ROCCO CALABREE v. DONATO DICRISTINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1618-08T21618-08T2

ROCCO CALABREE and DEBORAH

CALABREE, his wife,

Plaintiffs-Appellants,

v.

DONATO DICRISTINO,

Defendant-Respondent,

and

CHASE MANHATTAN

AUTO FINANCING,

Defendant,

and

DONATO DICRISTINO, CHASE

MANHATTAN AUTOMOTIVE FINANCE

CORPORATION,

Defendants/Third-Party

Plaintiffs,

v.

EDWARD P. HUGHES, JR.,

Third-Party Defendant,

and

LIBERTY MUTUAL INSURANCE COMPANY,

Intervenor.

 
Argued September 1, 2009 - Decided

 
Before Judges Messano and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-575-07.

Adam Raditz argued the cause for appellants (Ginsberg & O'Connor, attorneys; Mr. Raditz, on the brief).

Tricia E. Habert argued the cause for respondent (Mayfield, Turner, O'Mara, Donnelly & McBride, attorneys; Ms. Habert, on the brief).

PER CURIAM

Plaintiff Rocco Calabree appeals an October 10, 2008, order dismissing his action against defendant/third-party plaintiff Donato DiCristino (defendant) for personal injuries suffered in an automobile accident. Plaintiff was a passenger in defendant's vehicle at the time the accident occurred. Defendant subsequently filed a third-party complaint against Edward P. Hughes, Jr., alleging contributory negligence. Defendant and Hughes filed summary judgment motions seeking the dismissal of plaintiff's complaint; both motions were granted. We affirm.

Subsequent to the dismissal on summary judgment, Liberty Mutual Insurance Company, plaintiff's uninsured motorist carrier, filed a motion for leave to intervene and requested the right to participate in the appeal and resulting trial should the orders for summary judgment be reversed. The application was granted by the motion judge, and it is agreed that plaintiff's brief is also filed on behalf of Liberty's interest in the matter.

The accident occurred on April 11, 2005, on Mullica Hill Road in Harrison Township. Defendant was operating his vehicle at approximately ten to fifteen miles per hour below the posted speed limit when his car unexpectedly skidded into oncoming traffic. Both drivers and plaintiff saw a slippery substance, possibly antifreeze, on the roadway after the accident. Plaintiff acknowledged in his deposition that once defendant's vehicle began to slide, presumably on that substance, nothing could have prevented the accident. Neither passenger nor driver saw the antifreeze in the roadway before the car spun out of control. In addition to the remarkably similar deposition testimony given by all the participants, the investigating police officer wrote a report corroborating that the accident was caused by the "unsafe roadway due to the antifreeze on the roadway."

In reaching her summary judgment determination, Judge McDonnell relied upon the deposition statements made by both plaintiff and defendant to the effect that defendant had no "chance" to avoid the accident because neither driver nor passenger saw the substance in the roadway prior to defendant's vehicle spinning out of control. She also relied upon the investigating officer's conclusion that the accident was caused by an unsafe roadway condition, namely, "an extensive amount of antifreeze in [defendant's] lane" of travel. As a result, Judge McDonnell found that there was no evidence of negligence on the part of defendant because there was no proof that he knew or should have known about the antifreeze on the roadway. Furthermore, there was evidence that, even if he had seen the substance before his car spun out of control, defendant could not have engaged in evasive maneuvers because of the presence of a bridge abutment immediately to the right. Given the absence of evidence of negligence, the motions for summary judgment were granted. This appeal followed.

We review the trial court's award of summary judgment de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We employ the same standard employed by the trial court. Bello v. Lyndhurst Bd. of Educ., 344 N.J. Super. 187, 190 (App. Div. 2001). Generally, summary judgment should be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We affirm essentially for the reasons stated by Judge McDonnell.

The loss of control over a motor vehicle does not definitively establish negligence, nor does it justify an inference of negligence on the part of an operator of a motor vehicle. Mockler v. Russman, 102 N.J. Super. 582, 587-88 (App. Div. 1968), certif. denied, 53 N.J. 270 (1969). More is required in order to warrant an inference of negligence on the part of the operator. Ibid. A plaintiff must prove that a defendant could have taken reasonable precautions to avoid the accident. Id. at 588. In this case, the record is entirely devoid of any evidence that the driver knew or should have known of the presence of the antifreeze on the roadway, or that he could have engaged in evasive maneuvers had he known about the dangerous road condition.

As we said in Universal Underwriters v. Heibel, 386 N.J. Super. 307, 321 (2006), merely proving an accident occurred is not sufficient to recover damages. "Negligence is never presumed; it, or the circumstantial basis for the inference of it, must be established by competent proof presented by plaintiff." Ibid. The absence of proof of negligence in this case warranted the award of summary judgment in favor of both DiCristino and Hughes. There were no genuine issues of material fact and defendant was entitled to judgment as a matter of law. See Brill, supra, 142 N.J. at 540.

Plaintiff raises two points in his brief. First, plaintiff contends that the court erred by relying on the police report in deciding the motion for summary judgment. We do not agree this was error; in any event, the judge principally relied on the deposition testimony of both driver and passenger, which explicitly described the inevitability of the occurrence. Plaintiff also asserts that it was error for the judge to have concluded that defendant had no opportunity to see and avoid the material on the roadway. This claim does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Appeal is taken only from the dismissal as to defendant DiCristino. No appeal is taken as to third-party defendant Hughes.

(continued)

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A-1618-08T2

October 13, 2009