Opinion
DOCKET NO. A-0415-13T1
03-18-2015
LOUISE E. GORRIE, Plaintiff-Appellant, v. TIMOTHY MORAN, MAUREEN MORAN, MARY ALLEN, and TOWN OF KEARNY, Defendants-Respondents, and TOWN OF KEARNY DEPARTMENT OF PUBLIC WORKS, and TOWN OF KEARNY SHADE TREE COMMISSION, Defendants.
Mitchell F. Ramirez argued the cause for appellant (Brady, Brady & Reilly, LLC, attorneys; Mr. Ramirez, on the brief). Kevin J. McGee argued the cause for respondent Mary Allen (McDermott & McGee, LLP, attorneys; William Hahn, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-499-12. Mitchell F. Ramirez argued the cause for appellant (Brady, Brady & Reilly, LLC, attorneys; Mr. Ramirez, on the brief). Kevin J. McGee argued the cause for respondent Mary Allen (McDermott & McGee, LLP, attorneys; William Hahn, on the brief). PER CURIAM
Plaintiff Louise E. Gorrie appeals from the grant of summary judgment to defendant Mary Allen. The record reveals that on April 16, 2011, at approximately 7:00 p.m., Gorrie was a passenger in a motor vehicle being driven by Allen. As Allen was slowing her vehicle down to stop and allow Gorrie to exit, a tree fell on the vehicle's roof and windshield. Goorie alleged she sustained severe and permanent injuries from the accident.
Allen testified in her deposition that as she was slowing her vehicle down, moving a mere two miles per hour, she noticed a beautiful white cherry blossom tree heavy with rain become uprooted. Before she could react, the tree fell across the street sandwiching her vehicle between two other vehicles that were parked on opposite curbs of the street. She and Goorie were trapped in the vehicle and needed assistance to get out. Gorrie's deposition testimony was consistent with Allen's and did not reveal any facts suggesting that Allen could have done anything to evade the falling tree.
Allen moved for summary judgment arguing that Gorrie failed to present any facts establishing Allen negligently operated her vehicle. Goorie opposed arguing that Allen should have been more aware of the possibility of trees falling down because of the heavy rain conditions.
In a decision rendered from the bench, motion judge Christine A. Farrington granted summary judgment finding "that the facts are uncontroverted that the tree fell on top of the car as it was passing under the tree. . . . And further that no reasonable jury could find [d]efendant Moran [liable for] negligence." This appeal followed.
Gorrie contends that there was sufficient proof to allow the jury to infer Allen was negligent. She argues Allen saw the tree before it fell and had time to avoid it before it hit her vehicle. Having considered this argument in light of the record and applicable legal standards, we affirm substantially for the reasons expressed by Judge Farrington in her oral decision. We amplify her analysis with the following comments.
In considering Gorrie's appeal, we repeat and abide by certain fundamental principles applicable to summary judgment motions. We apply the same standard applied by the motion judge. EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)).
We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). If there are materially disputed facts, the motion for summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003).
Next, the court must "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 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); see also R. 4:46-2(c).
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
Here, Gorrie alleges Allen negligently operated her motor vehicle resulting in Gorrie's injuries. "[N]egligence . . . requires proof that a defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach." Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005). It is well settled that, the applicable standard has been:
The mere showing of an incident causing the injury sued upon is not alone sufficient to
authorize the finding of an incident of negligence. Negligence is a fact which must be shown and which will not be presumed. The burden of proving the charge of negligence is upon the plaintiff and must be sustained by proof of circumstances from which defendant's want of due care is a legitimate inference . . . . An inference can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess.
[Long v. Landy, 35 N.J. 44, 54 (1961) (citations omitted).]
In this case, there was no evidence or reasonable inference that Allen was operating her vehicle at excess speed, or that she failed to make adequate observations of a tree which without warning fell on her vehicle. In short, Gorrie failed to raise a factual dispute that Allen was negligent.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION