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Mukhoti v. Mercedes-Benz of Cherry Hill

October 15, 2008

BELA MUKHOTI, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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