On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-612-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Espinosa.
Plaintiff Sherry Lebednikas, who was operating a motor vehicle that was struck in the rear by defendant's vehicle, appeals from summary judgment dismissal of her personal injury action against defendant owner and operator. The judge found plaintiff's sudden stop was not foreseeable and thus there was no negligence on the part of defendant operator as a matter of law. We reverse the January 9, 2009 order and remand.
In determining whether there exists a genuine issue of material fact that precludes summary judgment under Rule 4:46-2, the motion judge is to 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). The movant bears the burden of demonstrating the absence of any genuine issue of material fact, and all legitimate inferences must be drawn against the movant and in favor of the non-moving party. Ibid.; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). Summary judgment is appropriate when the evidence "'is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)).
On appeal, we apply the same standard as the trial court with respect to the motion record and determine whether the motion judge's ruling on the law was correct. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
The following facts are undisputed. Plaintiff was driving in the left lane of eastbound Black Horse Pike in Monroe Township when a phantom vehicle suddenly entered the eastbound lanes of that roadway traveling westbound, directly towards plaintiff's vehicle. Plaintiff braked and avoided the phantom vehicle. Defendant was traveling in the same lane as plaintiff and braked but was unable to avoid rear-ending plaintiff's vehicle.
Plaintiff testified at the deposition that she repeatedly honked her horn when she observed the phantom vehicle coming towards her and came to a stop before she was rear-ended by defendant's vehicle. She answered in Interrogatory #19, which inquired whether any admission was made by defendant, that "[d]efendant told plaintiff's passenger, Elizabeth Colavita, he did not see plaintiff stop." Additionally, when defendant was asked in depositions whether he made "an attempt to move left into the grass median or move to the right lane" when he "saw [plaintiff's] lights come on," he responded in the negative.
After hearing oral argument and reviewing the record, we are satisfied that when the evidence is viewed in the light most favorable to plaintiff, a genuine issue of fact exists as to defendant's liability. As there can be more than one proximate cause of the accident and more than one basis for negligence, the matter was not ripe for summary judgment. See, e.g., Dolson v. Anastasia, 55 N.J. 2, 10 (1969) (holding that failure of a car in the same lane of traffic "to maintain a reasonably safe distance behind the car ahead, having due regard to the speed of the preceding vehicle and the traffic upon and condition of the highway," resulting in a collision, is negligence).
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