August 8, 2012
CYNTHIA WILLIAMS, PLAINTIFF-APPELLANT,
MIGUEL LEBRON AND DAVID NUNEZ, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0279-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012 -
Before Judges Messano and Kennedy.
Plaintiff Cynthia Williams appeals from the grant of summary judgment to defendants Miguel Lebron and David Nunez. The motion record reveals that on March 25, 2007, plaintiff was driving her car north on Third Street in Vineland. As she approached the intersection with Chestnut Avenue, she stopped at the stop sign, did not see any vehicles coming in either direction and proceeded into the intersection.
Plaintiff testified in her deposition that the front of her car was across the center line of Chestnut Avenue when a motorcycle, driven by Lebron and owned by Nunez, struck her car in the rear driver's side door. Plaintiff did not see the motorcycle and had no warning prior to impact. The police report noted that "at the time of [the] crash, the sun glare was bright" at the intersection. The report further stated that the "impact area was approximately [ten feet] north of the south curb line of Chestnut [Avenue] and approximately [fifteen feet] east of the west curb line of Third [Street]"
Defendants moved for summary judgment arguing that plaintiff failed to establish any facts demonstrating the negligent operation of the motorcycle. Plaintiff opposed the motion. Noting that defendants were barred from testifying at trial for failure to sit for their deposition, plaintiff argued that given the location of her vehicle when struck and the severity of the impact, it was inferable that Lebron was speeding or otherwise operating the motorcycle in a negligent fashion. Defendants countered at oral argument that plaintiff had no expert testimony "as to how the motorcycle was operated or what the speed was."
Addressing plaintiff's counsel, the motion judge, Richard Geiger, J.S.C., concluded:
You have no testimony that you're going to be able to produce as to how the motorcycle was operating because you don't have any witnesses. And . . . you don't have a liability expert about the way the motorcycle was proceeding.
. . . You can't offer any testimony about whether the motorcycle was acting recklessly or carelessly. . . . You have no testimony about whether the . . . motorcycle was violating any motor vehicle laws or otherwise driving erratically. . . .
You have an intersection collision where your client had to yield right of way and unfortunately didn't. If you are unable to produce any evidence of negligent operation by the motorcycle[,] and you can't [by] your own admission[,] [h]ow can you proceed in this case . . . ?
Noting further that "it's the plaintiff's burden of proof to show negligence," Judge Geiger granted summary judgment. This appeal followed. Plaintiff contends that there was sufficient proof to allow the jury to infer defendant was negligent and summary judgment was inappropriate. Having considered this argument in light of the record and applicable legal standards, we affirm substantially for the reasons expressed by Judge Geiger in his oral decision. We add only the following.
In reviewing a grant of summary judgment, we apply the same standard as the motion judge. EMC Mortgage Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge 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).] We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
"[N]egligence . . . requires proof that a defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach." Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005). For more than half a century, the applicable standard has been:
The mere showing of an incident causing the injury sued upon is not alone sufficient to authorize the finding of an incident of negligence. Negligence is a fact which must be shown and which will not be presumed. The burden of proving the charge of negligence is upon the plaintiff and must be sustained by proof of circumstances from which defendant's want of due care is a legitimate inference . . . . An inference can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess.
[Long v. Landy, 35 N.J. 44, 54 (1961) (citations omitted).]
In this case, there was no evidence or reasonable inference to be adduced that Lebron was operating the motorcycle at excess speed, or that he failed to make adequate observations of plaintiff's vehicle. In short, plaintiff failed to raise a factual dispute that Lebron was negligent.
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