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Disabled Motor Vehicle Driver Found Not Liable To Police Officer Injured In The Course Of Pushing Her Car To Side Of Roadway

By on March 6, 2020 in Negligence with 0 Comments

Plaintiff, Jean–Pierre Therrien, while on duty as a police officer, observed a disabled motor vehicle with its hazard lights activated, blocking a busy intersection.  Plaintiff spoke with the defendant driver Lynda Blow and learned that her vehicle had run out of gas.  While in the process of helping push her vehicle to the side of the roadway, plaintiff was injured.  The issue in Therrien v. Blow, 2020 N.J. Super. Unpub. LEXIS 457 (App. Div. March 4, 2020), was whether the disabled motorist could be liable for the police officer’s injury.

The plaintiff officer had instructed the plaintiff to remain in her car and place it in neutral so he could push it closer to the side of the roadway.  She followed his instructions and steered the car toward the side of the road as plaintiff pushed from behind.  The car struck the curb.  Sensing that the vehicle was no longer moving, plaintiff continued to push with more strength and, as a result, ruptured his Achilles tendon.

The plaintiff officer sued the defendant, claiming that she breached the duty to safely operate her vehicle by not providing sufficient fuel and allowing it to become disabled.  Further, he claimed that she operated the car in a negligent fashion by steering it into the curb.

After the defendant answered the complaint, she moved for a summary judgment.  The trial court judge granted the defendant’s motion to dismiss the case.  He found that even if he found 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 plaintiff appealed this ruling, claiming 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 her failure to fuel her car, nor steering it into the curb was a proximate cause of plaintiff’s injuries.  The Appellate Division rejected that argument and affirmed the trial court judge’s decision.

The Appellate Division noted that for the plaintiff to prove a cause of action for negligence, the plaintiff must prove as follows: “(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.”  The Appellate Division found no authority for the proposition that permitting one’s car to run out of gas was per se negligence.  The Court acknowledged that a driver of a motor 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.” 

The Court provided, as an example, a defendant who failed to activate her flashing lights so as to warn oncoming drivers and, as a result a collision occurs.  Such action could be considered to be a breach of duty owed and the breach was the proximate cause of any accident and injuries that resulted.  The Appellate Division noted that this was not the scenario in this case.

The plaintiff also cited to the motor vehicle statute N.J.S.A. 39:4-136 as justification for his action that provides that “any 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.”  The Appellate Division noted that the plaintiff decided not to call for assistance to remove defendant’s car because the police department was responding to another emergency.  The Court also noted that the plaintiff failed to take a more cautious tact, such as parking behind the defendant’s vehicle with emergency lights activated to provide warning for the benefit of oncoming drivers.  Rather, plaintiff instructed the defendant to put her car in neutral so that he could push the vehicle.

Thus, the question becomes whether the defendant striking the curb could support plaintiff’s cause of action for negligence.  The Appellate Division agreed with the motion judge that “even if defendant negligently steered her car as plaintiff pushed, her negligence was not a proximate cause of his injury.”

The Appellate Division found that plaintiff’s injuries were not caused by the impact of defendant’s car, presumably traveling at an extremely slow rate of speed when it hit the curb.  To the contrary, plaintiff contends that when the car hit the curb, he pushed with greater force, and that strain caused the rupture of his Achilles tendon.

Further, the Appellate Division found that the motion record does not attribute plaintiff’s injury to his extraordinary exertion of force.  There was no medical opinion distinguishing plaintiff’s initial decision to push the car from his claim that only a resistance caused by defendant’s car against the curb was the proximate cause of his injury.  The record is clear that plaintiff took no steps to determine what was causing the claimed increased resistance to his efforts.  When the plaintiff realized the car was no longer moving, he simply pushed harder.  Hence, the Appellate Division found that “plaintiff’s own conduct is sufficiently unrelated or unanticipated by defendant’s negligence to warrant termination of her responsibility.”

Accordingly, the trial court’s decision was affirmed and the defendant’s summary judgment was upheld.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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