RICHARD C. SHUE v. ABDERRAZA BUREDDAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4113-08T14113-08T1

RICHARD C. SHUE and HELEN SHUE,

his wife PER QUOD,

Plaintiffs-Appellants,

v.

ABDERRAZA BUREDDAD and EXEC U

CAR LIMOUSINE, INC.,

Defendants-Respondents.

____________________________________________

 

Argued November 16, 2009 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1355-07.

Steven M. Weisbrot argued the cause for appellants (Law Offices of Lane M. Ferdinand, P.C., attorneys; Mr. Weisbrot, on the brief).

Floyd G. Cottrell argued the cause for respondents (Law Offices of Floyd G. Cottrell, P.A., attorneys; Mr. Cottrell, on the brief).

PER CURIAM

In this personal injury case, plaintiffs Richard C. Shue (plaintiff) and his wife Helen Shue, asserting a per quod claim, appeal from the trial court decision granting summary judgment to defendants Abderraza Bureddad (defendant) and Exec U Car Limousine, Inc. Plaintiffs also appeal from the denial of their motion to bar the introduction into evidence of defendants' accident reconstruction expert report, a drive cam video, and supporting certifications.

We reverse the granting of summary judgment, concluding that a rational fact-finder, looking at the evidence from the point of view most favorable to plaintiffs, could find that the conduct of defendant in driving his vehicle was negligent and a proximate cause of the accident. We reverse the order denying plaintiff's application to bar certain evidence and remand in order that the trial court may expressly address the issues in that motion.

I

On April 25, 2006, plaintiff was driving northbound on Woodcrest Drive in Livingston approaching Manor Road. Defendant was driving a car owned by Exec U Car Limousine Inc. eastbound on Manor Road approaching Woodcrest Drive. The intersection of Woodcrest Drive and Manor Road was uncontrolled. The posted speed limit for both roads was twenty-five miles per hour. The two vehicles collided in the intersection.

Plaintiff testified at his deposition that as he was approaching the intersection, "I just saw the car coming - come out from the side. It was black and I tried to turn to avoid it and, you know, applied my brakes, but I hit the side." Plaintiff could not say how far away he was when he first saw defendant's vehicle, testifying that "it was just a split second. He was there and I hit him." Defendant's vehicle was struck on the right rear passenger door.

An eyewitness testified that just before the collision, he saw plaintiff's vehicle about fifty to seventy-five feet away from the intersection traveling about twenty-five miles per hour. He saw defendant's vehicle about fifty feet away from the intersection traveling about thirty-five miles per hour. He testified that defendant's vehicle was closer to the intersection than plaintiff's, but defendant's vehicle was traveling faster. He said that defendant's vehicle did not slow down, but rather "shot" across Woodcrest.

Defendant testified that he was traveling about ten to fifteen miles per hour. A video from defendant's dashboard mounted camera, which recorded the ten seconds immediately preceding the accident, indicates that when defendant entered the intersection, it was clear. Defendant's accident reconstruction expert report states that defendant was traveling twenty-one miles per hour, that plaintiff's vehicle was traveling faster than defendant's vehicle on impact, and that defendant's vehicle was more than halfway through the intersection at the time of impact. The expert further opines that the accident was caused by plaintiff's failure to yield the right-of-way to defendant.

Defendants moved for summary judgment, and plaintiffs filed a cross-motion seeking to bar from evidence defendants' accident reconstruction expert report, the video, and supporting certifications. By order dated March 20, 2009, the trial court granted summary judgment for defendants and denied plaintiffs' motion to bar certain evidence. Plaintiffs appeal both decisions.

II

Our review of a trial court decision on a summary judgment motion is de novo, applying the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), cert. denied, 154 N.J. 608 (1998). Summary judgment is granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). In making this evaluation, we look at the competent evidence "in the light most favorable to the non-moving party" and determine whether it is sufficient to meet this standard. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We must thus review the proofs and determine whether a rational fact-finder could hold that defendant's conduct was negligent and a proximate cause of the accident.

Defendants contend that because their vehicle was in the intersection first as reflected in the drive cam video, they cannot be held liable in negligence. This argument rests on N.J.S.A. 39:4-90 which provides that "[t]he driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection." See De Polo v. Caplan, 119 N.J. Super. 56, 58 (App. Div. 1972) (indicating that the statute does not apply to intersections controlled by traffic signals). As a result, defendants maintain that plaintiff had a duty to yield the right-of-way and failed to do so.

While this argument addresses plaintiff's conduct and plaintiff's contribution to the happening of the accident, the summary judgment motion focused on defendant's conduct. Defendant's conduct must be evaluated in light of the general rule governing all drivers approaching an intersection, whether they have the right-of-way or not, that they must exercise due care when proceeding into an intersection. Piccone v. Stiles, 329 N.J. Super. 191, 195 (App. Div. 2000) (stating that "the favored driver still has a continuing duty to exercise due care even though the disfavored driver has a stop sign to obey"). The favored driver approaching an intersection has an obligation to "make proper observations and to take action to avoid an accident." Ibid. Even a driver with a green light has the obligation to take "the ordinary precautions of maintaining a lookout and observing conditions on the street he is crossing." Rekiec v. Zuzio, 132 N.J. Super. 71, 79 (App. Div.), certif. denied, 68 N.J. 143 (1975). As a result, when proceeding into the intersection, defendant had a duty to exercise due care, to make reasonable observations to determine if he could proceed safely, and to take action to avoid a collision.

Based on this record, a rational fact-finder could conclude that defendant proceeded into the intersection without making the required determination that he could do so safely. Defendant may have proceeded into the intersection without looking for oncoming traffic and thus did not see plaintiff's vehicle approaching or he may have seen plaintiff's vehicle approaching but mistakenly concluded that he could safely clear the intersection. Either way the fact-finder could determine that defendant's conduct was negligent and a proximate cause of the accident.

In addition, the record contains conflicting evidence about the speed the vehicles were traveling. If indeed the jury believes the eyewitness's testimony that defendant was traveling above the speed limit, that could be considered evidence of defendant's negligence. Horbal v. McNeil, 66 N.J. 99, 104 (1974) (concluding that violation of the speed limit may be evidence of negligence); Ewing v. Burke, 316 N.J. Super. 287, 293-94 (App. Div. 1998) (stating "under usual circumstances, the violation of motor vehicle statutes is evidence of negligence"). Even when a driver is traveling the speed limit, he still is under an obligation to reduce his speed as he approaches an intersection as circumstances require. See N.J.S.A. 39:4-98 (stating that "[t]he driver of every vehicle shall, consistent with the requirements of this section, drive at an appropriate reduced speed when approaching and crossing an intersection").

Accordingly, irrespective of plaintiff's conduct, the record contains sufficient facts to support a finding by a rational fact-finder that defendant was negligent in failing to make proper observations, in failing to maintain a proper speed as he approached the intersection, and in failing to take steps to avoid the collision and that any such failure was a proximate cause of the accident.

We note that plaintiff filed a cross-motion to bar the introduction into evidence of defendants' accident reconstruction report, the drive cam video, and supporting certifications. This motion was denied by the trial court. Plaintiffs appeal this ruling and argue that "plaintiff is entitled to survive summary judgment because the video and accident reconstruction report relied upon by the motion judge were unreliable and not properly authenticated."

Although the trial court considered the expert's testimony and the drive cam video in ruling on the summary judgment motion, it did not specifically address plaintiff's argument that the expert was providing a net opinion or plaintiff's contention that defendant failed to properly authenticate the drive cam video. We remand in order that the trial court may address these issues. In doing so, the trial court must determine whether the dispute may be resolved based on the motion papers or whether a N.J.R.E. 104 hearing is necessary or whether the issues are better addressed at trial. We also note that the expert report itself and the certifications are hearsay evidence and would generally not be admissible. See Corcoran v. Sears Roebuck & Co, 312 N.J. Super. 117, 126 (App. Div. 1998) (stating that expert reports "are hearsay and generally are not admissible"); State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007) (noting that certifications are hearsay).

 
We reverse and remand.

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A-4113-08T1

December 21, 2009