May 15, 2009
JEFFREY J. DEVCICH, PLAINTIFF-APPELLANT,
JAMERO A. CLARK, DEFENDANT, AND ROSE-RY E. CUMMINGS AND BALLY'S PARK PLACE, INC., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3001-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 2, 2009
Before Judges Lisa and Alvarez.
Plaintiff Jeffrey J. Devcich appeals the award of summary judgment to defendants Rose-Ry E. Cummings and Bally's Park Place, Inc., dismissing his automobile negligence complaint.
For the reasons that follow, we affirm.
On January 18, 2007, plaintiff was a passenger in a limousine operated by Cummings and owned by Bally's. Defendant Jamero A. Clark, who settled with plaintiff and is not involved in this appeal, slid on ice through a stop sign on the southbound lane of Spring Lake Boulevard in Pemberton Township. Cummings, who had the right of way on Route 70, was struck by Clark in the front left wheel and across the front of the limousine.
Plaintiff alleges that Cummings was driving too fast for the weather conditions, although he acknowledges being asleep when the collision occurred. Plaintiff also claims that because Clark testified in his deposition that his vehicle stopped for a second or two after it skidded into the intersection before the collision, Clark's version of the accident significantly differs from that of Cummings, who stated that Clark ran a stop sign and struck her vehicle.
Plaintiff maintains that an issue of fact therefore arises from Clark's deposition testimony as to whether Cummings was exercising reasonable care at the time of the accident.
Plaintiff contends that this conflict between Cummings' and Clark's descriptions of the accident should have resulted in the denial of defendants' motion for summary judgment as it should have been left to the jury to decide which version is credible and, therefore, whether Cummings and Bally's were negligent.
As we have often recognized, an appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2(c). Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).
Generally, the court must "consider whether 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).
In deciding the motion for summary judgment, the Law Division judge said:
The main reason why I am granting this motion is because both parties agree that they became aware of each other within one second, maybe one of the two of them said one or two seconds, but both of them say within one or two seconds.
I am not basing my ruling on the allegation by defendant Cummings that Mr. Clark, defendant Clark was going at 40 to 50 miles an hour through the intersection. I am basing it on the undisputed and consistent description of the accident by both of them with respect to how basically they became aware of each other within a split second.
And I take that as the bases for which I make my ruling.
Being that the case, then what could have Ms. Cummings, defendant Cummings done to avoid this accident under those circumstances where there is no indication that she was going above the speed limit or at the speed limit, but she was under the speed limit. She was proceeding in . . . a way that the Court does not find is unreasonable under the circumstances. And suddenly this vehicle is right there, and the impact happens within a second or two. That's the same version of events by defendant Clark.
I think that under the circumstances as I have described them, and based upon my findings, I don't see how as a matter of law defendant Cummings could be found to have been negligent in any way, shape or form.
So, for those reasons I am granting the motion because I think that . . . I should not speculate beyond what I have in front of me. And when I give the defendant Clark the benefit from all the inferences, as I must under the rule standard, even so I don't find how I could find any negligence on the part of defendant Cummings.
We affirm the award of summary judgment for the reasons stated by the Law Division judge. The two descriptions of the accident, even when viewed in the light most favorable to plaintiff, establish neither an issue of material fact nor negligence in Cummings' operation of her motor vehicle. Hence, Cummings and Bally's are entitled to judgment as a matter of law. See Piccone v. Stiles, 329 N.J. Super. 191, 194-95 (App. Div. 2000). We consider plaintiff's arguments to lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
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