JEAN-PIERRE THERRIEN v. LYNDA BLOW

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2419-18T1

JEAN-PIERRE THERRIEN,

          Plaintiff-Appellant,

v.

LYNDA BLOW,

     Defendant-Respondent.
_________________________

                    Submitted February 3, 2020 – Decided March 4, 2020

                    Before Judges Messano and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-2936-17.

                    Stathis & Leonardis, attorneys for appellant (Gregory
                    A. Stathis, of counsel; Randi Susan Greenberg, on the
                    brief).

                    Law Offices of Nancy L. Callegher, attorneys for
                    respondent (Jessica Dawn Adams, on the brief).

PER CURIAM
        Plaintiff, Jean-Pierre Therrien, a Metuchen police officer, was on duty

when he observed a disabled motor vehicle with its hazard lights activated

blocking the intersection of Grove Avenue and Route 27. 1 Plaintiff approached

the vehicle to provide assistance and spoke with the driver, defendant Lynda

Blow.     Upon learning defendant's vehicle "had run out of gas[,]" plaintiff

instructed her to remain in the car and place it in neutral so he could push it

closer to the side of the busy roadway. Defendant obeyed plaintiff's instructions

and steered the car toward the side of the road as plaintiff pushed from behind.

The car struck the curb and, sensing the vehicle was no longer moving, plaintiff

continued to push with more strength. He felt pain in his left foot and ankle; the

result of a ruptured Achilles tendon.

        Plaintiff filed a complaint claiming defendant breached the duty to safely

operate her vehicle by not providing sufficient fuel and "allowing [it] to become

disabled." Plaintiff further alleged that defendant operated the car in negligent

fashion by steering it into the curb. Defendant answered the complaint and

subsequently moved for summary judgment.



1
   There is a factual dispute whether the car was blocking the intersection.
However, for purposes of this opinion, we give plaintiff, as the non-moving
party, the benefit of all favorable evidence and inferences in the motion record.
R. 4:46-2(c).
                                                                          A-2419-18T1
                                         2
      After oral argument, the judge granted defendant's motion. In his terse

oral opinion, the judge recited the elements necessary to establish a cause of

action for common law negligence. He concluded: "[E]ven if the [c]ourt did

find that for purposes of this motion running out of gas and steering into a curb

constitutes negligence, I do not believe there is proximate cause between the

injury and negligence[.]" The judge entered an order dismissing plaintiff's

complaint and this appeal followed.

      On appeal, plaintiff argues that the judge misapplied the standards

governing summary judgment motions and "impermissibly substituted" his own

judgment in place of the "trier of fact" when he found that "neither defendant's

failure to fuel her car" nor steering it into the curb "was a proximate cause" of

plaintiff's injuries. Having considered this argument in light of the record and

applicable legal standards, we affirm.

      We review the grant of summary judgment de novo, applying the same

standard used by the trial court, which

            mandates that summary judgment be granted "if 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."



                                                                         A-2419-18T1
                                          3
            [Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
            Co. of Pittsburgh,  224 N.J. 189, 199 (2016) (quoting R.
            4:46-2(c)).]

      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." Davis v. Brickman Landscaping, Ltd.,  219 N.J.
 395, 406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520,

540 (1995)). We owe no deference to the trial court's legal analysis. The

Palisades at Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC,  230 N.J. 427,

442 (2017) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995)).

      "To sustain a cause of action for negligence, a plaintiff must establish four

elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and

(4) actual damages.'" Townsend v. Pierre,  221 N.J. 36, 51 (2015) (quoting Polzo

v. Cty. of Essex,  196 N.J. 569, 584 (2008)). Plaintiff seemingly asserts that

permitting one's car to run out of gas is per se negligence, but he provi des no

authority for that proposition nor could we find any. We acknowledge that t he

driver of a vehicle that becomes disabled has a duty to exercise reasonable care

such that the vehicle does not pose a danger to others using the highway. Melone


                                                                           A-2419-18T1
                                        4
v. Jersey Cent. Power & Light Co.,  18 N.J. 163, 171–75 (1955); Shappell v.

Apex Express, Inc.,  131 N.J.L. 583, 585 (E & A 1944). For example, had

defendant failed to activate her flashing lights so as to warn oncoming drivers,

and a collision resulted, a jury might find she breached a duty owed, and that

breach was a proximate cause of any accident and injuries that resulted. Id. at

588. However, that is not what occurred.

       N.J.S.A. 39:4-136, which plaintiff cited to the motion judge as

justification for his action provides that "[a]ny vehicle . . . which is disabled to

the extent that the operator cannot move it . . . shall be deemed a nuisance and

a menace to the safe and proper regulation of traffic and any peace officer may

provide for the removal of such vehicle." However, plaintiff decided not to call

for assistance to remove defendant's car because, he said, the police department

was responding to another emergency. Nor did plaintiff take a more cautious

tack, such as parking behind the vehicle with emergency lights activated to

provide further warning for the benefit of oncoming drivers. Instead, plaintiff

instructed defendant to put the car in neutral so he could push her. The question

then becomes whether defendant striking the curb could support plaintiff's cause

of action for negligence. Here, we agree with the motion judge that even if




                                                                            A-2419-18T1
                                         5
defendant negligently steered her car as plaintiff pushed, her negligence was not

a proximate cause of his injury.

      "A basic notion of our law is that, generally, a tortfeasor should be liable

for only the harm she actually caused to the plaintiff." Komlodi v. Picciano,

 217 N.J. 387, 411 (2014) (citing Scafidi v. Seiler,  119 N.J. 93, 112–13 (1990)).

"Proximate cause consists of 'any cause which in the natural and continuous

sequence, unbroken by an efficient intervening cause, produces the result

complained of and without which the result would not have occurred.'"

Townsend,  221 N.J. at 51 (emphasis added) (quoting Conklin v. Hannoch

Weisman,  145 N.J. 395, 418 (1996)). "Proximate cause has been described as a

standard for limiting liability for the consequences of an act based 'upon mixed

considerations of logic, common sense, justice, policy and precedent.'" Fleuhr

v. City of Cape May,  159 N.J. 532, 543 (1999) (quoting Caputzal v. The Lindsay

Co.,  48 N.J. 69, 77–78 (1966)). While usually an issue left to the factfinder,

"the issue of proximate cause 'may be removed from the factfinder in the highly

extraordinary case in which reasonable minds could not differ on whether that

issue has been established.'" Townsend,  221 N.J. at 60 (quoting Fleuhr  159 N.J.

at 543).




                                                                          A-2419-18T1
                                        6
      "The general principles governing intervening and superseding causes are

well settled. Only their application is difficult." Lynch v. Scheininger,  162 N.J.
 209, 226 (2000). On occasion, "our courts have determined that intervening

events constituted superseding causes as a matter of law[.]" Id. at 229. We need

not explore the contours of these two concepts in detail, except to summarize as

follows:   "the doctrine of superseding cause focuses on whether events or

conduct that intervene subsequent to the defendant's negligence are sufficiently

unrelated to or unanticipated by that negligence to warrant termination of the

defendant's responsibility." Id. at 230.

      Plaintiff's injuries were not caused by the impact of defendant's car,

presumably traveling at an extremely slow rate of speed, hitting the curb.

Plaintiff was not injured, for example, by the car rebounding back toward him

or otherwise striking him as a result of having impacted the curb. Rather,

plaintiff contends that when the car hit the curb, he pushed with greater force,

and that strain caused the rupture of his Achilles tendon.

      The motion record, however, does not attribute plaintiff's injury to his

extraordinary exertion of force. In other words, there is no medical opinion

distinguishing plaintiff's initial decision to push the car from his claim that only

the resistance caused by defendant's car against the curb was a proximate cause


                                                                            A-2419-18T1
                                           7
of his injury. Nevertheless, the record is clear that plaintiff took no steps to

determine what was causing the claimed increased resistance to his efforts. He

did not, for example, stop pushing and investigate. Instead, upon realizing the

car was no longer moving, plaintiff simply pushed harder. Those are the facts

in a light most favorable to plaintiff. Plaintiff's own conduct is "sufficiently

unrelated to or unanticipated by [defendant's] negligence to warrant termination

of [her] responsibility." Id. at 230.

      Affirmed.




                                                                        A-2419-18T1
                                        8