On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2456-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Grall.
This appeal is from an order granting summary judgment in favor of defendant Nam J. Lee and dismissing plaintiff Son Yong Han's complaint seeking damages for personal injury sustained as a consequence of defendant's alleged negligent driving.
Plaintiff was a passenger in defendant's car when he struck a deer on the New Jersey Turnpike. Because plaintiff's evidence was sufficient to present a jury question on negligence, we reverse and remand for further proceedings.
Plaintiff's account of defendant's condition, the speed at which he was driving and his failure to observe and react to the deer in time to avoid the collision is as follows. Defendant drove from his home in Flushing, New York to plaintiff's home in Virginia. They planned to return to New York that night. He arrived at 11:00 p.m., and he and plaintiff left for New York shortly thereafter. Defendant told plaintiff he was "getting drowsy," and he asked her to sit in the front seat and talk to him.
The accident occurred around 2:30 a.m. About ten minutes earlier, plaintiff had looked at defendant's speedometer. He was driving at a speed between eighty and eighty-five miles per hour, and he was driving at the same speed when plaintiff saw the deer.
The animal came from the right and into the left lane. The deer moved slightly, then stopped, then moved again. Plaintiff saw the deer before defendant and alerted him. Defendant "didn't seem to understand" her warning. He was "kind of... sleeping while he was driving," "half asleep, half awake."
Plaintiff "told him to step on the brake." Defendant complied, but "he was speeding so he just went ahead and collided with the deer." The car made "screeching sounds but it kept on going."
Plaintiff estimated that she saw the deer about ten to fifteen seconds before defendant hit it and when the car was about two-and-one-half to three car lengths away from the deer. She, however, was not certain of her estimation of the time that elapsed between her first observation of the deer and the crash.
We recognize that defendant's account of the accident is materially different. But, if jurors were to believe plaintiff's version, they could reasonably conclude that defendant, who drove while drowsy at a speed of eighty to eight-five miles per hour and did not see the deer in time to take evasive action, failed to exercise the degree of care, precaution and vigilance in the operation of his car that a reasonably prudent person would exercise under similar circumstances. Ambrose v. Cyphers, 29 N.J. 138, 149 (1959). Accordingly, it was error to dismiss plaintiff's complaint on defendant's motion for summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).