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Bassam Jafar, As Administrator Ad Prosequendum of the Estate of Mayda v. Elrac

April 18, 2011

BASSAM JAFAR, AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MAYDA JAFAR, AND INDIVIDUALLY; HILMI JAFAR, AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ATHEAR JAFAR AND INDIVIDUALLY; MAJIDA JAFAR; AND ASIA JAFAR, PLAINTIFFS-APPELLANTS,
v.
ELRAC, INC., EUGENE C. BAUM, AND ENTERPRISE RENT-A-CAR COMPANY, DEFENDANTS, AND FUTURE ELECTRONICS CORP, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2068-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically March 24, 2011

Before Judges Lihotz and J. N. Harris.

This appeal is the outgrowth of wrongful death litigation brought by the administrators ad prosequendum of two teenaged girls who were killed by an intoxicated driver in 2006.*fn1 In addition to seeking remedies against (1) the driver, defendant Eugene C. Baum (Baum); (2) the owner of the rented vehicle, defendant Elrac Inc. (Elrac); and (3) the car rental company, defendant Enterprise Rent-A-Car Co. (Enterprise), plaintiffs also included claims against the driver's employer, defendant Future Electronics Corp. (Future). They have proceeded on the theory that Baum was acting within the scope of his employment when the accident occurred, or alternatively, that Future had reason to know of Baum's alcohol abuse and negligently retained him as an employee.

Plaintiffs' causes of action against Elrac and Enterprise were dismissed on summary judgment and are not the subject of appeal. Plaintiffs' claims against Baum were otherwise resolved. It was Future's motion for summary judgment dismissing the complaint, which was granted, that is the focus of this appeal.

Before us, plaintiffs urge that the motion court erred in two fundamental ways: first, by refusing to stay the action against Future pending the completion of the criminal prosecution against Baum, and second, by granting summary judgment in favor of Future. Because we discern no abuse of discretion in the court's denial of a stay, and conclude that plaintiffs have failed to demonstrate the existence of a genuine issue of material fact to preclude summary judgment, we affirm.

I.

A.

Because this appeal arises out of a motion for summary judgment, we give all reasonable inferences to plaintiffs, the non-moving parties. See Bauer v. Nesbitt, 198 N.J. 601, 605 n.1 (2009).

On April 20, 2006, at approximately 7:45 p.m., Baum was operating a motor vehicle on County Road 618 (Kinnelon Road) in Kinnelon when his vehicle struck and killed the two teenaged victims, who were walking along the shoulder. The police report indicated that the vehicle traveled over 1,000 feet after striking the victims.

Baum was arrested and initially charged with reckless driving and operating a motor vehicle while intoxicated. See N.J.S.A. 39:4-50, -96. Although neither party has provided to us a copy of the indictment or judgment of conviction against Baum, plaintiffs allege that Baum was convicted of a crime in February 2010, and sentenced one month later to forty years in prison.*fn2

The vehicle Baum was operating was owned by Elrac, a wholly owned subsidiary of Enterprise, and had been rented to Baum by Enterprise. Baum admitted that the vehicle had been rented and paid for by him for his own personal use while his personal car was otherwise inoperable. The rented car was not provided to Baum by his employer.

On the date of the accident, Baum was employed as a sales representative by Future, an international distributor and marketer of semi-conductors and other electrical components. Baum was initially retained by Future in 2004 as an inside sales representative. In March 2006, Baum began "migrating" from inside to outside sales, with the goal that he would eventually be either mostly or "entirely outside the office."

Donald Bruce Ledingham, Baum's supervisor at Future's Parsippany office, testified that part of the duties of an outside salesman is to "visit customers [by] driving to the accounts." Ledingham was not aware of Future conducting motor vehicle checks on prospective employees prior to hiring them.

Baum's memory of the events leading up to the accident, and the accident itself, was limited. In a letter to the court, Baum's counsel indicated that Baum had been examined by a forensic psychologist who opined that Baum had "no real recollection of anything that occurred on the date of the accident." During his deposition in this case, however, Baum was able to recall many details connected with the incident.

In the hours leading up to the tragedy, Baum had driven to a business appointment in Monmouth County and returned to his home in Dover in the afternoon, before departing for his mother's house in Kinnelon to pick up an automobile tire. Baum's deposition testimony indicated that he been consuming vodka out of a plastic water bottle throughout the day, including while driving. He also testified that he customarily had "some drinks" when he got home and that it was "highly likely" that he consumed more alcoholic beverages after returning home on April 20, but before setting out on his errand. Although Baum could not recall taking medication on the date in question, he testified that he had been using a medication called Librium at the time.

Baum also testified that while his typical workday was between the hours of nine to five, he worked later, between five and nine, approximately "[fifty] percent of the time." However, Baum did not recall working after he returned home on the date in question, and in fact, left his briefcase, laptop computer, and other work-related materials in his car when he went inside. Kinnelon Detective David E. Crouthamel, however, testified that Baum told him that he "did some more emailing at home," when he returned from his appointment, but could not recall whether the emails were personal or work-related. Baum did not recall making any phone calls or reviewing any work-related documents while driving to his ...


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