GEORGE HOWELL v. NINO BURGOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GEORGE HOWELL and

MICHELLE HOWELL,

Plaintiffs-Appellants,

v.

NINO CROSS-BURGOS, BEAM BROS.

TRUCKING, INC., ALBAN RIVERA,

and ARACELIS JIMENEZ,

Defendants,

and

IRINA PRONINA,1

Defendant-Respondent.

________________________________

January 17, 2014

Argued August 7, 2013 Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket

No. L-2128-10.

James L. Pfeiffer argued the cause for appellants (Pfeiffer, Bruno, Minotti & DeEsch, attorneys; Mr. Pfeiffer, of counsel; Travis J. Savoia, on the briefs).

John M. Malaspina argued the cause for respondent (Law Offices of Kevin M. McGowen, attorneys; Mr. Malaspina, on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

Plaintiffs George Howell and Michelle Howell2 appeal from the entry of summary judgment dismissing their complaint. Because we conclude that there are no facts in the record to give rise to an inference of negligence on the part of defendant Irina Pronina, we affirm.

We draw the facts from the undisputed record on summary judgment. On December 21, 2008 at approximately four-thirty in the morning, Pronina was in a Hummer traveling westbound in the center lane on Route 78 in Somerset County when she spun out on ice. The Hummer ended up on the grassy median separating the eastbound and westbound lanes of the highway, facing in the opposite direction from its route of travel. The area was dark. There were no other cars in the vicinity, and the Hummer had not struck anything as it left the roadway.

Howell was also traveling westbound on Route 78 that morning. He was at work and had already driven this stretch of the highway two or three times readying his employer's trucks for snow plowing in advance of an approaching storm. He would pick up a truck at his employer's site, drive it to a service station to fill it with gas and return it to the site and start the process again with the next truck. As he crested a hill, Howell saw the car in front of him start to spin "quite a bit," right itself, and continue down the hill. After Howell safely traversed the spot where he saw the other car spin, he noticed a Hummer in the median. Although it had been drizzling intermittently since midnight, this was the first time Howell had noticed any problems with the roadway.

Howell pulled his pick-up truck off the highway onto the right shoulder and activated his hazards. Howell had been a firefighter and EMT. He testified at his deposition that, "[w]ith my experience as a fireman and EMT, I stopped, wanted to see if anybody was hurt, if . . . everybody was okay and see if we can get them underway or what they needed, [I] didn't know how long they were there or if it just happened." When he crossed the highway and knocked on the window of the Hummer, Pronina was on the telephone with OnStar.3 Pronina contacted the service as soon as the Hummer had come to rest. She told Howell that she was fine and that she had spun out. He got into the driver's seat of the Hummer and drove Pronina across Rt. 78 to the shoulder behind his pick-up. After walking around the vehicle to insure there was no damage, Howell advised OnStar the Hummer had suffered no harm, there was no need to have the police respond, and that Pronina was ready to be on her way.

Howell was standing on the shoulder taking his leave from Pronina when he glanced up the road and saw "the cars coming down the road spinning again." Howell retreated to the guardrail as a minivan driven by another defendant sideswiped Pronina's vehicle and came to a stop in the center lane. The minivan was not speeding. Howell estimated its speed as fifteen to twenty miles below the posted speed limit. After ascertaining that no one in the minivan was hurt, Howell directed the driver to pull onto the shoulder in front of his pick-up. He then returned to advise Pronina that the Hummer was driveable but that she needed to call the police and wait for them to arrive.

When Pronina told Howell she did not feel safe sitting in the Hummer, Howell advised that she had "two choices, you can either go sit in my truck and use your car as a buffer in case something happens, or you can pull your truck up in front of my truck or in front of the car that just hit you." Pronina moved to the front passenger seat of Howell's truck. Pronina testified at her deposition that Howell told her to sit in the driver's seat, prompting her to ask him where he would sit. Howell responded that he was not going to sit but instead would walk back with the large flashlight he was holding to signal cars coming down the hill.

Pronina testified that Howell walked back on the shoulder toward her car and she heard him scream, "Whoa, Whoa" and then heard what she described as an explosion, breaking glass, and felt the truck being moved forward and back. A tractor-trailer being driven by another defendant had spun out on the ice coming down the hill. The tractor rammed the back of the Hummer and then jack-knifed, resulting in the trailer striking the Hummer and leaving Howell on his back unconscious in the center lane. Pronina, who was not injured in the accident, tried to run to aid Howell but could not do so on the icy roadway. Instead, she crawled over to him and pulled him off the road onto the shoulder.

The police report of the accident described Route 78 in the vicinity of the accident as completely covered in ice. The driver of the tractor-trailer testified at deposition that even the patrol car responding to the scene had started to slide and "almost got into an accident." Although he had no memory of being struck, plaintiff regained consciousness at the scene and was transported to the hospital by ambulance with injuries to his lower back.

Plaintiff sued the drivers of the tractor-trailer and the minivan as well as Pronina. After discovery, Pronina moved for summary judgment contending that plaintiff had produced no proof of her negligence. Plaintiff countered that Pronina testified that she "froze" when the Hummer started to spin out and that she could not recall her speed prior to losing control. Further, Pronina failed to move her vehicle after it came to a stop despite its facing oncoming traffic. Plaintiff argued that whether Pronina was driving too fast for conditions, or was negligent in not moving her vehicle out of the median were questions for a jury.

After hearing oral argument, the trial judge allowed supplemental briefing on the issue of proximate cause. After reviewing the briefs, the judge entered an order on February 29, 2012 granting summary judgment to Pronina. In an accompanying statement of reasons, the trial judge found that even were Pronina negligent in operating her vehicle or not moving it from the median, such conduct was not the proximate cause of plaintiff's injuries. He concluded that Pronina's alleged negligent conduct was too remote for any reasonable jury to conclude that it was a proximate cause of the accident and thus that the issue could be resolved as a matter of law.

On appeal, plaintiff argues that he established that Pronina was negligent in operating her vehicle and that her negligence was the proximate cause of his injuries either under the rescue doctrine or under general negligence principles. We disagree, but do so for reasons somewhat separate from those expressed by the trial judge. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) ("if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance"); State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002) (an appeal is taken from the court's order rather than reasons for the order).

We review summary judgment using the same standard that governs the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Thus, we must determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Our review of the facts adduced on the motion convinces us that, when viewed in the light most favorable to plaintiff, the evidence is insufficient to allow a rational factfinder to resolve the question of Pronina's alleged negligence in his favor.

It is axiomatic that to prevail on a claim of negligence, a plaintiff must establish that the defendant breached a duty of care, which constituted a proximate cause of the plaintiff's injuries. Cockerline v. Menendez, 411 N.J. Super. 596, 611, certif. denied, 201 N.J. 499 (2010). "Negligence is never presumed; it, or the circumstantial basis for the inference of it, must be established by competent proof presented by plaintiff." Universal Underwriters Grp. v. Heibel, 386 N.J. Super. 307, 321 (App. Div. 2006).

The skidding of an automobile on an icy roadway does not give rise to an inference of negligence on the part of the driver. Mockler v. Russman, 102 N.J. Super. 582, 587 (App. Div. 1968), certif. denied, 53 N.J. 270 (1969). Were the rule otherwise, every driver would be compelled to stay off the roads when weather conditions rendered them slippery. Ibid.

It is common knowledge that the sudden and unexpected skidding of an automobile is one of the natural hazards of driving on icy roads and that it may befall even the most cautious of drivers. If such a driver is operating his car as would a reasonably prudent person under the circumstances, he is not to be held negligent merely because his car skidded, resulting in damage or injury to another. However, skidding may be evidence of negligence if it appears that it was caused by the failure of the driver to take reasonable precautions to avoid it, when conditions of which he knew or should have known made such a result probable in the absence of such precautions.

[Mockler, supra, 102 N.J. Super. at 587-88.]

Here, there is simply no evidence in the record that Pronina's car spun out because she knew or should have known the road was icy and failed to take reasonable precautions to prevent her car from skidding. Pronina testified at her deposition that she had no indication that there were any problems with the roadway surface before her car started to spin. Plaintiff, who had driven the same stretch of road two or three times that morning, likewise confirmed that his first indication that there was a problem with the road was when he saw the car in front of him start to spin, minutes after Pronina spun out on the same downslope.

Both confirmed that the area was dark. While Pronina could not recall her speed, she testified that she was driving carefully in the middle lane and had no reason to believe she was exceeding the speed limit. Plaintiff testified that the minivan that sideswiped the Hummer was traveling at fifteen or twenty miles below the posted speed limit. No one witnessed Pronina's car spin out and the police report confirmed that the road where the accident occurred was completely covered in ice. Plaintiff had no expert to suggest that speed was a factor or that Pronina was negligent in calling OnStar for assistance before moving her car from the safety of the median.

Viewing these facts and all inferences favorably to plaintiff, the evidence does not present a sufficient disagreement to require submission to a jury, but is instead so one-sided that Pronina must prevail as a matter of law. Brill, supra, 142 N.J. at 533. There is simply no evidence in this record to support that plaintiff was negligent.

That conclusion mandates the entry of summary judgment dismissing the complaint without regard to proximate cause. Plaintiff, however, urges that the trial court erred in holding that he had failed to establish proximate cause without considering whether plaintiff's conduct implicates the rescue doctrine. See Estate of Desir v. Vertus, 214 N.J. 303, 321 (2013) (explaining that the rescue doctrine creates a cause of action for an injured rescuer against the one being rescued if the one being rescued is the one who completely or partially created the peril that invited the rescue).

We are inclined to agree with plaintiff that if the rescue doctrine applied, summary judgment would not be appropriate and a jury would have to decide whether plaintiff was still aiding Pronina when he was injured on the highway. See e.g., Yurecka v. Zappala, 472 F.3d 59, 62-63 (3d Cir. 2006) (exploring the contours of the rescue doctrine, and particularly the continuing extent of the peril, under Pennsylvania law). We need not decide the question, however. As the Supreme Court has recently underscored, liability of the one rescued exists only if that person negligently created the peril that invited the rescue. Estate of Desir, supra, 214 N.J. at 321. Accordingly, even assuming that Pronina's presence in the median was the sort of peril contemplated by the doctrine, the absence of proof of her negligence in causing her car to spin out precludes its application here.

Affirmed.

1 Improperly pleaded as Irina Promina.

2 George Howell was injured in the accident. His wife Michelle sued per quod. In this opinion, we refer to George Howell as plaintiff or Howell.

3 OnStar is a vehicle support system which provides its customers with various services, including emergency crash response and roadside assistance in the event of an automobile accident.