ANNA KAROLAK v. LENIN ARAVELO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2472-07T32472-07T3

ANNA KAROLAK,

Plaintiff-Appellant,

v.

LENIN ARAVELO, MARCAL PAPER

MILLS, INC., and UTICA MUTUAL

INSURANCE COMPANY,

Defendants-Respondents,

and

ROSEMARIE FASULO, and

LAND ROVER CAPITAL GROUP,

Defendants.

_______________________________________

 

Argued December 9, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4598-05.

Cynthia M. Craig argued the cause for appellant (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Ms. Craig, on the brief).

Randall S. Bruckman argued the cause for respondents Lenin Aravelo and Marcal Paper Mills, Inc. (Law Offices of Jonathan R. Westpy, attorneys; Mr. Bruckman, on the brief).

Daniel J. DeSalvo argued the cause for respondent Utica Mutual Insurance Company (Lamb, Kretzer, Reinman & Roselle, attorneys; Robert D. Kretzer and Linda Bailey, of counsel; Mr. DeSalvo, on the brief).

PER CURIAM

Plaintiff Anna Karolak appeals from an order entered by the trial court on May 11, 2007, which granted summary judgment in favor of defendants Lenin Aravelo and Marcal Paper Mills, Inc. (Marcal). For the reasons that follow, we reverse.

The following facts are taken from the certifications and exhibits submitted to the trial court on the summary judgment motion. This matter arises from a motor vehicle accident that occurred on July 26, 2003. On that date, Aravelo was driving a fifty-three-foot tractor-trailer for his employer, Marcal. Aravelo approached an intersection at Molnar Avenue and East 54th Street in Elmwood Park, New Jersey. Aravelo intended to make a left turn from Molnar onto East 54th Street. At the time, defendant Rosemarie Fasulo was driving a Land Rover that was owned by defendant Land Rover Capital Group (LRCG). Fasulo was proceeding southbound on East 54th Street. Plaintiff also was traveling southbound. She was driving her automobile directly behind Fasulo's vehicle.

At his deposition, Aravelo testified that there is a stop sign in the southbound lane of East 54th Street at the intersection with Molnar. Aravelo was familiar with the intersection. Aravelo said that, when he started to make the left turn into the northbound lane of East 54th Street, he saw the Land Rover approach the intersection and stop at the stop sign. Aravelo explained that he could not complete the left turn from Molnar because the Land Rover was in his way. According to Aravelo, both vehicles were stopped.

Aravelo said that he and Fasulo looked at each other. Aravelo testified that he did not make any hand motions to Fasulo. He said that Fasulo looked at him, "shifted into gear, hit the gas," backed up and struck plaintiff's car. Aravelo said that he did not move his tractor-trailer until after Fasulo's car struck plaintiff's vehicle. To complete the turn, Aravelo had to drive his tractor-trailer onto the sidewalk.

At her deposition, plaintiff testified that she was driving south on East 54th Street and she saw a stop sign. She observed the Land Rover at a complete stop at Molnar Avenue. The Marcal truck was making a left turn from Molnar to proceed northbound on East 54th Street. The front end of the truck was on the northbound side of East 54th Street. Plaintiff said that the truck was "slowing to a stop."

Plaintiff testified that she was bringing her vehicle to a stop when the Land Rover started moving backwards and struck her car. Plaintiff did not see the driver of the truck make any gestures to Fasulo or anyone else on the roadway. Plaintiff said that she did not see whether any part of the tractor-trailer had crossed over into Fasulo's lane of travel but said that "[i]t was obvious that [Fasulo] could not proceed going forward because [the truck] was blocking [the road]."

Fasulo testified at her deposition that she lived in Elmwood Park and was familiar with the intersection at Molnar Avenue and East 54th Street. Fasulo stated that she was traveling south on East 54th Street and stopped at the stop sign at Molnar Avenue. She observed a Marcal tractor-trailer turning left from Molnar onto East 54th Street. Fasulo said that the truck driver did not have room to make the turn.

Fasulo further testified that she was stopped at the stop sign for a minute. Fasulo said that when the truck driver "saw he was coming into [her] front end, he started motioning [her] back, to go back, so that he [could] complete his turn." Fasulo said that the tractor-trailer was stopped. She put her car into reverse. The car started to roll back and struck plaintiff's vehicle.

Plaintiff filed a complaint in which she named Aravelo, Marcal, Fasulo, and LRCG as defendants. On September 28, 2006, the claims against LRCG were dismissed with prejudice. On December 15, 2006, the court dismissed claims against Marcal without prejudice because Marcal had filed a bankruptcy petition.

Marcal was self-insured and it appears that its self-insurance was unavailable as a result of the bankruptcy filing. The trial court therefore granted plaintiff leave to amend her complaint to assert a claim for uninsured motorist benefits against her insurer, Utica Mutual Insurance Company. On April 3, 2007, after the bankruptcy court granted plaintiff relief from the automatic stay barring the assertion of claims against Marcal, the trial court granted plaintiff's motion to restore her claims against Marcal.

On March 8, 2007, Aravelo and Marcal filed a motion for summary judgment. The trial court heard the motion on May 11, 2007, and placed its decision on the record on that date. The trial court assumed for purposes of its decision that Aravelo had waved at Fasulo. The court additionally assumed that the tractor-trailer was stopped in the intersection at the time. The court determined that, in light of these facts, Fasulo had a duty to ensure that she could back up safely. Accordingly, the court granted summary judgment in favor of Aravelo and Marcal. The court entered an order dated May 11, 2007, which memorialized its decision.

In December 2007, plaintiff settled her claims against Fasulo. On January 7, 2008, plaintiff and Utica Mutual entered a stipulation dismissing plaintiff's claims against Utica Mutual without prejudice because they could not proceed unless the summary judgment granted in favor of Aravelo and Marcal was reversed. On January 24, 2008, plaintiff filed her notice of appeal from the trial court's order granting summary judgment to Aravelo and Marcal.

When reviewing an order granting summary judgment, we apply the same standards that are applied by the trial court when ruling on a motion seeking that relief. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Stoffels v. Harmony Hill Farm, 389 N.J. Super. 207, 209 (App. Div. 2006). Summary judgment may be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

"An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). "If 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 for purposes of Rule 4:46-2." Ibid. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)). Summary judgment should be granted when the evidence "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Liberty Lobby, supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214).

Plaintiff first argues that summary judgment should not have been granted to Aravelo and Marcal because there is a genuine issue of material fact as to whether Aravelo gestured to Fasulo to back up her vehicle and, if he did so, he owed a duty to plaintiff to exercise reasonable care. In support of this argument, plaintiff relies upon Thorne v. Miller, 317 N.J. Super. 554 (Law Div. 1998). Plaintiff further argues that Aravelo breached that duty by indicating to Fasulo that she could back up her car safely. In response, defendants argue that even if Aravelo waved to Fasulo, he owed no duty to plaintiff because it was Fasulo's duty to ensure that she could back up safely.

In Thorne, the trial court held that a waving driver has a duty to exercise reasonable care when making a gesture to another driver to facilitate the flow of traffic. Id. at 561-62. In that case, the defendant, Lori Miller, was waiting to make a left turn out of a parking lot. Id. at 557. She wanted to travel east and had to cross over two lanes of travel going westbound in order to do so. Ibid. Donald Cook was driving a vehicle in the inner westbound lane. Ibid. He stopped his vehicle and gestured to the defendant in a manner that indicated the defendant "could exit the parking lot in front of his vehicle." Ibid. Miller pulled out and was struck by a vehicle heading west in the other westbound lane. Ibid. The defendant filed a third-party claim against Cook. Ibid.

The trial court held that Cook owed Miller a duty to exercise reasonable care. Id. at 558. The court held that, "[i]f an operator of a motor vehicle gestures to a motorist to facilitate the movement of traffic, the waving driver is charged with the responsibility to do so with reasonable care, and may be subject to liability for foreseeable injuries if the remaining elements of negligence are met." Id. at 561-62. The court noted that imposition of a duty of care requires consideration and balancing of several factors, including forseeability, the ability to exercise care, the risk of harm, the relative interests of the parties, and whether imposition of a duty is consistent with public policy and fairness. Id. at 559 (citing J.S. v. R.T.H., 155 N.J. 330, 337 (1998); Portee v. Jaffee, 84 N.J. 88, 101 (1980)).

The court found that it was reasonably foreseeable that "gestures to facilitate the flow of traffic can lead to accidents, and that the risk of harm from car accidents is serious." Ibid. The court further found that Cook had the ability to exercise care and prevent the accident. Id. at 560. The court stated that, by taking "simple precautions before he gestured, the accident may have been avoided." Ibid.

The court additionally found that the comparative interests of the parties and public policy "indicate a societal interest in imposing a duty upon waving drivers." Ibid. The court stated that

[a]t some traffic obstacles, gestures are standard operating procedure, and without the use of these signals, traffic flow would not be efficient. The risk of a careless gesture is very high when compared to the goal of accident prevention. It is relatively easy for waving drivers to check if passage is safe, and if unable to [do] so, a driver contemplating a gesture should not take on the responsibility of directing traffic. Because gestures are so common and the risk of injury from car accidents so severe, it is only fair to impose a duty upon waving drivers.

[Id. at 560.]

The court added that its decision only addressed whether Cook had a duty to exercise reasonable care, not whether he breached that duty. Id. at 561. The court observed that, "Cook's gesture [was] ambiguous, as it could have meant it was safe to cross both lanes of westbound traffic, or merely that Miller was free to pull out in front of him." Ibid. The court also stated that it was "not clear whether it was reasonable for [Miller] to have relied upon the gesture, and even if Cook is ultimately found negligent, the question of apportioning the percentage of fault remains with the jury." Ibid.

We are convinced that the court in Thorne correctly found that a motorist has a duty to exercise reasonable care when gesturing to another motorist in order to facilitate the flow of traffic. Here, there is a genuine issue of material fact as to whether Aravelo waved to Fasulo to back up.

As noted previously, Fasulo testified that Aravelo waved to her, but Aravelo testified that he did not do so. Thus, if the jury were to accept Fasulo's testimony on this issue, Aravelo had a duty to plaintiff to exercise reasonable care when he gestured to Fasulo.

There also is a genuine issue of fact as to whether Aravelo breached any such duty. To resolve this issue, the jury would have to determine whether Aravelo merely indicated that Fasulo should back up or whether he indicated to Fasulo that it was safe for her to do so.

Plaintiff additionally argues that, wholly aside from whether Aravelo waved to Fasulo, there is a genuine issue of material fact as to whether Aravelo was negligent in the operation of his tractor-trailer when he made the turn from Molnar Avenue onto East 54th Street. We agree. It is undisputed that Aravelo had the right of way at the intersection. Even so, Aravelo was driving a lengthy tractor-trailer and could not make a left turn from Molnar onto the northbound lanes of East 54th Street without entering the southbound lanes of East 54th Street.

Aravelo therefore had a duty to exercise reasonable care when making the turn. There is a genuine issue of material fact as to whether Aravelo breached that duty. In resolving this issue, the jury would have to determine whether Fasulo was at the stop sign when Aravelo began his turn; or whether Fasulo was approaching the stop sign at a fast speed, as Aravelo claimed.

Aravelo, Marcal and Utica Mutual argue that the trial court correctly granted summary judgment in their favor. They contend that the only relevant facts are that Aravelo's vehicle was stopped when Fasulo put her car into reverse; there was never any contact between Fasulo's car and the tractor-trailer; and Fasulo was a young driver who failed to make appropriate observations. Based upon these facts, Aravelo and Marcal argue that Aravelo did not owe plaintiff a duty to exercise reasonable care. We disagree.

Even if Aravelo's tractor-trailer was stopped in the intersection and there was no contact between the vehicles, Aravelo still had a duty to exercise reasonable care if, as Fasulo testified, he waved to her to back up. Furthermore, the fact that Fasulo may have been negligent in the operation of her car does not preclude a finding that Aravelo also was negligent in the operation of the tractor-trailer by entering the intersection to make the turn if he could not do so without having a vehicle back up in the southbound lane of East 54th Street.

Aravelo, Marcal and Utica Mutual additionally argue that summary judgment was appropriate because plaintiff's injuries were not foreseeable. They maintain that Aravelo could not have foreseen that Fasulo would back up into plaintiff's car without first ensuring that she could do so safely. Again, we disagree.

Assuming that Aravelo gestured to Fasulo and indicated that it was safe for her to back up, it was reasonably foreseeable that someone could be injured if she did so. Moreover, if Aravelo entered the intersection to make the left turn from Molnar onto East 54th Street while Fasulo was approaching or stopped at the intersection, it was foreseeable that she would have to back up so that he could make the turn and could cause a collision when doing so.

Reversed and remanded for further proceedings consistent with this opinion.

 

We note that N.J.S.A. 39:4-123(b) provides in pertinent part that the driver of a vehicle making a left turn at an intersection shall make the turn "so as to leave the intersection to the right of the center line of the roadway being entered." It is unclear from the record whether Aravelo entered the southbound lane on East 54th Street. It would appear, however, that he would have had to do so in order to make the turn.

(continued)

(continued)

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A-2472-07T3

January 8, 2009