On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6373-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Simonelli.
In this automobile accident matter, plaintiff Sara Jennings, a pedestrian, was struck by a vehicle owned and operated by defendant Romona Phillips. In addition to seeking damages from Phillips, plaintiff sought damages from Phillips' passenger, defendant Gena Johnson, under theories of agency and joint venture liability. Johnson filed a summary judgment motion, which the trial judge granted on August 28, 2009.*fn1 We affirm.
The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On April 24, 2007, Johnson, then age seventy-nine, asked Phillips, then age sixty-eight, to drive her to a storage facility to pay a bill. Phillips, who knew Johnson and did similar favors for her in the past, agreed, picked up Johnson, and drove her to the storage facility. As they were leaving the facility after Johnson paid her bill, Phillips lost control of her vehicle and struck plaintiff, seriously injuring her. Johnson was a rear-seat passenger at the time.
In opposition to Johnson's summary judgment motion, relying on Restatement (Third) of Agency, §§ 1.04, 7.03 and 7.07(3)(b) (2006), plaintiff argued that Phillips was Johnson's gratuitous agent because Johnson controlled Phillips by directing her where to pick her up and where to bring her in order that she could conduct business at the storage facility. Thus, in plaintiff's view, Johnson is directly liable for Phillips' acts.
In an oral opinion, the trial judge found there was no principal-agent relationship between Phillips and Johnson sufficient to impose vicarious liability on Johnson. The judge concluded as follows:
Ms. Phillips was simply performing a favor for Ms. Johnson extending a common and laudable social accommodation to a senior citizen seeking a ride. Ms. Johnson... did not supply the vehicle, tell Ms. Phillips how to drive or otherwise directed the operation of the [vehicle].... Ms. [Phillips] was clearly not accepting responsibility to interact with third parties on behalf of Ms. Johnson, or to otherwise represent her interests in any fashion. In such circumstances, doing a favor for a neighbor or a friend does not give rise to an agency relationship and thus does not justify the imposition of vicarious liability. And I find that the right to control is paramount there.
Relying on Clemens v. O'Brien, 85 N.J. Super. 404 (App. Div. 1964), the judge also concluded there was no joint venture liability.
On appeal, plaintiff contends, in part, that the judge erred in finding no agency relationship between Phillips and Johnson and in failing to apply the Restatement (Third) of Agency.*fn2 We disagree.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008).
Applying these standards, we conclude that summary judgment was properly granted under the facts of this case. We affirm substantially for the reasons expressed by the trial ...