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Anthony Badalamenti, A Minor By His Guardian Josephine Badalamenti and v. Victor C. Simpkiss

July 6, 2011

ANTHONY BADALAMENTI, A MINOR BY HIS GUARDIAN JOSEPHINE BADALAMENTI AND JOSEPHINE BADALAMENTI, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
VICTOR C. SIMPKISS, III, COPD SERVICES, AND GELCO CORP.,
DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1680-08.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 12, 2011

Before Judges Carchman, Waugh and St. John.

The opinion of the court was delivered by ST. JOHN, J.S.C. (temporarily assigned).

The primary issue addressed in this appeal is whether the driver of a delivery truck owed a duty of care to an unseen trespasser, who fell off the back of the truck and was injured. We hold that the driver had no duty to inspect the rear of the vehicle for unauthorized riders.

Plaintiffs Anthony Badalamenti and his mother Josephine Badalamenti*fn1 appeal from the May 14, 2010 order granting summary judgment to defendants Victor Simpkiss, III, and his employer, COPD Services, Inc. They also appeal from the July 9, 2010 order denying their motion for reconsideration of the summary judgment and denying relief from their earlier voluntary dismissal with prejudice of the product liability claims. We affirm.

The following facts are derived from the record before the motion judge. On March 10, 2006, at approximately 4:00 p.m., Simpkins parked COPD's delivery truck on Adams Street in Cinnaminson. Simpkiss was delivering an order of stationary liquid oxygen to his customer's home. While Simpkiss was carrying equipment in and out of the home, Anthony, then fifteen, and four teenage friends were standing near the rear of the truck. Anthony and two friends, Michael and Kyle, decided to sit on the rear platform of the truck, which was approximately two feet in depth. Michael sat on the passenger's side, Anthony in the middle, and Kyle on the driver's side. Simpkiss, unaware of their presence, started the engine and went into the house for approximately three minutes. The teenagers engaged in a conversation about how fun and exciting it would be going for a ride on the back of the truck.

Simpkiss returned to the truck and, without circumnavigating or inspecting the rear of the truck or its cargo, climbed into the driver's seat, backed up, and then drove away. As the truck moved forward, Michael immediately jumped off, but Kyle and Anthony remained on the vehicle. Unfortunately, the truck hit a bump causing Anthony to fall off and hit his head. Kyle rode on the truck for approximately two blocks. When the truck stopped at an intersection, he then jumped off, and ran back to Anthony.

The blow to Anthony's head caused significant injuries. Anthony and Josephine filed a complaint against Simpkiss, COPD and Gelco Corp., the owner of the truck, alleging causes of action sounding in negligence and product liability.

In his March 25, 2009 report, Clifford B. Anderson, P.E. of Robson Forensic Inc., failed to opine as to any defects in the truck that would form the basis for a product liability claim.

On September 28, 2009, plaintiffs agreed to the voluntary dismissal, with prejudice, of their product liability claim against Simpkiss and COPD, as well as all claims against Gelco Corp., the owner of the truck. After Anderson died, plaintiffs obtained a replacement report from another Robson expert, Brooks Rugemer. The new report, which was issued approximately four months after the voluntary dismissal, contained references to "rear cargo area back-up mirrors" as support for a product liability claim.

Defendants moved for summary judgment. After oral argument, Judge Karen L. Suter determined that defendants owed no duty to plaintiffs, and granted their motion. Plaintiffs filed a motion for reconsideration, and for relief under Rule 4:50-1(f) to vacate the dismissal, both of which were denied. It is from these orders that plaintiffs appeal.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the motion judge. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). We consider, as did the judge, "'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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). We view the evidence submitted by the parties in support of, and in opposition to, plaintiffs' summary judgment motion, in a light most favorable to plaintiffs. See Brill, supra, 143 N.J. at 540. 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 are satisfied that the trial judge properly granted summary judgment.

Plaintiffs argue that the judge's decision that defendants owed no legal duty to them was erroneous. They further contend that defendants' breach of the duty to have rear cargo mirrors should have been considered by the trial court as to defendants' negligence.

Plaintiffs posit that the judge erred in granting summary judgment because she failed to find that Simpkiss had a legal duty to inspect the truck before he drove off. Specifically, plaintiffs argue that applicable commercial driving standards mandated an inspection of the truck, which would have revealed Anthony sitting on the bumper. In the alternative, they contend that it is fair to impose this duty on Simpkiss in this case. Defendants respond that a delivery driver does not have a duty to search for persons on the rear of his or her vehicle. In addition, defendants note that duties arising from regulations or statutes, which are not intended to protect against the harm actually suffered by Anthony, will not give rise to a cause of action of negligence. Finally, defendants argue that the imposition of a duty in this case would be unfair.

The motion judge held that Meade v. Purity Bakers, 115 N.J.L. 471 (E. & A. 1935), was controlling. As a separate basis for the grant of summary judgment, the judge also considered the factors for analyzing whether a duty exists.

In Kelly v. Gwinnell, 96 N.J. 538, 544 (1984), the Court explained this analysis:

In most cases the justice of imposing such a duty is so clear that the cause of action in negligence is assumed to exist simply on the basis of the actor's creation of an unreasonable risk of foreseeable harm resulting in injury. In fact, however, more is needed, "more" being the value judgment, based on an analysis of public policy, that the actor owed the injured party a duty of reasonable care. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). In Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583 (1962), this Court explained that "whether a duty exists is ultimately a question ...


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