.Ct. 1042, 163 L.Ed. 2d 857 (2006); Murray v. Allstate Ins. Co., 209 N.J. Super. 163, 169 (App. Div. 1986), appeal dismissed, 110 N.J. 293 (1988).
In examining the propriety of the summary judgment under review, we recognize that plaintiff was entitled not just to our assumption of the truth of her sworn statements but also to the reasonable inferences that may be drawn from the evidential materials provided. Brill, supra, 142 N.J. at 540. That is, even if plaintiff neither testified to nor provided a sworn statement about a particular fact, as here, the summary judgment standard nevertheless requires our assumption of unstated inferences. This does not mean, however, that any conceivable, unsupported hypothesis must be drawn. Plaintiff is only entitled to the benefit of those inferences that may be reasonably drawn from the evidential material. Ibid. In searching the record, we can find nothing in plaintiff's deposition testimony that would permit a reasonable inference that plaintiff had her foot on the brake pedal as the vehicle moved in reverse, let alone that she depressed it but without sufficient force to engage the brakes.
Indeed, in light of what plaintiff's expert learned when he examined plaintiff's vehicle, there can be no dispute that plaintiff did not depress the brake pedal with her right foot when the vehicle rolled back down the driveway. In his deposition, the expert attempted to demonstrate a nexus between the defect he alleged and the manner in which the incident occurred:
Q: Well, when you were depressing the brake in the Mercedes on the driveway,*fn7 [the] car didn't move when you shifted from park to reverse, correct?
A: That's correct. . . . .
Q: If [plaintiff] had it depressed as you normally would depress the brake, as you did, sir, would you agree with me that even if she shifted in reverse, the car would not move?
A: Under that scenario, absolutely the car is staying put.
Q: Okay. If, in fact, [plaintiff's] right foot is on the brake when she, however, shifts this vehicle into reverse, would you agree with me, sir, under that scenario, this car doesn't move? The Mercedes-Benz would not drift down the driveway if, in fact, her foot is on the service brake as she's described?
A: It's possible.
Q: What do you mean it's possible?
A: I didn't measure how far the brakes were applied when the BTSI trips. In other words, you have to depress the brake pedal to pull it out of park. No argument there. What I didn't measure was how hard or the degree of braking is provided by the service brakes at that time.
Q: So it's your testimony her foot is somehow on the brake, but she's not applying the brake?
A: People do that all the time.
Q: But her foot is on the brake enough to get the car to activate or deactivate the [BTSI] to allow her to shift from park to reverse, but it's not on the brake hard enough to hold the vehicle? Is that your testimony?
A: I'm saying it's entirely possible.
Q: But you don't know?
A: That's right.
As can be seen, the expert opinion that plaintiff had her foot on the brake with sufficient force to deactivate the BTSI but without sufficient force to engage the brakes is inadmissible for a number of reasons.
First, the expert's opinion on this point has no support in the factual record and is, thus, an inadmissible net opinion. N.J.R.E. 703; Johnson v. Salem Corp., 97 N.J. 78, 91 (1984); Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). That is, an expert's opinion "is no stronger than the facts which support it." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981) (quoting Parker v. Goldstein, 78 N.J. Super. 472, 484 (App. Div.), certif. denied, 40 N.J. 225 (1963)); Stanley Co. of Am. v. Hercules Powder Co., 16 N.J. 295, 305 (1954). Plaintiff never testified that, after she depressed the brake pedal, thus deactivating the BTSI, she kept her foot on the brake pedal but without sufficient force to engage the brakes. And an inference that she may have done so is not reasonable in light of the expert's failure to demonstrate or recreate whether the vehicle could roll backward while in reverse when the driver's foot is on the brake pedal. The only reasonable inference to be drawn from the circumstances is that plaintiff depressed the brake pedal and bumped into the gearshift, which caused a shift in gears, but then she took her foot off the brake pedal, causing the vehicle to roll, and never re-applied the brakes once the vehicle backed down the driveway. Because that is the only reasonable inference to be drawn from the record, no rational factfinder could conclude that the alleged defect in the gearshift was the cause of plaintiff's injuries.*fn8 In short, the significance of the alleged defect in the gearshift was superseded by plaintiff's own undeniable negligent operation of the vehicle.
Second, in stating this opinion, plaintiff's expert did not testify, within a reasonable degree of probability, that the brake pedal could be contacted sufficiently to deactivate the BTSI yet without engaging the brakes; he only said it was "possible." As a result, the expert's opinion was purely speculative and insufficient to defeat summary judgment. Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990). Indeed, he did not even explain how it was possible, nor did he attempt to recreate that alleged possibility.
And, third, the expert did not provide an explanation, within a reasonable degree of certainty, that plaintiff's injuries were caused by the design defect he alleged. See Koruba v. Am. Honda Motor. Co., 396 N.J. Super. 517, 526 (App. Div. 2007), certif. denied, 194 N.J. 272 (2008). Even if it could be said that the gearshift was defective because it did not have a button, which would have to be depressed in order to shift gears, the cause of plaintiff's injuries was the fact that once in gear, the vehicle began to move and did not stop. Plaintiff's expert acknowledged that the brakes and their "power assist" feature were operational, and he agreed that plaintiff's depression of the brake pedal would have stopped the vehicle once it began to roll. Absent proof of a defect in or failure of the brakes or any brake components, the expert's claim that the gearshift could have been designed to prevent the accidental bumping of the gearshift into reverse is irrelevant and has no link to the cause of plaintiff's injuries.
Without a basis for arguing that the brake pedal could be depressed in a way that would deactivate the BTSI without engaging the brakes, plaintiff's version only demonstrates that she failed to apply the brakes in order to stop the vehicle. To survive a summary judgment motion, a plaintiff must show, in this context, that a product had a defect that proximately caused her injury. O'Brien v. Muskin Corp., 94 N.J. 169, 179 (1983). There is no presumption of a defect merely because of the happening of an accident. Zaza v. Marquess & Nell, 144 N.J. 34, 49 (1996); Lauder v. Teaneck Volunteer Ambulance Corp., 368 N.J. Super. 320, 332 (App. Div. 2004). Given that there is no dispute that plaintiff had to apply the brakes in order to move the gearshift, and given that there is no dispute that the brakes were operating properly at the time of the accident and that, if applied, the brakes would have prevented the vehicle from rolling back down plaintiff's driveway, it was appropriate for the trial judge to grant summary judgment in defendant's favor. Accordingly, even if the record reveals a genuine dispute about whether the gearshift was defective in the manner described by plaintiff's expert, plaintiff's undisputed negligence in her operation of the vehicle was not a foreseeable consequence and constituted a superseding intervening cause of her injuries, rendering irrelevant the claim of a gearshift defect. See, e.g., Davis v. Brooks, 280 N.J. Super. 406, 412-13 (App. Div. 1993).