THE NEW JERSEY INTERGOVERNMENTAL INSURANCE FUND, as Subrogee to James Carkhuff and the Township of Chester, Plaintiff-Appellant,
DANE ALMASSY, Defendant-Respondent, and THE ESTATE OF EILEEN HOFFMAN and GAYLYN BENNETT, Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3320-08.
Eric J. Nemeth and Buglione, Hutton & De Yoe, L.L.C., attorneys for appellant (Mr. Nemeth, of counsel and on the brief; James M. LaBianca, on the brief).
Belsole and Kurnos, L.L.C., attorneys for respondent (Kevin Weinman, on the brief).
Before Judges Sapp-Peterson and Haas.
Plaintiff, The New Jersey Intergovernmental Fund, as subrogee to James Carkhuff and the Township of Chester (Township), appeals from the trial court order granting summary judgment to defendant Dane Almassy. We affirm.
Carkhuff, who is a Township police officer, sustained an injury to his right knee while responding to a call from a limousine driver who reported that his passenger had not returned to the limousine after initially requesting the driver to pull over on the road so that he could relieve himself. The passenger, later identified as defendant, came back to the vehicle and told the driver that some kids had thrown tomatoes at him and that he was going to look for them. When defendant failed to return fifteen minutes later, the driver contacted police.
Officer Carkhuff responded to the call, spoke with the driver and then proceeded to the residence where the limousine driver had planned to take defendant, which was located approximately one-quarter mile away. The home was owned by Eileen Hoffman (deceased) and managed by her daughter, defendant Gaylyn Bennett, a close friend of defendant. Defendant had been living with Bennett temporarily as he had done previously when his parents divorced. Bennett allowed the officer to search the home. Officer Carkhuff searched the residence for approximately twenty minutes but did not find defendant. He then, along with another officer handling a K-9 dog, searched the area where the limousine driver had let defendant out of the vehicle. Officer Carkhuff injured his knee during this search.
When police returned to Bennett's home, she informed them that defendant was in the house. He had pink insulation on his clothing because he had been hiding in the basement listening to his iPod to avoid conversation with Bennett, who had not gone to bed when he arrived home. He believed that he had told the driver he was going to walk the rest of the way home.
Officer Carkhuff sought medical attention for his knee. After seven surgeries, Carkhuff was unable to return to work. He collected workers' compensation, and plaintiff filed its complaint against Hoffman's estate, Bennett and defendant, seeking to recover funds it had paid to Officer Carkhuff. The estate and Bennett moved for summary judgment, arguing they breached no duty of care owed to the officer. The court granted their motion and indicated that had defendant also moved for summary judgment, it would have granted the motion. Defendant subsequently moved for summary judgment, also contending that he breached no duty of care owed to the injured officer. The motion judge agreed and granted the motion. The present appeal followed.
On appeal, plaintiff contends there are disputed issues of fact which are material and should have resulted in the denial of defendant's motion and that defendant's conduct contributed to Officer Carkhuff's injuries. We find no merit to either contention.
Summary judgment is appropriate when "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). Although the court views the evidence "in the light most favorable to the non-moving party, " where there exists a "single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)). Thus, ...