On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1355-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
In this personal injury case, plaintiffs Richard C. Shue (plaintiff) and his wife Helen Shue, asserting a per quod claim, appeal from the trial court decision granting summary judgment to defendants Abderraza Bureddad (defendant) and Exec U Car Limousine, Inc. Plaintiffs also appeal from the denial of their motion to bar the introduction into evidence of defendants' accident reconstruction expert report, a drive cam video, and supporting certifications.
We reverse the granting of summary judgment, concluding that a rational fact-finder, looking at the evidence from the point of view most favorable to plaintiffs, could find that the conduct of defendant in driving his vehicle was negligent and a proximate cause of the accident. We reverse the order denying plaintiff's application to bar certain evidence and remand in order that the trial court may expressly address the issues in that motion.
On April 25, 2006, plaintiff was driving northbound on Woodcrest Drive in Livingston approaching Manor Road. Defendant was driving a car owned by Exec U Car Limousine Inc. eastbound on Manor Road approaching Woodcrest Drive. The intersection of Woodcrest Drive and Manor Road was uncontrolled. The posted speed limit for both roads was twenty-five miles per hour. The two vehicles collided in the intersection.
Plaintiff testified at his deposition that as he was approaching the intersection, "I just saw the car coming - come out from the side. It was black and I tried to turn to avoid it and, you know, applied my brakes, but I hit the side." Plaintiff could not say how far away he was when he first saw defendant's vehicle, testifying that "it was just a split second. He was there and I hit him." Defendant's vehicle was struck on the right rear passenger door.
An eyewitness testified that just before the collision, he saw plaintiff's vehicle about fifty to seventy-five feet away from the intersection traveling about twenty-five miles per hour. He saw defendant's vehicle about fifty feet away from the intersection traveling about thirty-five miles per hour. He testified that defendant's vehicle was closer to the intersection than plaintiff's, but defendant's vehicle was traveling faster. He said that defendant's vehicle did not slow down, but rather "shot" across Woodcrest.
Defendant testified that he was traveling about ten to fifteen miles per hour. A video from defendant's dashboard mounted camera, which recorded the ten seconds immediately preceding the accident, indicates that when defendant entered the intersection, it was clear. Defendant's accident reconstruction expert report states that defendant was traveling twenty-one miles per hour, that plaintiff's vehicle was traveling faster than defendant's vehicle on impact, and that defendant's vehicle was more than halfway through the intersection at the time of impact. The expert further opines that the accident was caused by plaintiff's failure to yield the right-of-way to defendant.
Defendants moved for summary judgment, and plaintiffs filed a cross-motion seeking to bar from evidence defendants' accident reconstruction expert report, the video, and supporting certifications. By order dated March 20, 2009, the trial court granted summary judgment for defendants and denied plaintiffs' motion to bar certain evidence. Plaintiffs appeal both decisions.
Our review of a trial court decision on a summary judgment motion is de novo, applying the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), cert. denied, 154 N.J. 608 (1998). Summary judgment is granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). In making this evaluation, we look at the competent evidence "in the light most favorable to the non-moving party" and determine whether it is sufficient to meet this standard. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). ...