ANN MARIA MATINO, EXECUTRIX OF THE ESTATE OF ROSEMARIE MATINO and ANN MARIA MATINO, NANCY WILLIAMS AND THERESA TRENDLER, Plaintiffs-Appellants,
ROBERT LASKO, CONSELINA LANDSCAPE & TRUCKING CO., LLC, JOHN SMITH, A & L HARPER TRUCKING CO., Defendants, and JOSEPH CARBONETTA AND TIPTON TRUCKING CO., INC., Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 20, 2012
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0897-09.
Gary D. Ginsberg argued the cause for appellants (Ginsberg & O'Connor, P.C., attorneys; Mr. Ginsberg, on the brief).
Joseph P. McNulty argued the cause for respondents (Carroll, McNulty & Kull, LLC, attorneys (Mr. McNulty, of counsel and on the brief; Julie Zando-Dennis, on the brief).
Before Judges Nugent and Maven.
Plaintiffs, Ann Maria Matino, Nancy Williams, and Theresa Trendler, appeal from the summary judgment that dismissed their complaint against defendants Joseph Carbonetta and Tipton Trucking Co., Inc. Plaintiffs' claims arose out of a traffic accident that resulted in the death of their mother, Rose Marie Matino. The accident occurred when a tractor-trailer driven by defendant John Smith collided with the rear of a dump truck driven by defendant Robert Lasko, which then crossed into the oncoming lane of traffic and crashed into Rose Marie Matino's Buick LeSabre. The Tipton truck driven by Carbonetta did not collide with any of the other vehicles, but plaintiffs allege that its sudden stop triggered the events that ultimately resulted in the collision between the dump truck and their mother's car. Having considered the summary judgment motion record in light of plaintiffs' arguments, we conclude that plaintiffs did not establish a prima facie case of negligence as to Carbonetta. Accordingly, we affirm.
The summary judgment record discloses the following facts. The accident occurred just before noon on October 30, 2011, on Route 70 in Evesham Township. Route 70 at the accident scene is a straight, level, asphalt road with one westbound lane, one eastbound lane, and an eastbound right-turn lane that provides access to a shopping center and an intersecting street, Troth Road. The travelling lanes are separated by solid double lines. The collision between the trucks driven by Smith and Lasko occurred approximately 815 feet west of Route 70's intersection with Troth Road.
Carbonetta was driving a Tipton Trucking Co. flatbed truck in the eastbound lane, approaching the traffic light at Troth Road. Lasko was driving behind him in a 2006 Mack Dump Truck. Smith was driving behind Lasko in a 2000 Kenworth Tractor and semi-trailer. In the area of the right-hand turn lane for the shopping center and Troth Road, the tractor-trailer driven by Smith collided with the rear of the dump truck driven by Lasko. Immediately following that collision, Lasko's dump truck travelled across the double yellow line and crashed into Rose Marie Matino's Buick. The negligence of Smith and Lasko is not disputed on the record before us. The central issues are whether Carbonetta was negligent and, if so, whether his negligence was a proximate cause of the accident.
Neither Lasko nor Smith accused Carbonetta of stopping suddenly. According to Lasko, as he downshifted from sixth into fifth gear while coming out of a short curve, he saw the traffic light at Troth Road and began to apply his brakes. At the same time, he looked in his rearview mirror and saw smoke coming from the tractor-trailer. Lasko knew his truck was going "to get hit, " but had no concern that the tractor-trailer was going to push him into a vehicle in front of him, because the vehicle in front of him "was too far down the road." Lasko testified that a car, not the flatbed truck driven by Carbonetta, was in front of him when the tractor-trailer rear-ended the dump truck he was driving. The car in front of him "didn't do anything sporatic[, ] . . . he was slowing down, also."
Smith told police that he had been driving behind the dump truck driven by Lasko for a few miles and "had not noticed any brake lights activated on [the dump truck] immediately before the collision." Smith was unsure of the distance between the tractor-trailer he was driving and the dump truck. He "came up quick to the rear end of [the dump truck], " attempted to avoid colliding with the dump truck by steering to the right, but was unable to avoid the collision.
Carbonetta's version of the accident contradicted Lasko's version. Carbonetta testified during his deposition that Lasko had been tailgating him. Carbonetta looked into his rearview mirror "every five to ten seconds" because Lasko "was actually trying to see what was in front of [Carbonetta]." Lasko would "drift over . . . to see what was in front of [Carbonetta]." When Lasko drifted far enough over to see oncoming cars, or that Carbonetta "was leaving a safe cushion between [him] and the car in front, then [Lasko] would drift back. Then he would sneak back out to see, after that car went by." These "tailgating incidents occurred approximately eight times over ten minutes." Carbonetta testified that Lasko's last tailgating activity occurred "approximate[ly] five minutes before the impact occurred."
When asked whether he was distracted by Lasko's tailgating to the point that he did not know what was happening in front of him, Carbonetta responded "[y]es." He further explained:
You're sort of using double vision. Unless you're sitting in the driver's seat of the truck and see what you see in that mirror, you can almost, really without turning your head, see what's in the mirror and also keep an eye on what's in front of you.
Asked if he "always [kept] an eye on what was in front of [him], " Carbonetta responded, ...