NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4536-16T1 RONALD WINNIX,
Plaintiff-Appellant/ Cross-Respondent,
v.
SANDRA WINNIX, PICORP INC. BALTIMORE, PICORP TRANSPORT INC., PICORP INC., TRAC LEASE, INC. a/k/a TRAC INTERMODAL,
Defendants-Respondents,
and
BINYAMIN T. SALIS,
Defendant-Respondent/ Cross-Appellant,
DANQUAH-TABBI VENTURES, LLC,
Defendant. __________________________________
Argued September 20, 2018 – Decided June 27, 2019 Before Judges Fuentes, Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1486-14.
Michael J. Confusione argued the cause for appellant/ cross-respondent (Hegge and Confusione, LLC, attorneys; Michael J. Confusione, of counsel and on the briefs).
Richard C. Bryan argued the cause for respondent/ cross-appellant Binyamin T. Salis (Cipriani & Werner, PC, attorneys; Richard C. Bryan, on the briefs).
Wendy Allyson Reek argued the cause for respondent Sandra L. Winnix (Leary, Bride, Mergner & Bongiovanni, PA, attorneys; Wendy Allyson Reek, on the brief).
Colleen M. Crocker argued the cause for respondents Picorp Inc., Baltimore, Picorp Transport, Inc., and Picorp, Inc., TRAC Lease, Inc., a/k/a TRAC Intermodal (Zirulnik, Sherlock & DeMille, attorneys; Colleen M. Crocker, on the brief).
PER CURIAM
In this automobile accident case, plaintiff Ronald Winnix appeals from
the order of the Law Division granting defendants Sandra Winnix's, Binyamin
Salis's, and Picorp Inc.'s motions for summary judgment and dismissing his
complaint with prejudice. Viewing the record in the light most favorable to
plaintiff as required by Rule 4:46-2(c), the motion judge found plaintiff did not
present competent evidence showing defendant Salis was negligent in the
A-4536-16T1 2 manner he operated the tractor trailer truck. We agree and affirm. We thus
conclude that the absence of evidence showing Salis was legally responsible for
this accident obviates the need to decide the remaining arguments raised by the
parties in this appeal.1
I
This automobile accident occurred on July 6, 2012. At that time, plaintiff
and defendant Sandra2 Winnix, both forty-two years old, were married and
resided in Greensboro, North Carolina with their two children, a boy age sixteen
and a girl age fourteen. At his deposition, plaintiff testified that on July 3, 2012,
Sandra suggested the family spend the Fourth of July holiday in Brooklyn, New
York. According to plaintiff, the trip was totally unplanned.
1 Defendant Binyamin T. Salis filed a cross-appeal arguing the motion judge erred in denying his first summary judgment motion. A cross-appeal is not necessary. "[I]t is the judgment that is the focus of the appeal." Stone v. Old Bridge, 111 N.J. 110, 115 n.2 (1988). As respondents, defendants can raise alternative arguments that were presented before the motion judge in support of the court's final order, including arguments the judge either rejected or did not address. State v. Eldakroury, 439 N.J. Super. 304, 307 n.2 (App. Div. 2015); see also Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 381 n.1 (App. Div. 2013); Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443 (App. Div. 1984). 2 Because plaintiff and defendant have the same last name, we will refer to defendant Sandra Winnix by her first name from this point forward. We do not intend any disrespect. A-4536-16T1 3 Q. We heard some testimony earlier today about the trip to New York, right?
A. Yes, sir.
Q. And is that something that was your wife's idea to do?
Q. Alright. And was that something that was decided on at the last minute?
A. At the drop of a dime.
Plaintiff telephoned his aunt Estelle, who resided in New York, and told
her his wife wanted to leave that same night to spend the Fourth of July holiday
in New York City. Plaintiff testified that based on what Sandra told him, he was
concerned about the condition of the minivan's rear tire.
Q. Okay. And what did you know was wrong with that tire?
A. I'm just going by what she told me, she said she had needed a tire.
Q. Okay. And she just said needed a tire, single tire?
A. Yes.
Q. Alright. And did you go out and take a look at that tire before you took it over to 24/7?
A. I can't remember.
A-4536-16T1 4 Q. Alright. Did you hear her complain before this that the tire was losing air or there were any problem[s]?
A. No. She just said she knows that she needed a tire back there.
Plaintiff took the minivan to the "24/7 Tires" at approximately eleven
o'clock that night and returned about thirty to forty minutes later. He did not
ask the service staff at 24/7 Tires to check every tire on the minivan, only the
one Sandra told him may need to be repaired. He purchased a used tire to replace
the tire that Sandra told him was leaking air. Although plaintiff did not
remember the exact price he paid for this used tire, he estimated it was "between
35 and $45. . . [.] The entire family was on their way to New York "within an
hour or two of the tire being put on the back of the [minivan] . . . [.]" The drive
from Greensboro to Brooklyn took approximately nine hours.
According to plaintiff, his wife purchased the Kia Sedona minivan new in
2005. Plaintiff did all the driving on the way to New York. When the family
departed Greensboro, Sandra told plaintiff the minivan "needed a tire back
there." At her deposition, Sandra testified that they did not need to put air in the
rear tire during the entire nine-hour drive from Greensboro to Brooklyn.
The family's Fourth of July excursion to New York ended on July 6, 2012.
Sandra drove the minivan on the return trip to North Carolina. Plaintiff was
A-4536-16T1 5 seated in the front passenger seat; the children were seated in the back passenger
area. After they left Brooklyn, Sandra drove south on the New Jersey Turnpike
for an estimated three hours before the accident occurred. According to the New
Jersey State Trooper who responded to the scene, the accident occurred on the
southbound lane near Exit 2 of the New Jersey Turnpike, which is located in
Woolwich Township, Gloucester County. Sandra testified she was traveling
"about" sixty-five miles per hour. The weather was sunny and clear. The traffic
fluctuated from heavy to light, and "generally lessen[ed] the further south on the
Turnpike."
Sandra testified that plaintiff and she heard a "thumping noise" as the
vehicle travelled on the right side of the Turnpike. After a minute or two, the
noise became louder and the minivan began to vibrate. The noise was coming
from the back of the vehicle. They agreed to stop on the shoulder of the road.
As soon as the vehicle stopped, Sandra, plaintiff, and their then sixteen-year-old
son stepped out to take a look at the rear of the vehicle. All three specifically
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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-4536-16T1 RONALD WINNIX,
Plaintiff-Appellant/ Cross-Respondent,
v.
SANDRA WINNIX, PICORP INC. BALTIMORE, PICORP TRANSPORT INC., PICORP INC., TRAC LEASE, INC. a/k/a TRAC INTERMODAL,
Defendants-Respondents,
and
BINYAMIN T. SALIS,
Defendant-Respondent/ Cross-Appellant,
DANQUAH-TABBI VENTURES, LLC,
Defendant. __________________________________
Argued September 20, 2018 – Decided June 27, 2019 Before Judges Fuentes, Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1486-14.
Michael J. Confusione argued the cause for appellant/ cross-respondent (Hegge and Confusione, LLC, attorneys; Michael J. Confusione, of counsel and on the briefs).
Richard C. Bryan argued the cause for respondent/ cross-appellant Binyamin T. Salis (Cipriani & Werner, PC, attorneys; Richard C. Bryan, on the briefs).
Wendy Allyson Reek argued the cause for respondent Sandra L. Winnix (Leary, Bride, Mergner & Bongiovanni, PA, attorneys; Wendy Allyson Reek, on the brief).
Colleen M. Crocker argued the cause for respondents Picorp Inc., Baltimore, Picorp Transport, Inc., and Picorp, Inc., TRAC Lease, Inc., a/k/a TRAC Intermodal (Zirulnik, Sherlock & DeMille, attorneys; Colleen M. Crocker, on the brief).
PER CURIAM
In this automobile accident case, plaintiff Ronald Winnix appeals from
the order of the Law Division granting defendants Sandra Winnix's, Binyamin
Salis's, and Picorp Inc.'s motions for summary judgment and dismissing his
complaint with prejudice. Viewing the record in the light most favorable to
plaintiff as required by Rule 4:46-2(c), the motion judge found plaintiff did not
present competent evidence showing defendant Salis was negligent in the
A-4536-16T1 2 manner he operated the tractor trailer truck. We agree and affirm. We thus
conclude that the absence of evidence showing Salis was legally responsible for
this accident obviates the need to decide the remaining arguments raised by the
parties in this appeal.1
I
This automobile accident occurred on July 6, 2012. At that time, plaintiff
and defendant Sandra2 Winnix, both forty-two years old, were married and
resided in Greensboro, North Carolina with their two children, a boy age sixteen
and a girl age fourteen. At his deposition, plaintiff testified that on July 3, 2012,
Sandra suggested the family spend the Fourth of July holiday in Brooklyn, New
York. According to plaintiff, the trip was totally unplanned.
1 Defendant Binyamin T. Salis filed a cross-appeal arguing the motion judge erred in denying his first summary judgment motion. A cross-appeal is not necessary. "[I]t is the judgment that is the focus of the appeal." Stone v. Old Bridge, 111 N.J. 110, 115 n.2 (1988). As respondents, defendants can raise alternative arguments that were presented before the motion judge in support of the court's final order, including arguments the judge either rejected or did not address. State v. Eldakroury, 439 N.J. Super. 304, 307 n.2 (App. Div. 2015); see also Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 381 n.1 (App. Div. 2013); Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443 (App. Div. 1984). 2 Because plaintiff and defendant have the same last name, we will refer to defendant Sandra Winnix by her first name from this point forward. We do not intend any disrespect. A-4536-16T1 3 Q. We heard some testimony earlier today about the trip to New York, right?
A. Yes, sir.
Q. And is that something that was your wife's idea to do?
Q. Alright. And was that something that was decided on at the last minute?
A. At the drop of a dime.
Plaintiff telephoned his aunt Estelle, who resided in New York, and told
her his wife wanted to leave that same night to spend the Fourth of July holiday
in New York City. Plaintiff testified that based on what Sandra told him, he was
concerned about the condition of the minivan's rear tire.
Q. Okay. And what did you know was wrong with that tire?
A. I'm just going by what she told me, she said she had needed a tire.
Q. Okay. And she just said needed a tire, single tire?
A. Yes.
Q. Alright. And did you go out and take a look at that tire before you took it over to 24/7?
A. I can't remember.
A-4536-16T1 4 Q. Alright. Did you hear her complain before this that the tire was losing air or there were any problem[s]?
A. No. She just said she knows that she needed a tire back there.
Plaintiff took the minivan to the "24/7 Tires" at approximately eleven
o'clock that night and returned about thirty to forty minutes later. He did not
ask the service staff at 24/7 Tires to check every tire on the minivan, only the
one Sandra told him may need to be repaired. He purchased a used tire to replace
the tire that Sandra told him was leaking air. Although plaintiff did not
remember the exact price he paid for this used tire, he estimated it was "between
35 and $45. . . [.] The entire family was on their way to New York "within an
hour or two of the tire being put on the back of the [minivan] . . . [.]" The drive
from Greensboro to Brooklyn took approximately nine hours.
According to plaintiff, his wife purchased the Kia Sedona minivan new in
2005. Plaintiff did all the driving on the way to New York. When the family
departed Greensboro, Sandra told plaintiff the minivan "needed a tire back
there." At her deposition, Sandra testified that they did not need to put air in the
rear tire during the entire nine-hour drive from Greensboro to Brooklyn.
The family's Fourth of July excursion to New York ended on July 6, 2012.
Sandra drove the minivan on the return trip to North Carolina. Plaintiff was
A-4536-16T1 5 seated in the front passenger seat; the children were seated in the back passenger
area. After they left Brooklyn, Sandra drove south on the New Jersey Turnpike
for an estimated three hours before the accident occurred. According to the New
Jersey State Trooper who responded to the scene, the accident occurred on the
southbound lane near Exit 2 of the New Jersey Turnpike, which is located in
Woolwich Township, Gloucester County. Sandra testified she was traveling
"about" sixty-five miles per hour. The weather was sunny and clear. The traffic
fluctuated from heavy to light, and "generally lessen[ed] the further south on the
Turnpike."
Sandra testified that plaintiff and she heard a "thumping noise" as the
vehicle travelled on the right side of the Turnpike. After a minute or two, the
noise became louder and the minivan began to vibrate. The noise was coming
from the back of the vehicle. They agreed to stop on the shoulder of the road.
As soon as the vehicle stopped, Sandra, plaintiff, and their then sixteen-year-old
son stepped out to take a look at the rear of the vehicle. All three specifically
looked to determine if there were any signs of damage to the vehicle's four tires.
Sandra was questioned about the thoroughness of this visual inspection:
Q. And tell me how you looked at the tires, how did you inspect it [sic]?
A. We just walked around and looked at them.
A-4536-16T1 6 Q. Okay.
A. And just looked, that was it.
Q. Were you able to observe either of the two rear tires losing air?
A. No.
Q. Did anybody get down on their hands and knees and kind of look underneath the back of the car?
The visual inspection took "about two minutes." Unable to discover the
cause of the problem, Sandra, plaintiff, and their then sixteen-year-old son
returned to the minivan and agreed to stop at the next exit. After waiting "a few
minutes" to let some cars go by, Sandra began to drive slowly on the shoulder
of the road to determine whether the noise problem remained. According to
Sandra, everyone agreed the noise was gone. As a cautionary measure, Sandra
testified she turned on the vehicle's hazard lights to "make sure that when I
pulled back into the next exit . . . people would see my car."
When Sandra drove the minivan into the outside lane of traffic that was
next to her, she was able to see the traffic coming behind her. She testified that
when she pulled out into the lane of traffic, she did so in a manner that left
enough time for her to safely do so.
A-4536-16T1 7 Q. Can you estimate how far away from you the tractor trailer was at that point in time when you pulled out?
A. I can't tell you in feet, because I wouldn't know. No, I cannot.
Q. Okay. But whatever distance it was, you felt that it was safe to do so?
Q. And you wouldn't pull out in front of a tractor trailer in a lane; correct?
Q. And why not?
A. Because it would hit me.
Q. Okay. Now when you got back onto the highway were you able to see how far down the next exit was?
A. I don’t remember.
Q. Did you have the impression or the understanding it wasn’t that far away?
A. I don’t know, to be honest.
Q. Can you estimate for me how long after you pulled back onto the highway that the accident took place?
A. About a minute after. . . . Maybe two.
....
A-4536-16T1 8 Q. Was there a point in time prior to the accident occurring that you moved over to the inside lane or the left lane of [the] New Jersey Turnpike before the accident happened?
A. No, I stayed in that lane, the far lane.
Q. Alright. And when you pulled out into the right lane did you accelerate to get up to highway speed?
Q. Did you hear the noise again?
A. No. Because then the tire had blew. I picked up a little bit of speed, and then the tire blew, hit the guardrail, spun back out in traffic, and I was knocked out.
Q. Okay. So you hadn’t got up to 65 miles an hour –
Q. – before the accident took place?
Defendant Binyamin T, Salis was the driver of the tractor trailer that
struck the minivan. He was a licensed commercial driver with over twelve years
of experience. At the time of the accident, the truck he was driving was not
equipped with what is commonly referred to as a "black box," a device that
tracks and records the speed of the vehicle in the event of an accident and other
A-4536-16T1 9 data related to its mechanical operations. Salis testified it is his responsibility
to maintain the truck in good working order.
Salis provided the following account of how the accident occurred:
On that day I was coming from north heading south. And right when I passed, like, the Exit 2 sign I saw the driver of the van. They were on the shoulder, somebody that I could see coming out getting into their car. And I kind of slowed down the speed I'm doing, like forty.
So they started driving. And they in front of me and cut to the left. So we all driving. I was doing like forty. I don’t know whatever speed they are doing. Because I caught them. And I then see smoke, you know. And then they started spinning. So, started spinning, I tried to avoid them, you know. And then I hit, my truck. And we just kind of -- you know, to -- so crazy over there that I don’t --
Q. . . . Let's try to go back. How far were you when you saw them on the side of the road, how far away were you from them?
A. I could say maybe a quarter of a mile, something like that.
Q. . . . Now, when you saw them were they on the right shoulder of the road or closer to the center lane, or the center lane shoulder of the road?
A. The right shoulder.
A-4536-16T1 10 ....
Q. What lane were you traveling in?
A. I'm on the right lane.
Q. And then what happened after you are in the right lane, you see them get back into the car? Tell me what happens next?
A. Then the car moved. They start the car and get in front of me and then swing to the left lane. So there we were -- I'm at the point -- by the time they get to the left lane I'm kind of closer to them. And then their tire blows off. I didn’t know at that point that it was a tire, I just see a smoke. And then they start spinning. You know, that spinning, they hit me. I swing to my right and hit the rail.
II
On July 7, 2014, plaintiff Ronald Winnix filed an amended complaint
against his wife Sandra Winnix, Binyamin Salis, Picorp Inc. Baltimore, Picorp
Transport Inc., Picorp Inc., Trac Lease, Inc., and Danquah-Tabbi Ventures,
LLC, seeking compensatory damages for injuries he suffered related to this
automobile accident. After joinder of issue and extensive discovery, the court
granted Salis's motion for summary judgment. Applying the standard codified
in Rule 4:46-2(c) as explained by the Court in Brill v. Guardian Life Ins. Co. of
A-4536-16T1 11 Am., 142 N.J. 520, 540 (1995), the motion judge found the record devoid of any
evidence that Salis was civilly liable for the accident. The judge found plaintiff
did not present any evidence that Salis drove his tractor trailer in a negligent
manner. After conducting a de novo review of the record developed before the
Law Division, Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224
N.J. 189, 199 (2016), we agree plaintiff failed to establish Salis was negligent
as a matter of law.
Our State's tort jurisprudence is predicated upon the fundamental principle
that "ordinarily negligence must be proved and will never be presumed, that
indeed there is a presumption against it, and that the burden of proving
negligence is on the plaintiff." Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).
As this court explained more than sixty-six years ago:
As a legal concept negligence is not an imaginative notion, a creature of mere surmise or conjecture; it denotes elements of factuality from which a lack of due care can be rationally deduced. It is not presumed that every injurious mishap that one encounters is necessarily attributable to the negligence of another. The factual pedestal stabilizing the logical inference of negligence must be established by some competent proof.
[Overby v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953).]
A-4536-16T1 12 Here, viewing the evidence in the light most favorable to plaintiff, Rule
4:46-2(c), there is no rational basis to deduce that the accident was caused by
Salis's negligent operation of his tractor trailer truck. The uncontested evidence
established Sandra was driving the minivan on the New Jersey Turnpike with its
hazard lights activated when its rear tire blew, causing it to spin out of control
and crash into Salis's tractor trailer truck. Salis was approximately one quarter
of a mile away when he first saw the minivan. He immediately reduced his
speed to forty miles per hour as a precautionary measure. By Sandra's own
account, the minivan "picked up a little bit of speed, and then the tire blew, hit
the guardrail, [and] spun back out in traffic[.]" As soon as Salis saw smoke
coming from the minivan, he maneuvered his truck to avoid colliding with it.
No rational jury can find Salis deviated from the standard of conduct a
reasonable driver of a commercial vehicle would take under these
circumstances.
The record also shows Ronald and Sandra Winnix assumed a significant
risk when they impromptu decided to embark on a nine-hour road trip with their
two teenaged children, knowing one of the minivan's rear tires had been replaced
with a used tire of unknown quality. After she heard a noise and felt a vibration
coming from the rear of the vehicle, Sandra testified she immediately pulled
A-4536-16T1 13 over and stopped the minivan on the shoulder of the Turnpike. The two-minute
visual inspection of the vehicle performed on the side of the road by the two
adults and their sixteen-year-old son was not capable of revealing any latent
defects in the tires. Sandra's decision to continue to drive the minivan under
these circumstances was the dispositive factor that precipitated this accident.
Based on these uncontested facts, we discern no legal or factual basis to
overturn the Law Division's order granting defendants' motion for summary
judgment and dismissing plaintiff's complaint with prejudice.
Affirmed.
A-4536-16T1 14