May 12, 2009
KELLEY A. ESSINGER, PLAINTIFF-APPELLANT, AND STEVEN C. ESSINGER AND ANNE ESSINGER, PLAINTIFFS,
JOSEPH A. DISTEFANO, SAVERIO DISTEFANO, AND ANGELA A. SARKADY, DEFENDANTS, AND RALPH NAPOLI AND DOMINIC R. NAPOLI, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-2133-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 27, 2009
Before Judges Reisner and Sapp-Peterson.
In this automobile accident case, plaintiff Kelley A. Essinger appeals from a June 8, 2007 order granting summary judgment in favor of defendants Ralph and Dominic Napoli, the driver and owner, respectively, of a vehicle involved in the accident. We affirm, substantially for the reasons stated in Judge O'Brien's written opinion accompanying the June 8 order.
There is no dispute that the accident, which occurred on March 17, 2006, was caused when defendant Joseph A. DiStefano fell asleep at the wheel of his vehicle while driving in the northbound lane of Route 9. His vehicle crossed from the northbound lane of Route 9 into the southbound lane. Proceeding against the flow of traffic in the southbound lane, he first sideswiped a car driven by Angela Sarkady and then hit Essinger's car head-on. There appears no dispute that Ralph Napoli, who was following Essinger's car, swerved his vehicle onto the right-hand shoulder of Route 9 to try to avoid hitting or being hit by the Essinger vehicle. However, he was unsuccessful in avoiding a collision.
There is no dispute that the collision between the Essinger and Napoli vehicles occurred on the shoulder, after Napoli swerved off the roadway. According to Napoli's interrogatory answers, the head-on crash caused Essinger's car to bounce back and hit his vehicle. The certification of another witness attested that Napoli's car struck the Essinger vehicle. However, there was no evidence as to how fast the Napoli vehicle was traveling just prior to the accident, nor how closely his vehicle was following the Essinger car. While the police report indicated that Napoli's vehicle left seventy-five feet of skid marks swerving off the roadway, plaintiff did not provide, or offer to provide, an expert report explaining what, if any, significance the skid marks had with respect to Napoli's exercise of due care. Nor did plaintiff provide any other evidence concerning what Napoli might have done to avoid this accident.
In a written opinion, the motion judge reasoned that "[n]egligence must be proved and will never be presumed, nor will the mere proof of the occurrence of an accident raise a presumption of negligence," citing Bratka v. Castles Ice Cream Co., 40 N.J. Super. 576, 583 (App. Div.), certif. denied, 22 N.J. 226 (1956). He concluded that the undisputed evidence showed that DiStefano's conduct was the proximate cause of the accident and that there was no evidence that Napoli was negligent or caused the accident.
The judge acknowledged a motorist's duty to "maintain a reasonably safe distance behind the car ahead," citing Dolson v. Anastasia, 55 N.J. 2, 10 (1969). Moreover he considered that:
Where a motorist takes evasive action to avoid an accident, which would have supported a Dolson charge had it occurred, and in doing so rear-ends another vehicle, its driver has breached the duty to maintain a reasonably safe distance behind the [car] ahead. Paiva v. Pfeiffer, 229 N.J. Super. 276 (App. Div. 1988).
However, in this case, there was no evidence that Napoli had violated Dolson by following too closely. Further, the judge concluded that:
Unlike cases where a defendant driver is faced with an everyday traffic problem for which he should have been prepared, in this case, no reasonable juror could conclude that Defendant Napoli should have been prepared for Plaintiff to fall asleep at the wheel, veer into the oncoming lane of traffic, collide head-on with the vehicle directly in front of Defendant Ralph Napoli's vehicle, and propel that vehicle into a second collision on the shoulder of the road. Such an event can, in no way, be deemed an everyday traffic problem. Paiva v. Pfeiffer, 229 N.J. Super. 276, 282-83 (App. Div. 1988).
On this appeal, plaintiff raises the following issues for our consideration:
Point I: SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED BECAUSE OF THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACT.
A. A factfinder could reasonably determine that defendant Napoli rear-ended plaintiff's vehicle.
B. A factfinder could reasonably determine that the rear-end collision was the result of defendant Napoli's failure to maintain a reasonably safe distance behind plaintiff.
POINT II: THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING DISPUTED ISSUES OF MATERIAL FACT RATHER THAN DECIDING WHETHER THERE WERE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE.
POINT III: THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT WAS IMPROPER AS DISCOVERY WAS NOT YET COMPLETE.
POINT IV: THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT NAPOLI WAS NOT NEGLIGENT AS A MATTER OF LAW.
Our review of the trial judge's summary judgment order is plenary, using the Brill*fn1 standard, the same test the trial court is required to employ. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Having reviewed the record, including all of the summary judgment motion papers, which we required the parties to provide to us, we conclude there were no material facts in dispute and summary judgment was properly granted.
Plaintiff's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). We add the following comments.
On this appeal, plaintiff argues that a jury could find that Napoli's vehicle rear-ended the Essinger car, as a result of Napoli's having followed plaintiff's vehicle too closely.
However, no evidence in the record supports that theory. There is no legally competent evidence as to the speed of the Napoli vehicle or its proximity to plaintiff's vehicle just prior to the accident. Nor is there any expert testimony explaining how Napoli had any responsibility for this accident.
Moreover, while plaintiff now claims discovery was incomplete when summary judgment was granted, she did not raise that issue before the motion judge. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). It is undisputed that interrogatories had been answered and all depositions had been completed before the motion was filed. Plaintiff did not ask the trial court for an opportunity to obtain an expert report, either in her motion brief or at the motion argument.*fn2 A negligence verdict must be based on evidence, not mere speculation and, in this case, there simply was no evidence from which a jury could conclude that Napoli was negligent. See Bratka, supra, 40 N.J. Super. at 583-84.