YOUNG AND PEREZ 3586 ROUTE 22 WEST

Certified Workers' Compensation Specialists and Dedicated Litigation Lawyers

http://www.youngandperez.com/

08/31/10

TITLE: HUNTERDON COURT RULES IN STRANGE CAR CRASH CASE

Barbara Armstrong

- 1 -

The defendant maintains she fell unconscious just before the accident and therefore a reasonable jury could not find her negligent. She relies on State v. Shiren, 15 N.J. Super. 440 (App. Div. 1951), affirmed at 9 N.J. 445 (1952), where the Appellate Division considered the admissibility of evidence for a blackout in the context of a criminal prosecution for reckless driving. She emphasizes that prior losses of consciousness ccurred while she was sleeping.

The plaintiff asks the Court find the defendant liable for the accident. The plaintiff argues the defendant crashed into his car head on and therefore needed to demonstrate issues of material fact as to her liability. He cites Leyman v. Haynam, 133 N.E.2d 97, 101-102 (Oh. Sup. Ct. 1956), and cases from other jurisdictions to argue the defendant bore the burden of showing she suffered from a condition which rendered her conduct non-negligent. The plaintiff also notes the absence of expert testimony indicating the defendant suffered from a seizure or other loss of consciousness. The plaintiff attempts to distinguish State v. Shiren, supra, by noting that case involved expert testimony on the defendant’s blackout. Lastly the plaintiff argues that even if the defendant suffered from a loss of consciousness a jury could find her negligent. For this point

- 2 -

he relies on Kreis v. Owens, 38 N.J. Super. 148, 154 (App. Div. 1955).

"A motion for summary judgment is not unlike the unveiling of a statue. The motion substantially supported requires the opposition to remove the shielding cloak and demonstrate the existence of a controversial issue concerning a material fact." Templeton v. Scudder, 16 N.J. Super. 576, 585 (App. Div. 1951).

A party is entitled to summary judgment 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." R. 4:46-2(c). "Summary judgment procedure pierces the allegations of the pleadings to show that the facts are otherwise than as alleged." Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954) (citation omitted).

"[A] determination whether there exists a ‘genuine issue’ of material fact that precludes summary judgment requires the motion judge to consider whether the 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." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 530 (1995). Accordingly, "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." Id. (citation omitted).

To succeed in a negligence action a plaintiff must show a defendant acted unreasonably and thereby caused damage. Bratka v. Castles Ice Cream Co., 40 N.J. Super. 576, 586 (App. Div. 1956). An accident alone does not prove negligence because it is "a fact which must be shown; it will not be presumed." Vander Groef v. Great Atlantic & Pacific Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954)(quoting Hansen v. Eagle-Pitcher Lead Co., 8 N.J. 133, 139-140 (1951).

- 3 -

In Dolson v. Anastasia, 55 N.J. 2, 10 (1969), the Court stated that a following driver must maintain a reasonable distance between his or her car and the car in front. In Campione v. Soden, 150 N.J. 163 (1997), the Supreme Court reinstated the trial court’s grant of summary judgment based on evidence showing "roads were wet, that Soden's vehicle was already stopped for a red light, that there were no obstructions or distractions, and that Soden's vehicle was hit from behind." Id. at 189. The trial court had granted the motion for Soden based on its finding that even if she stopped short she did so justifiably given the rainy conditions and managed to not hit a car in front of her. Id. at 188-189.

The defendant argues that no reasonable jury could find her negligent given her deposition testimony that passed out just before the accident. Her reliance, however, on State v. Shiren, 15 N.J. Super. 440, 445 (App. Div. 1951), affirmed at 9 N.J. 445 (1952), is misplaced because that case involved the admissibility of evidence of a blackout. Furthermore, in deciding the trial court should have admitted the evidence, the Appellate Division noted "we are unable to say whether Dr. Effron's testimony would or would not reveal a physical impairment or condition at the time of the accident that might have a bearing upon the defendant's alleged "black out." Id. at 444. Furthermore, in affirming the opinion below, the Supreme Court determined that the defendant’s arguments that the verdict was against the weight of the evidence were premature. 9 N.J. at 455. Therefore, State v. Shiren, does not require granting the defendant’s motion.

The issue presented by the defendant’s motion is whether a jury could find her negligent despite her testimony that she passed out. Even assuming this testimony as true, as the Court must, see Brill, supra, a jury could still find the defendant negligent. "[I]t may indicate lack of due care for a person to drive on a public highway when he is suffering from a disease which he knows, or which a reasonable person should know, makes him subject to fainting or weak spells or seizures of a sort which may imperil his control of the vehicle." Kreis v. Owens, 38 N.J. Super. 148, 154 (App. Div. 1955) (citing In re Lewis, 11 N.J. 217, 223 (1953)). Here the defendant acknowledged a history of seizures prior to the accident. Although the seizures did not occur while she was awake and she asserts she did not suffer a seizure, a jury question exists as to whether she acted negligently in driving after losing consciousness in the past. Furthermore, given the evidence that the defendant did not suffer a seizure it remains unclear how and whether she became

- 4 -

Based upon the foregoing, the defendant’s motion for summary judgment is DENIED. The plaintiff’s cross-motion for summary judgment on liability is also DENIED.