August 9, 2012
MARTHA BRAVO, PLAINTIFF-APPELLANT,
EILEEN M. HEALEY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-601-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 29, 2011
Before Judges Baxter and Nugent.
In this automobile negligence action, plaintiff Martha Bravo appeals from the Law Division order that granted summary judgment to defendant Eileen M. Healey and dismissed the complaint. We conclude that the evidence presented on the motion established a triable issue as to whether defendant was negligent. Accordingly, we reverse and remand.
We derive the following facts from the summary judgment motion record.
The accident occurred on the afternoon of May 23, 2009, on Second
Street in a residential neighborhood in Swedesboro. Plaintiff had been
riding in the front passenger seat of a van or truck*fn1
that her work colleague, Marino Resino, had been driving
north on Second Street. Resino parked the van on the easterly or
right-hand side of Second Street, twenty-five feet north of its
intersection with Allen Street, so that plaintiff could cross Second
Street and retrieve her mail. Although there was a crosswalk
immediately to the rear of Resino's van, plaintiff did not attempt to
cross Second Street at the crosswalk, but instead attempted to cross
in front of the van. She could not explain why she crossed in front of
the van instead of the crosswalk, because she normally used the
crosswalk; she did not "know what happened to [her] that day."
Plaintiff looked to her right, then to her left, before entering the roadway. She saw no cars coming from her left. As she "[tried] to start going," the left side of her body was struck by defendant's van. Plaintiff thought the front of defendant's van struck her. When the police arrived, plaintiff told them that the only thing she remembered was attempting to cross the street directly in front of Resino's vehicle.
Defendant was driving her Dodge Caravan north on Second Street. She was familiar with the area as her children attended classes approximately one block from where the accident occurred. From past experience, she was aware that cars could be parked along both sides of Second Street, and that pedestrians did not always cross the street at its crosswalks. She had previously observed pedestrians cross the street in front of her while she was driving, children run into the street in the area where her children attended classes, and people exit parked cars. As a result, she drove below the twenty-five miles-per-hour speed limit and "tried to watch a little more and anticipate."
On the day of the accident, as defendant drove through the intersection of Second and Allen Streets, she saw a white truck, still running, and she could not tell if anyone was in it. She slowed down. The truck was "on a bend,"*fn2 so she tried to stay close to the truck but not too close that [she] would hit anybody if they came out, [or] opened the door of the truck." She passed the truck and then heard a loud bang from the side of her Caravan. "It was the mirror." She stopped, ran back, and saw "that [plaintiff] was laying on the ground," injured, her ankle obviously broken.
Defendant estimated that she was approximately two-and-one-half to three feet from the truck at the moment of impact. There was no oncoming traffic, but "that's one of the things that [she] was worried about because around the bend . . . [she] might not have been able to see everything that was coming . . . ." Defendant did not see any pedestrians as she approached the truck, nor did she see any pedestrians as she passed the truck. She did not see plaintiff before the impact.
As a result of the impact, the mirror on the passenger side of defendant's Caravan was shattered, and there was a dent in the panel below the mirror. A portion of the dent was "before the door" and a portion of the dent was "in the door."
Plaintiff filed her personal injury complaint on April 5, 2010, defendant answered, the parties completed discovery, and thereafter defendant filed a motion for summary judgment, which plaintiff opposed. Following oral argument the trial court granted defendant's motion.
The court found from the undisputed facts that plaintiff made improper observations when she looked to the left and did not see defendant's van, and that "no reasonable jury could differ." Responding to plaintiff's argument that defendant drove too close to the parked van, the court determined that: no part of defendant's van struck the parked van; plaintiff did not peek out and did not make proper observations; and plaintiff stepped into the road and she was injured. The court also found that "there [was] no evidence that defendant ha[d] acted negligently . . . ."
The court entered a confirming order. This appeal followed.
We review the trial court's summary judgment order de novo, using the standard set forth in Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995). Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That standard requires that we determine "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, supra, 142 N.J. at 540. In other words, we must consider "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." Id. at 536 (internal quotation marks and citation omitted).
Evaluating the case before us under the summary judgment standard requires that we consider the applicable standard of care and determine whether the facts presented on the summary judgment motion record, viewed in the light most favorable to plaintiff, presented a triable issue. Plaintiff alleges that defendant negligently operated her motor vehicle. The driver of a motor vehicle has a duty to exercise the care that a reasonably prudent person would exercise under the same or similar circumstances confronting him or her at the particular time in question. See Goldstone v. Tuers, 189 N.J. Super. 167, 169 (App. Div. 1983). See also Model Jury Charge (Civil), 5.30A, "General Duty Owing" (1999).
Plaintiff argues that the trial court engaged in fact- finding when it determined that she did not cross at a crosswalk, and that she failed to make proper observations because she did not see defendant's van when she looked to her left before crossing Second Street. Plaintiff also argues that a genuine issue of material fact existed as to whether defendant drove too close to Resino's parked vehicle or to the right side of the road.
We find it difficult to discern why the trial court focused on plaintiff's negligence. Defendant's point heading in her motion brief stated that she was "not negligent nor were her actions the proximate cause of the motor vehicle accident." Substantively, she argued that her conduct was not the proximate cause of the accident, and that there was nothing she could have done to avoid the accident. Yet, during oral argument, the trial court never mentioned proximate cause. Instead, the court focused on plaintiff's negligence. The court initiated oral argument by inquiring of plaintiff's counsel whether a jury could "reasonably determine that the [plaintiff] was not 100% at fault here or . . . substantially at fault here?" The court then noted that plaintiff came out from the van, looked left and did not see anything, "but obviously the other car was there." Throughout oral argument, the court emphasized that plaintiff did not cross the street at a crosswalk, and did not see defendant's Caravan when she looked to her left before starting to cross the street. Yet, defendant had not argued that the complaint should be dismissed because plaintiff's negligence was greater than defendant's negligence.
Nevertheless, the court also rejected plaintiff's argument that a triable issue existed as to defendant's negligence because defendant drove too close to the parked vehicle knowing that pedestrians might attempt to cross the street at that location. We conclude that there was a triable issue as to defendant's negligence.
The parties did not dispute, for purposes of the summary judgment motion, that the rearview mirror of defendant's Caravan struck plaintiff. Although defendant testified that her Caravan was two and one-half to three feet from Resino's parked vehicle, a jury could conclude from plaintiff's testimony that defendant's Caravan was closer to Resino's vehicle. Defendant knew from her familiarity with the area, and from driving through it on previous occasions, that pedestrians might cross the street at that location, or an occupant in a parked vehicle might open the door into the lane of travel. In view of defendant's knowledge and past experience, the question of whether a reasonably prudent person would have driven so close to the van presents a triable issue. As our Supreme Court has explained:
In the usual negligence case, it is not necessary for the plaintiff to prove the standard of conduct violated by the defendant. It is sufficient for plaintiff to show what the defendant did and what the circumstances were. The applicable standard of conduct is then supplied by the jury which is competent to determine what precautions a reasonably prudent [person] in the position of the defendant would have taken.
[Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961).]
Defendant's testimony that there was a bend in the road beyond Resino's vehicle does not require a different result. There was no evidence in the motion record as to the width of the roadway, the distance between Resino's vehicle and the beginning of the "bend," or whether a center line divided the roadway. Consequently, the trial court could not have concluded that defendant's concern about oncoming traffic required her to pass the parked vehicle at so close a distance.
The order granting summary judgment to defendant is reversed.
Reversed and remanded.