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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...