GELSOMINA LEITHAUSER v. PHYLLIS FRIEDMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2691-08T32691-08T3

GELSOMINA LEITHAUSER,

Plaintiff-Respondent,

v.

PHYLLIS FRIEDMAN and

FERDINAND VILANOVA, JR.,

Defendants-Respondents,

and

MARC BERENSON,

Defendant-Appellant.

_____________________________________________

 

Submitted May 13, 2009 - Decided

Before Judges Rodr guez and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9159-06.

David E. Rehe & Associates, attorneys for appellant (John F. O'Donnell, on the brief).

Law Offices of Margaret McKenna, attorneys for respondent Phyllis Friedman (Robert A. Raskas, on the brief).

Connell Foley, attorneys for respondent Ferdinand Vilanova, Jr. (Anthony J. Corino, of counsel and on the brief).

Gess Gess & Scanlon, attorneys for respondent Gelsomina Leithauser (David B. Owens, on the brief).

PER CURIAM

Gelsomina Leithauser sued Phyllis Friedman, Ferdinand Vilanova, Jr. and Marc Berenson for personal injuries and property damage sustained in a multi-vehicle accident. All defendants answered. After a period of discovery, Vilanova moved for summary judgment. Friedman cross-moved for summary judgment. Berenson filed opposition to the Vilanova motion and Friedman's cross-motion. Leithauser joined Berenson's opposition. The judge granted Friedman's and Vilanova's motions for summary judgment.

Berenson moved for reconsideration, which Friedman opposed. Leithauser joined the reconsideration motion. The judge denied the motion for reconsideration. Berenson moved for leave to appeal and for a stay. All other parties filed briefs. We granted leave to appeal. Leithauser v. Friedman, No. AM-315-08T3 (App. Div. Jan. 30, 2009).

This case arises out of a motor vehicle accident that occurred on May 11, 2008 at 10:19 a.m. on the New Jersey Turnpike. It is undisputed that there were two lanes and shoulders on each side. The four vehicles involved were driving northbound.

A white Toyota Camry, owned and operated by Friedman, was in the right hand shoulder and then moved into the right lane of traffic to avoid a Turnpike maintenance truck parked on the right shoulder.

A grey Honda Civic, owned and operated by Vilanova, was traveling in the right lane. Friedman's Camry came alongside Vilanova's vehicle and hit its rear passenger side. The impact caused the Civic to move to its left, across the Turnpike, and hit the center median. The Civic did not come into contact with any other vehicles. Friedman's Camry also moved to its left and came to rest in the travel lane closest to the median.

A grey Jeep, owned and operated by Berenson, was in the left lane, traveling behind Leithauser's black Hyundai. Berenson did not observe the collision between Friedman's and Vilanova's vehicles. He did see Friedman's vehicle cross the lanes of traffic from the left to right. Because Leithauser slammed on her brakes, Berenson was then forced to slam on his brakes. He was unable to avoid coming into contact with Leithauser's vehicle.

Leithauser was traveling in the left northbound lane and told the officer that she saw Friedman's vehicle spin out in front of her. She slammed on her brakes to avoid hitting the Friedman and Vilanova vehicles and was hit from behind by Berenson. She saw another vehicle ahead that also kept her from proceeding. Everything happened very quickly from the time she saw the accident until her vehicle was hit.

On appeal, Berenson contends that "the series of events involving the four vehicles constituted a single accident and the issues of the negligence of the four drivers, and such negligence being a proximate cause of the accident, are issues of fact for a jury to decide." Moreover, Berenson contends that "there are facts to support a jury finding negligence on" the part of Friedman and/or Vilanova. We agree with respect to Friedman only.

The standard for granting a motion for summary judgment is well known. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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). The motion judge must not decide issues of fact, but only whether there are any such issues. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The rule for determining whether there is a genuine issue of fact requires the judge to engage in a weighing process like the one used in deciding motions for directed verdicts pursuant to Rule 4:37-2(b), Rule 4:40-1, and Rule 4:40-2. Id. at 536. The judge must decide whether:

[T]he competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party. . . . 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.

[Id. at 540.]

Thus, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (citations omitted). Even without submitting supporting affidavits, "a party may defeat a motion for summary judgment by demonstrating that the evidential materials relied upon by the moving party, considered in light of the applicable burden of proof, raise sufficient credibility issues 'to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.'" D'Amato v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill, supra, 142 N.J. at 523).

Judged against that standard, we conclude that a rational fact finder could conclude that Friedman's action was a proximate cause of the rear-end hit of Leithauser's Hyundai by Berenson's Jeep. There may be more than one concurrent cause of an injury, meaning that these acts need not, of themselves, be capable of producing the injury. Conklin v. Hannoch Weisman, 145 N.J. 395, 419-20 (1996). Rather, it is enough if they are a substantial factor in bringing it about. Ibid.

Proximate cause is a factual issue, to be resolved by a jury after the trial court's appropriate instruction. Scafidi v. Seiler, 119 N.J. 93, 101 (1990). A proximate cause need not be the sole cause of harm. Perez v. Wyeth Labs., Inc., 161 N.J. 1, 27 (1999). A substantial contributing factor to the harm suffered is sufficient. Ibid. In short, a tortfeasor will be held accountable if its negligent conduct was a substantial factor in causing the injury even when there are other intervening causes which were foreseeable or were normal incidents of the risk created. Conklin, supra, 145 N.J. at 420. The initial wrongful act and the final injurious consequence do not require an unsevered connecting link between the negligent conduct and the ultimate harm. Ibid.

Here, the judge concluded that Friedman's liability was cut off as there were "two separate impacts" and Leithauser was able to completely stop her Hyundai from hitting the vehicle in front of her. He found that these two separate impacts "broke the chain of causation." This is not a helpful way to analyze the issues. Rather, one must look at the actions of each party in determining whether: (1) the party was negligent; and (2) such negligence caused other collisions. Clearly, if this test is applied to Friedman, the jury could find that her action was negligent and this action placed an obstacle (Vilanova's vehicle) in front of Leithauser, that Leithauser could not avoid without stopping suddenly. It is irrelevant that Leithauser was, in fact, able to stop. She had a better view of the road ahead than Berenson. It does not exonerate Friedman. If the jury finds that Friedman was a proximate cause of the second impact, she is liable in whole or in part to Leithauser, and Friedman's negligence can be considered, along with that of Berenson, for purposes of apportioning damages. If the proofs warrant it, Leithauser's contributory negligence may also be submitted to the jury.

The only contention against Vilanova is that having seen Friedman traveling in the right shoulder, he "could have slowed down, stayed well behind her vehicle or moved to the lane to his left. His failure to do this could be found to be negligence." We disagree. Vilanova had no duty to take precautions from a vehicle traveling in the shoulder. By all accounts, Friedman did not move into his lane until his vehicle was partly past her.

 
The summary judgment in favor of Friedman and against Berenson is reversed and the matter is remanded for trial. The summary judgment in favor of Vilanova is affirmed.

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A-2691-08T3

July 16, 2009