JANE M. RIEBE et al. v. CZESLAWA ZIMOLAK, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2336-04T12336-04T1

JANE M. RIEBE and OLIVER RIEBE,

Plaintiffs-Respondents,

v.

CZESLAWA ZIMOLAK and EMMA M. TOMPKINS,

Defendants-Appellants.

_____________________________________

 

Submitted: December 13, 2005 - Decided February 2, 2006

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Gloucester County, L-772-02.

J. Michael Farrell, attorney for appellants.

Karen L. Eisele-Grabowski, attorney for respondents.

PER CURIAM

Plaintiffs appeal from the trial court's orders of August 6, 2004, granting summary judgment to each defendant and dismissing the complaint. On September 10, 2004, following plaintiffs' motion for reconsideration, the summary judgments were vacated "as to economic damages only." An order entered on December 13, 2004 memorialized "the settlement of plaintiffs' claims for economic losses[.]"

The case involves two claimed injuries. According to plaintiffs, the first injury was sustained by plaintiff Jane Riebe in an accident with defendant Zimolak. The second injury was allegedly sustained less than three months later in an accident with defendant Tompkins. The motion judge expressed her reasons for the grants of summary judgment in an oral opinion.

Expressly relying on our 2004 opinion in Serrano v. Serrano, 367 N.J. Super. 450, the judge determined with respect to the first injury that there had been no showing of "medical relation of the [injured plaintiff's] symptoms to a permanent and serious injury causally-related to the accident." The judge stated expressly that she "d[id] not need to reach the substantial impact issue" as to the claim arising from the first injury. See generally Oswin v. Shaw, 129 N.J. 290 (1992); James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003); Rios v. Szivos, 354 N.J. Super. 578 (App. Div. 2002).

In respect of the second injury, the judge held "there is no medical documentation of a closed-head injury related to the accident; nor is there a Polk [v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993)] analysis distinguishing the prior medical records from the MRI of October 2000." In this regard, too, the judge stated expressly that she "d[id] not need to reach the issue of substantial impact. And once again, I rely on the Serrano case[.]"

 
Given the substantial change in law regarding both first-prong and second-prong Oswin analysis that has occurred as a result of the Supreme Court's recent decisions in Juarez v. J.A. Salerno & Sons, 185 N.J. 332 (2005); DiProspero v. Penn, 183 N.J. 477 (2005); and Serrano v. Serrano, 183 N.J. 508 (2005), we vacate the dismissal orders and remand for reconsideration in the light of prevailing standards regarding all questions, including the Polk issue, see Hardison v. King, 381 N.J. Super. 129, 133-38 (App. Div. 2005); Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005); Lucky v. Holland, 380 N.J. Super. 566, 570 (App. Div. 2005); Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003).

Reversed and remanded.

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A-2336-04T1

February 2, 2006