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Leithauser v. Friedman

July 16, 2009

GELSOMINA LEITHAUSER, PLAINTIFF-RESPONDENT,
v.
PHYLLIS FRIEDMAN AND FERDINAND VILANOVA, JR., DEFENDANTS-RESPONDENTS, AND MARC BERENSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9159-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 13, 2009

Before Judges Rodríguez and Payne.

Gelsomina Leithauser sued Phyllis Friedman, Ferdinand Vilanova, Jr. and Marc Berenson for personal injuries and property damage sustained in a multi-vehicle accident. All defendants answered. After a period of discovery, Vilanova moved for summary judgment. Friedman cross-moved for summary judgment. Berenson filed opposition to the Vilanova motion and Friedman's cross-motion. Leithauser joined Berenson's opposition. The judge granted Friedman's and Vilanova's motions for summary judgment.

Berenson moved for reconsideration, which Friedman opposed. Leithauser joined the reconsideration motion. The judge denied the motion for reconsideration. Berenson moved for leave to appeal and for a stay. All other parties filed briefs. We granted leave to appeal. Leithauser v. Friedman, No. AM-315-08T3 (App. Div. Jan. 30, 2009).

This case arises out of a motor vehicle accident that occurred on May 11, 2008 at 10:19 a.m. on the New Jersey Turnpike. It is undisputed that there were two lanes and shoulders on each side. The four vehicles involved were driving northbound.

A white Toyota Camry, owned and operated by Friedman, was in the right hand shoulder and then moved into the right lane of traffic to avoid a Turnpike maintenance truck parked on the right shoulder.

A grey Honda Civic, owned and operated by Vilanova, was traveling in the right lane. Friedman's Camry came alongside Vilanova's vehicle and hit its rear passenger side. The impact caused the Civic to move to its left, across the Turnpike, and hit the center median. The Civic did not come into contact with any other vehicles. Friedman's Camry also moved to its left and came to rest in the travel lane closest to the median.

A grey Jeep, owned and operated by Berenson, was in the left lane, traveling behind Leithauser's black Hyundai. Berenson did not observe the collision between Friedman's and Vilanova's vehicles. He did see Friedman's vehicle cross the lanes of traffic from the left to right. Because Leithauser slammed on her brakes, Berenson was then forced to slam on his brakes. He was unable to avoid coming into contact with Leithauser's vehicle.

Leithauser was traveling in the left northbound lane and told the officer that she saw Friedman's vehicle spin out in front of her. She slammed on her brakes to avoid hitting the Friedman and Vilanova vehicles and was hit from behind by Berenson. She saw another vehicle ahead that also kept her from proceeding. Everything happened very quickly from the time she saw the accident until her vehicle was hit.

On appeal, Berenson contends that "the series of events involving the four vehicles constituted a single accident and the issues of the negligence of the four drivers, and such negligence being a proximate cause of the accident, are issues of fact for a jury to decide." Moreover, Berenson contends that "there are facts to support a jury finding negligence on" the part of Friedman and/or Vilanova. We agree with respect to Friedman only.

The standard for granting a motion for summary judgment is well known. Summary judgment must be granted 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(c). The motion judge must not decide issues of fact, but only whether there are any such issues. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The rule for determining whether there is a genuine issue of fact requires the judge to engage in a weighing process like the one used in deciding motions for directed verdicts pursuant ...


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