author: Morgan, J. A. D.

text:
    MARY REKIEC AND CHESTER REKIEC, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, v. TONY ZUZIO, ANNA E. MURPHY AND OLD BRIDGE FIRST AID & RESCUE SQUAD, DEFENDANTS AND THIRD PARTY PLAINTIFFS-RESPONDENTS, v. PTL. GREENLEE AND TOWNSHIP OF EAST BRUNSWICK, A MUNICIPAL CORPORATION OF NEW JERSEY, THIRD PARTY DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS. ARLENE COLYER AND ASA COYLER, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, v. TONY ZUZIO, ANNA E. MURPHY, OLD BRIDGE FIRST AID & RESCUE SQUAD OF MADISON TOWNSHIP, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS, AND PTL. GREENLEE AND TOWNSHIP OF EAST BRUNSWICK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS. TONY ZUZIO, PLAINTIFF-CROSS APPELLANT, v. ANNA E. MURPHY, OLD BRIDGE FIRST AID & RESCUE SQUAD OF MADISON TOWNSHIP, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS, AND TOWNSHIP OF EAST BRUNSWICK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND PATROLMAN GERALD GREENLEE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued September 9, 1974
    Decided January 20, 1975.

      Before Judges Conford, Michels and Morgan.

      Mr. Henry H. Bubenson, argued the cause for appellants East Brunswick and Greenlee (Mr. Rubenson, attorney; Mr. William J. Cleary on the brief).

      Mr. Douglas T. Hague argued the cause for cross-appellants Rekiee (Messrs. Wilentz, Goldman & Spitzer, attorneys) .

      Mr. Peter A. Piro argued the cause for respondent and cross-appellant Zuzio (Messrs. Haskins, Boboitom & Hack, attorneys).

      Mr. Thomas B. Mannion argued the cause for respondents Murphy & Old Bridge First Aid (Messrs. Lynch, Mannion, Lutz & Lewandowski, attorneys).

      Mr. William H. Flynn argued the cause for respondents Oolyer (Messrs. Antonio & Flynn, attorneys).
   The opinion- of the court was delivered by

Morgan, J. A. D.

Defendant Township of East Brunswick appeals from judgments entered against it in connection with three consolidated personal injury actions arising out of an intersection collision between an ambulance on an emergency mission and two other automobiles. The aceident occurred on September 9, 1969 at the intersection of Highway 18 and Old Bridge Turnpike. Liability issues were tried first with the result that East Brunswick was held as the sole culpable defendant. After motions for a new trial and leave to appeal were denied, the damage aspects of the case were tried. The result of the first damage trial was set aside on the ground of excessiveness as to all five plaintiffs. The results of the second damage trial, with one exception, were substantially reduced by the court by way of remittitur.

East Brunswick is appealing not only the judgments as to liability but also the remitted results of the second damage trial, contending that the verdicts even as reduced are still excessive. All personal injury claimants have cross-appealed not only the trial court’s order reducing their verdicts (and in the case of plaintiff Colyer from the order granting the new trial as to damages) but also as to those liability judgments exonerating all defendants other than East Brunswick.

An evaluation of the issues projected for resolution in this appeal requires an understanding of the scene of the accident, and the manner in which the accident occurred and the case was tried. Eoute 18 is a major north-south thoroughfare consisting of six lanes of travel, the three northbound lanes of which are separated from the three southbound lanes by a cement barrier. Its intersection with Old Bridge Turnpike, which runs in an east-west direction, is controlled by a set of traffic lights the only notable feature of which is that drivers on Old Bridge Turnpike headed west are given a five-second advantage over drivers heading east when the lights controlling that road turn green in their favor. In other words, the light controlling westbound traffic on the Turnpike turns green five seconds before it turns green for cars crossing Eoute 18 in the opposite direction. This arrangement is presumably to permit westbound drivers to complete left hand turns before eastbound traffic is permitted to move.

The three drivers directly involved in the collision itself were plaintiff-defendant Tony Zuzio, Herbert Stuhler (not a party to any of these actions), and Anna Murphy, the ambulance driver employed as such by defendant Old Bridge First Aid and Eescue Squad. Zuzio’s vehicle, before the accident, was stopped for a red light facing in an easterly direction on Old Bridge Turnpike waiting for the light to turn green in his favor so that he could then cross Eoute 18. Stuhler’s vehicle was on the opposite side of Eoute 18, also on Old Bridge Turnpike but facing in a westerly direction and waiting for the red light for which he was stopped to turn green in his favor. Anna Murphy’s ambulance, before this accident was proceeding north on Eoute 18 on an emergency mission, with emergency signal equipment in full operation, convoyed by two patrol cars, one in front of her and one behind, both being operated by police officers of defendant East Brunswick. Officer Marrero was operating the lead car and Officer Greenlee was operating the escort vehicle following the ambulance. Greenlee was named as a party defendant. Marrero was not, although the car he was operating was referred to in some of the pleadings as having been negligently operated. The presence of these two police vehicles in the convoy was the occasion for joining East Brunswick as a defendant in these actions.

The personal injury claimants are Tony Zuzio, also a defendant at the suit of the other plaintiffs; Mary Eekiee, a passenger in the Zuzio vehicle, with her husband suing per quod, and Arlene Colyer, a passenger in the ambulance, with her husband, Asa Colyer, suing per quod.

There was little dispute as to the general sequence of events which led to the collision. The traffic lights controlling this intersection turned green for Zuzio and Stuhler and red for Eoute 18 traffic as Officer Marrero, operating the lead patrol car, approached this intersection. According to Marrero’s best estimate, he was approximately 50 to 75 yards from the intersection when he observed the red light. There are varying estimates of somewhere between 35 m.p.li. and 50 m.p.h., as to Marrero’s speed as he went through the intersection, but he and most of the other witnesses to this accident testify that he did so with dome lights flashing and sirens sounding. Zuzio testified he neither saw nor heard either the lead patrol car or the ambulance with which he collided. His passenger, Kekiec, saw the dome lights on Marrero’s vehicle and admits to perhaps hearing the ambulance siren immediately before the collision. The clear weight of the evidence, however, confirms the fact that all emergency signal equipment was in full operation with respect to all three vehicles in the convoy.

As Marrero entered the intersection, he noted that all cross traffic on Old Bridge Turnpike was stopped and he passed through the intersection without incident approximately 75 to 100 yards before the ambulance. The ambulance followed Marrero through the red light and into the intersection where it collided with Zuzio’s vehicle which had moved into the intersection when the light turned green in his favor. By his own admission, Zuzio looked neither to the left nor to the right before or as he was proceeding through the intersection. He testified that he was under the impression that the green light provided him with an absolute right of way and it appears that he was also under the impression that he was thereby absolved from the obligation of making any observations for other vehicles or conditions in the intersection. The force of the collision between the Zuzio car and the ambulance propelled both vehicles into the Stuhler vehicle which had been waiting at or slightly into the intersection for the convoy to pass through, notwithstanding the green light in his favor. Indeed, he testified that when the light turned green in his favor (five seconds before it turned green for Zuzio) he started into the intersection when he observed Marrero’s vehicle and then the following ambulance. He then stopped to permit the convoy to pass through, all vehicles of which were operating all emergency signal devices.

The ease went to the jury on special interrogatories as to all defendants except Officer Greenlee whose non-liability was declared by the court as a matter of law. On request of the jury, the court repeated its charge with respect to proximate cause which was framed in terms of a defendant’s negligence being “the proximate cause of an accident.” [Emphasis supplied] No objections were made to either the original charge or the repetition of the charge concerning proximate cause. Thereafter, the jury returned a verdict holding the Township of East Brunswick as the sole culpable defendant, exonerating from liability the two drivers directly involved in the collision, Zuzio and Murphy. East Brunswick’s motion for a new trial on the ground that the verdicts were against the weight of the evidence and on the other grounds asserted in this appeal was denied on the ground that a fact question was presented for jury determination and the court would therefore not interfere with their conclusion. As noted above, East Brunswick’s motion for leave to take an interlocutory appeal was denied and the two damage trials ensued with the general results already described.

[In the portions of the opinion being omitted here, the court found reversible error in the admission of evidence which unexpectedly raised an issue concerning East Brunswick’s responsibility for stationing a police officer at every intersection through which an emergency convoy passes].

East Brunswick, joined by plaintiffs Colyer, contends that the verdict exonerating Zuzio from liability was against the weight of the evidence. In support of this contention, appellants refer to the clear weight of evidence establishing that the three emergency vehicles were operating all emergency signalling devices as they approached and entered the intersection. Zuzio admitted, by his own testimony, his total failure to make any observations at all before entering or as he was crossing the intersection on the green light. It is undisputed, and admitted by Zuzio himself, that he saw neither the Marrero vehicle pass through the intersection directly in front of him or the ambulance at any time prior to the collision. As noted previously, Zuzio was under the impression that a green light in his favor absolved him from any necessity of making even minimal observations for other vehicles in the intersection. If such was the reason for his conduct, he was clearly in error for such is not the law in this State.

The key to New Jersey law concerning the obligations imposed on a driver favored with a green light can be found in the New Jersey Motor Vehicle Code, N. J. S. A. 39:4-105. Section 105 provides as follows:

Traffic signals or signal devices shall conform strictly with the provisions of this article. A three-color system shall be used: red, amber and green. Green means permission for traffic to go, subject to the safety of others or the specific directions of an officer, official sign or special signal *" * * [Emphasis supplied]

Clearly, a green light does not confer on a driver favored with it an unqualified right to proceed. His right to do so is, according to statutory language, “subject to the safety of others * * and therefore the fundamental obligation of using due and reasonable care under the circumstances persists despite the green light in his favor. Although research has disclosed no New Jersey case specifically defining the duty imposed on such a favored driver by section 105, the clear weight of authority elsewhere imposes on the favored driver the continuing obligation of exercising due care for the safety of others. He may not disregard the ordinary precautions of maintaining a lookout and observing conditions on the street he is crossing simply because he is proceeding with a green light. Musi v. De Sarro, 370 F. 2d 113 (3d Cir. 1966); Smith v. United News Company, 413 Pa. 243, 196 A. 2d 302 (Sup. Ct. 1964); and see 3 Blashfield, Automobile Law & Practice (Perm. ed. 1935) § 114.42, pp. 92-99.

While a jury may properly conclude that the driver favored by a green light will be acting reasonably if he makes only cursory observations of the intersection he is entering as contrasted, for example, with the weightier obligation imposed upon a driver going through a stop sign, they may not absolve him completely from any duty of observation in this regard. The well-known facts that some motorists are negligent and that some will attempt to ‘beat a light”, are common knowledge to reasonably prudent drivers on our highways in the light of which their own conduct as such drivers will be appraised. Foreseeability of danger has always been a material element in adjudging negligent conduct. Thus, no driver in this State may prudently ignore the constant possibility of what just occurred in this case, i. e., encountering a vehicle on an emergency mission going through a red light. Such emergency vehicles are given the right, under specified statutory conditions, to go through a red traffic signal, see Finderne Engine Co. v. Morgan Trucking Co., 98 N. J. Super. 421 (App. Div. 1968), and the ordinary driver may not operate his vehicle oblivious to the .potential hazard so created when he crosses an intersection.

Section 105 was not charged to the jury. No party requested that it be included in the court’s charge and no one, not even East Brunswick, complains on appeal of its omission. The only instruction given the jury with respect to the duty imposed upon Zuzio was to the effect that the green light did “not accord him the absolute right of way.” No one objected to the inadequacy of this charge. Nonetheless, the absence of a proper instruction to the jury concerning the duty imposed upon a driver favored with a green light may go some distance in explaining the result reached with respect to Zuzio’s nonliability.

The verdict in favor of Zuzio is, in our view, incompatible with the undisputed evidence when considered in the above described legal context, and must therefore be set aside. Zuzio was oblivious to what was clearly present — a convoy of three vehicles with full emergency signalling equipment in full operation. He was oblivious because he did not look. He had to traverse the three southbound lanes of .Route 18 before encountering the ambulance and still did not see it despite the almost undisputed fact that its sirens and flashing lights were operating. Indeed, he never saw the ambulance before the collision according to his own admission, which merely corroborates his own testimony that he never looked. In these circumstances, the verdict, not only exonerating Zuzio from liability but entitling him to recover for his own injuries, is so completely against the weight of the evidence as to constitute a clear miscarriage of justice. It must be set aside.

Although no party other than East Brunswick impugns the verdict in favor of the ambulance driver and her employer, all being content with the judgment against East Brunswick, we believe that, having vacated those judgments and ordered a new trial as to East Brunswick and Zuzio, we should in the interest of justice direct a reappraisal by the next trial jury of the liability of the ambulance driver and her employer as well. Prima facie there is at least as tenable a basis for determination of negligence against the ambulance driver as against the municipality. Moreover, the next trial jury might possibly conclude that the former, rather than either Zuzio or the municipality was liable, leaving plaintiffs Rekiec and Colyer without any satisfaction whatever. We consequently direct that the new trial on liability be conducted as between all parties except Green-lee. A pretrial order should be entered wherein each claimant states precisely the basis or bases on which he posits the negligence or liability of any other party.

We wish to note, for guidance of the trial court on the new trial, that error was committed in charging the jury that the plaintiffs had the burden of proving that a defendant’s negligent conduct was the proximate cause of the accident, rather than a proximate cause thereof, as required by the ease of Ellis v. Caprice, 96 N. J. Super. 539, 549 (App. Div. 1967). No one objected to the original charge, or even to a repetition of it in answer to a jury request for further instructions, and we have declined to regard this charge as plain error. Although not the occasion for the present reversal, this error may have contributed to the result and should be avoided on the liability retrial.

The awards in the first damage trial were clearly excessive, and there was no error in setting that verdict aside. The results of the second damage trial, as remitted by the trial court, will not be disturbed since they are not, in our view, excessive.

Tony Zuzio, Anna E. Murphy and Old Bridge First Aid and Rescue Squad contend that they should not be bound by the damage award, as remitted, since they did not participate as defendants in the damage trial because they had been exonerated by the jury as to all liability. Following oral argument in this case, Pappas v. Santiago, 66 N. J. 140 (1974) was decided. This court solicited comment from the interested attorneys concerning the possible application of the Pappas case to bind Zuzio, Murphy and Old Bridge First Aid and Rescue Squad to the damage awards already rendered.

We haxe examined the comments received and conclude that none of them provide any reason for holding Pappas inapplicable in the present context. Consequently, Tony Zuzio, Anna E. Murphy and Old Bridge First Aid and Rescue Squad are bound by the remitted damage awards in the event any or all of them are inculpated on the retrial.

Reversed and remanded for further proceedings in accordance with this opinion.


source: Caselaw Access Project

author: Matthews, J. A. D. Ekitz, J. A. D.

license: Public Domain

text:
    OTTO J. CIANCIOTTO AND RUTH CIANCIOTTO, HIS WIFE, PLAINTIFFS-RESPONDENTS, v. SIDNEY MILSTEIN AND MAYOR AND COUNCIL OF THE BOROUGH OF CLOSTER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted January 7, 1975
    Decided January 21, 1975.

      Before Judges Matthews, Eeitz and Botter.

      Messrs. Andora, Palmisano & Be Cotiis for appellants (Mr. Anthony B. Andora, of counsel).

      Mr. Edward J. Cahill for respondents.
   The opinion of the court was delivered by

Matthews, J. A. D.

Plaintiffs, residents and taxpayers of the Borough of Closter, Bergen County, instituted this action in lieu of prerogative writs seeking to set aside the appointment of defendant Milstein as a member of the Borough governing body. The Law Division Judge, after considering the pleadings and affidavits filed and oral argument, concluded, as a matter of law, that Milstein’s appointment was invalid and entered summary judgment in favor of plaintiffs. This appeal followed.

On application of defendants, we stayed the judgment of the trial court and, because of the public nature of the question involved, we have, at the request and with the consent of all parties, accelerated the appeal and proceed to a determination of the merits on the record below and the briefs filed with us.

The Borough of Closter is organized under the provisions of the “Borough Act,” Subtitle 6 of Title 40 of the Revised Statutes, N. J. S. A. 40:86-1 through 40:94-6. The act provides that each Borough created thereunder is to be governed by elective officers consisting of a mayor and six councilmen. N. J. S. A. 40:87—1.

On Uovmeber 20, 1974, a regular meeting of the governing body of the Borough of Closter was convened for the transaction of business. Present were three of the six elected councilmen and the mayor. This attendance constituted a quorum for the transaction of business. N. J. S. A. 40:88—1. During the meeting a letter of resignation' from the office of councilman was received from Councilman Brown and read into the record of the meeting. Thereupon, a resolution accepting the resolution was offered, seconded and adopted by the three council members in attendance.

The mayor then submitted the name of defendant Mil-stein to (ill the vacant council seat. The nomination was moved for confirmation by one of the council members and seconded. A roll call vote resulted in two votes for the appointment and one against. Thereupon, the mayor cast his vote in favor of the nomination. Milstein’s nomination was immediately declared confirmed, and he was administered the oath of office, and thereafter participated in the meeting as a councilman.

The trial judge concluded that the tilling of a vacancy in the office of councilman under the borough form of government was governed by the provisions of N. J. S. A. 40: 87—12, and that since under that statute the mayor may only vote to break a tie council vote on an appointment to fill a vacancy, his vote in this instance was a nullity.

Defendants argue that the trial judge ignored the provisions of N. J. S. A. 40A:9-132 in reaching Ms decision. They contend that this statute impliedly repeals so much of N. J. S. A. 40 :87-12 as would limit the mayor’s right to vote in cases where there is a tie. N. J. S. A. 40A:9-132 reads:

In every municipality, unless otherwise provided by law, if the governing body shall fail (a) to organize and elect a president or chairman at its annual meeting held for such purpose, (b) to fill any vacancy in office or position, (c) to adopt any resolution or ordinance, or (d) to take any action whatsoever, by reason of a tie or insufficient vote among the members, the mayor shall vote in aid of said organization, the election of candidates, appointments of officers or others, adoption of resolutions or ordinances or the taking of any other action.

We fail to see how this statute can he controlling. Section 132 specifically provides that it should apply in all ca.ses “unless otherwise provided by law.” The Legislature has in fact provided otherwise by law, and has done so by the provisions of N. J. S. A. 40:87-12 which provides:

All vacancies in other elective offices shall be filled by nomination by the mayor and appointment by him by and with the advice and consent of the council, expressed by the vote of a majority of the members of the council present at the meeting; provided that at least three affirmative votes shall he required for such purpose, the mayor to have no vote thereon except in the ease of a tie. [Emphasis added]

This section, in our view, provides specifically for the procedures to be followed to fill a vacancy on the council. It is not unreasonable for the Legislature to prevent a mayor from voting in favor of his own nominee, except in case of a tie vote, so as to assure joint action by the mayor, who nominates the candidate for the office, and the council members who must concur in such nomination.

Defendants’ argument would have us permit use of the statute to support political maneuvering. In the instant case, the letter of resignation submitted by the councilman was fortuitously received at a meeting at which only three councilmen were present. In fact, there were six elected councilmen at the time. We are informed by counsel that the six councilmen existing at the time were evenly divided as to political persuasion. The use of the mayor’s vote to make up the insufficiency in votes was thus somewhat artificially contrived. The mayor’s vote would not have been necessary had all of the councilmen been present at the meeting.

Wé cannot agree that the Legislature adopted the provisions of N. J. S. A. 40A:9-132 to cover such circumstances. The use of the phrase, “unless otherwise provided by law,” is clearly intended to continue the application of the statute designed expressly to cover the filling of council vacancies in boroughs, and those provisions must be given continued effect where possible. See N. J. S. A. 40A:1-5. We may not ignore this phrase in N. J. S. A. 40A:9-132 any more than we can avoid the identical phrase, “unless otherwise provided by law,” in other sections of Chapter 9, such as N. J. S. A. 40A:9-130 which fixes the mayor’s term at four years, “unless otherwise provided by law.” N. J. S. A 4.0:125-4 and N. J. S. A. 40:132—1 do provide otherwise, namely, that the mayor of a town shall hold office for a term of two years.

Defendants now argue that the effect of the trial judge’s ruling was to exclude boroughs completely from the provisions of N. J. S. A. 40A:9-132. They point, for example, to the provisions of N. J. S. A. 40:88-1 in support of this contention. That issue is not before us since the question involved is one concerning the appointmeut of an individual to fill a council vacancy. That procedure, we hold, is specifically governed by the provisions of N. J. S. A. 40:87—12, above, and therefore its terms specifically exclude boroughs in that instance from the operation of N. J. S. A. 40A:9-132. We express no view as to whether the provisions of section 132 can apply to boroughs in any instance.

The judgment of the Law Division is affirmed.

Ekitz, J. A. D.

(dissenting). I respectfully dissent from the opinion of my brethren and the judgment of the trial court.

In my judgment, N. J. S. A. 40:87-12 and 40A:9-132, when Tead in pari materia as they must be (In re Petition of Walter C. Keogh-Dwyer, 106 N. J. Super. 567 (Law Div. 1969), aff’d o. b. 54 N. J. 523 (1969)), are not repugnant but complementa^. Indeed the latter does not repeal the former but supplements it.

N. J. S. A. 40:87-12 provides for the filling of vacancies in borough government. The mayor having the power of nomination is prohibited the vote except in the case of a tie. It is apparent that this statute is designed to provide a method for filling vacancies. On the other hand, N. J. S. A. 40A:9-132, applicable by its terms to all municipalities, instructs as to the procedure to be followed when, for some reason or another, a municipality fails to accomplish its purpose of filling a vacancy. In such a case, it is required that the mayor vote in order that government may not be stalemated by an inability to fill the seats at the governing table.

I am moved to take this road by at least three signposts: (1) the foregoing rationale, which demonstrates a legislative awareness of the importance of municipal organization irrespective of all else, in order that government may not be simply frustrated; (2) the concluding phrase of Section 40A:9-132 wherein Items (a), (c) and (d) of that Section are merely paraphrased but wherein Item (b) is indeed expanded to include both election and appointments; (3) the fact that even N. J. S. A. 40:87-12 does not absolutely prohibit the vote of the mayor but restricts it to cases of a tie.

I am frank to express my concern for the grave results which are foreseeable consequent to any inability of a municipal government to organize fully. In my opinion the interpretation sponsored by the majority here might well unwittingly foster the production of such a result by simple inaction. I think the Legislature foresaw such a possibility in N. J. S. A. 40A:9-132, and I would implement its intent in this regard by reversing the judgment below and declaring Milstein properly appointed.


author: Heckman, J. S. C.

text:
    ELIZABETH MARY GAUGER, PLAINTIFF, v. JOHN JOSEPH GAUGER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    January 13, 1975.

      Mr. Samuel R. DeLuca, for the plaintiff (Messrs. Krivit, Miller, Galdieri & DeLuca, attorneys).

      Mr. Samuel F. Penza, for the defendant (Mr. Leo H. McCarthy, of counsel and on the brief).
   Heckman, J. S. C.

The parties to this suit were divorced by a judgment entered May 15, 1974, upon the ground urged in defendant’s counterclaim that they had lived separate and apart for at least eighteen or more consecutive months and that there was no reasonable prospect of reconciliation. N. J. S. A. 2A:3A-2(d). The complaint, though abandoned and withdrawn at the hearing, had been filed on May 23, 1973. Custody, child support and visitation were agreed upon and the request for alimony was waived.

The only point of contention involves the possible equitable distribution of real property, more specifically, 91 acres of farmland located in Monmouth County, New Jersey, acquired by defendant husband and his mother as joint tenants with right of survivorship on December 8, 1941. Plaintiff and defendant were married on September 28, 1946. Defendant’s mother died on August 3, 1972.

The question presented is whether the death of the mother resulted in the acquisition by the husband of property subject to equitable distribution upon his divorce. In view of the nature of a joint tenancy with the right of survivorship and the recent case of Painter v. Painter, 65 N. J. 196 (1974), the answer must be negative.

Babbitt v. Day, 41 N. J. Eq. 392-393 (Ch. 1886) states: “On the decease of one joint tenant, the survivor holds the whole property under and by virtue of the original grant, and holds no part of it in any wise under the decedent”.

This principle has been cited in later treatises and New Jersey cases, to wit: 48 G. J. S. Joint Tenancy § 1-b, page 911, “The joint tenant who survives does not take the moiety of the other tenant from him or as his successor, but takes it by right under the conveyan'ce or instrument by which the joint tenancy was created”. Cf. Burlington County Trust Company v. Casteliccala, 2 N. J. 214 (1949); New Jersey Title Guaranty and Trust Company v. Archibald, 90 N. J. Eq. 384 (Ch. 1919); aff'd 91 N. J. Eq. 82 (E. & A. 1919); William E. Burby, Real Property, 3d ed. 1966, Chapter 18, § 94; Blackstone, Commentaries, 180 (Lewis ed. 1897).

Defendant acquired ownership of the realty, not based upon the death of his mother in 1972 but upon the original grant in the 1941 deed by which he and his mother took title as joint tenants prior to his marriage in 1946. Property owned by a husband or wife prior to marriage is immune from equitable distribution in a divorce proceeding.

The court finds the subject Tealty was not acquired by the defendant during coverture and is not subject to possible equitable distribution under N. J. S. A. 2A:34-23.


author: Breslin, J. S. C.

text:
    MARLE P. WADE AND ARLENE E. WADE, HIS WIFE, PLAINTIFFS, v. NEW JERSEY TURNPIKE AUTHORITY, ET ALS., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 8, 1975.

      Mr. Raymond W. Troy for plaintiffs (Messrs. Lum, Biunno & Tompkins, attorneys).

      Mr. William E. Graham for defendant New Jersey Turnpike Authority (Messrs. McElroy, Connell, Foley & Geiser, attorneys).

      Mr. Mark A. Sullivan, Jr. Deputy Attorney General, attorney for defendant, State of New Jersey (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Breslin, J. S. C.

Marie P. Wade and his wife, Arlene E. Wade, make this motion to permit late filing of notice under N. J. S. A. 59 :8-9. The motion is directed at the New Jersey Turnpike Authority and the State of New Jersey.

The New Jersey Tort Claims Act requires that notice of-claim be filed against public entities within 90 days after accrual. N. J. S. A. 59:8-8. Provision for filing of late notice, up to one year after accrual of a claim, is found in N. J. S. A. 59:8-9, where the public entity will not be substantially prejudiced by the delay. A motion to allow a late filing to stand must be based on affidavits showing sufficient reasons for the moving parties’ failure to file timely notice.

Marie P. Wade was operating a truck owned by Ritewajr Rentals and leased to Scientific Packing Corporation, when he became involved in what has come to be termed the turnpike accidents of October 23 and 24, 1973. Neither the Turnpike Authority, nor the State were noticed by Marie P. Wade within the 90 day period. Both of these public entities were noticed some eleven months after the date of the accident. Thus it falls to this court to decide whether the public entities involved would be substantially prejudiced by the delay in filing a claim, and whether the reasons set forth in Marie P. Wade’s affidavits are sufficient to allow the late notice to stand. There is too, the further question, raised by Marie P. Wade, of whether the New Jersey Turnpike Authority comes within the New Jersey Tort Claims Act at all.

In his affidavit attached to this motion, Marie P. Wade states that he was disabled from October 24, 1973, (the date of the accident) to April 29, 1974; that he was in and out of hospitals, both in New Jersey and in Maine, as a result of injuries sustained in the accident, until January 15, 1974; that he was confined to his home through March; of 1974; and that he was an out-patient until April 15, 1974. Although employed by the Scientific Packing Corporation, located in Elizabeth, New Jersey, Marie P. Wade is and has been a resident of the State of Maine for the past 18 years. Wade contacted Maine counsel only about the possibility of suing “the other driver”. This occurred November 11, 1973, but at that time Marie P. Wade did not know who the other driver was. He made no further inquiries of his Maine attorney until June of 1974, when he was served as a defendant in another case arising out of the same accident.

The other affidavit submitted with this motion is that of Raymond Troy, Marie P. Wade’s New Jersey counsel. Troy states that Maine counsel failed to contact his firm until September 6, 1974, fully 10 months after the accident. He further states that Marie P. Wade came to his office on September 19, 1974 with several summonses and complaints that had been served upon him in various actions arising out of these same accidents. At that time Raymond Troy saw that the Department of Environmental Protection of New Jersey, the New Jersey Turnpike Authority and the New Jersey Division of State Police were defendants in cases growing out of the Turnpike Accidents.

In his affidavit Raymond Troy contends that N. J. S. A. 59:1—1 et seq. notice is not required as to the New Jersey Turnpike Authority. He notes that the Turnpike Authority carries liability insurance and that it is represented by independent attorneys, outside of the Attorney General’s office. The affidavit also notes that N. J. S. A. 27:23-1 et seq. established the New Jersey Turnpike Authority within the Department of Transportation and authorized the Turnpike Authority to sue and be sued. It is argued that the power to sue and be sued takes the Turnpike Authority out of the definition of “State” contained in N. J. S. A. 59: 1-3.

The brief submitted in support of this motion reiterates the reasons set forth in the attached affidavits and provides greater detail as to the injuries sustained by Marie P. Wade, the dates of his admissions and releases from hospitals, and the operations and other treatment he underwent before being able to return to work on April 28, 1974.

The question of whether or not the New Jersey Turnpike Authority is included in N. J. S. A. 59 :1-1 et seq. needs to be disposed of before the other questions relating to this motion are reached. It is the opinioi. of this court that the Turnpike Authority does fall within the New Jersey Tort Claims Act. In their brief plaintiffs read the New Jersey Turnpike Authority out of the statute by demonstrating that the Turnpike Authority is not included in the definition of “State” contained in N. J. S. A. 59 :1-3. It should be noted, however, that “Public entity” and not “State” is the operational term used throughout the statute. It is then to the definition of “Public entity” which we must look.

The brief also refers us to the decisions of McCabe v. New Jersey Turnpike Authority, 35 N. J. 26 (1961), and New Jersey Turnpike Authority v. Parsons, 3 N. J. 235 (1949). These two cases were decided by our Supreme Court 11 and 23 years prior to the legislative enactment which here concerns us. It seems clear from the language of the Tort Claims Act that the legislature wished to deal with the whole area of sovereign immunity, including such past problems as were raised in McCabe and Parsons, in this one statute.

The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity . . . Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein

N. J. S. A. 59:1-2 and at N. J. S. A. 59:2-1 (a) it is stated:

Except as otherwise provided by this act a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

Title 59 of the New Jersey Statutes deals with sovereign immunity. Subtitle 1. is the Tort Claims Act, which concerns us in the present action. N. J. S. A. 59 :1-3 is the definitions section of that Act and is reproduced in pertinent part below:

As used in this subtitle:

“Public entity” includes the State, and any other county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State.
“State” shall moan the State and any office, department, division, bureau, board, commission or agency of the State, but shall not include any such entity which is statutorily authorized to sue and be sued.

The two definitions, “Public entity” and “State” should be viewed as follows: the former is a greater inclusive grouping based on sovereignty, i. e. political subdivisions; the second is a lesser included sub-grouping based on administrative subdivisions of the State. “State” then is but one of the public entities listed in the former definition. “Public entity” is the general term, “State” is a specific. Bach of the parts included under the term “Public entity” has had that sovereignty possessed by the State par-celled out to it, and is to that degree independent of the State, and the equal of the State. The administrative parts that are listed in the meaning of “State”, however, merely share in or are covered by the umbrella of sovereignty which the State has retained, but have no sovereignty of their own. These include offices, departments, divisions, bureaus, boards, commissions and state agencies. The exclusion of parts “statutorily authorized to sue and be sued” is only contained in the latter definition, that of “State”. Unless a moving party can demonstrate that the Turnpike Authority is an office, department, division, bureau, board, commission or state agency, then the said exclusion contained in the definition of “State” does not apply to the Turnpike Authority. On the other hand, the Turnpike Authority clearly fits under the definition of “Public entities”, namely as a public authority. The Yew Jersey Turnpike Authority was established in N. J. S. A. 27:23-5 where it is stated that, “The authority shall be a lody corporate and politic and shall have perpetual succession. . . .”

The exclusion of entities which have the power to sue and be sued cannot apply to the entities included in the definition of “public entities” for two reasons. First, the Legislature did not attach the exclusion clause to that definition. Second, if it were said to apply to “public entities” then not only public authorities, but also every county and municipality with the power to sue and be sued would be excluded, clearly an absurd result and an unreasonable interpretation. Since the clause excluding those parts of the State which are not permitted to sue or be sued is only appended to one definition in N. J. S. A. 59 :1-3, the reasonable inference to be drawn is that the Legislature only intended to so limit that definition and its parts. The other administrative departments and agencies of the State that may not sue and be sued share the State’s sovereignty. They are represented by the Attorney General as is set forth in N. J. S. A. 59 :8-7. The entities listed in the definition of “public entity,” some of which do have the power to sue and be sued (e. g. the State, public authorities, municipalities, counties), are included in the Tort Claims Act. The clear inference is that political subdivisions of the state are meant to be protected by the sovereign immunity statutes, whereas administrative agencies within the state are only protected if they have not been empowered to sue and be sued.

N. J. S. A. 59 :8-2 supports the above stated construction which distinguishes the public entity “State” from all other public entities in the Act.

For purposes of this chapter “local public entity” means a public entity other than the State.

As is shown in N. J. S. A. 59 :8-7, there is no merit to the argument that an entity with independent attorneys cannot be within the Tort Claims Act.

A Claim for damage or injury arising under this act against the State shall be filed either with (1) the Attorney General or (2) the department or agency involved in the alleged wrongful act or omission. A claim for injury or damages arising under this act against a local public entity shall be filed with that entity.

It hardly needs to be pointed out that not only the Turnpike Authority, but other corporate public entities, such as municipalities and counties, retain their own counsel separate and apart from the Attorney General. The construction urged by movant in his application would be an inconsistent reading of the language in the act.

In Lutz v. Semcer, 126 N. J. Super. 288 (Law Div. 1974), it was said that “[m]ere ignorance of the law is not a sufficient basis to excuse compliance with the requirements of this remedial statute”. Here there are reasons other than ignorance of the law, set forth in the affidavits and brief accompanying this motion. Those additional reasons include; the five month confinement of Marie P. Wade, due to injuries received in the accident; his unawareness of any claim against public entities; the fact that shortly after the accident he was removed from a New Jersey hospital and flown to Maine where he remained until after April 28, 1974; and the late date at which New Jersey counsel was brought into the matter and apprised of the possible claims against public entities. Such reasons are certainly sufficient within the meaning of N. J. S. A. 59 :8-9.

The Legislature must be presumed to have included N. J. S. A. 59 :8-9 in the Tort Claims Act in order to allow for notices of claims against public entities to be filed more than 90 days after accrual. The Turnpike Accidents of October 23 and 24, 1973 involved some 66 vehicles, the deaths of nine persons and injuries to 37 others. Extensive coverage was given in the media at the time of this occurrence and it was the subject of National Safety Board hearings. The New Jersey Turnpike Authority and the Division of State Police were directly involved in investigating the accident. It is clear that the public entities involved were not substantially prejudiced by Marie P. Wade’s delay in filing notice of claim, nor do any of the opponents of this motion contend that prejudice has resulted. Eor these reasons and because of the reasons discussed above and because of the unique and extremely complicated nature of this accident, this motion to permit filing of notice of claim out of time is granted.


author: Rosenberg, J. S. C.

text:
    JOANNE J. REALE, BY HER GUARDIAN AD LITEM, SALVATORE J. REALE AND SALVATORE J. REALE, INDIVIDUALLY, PLAINTIFFS, v. THE TOWNSHIP OF WAYNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided January 10, 1975.

      Mr. Anthony Fiorello for plaintiffs (Mr. Paul Seligman, attorney).

      Mr. Jeffrey M. Kadish for defendant (Messi's. Morgan, Melhuishj Monaghan, McCoid & Spielvogel, attorneys).
   Rosenberg, J. S. C.

This action is brought on behalf of infant plaintiff and her father seeking damages for injuries suffered by the infant in a 1‘all from a bicycle. The complaint filed September 14, 1973 alleges that the little girl fell and was injured on July 7, 1973 when her bicycle struck a depression in a street controlled and maintained by defendant municipality. It contains three counts, the first two encompassing claims on behalf of the injured infant and the third on behalf of her father seeking recovery of money expended in having his daughter’s injuries treated. In its answer the township denies all allegations of negligence and sets out various separate defenses including a claim that it is immune from suit. The matter is now before the court on defendant’s motion for summary judgment dismissing the complaint or, in the alternative, limiting the extent of plaintiffs’ potential recovery.

The basis for defendant’s motion to dismiss is strictly limited to a question of law and does not involve resolution of any issue of material fact. It is, therefore, ripe for summary judgment. R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1954). Defendant’s argument is that plaintiffs have failed to comply with mandatory provisions of the Tort Claims Act, N. J. S. A. 59: 1-1 el seq., requiring that timely notice of all claims against a public entity be given else a bar be imposed on action against the entity. It is for the court to determine the applicability of such provisions to the instant facts and the effect thereto.

At the outset it should be noted that defendant has been careless in its pleadings. Under B. 4:5-4 a responsive pleading must specifically set forth the separate defenses raised. Tn the present motion defendant seeks dismissal on the basis of plaintiffs’ alleged noncompliance with provisions of the Tort Claims Act. Such noncompliance is not set out in the answer as a separate defense. Rather, defendant makes the broader claim of immunity from suit, a defense which was effectively abrogated with the effective date of the act (July 1, 1972, N. J. S. A. 59 :14-4) and, therefore, not available at any time instant to this lawsuit. Thus defendant pleads a defense no longer viable and moves for judgment under a defense which it fails to affirmatively plead.

In Jackson v. Hankinson, 94 N. J. Super. 505, 514 (App. Div. 1967), aff'd. 51 N. J. 230 (1968), the court determined that under R. R. 4:8-3, the source rule of R. 4:5-4, the defense of qualified immunity of a municipality had to be specifically pleaded in order to avoid surprise, which purpose it identified as “the spirit of the rule.” However, it went on to qualify this pleading requirement where public policy compelled having the defense before the court and the other party was not prejudiced, citing Douglas v. Harris, 35 N. J. 270 (1961), as authority. This same rationale is directly applicable to the present case. The public policy in having the Tort Claims Act applied here is as compelling as that in Jackson, supra. Although not pleaded, invocation of the act should come as no surprise to plaintiffs in view of the pleading of sovereign immunity, a defense which is at least of the same genre as those encompassed by the act. Plaintiffs have complained of no surprise or prejudice and the court perceives none. While it is clear that an affirmative defense under the act should properly be pleaded under R. 4:5-4, failure to do so may be excused by the court under appropriate circumstances. Such circumstances are extant here.

The purpose of the Tort Claims Act is to modify the doctrine of sovereign immunity and create limited situations in which individuals may bring tort claims against public entities. N. J. S. A. 59 :1—2. In keeping with this purpose the act provides certain procedures which must be followed in instituting and pursuing such claims. Among them is provision for notification of the entity of any claim against it. N. J. S. A. 59 :8—1 et seq. lays out the manner in which claims are to be presented. Included within the presentment scheme is a time provision encompassed in N. J. S. A. 59:8-8:

59:8-8. Time for presentation of claims

A claim relating to a cause of action for death or for injury to person or to property shall be presented as provided in this chapter not later than the ninelieth day after accrual of the cause of action. After the expiration of 6 months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity if:
a. lie failed to file his claim with the public entity within 90 days of accrual of liis claim except as otherwise provided in section 59:8-9; or
b. Two years have elapsed since the accrual of the claim; or
c. The claimant or Ms authorized representative entered into a settlement agreement with respect to the claim.
Nothing in this section shall prohibit an infant or incompetent person from commencing an action under this act within the time limitations contained herein, after his coming to or being of full age or sane mind.

N. J. S. A. 59 :8-9 modifies the bar to action created in the above cited section by permitting filing of notice within one year of accrual of a claim on application to and with approval of the superior court. The effect of these sections is to create an absolute bar to action under the act if notice of claim is not filed within 90 days or one year, as the case may be, or if failure to file such notice is not excused.

On the instant facts plaintiffs fail to comply with cither the 90 day or one year requirements. A cause of action accrued on behalf of the infant on July 7, 1973, the date of her injury. The record does not show that a formal notice of claim was ever filed or that judicial leave was sought to file a late claim. It is on this ground that defendant seeks to invoke the bar in N. J. S. A. 59 :8-8. Plaintiffs argue that the last sentence of the section tolls the notice requirement and therefore avoids a bar to their action. Since it is clear that the notice requirements have not been observed the question is the extent to which the language of the last sentence excuses such noncompliance.

In Rost v. Bd. of Ed. Fair Lawn, 130 N. J. Super. 187 (Law Div. 1974) the court was faced with facts substantially the same as those in this ease. There as here an action for injuries allegedly suffered by an infant was brought against a public entity without the proper filing of a notice of claim. On argument defendant conceded that the time limitations for filing notice were tolled as they affected the infants’ action, and the court in its opinion dealt exclusively with the viability of the father’s claim for consequential damages. Here defendant does not concede that the infant’s claim is.viable. Rather it asserts that the language of the last sentence of N. J. S. A. 59 :8-8 tolls only the limitations period for commencing an action and not the condition precedent of complying with the notice requirements. The argument is that if the notice provisions are observed within the time periods set out in N. J. S. A. 59:8-8, the child’s action may be commenced within the limitation period provided by the section after she reaches majority, but that if such provisions are not met the bar to action is mandatorily invoked. To support this contention defendant relies heavily on California case law on the ground that the California Tort Claims Act of 1963, Cal. Gov’t. Code § 810 et seq. closely parallels the Hew Jersey act and the case law under it is entitled to considerable weight by our courts. Because of the absence of case law construing our act defendant argues its position by analogy to the California experience.

In the preparation and drafting of the Hew Jersey act consideration was given to the California act and its background and impact. See Report of the Attorney General’s Tash Force on Sovereign Immunity (1972) Chapter 4. However the Hew Jersey act does not reflect all the provisions contained in the California act. The California statute includes a fairly elaborate scheme for granting leave to file an untimely notice of claim. Cal. Gov’t. Code § 946.6(c) (2) extends relief from the notice provisions to the case of minors but such relief is limited by the terms' of that and other sections. See Cal. Gov’t. Code §§ 911.2,-911.4, 911.6 and 945.4. Nowhere in the California act does there appear language comparable to that in the last sentence of N. J. S. A. 59:8-8. This indicates an intention by our Legislature to depart from the scheme adopted in California. When an act is adopted in this State which is a substantial reproduction of an act of another state on the same subject the interpretation given that act by the courts of that state is presumed to have been adopted by our Legislature as indicating its purpose and effect. Williams v. Knox, 10 N. J. Super. 384 (Law Div. 1950); Ford Motor Co. v. N. J. Dept. of Labor & Industry, 7 N. J. Super. 30 (App. Div. 1950); Ruthowshy v. Bozza, 77 N. J. L. 724 (E. & A. 1909). Since the last sentence of N. J. S. A. 59:8-8 is not such a reproduction the interpretation by the California courts is not on point and therefore is not given effect.

In the official comment to N. J. S. A. 59 :8-3 the purpose of the entire claim notification requirement under Chapter 8 of the act is expressly stated: “* * * (a) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (b) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense.” Against this expression of legislative intent the rationale for requiring timely notice has two distinct purposes: to expedite investigation with the hope of reaching nonjudicial settlement and to protect the public entity’s access to current information about the incident giving rise to the claim. The weight of these policies is reflected in the mandatory bar for failure to comply with the 90 day or one year requirements of N. J. S. A. 59:8-8 and 59:8-9.

The last sentence of N. J. S. A. 59:8-8 establishes an exception to the requirement for timely notice by preserving actions on behalf of infants or incompetents regardless of compliance with the notice rules. The language is closely akin to that in N. J. S. A. 2A:14-21 which tolls the statute of limitations and preserves an infant’s right of action during minority and within the limitations period thereafter. Smith v. Fetter, 61 N. J. L. 102, 104 (Sup. Ct. 1897); Higgins v. Schneider, 61 N. J. Super. 36, 38 (App. Div. 1960), aff’d 33 N. J. 299 (1960). The self-evident purpose of such a tolling is to protect the interests of those under legal disability until a time when the disability is cured. In the context of N. J. S. A. 59 :8—8, however, the effect is to frustrate expeditious notice of claim, a result which is contrary to the expressed intention of the notice provisions. Paced with conflicting policies the role of the court in construing the statute is to give full effect to all parts of the statute insofar as it is possible. Household Fin. Corp. v. State Bd. of Tax Appeals, 119 N. J. L. 230, 234 (Sup. Ct. 1937); Beard v. Aldrich, 106 N. J. L. 266, 270 (Sup. Ct. 1930), aff’d 107 N. J. L. 516 (E. & A. 1931). The task in construing N. J. S. A. 59:8-8 is to harmonize to the greatest extent possible the policy of giving timely notice of claim with that of extending time to protect the interests of infants.

The language of the last sentence of the section makes it clear that in the ease of infants timely notice cannot be compelled through use of the mandatory bar to action. However, short of prohibiting suit such actions must be brought “within the time limitations” of the section. One such limitation which does not act to forestall action is the requirement that no suit be commenced for at least six months after notice of claim is given. The comment to N. J. S. A. 59:8-3, supra, states that the purpose of this provision is to promote settlement of meritorious claims. Such a purpose is as relevant to the claims of infants as to those of adults. While failure to file proper and timely notice cannot bar suit on behalf of infants such claims should nonetheless be presented in proper form in order to expedite prelitigation settlement. An action commenced without notice and running of the six month period should be dismissed on motion for failure to comply with statutory terms. Since there is no bar for premature commencement of suit such dismissal would be without prejudice and with leave to recommence suit, upon compliance with the six month requirement. In this way effect may be given to the policy of promoting non-judicial settlements while at the same time affording infants the protection which the Legislature meant them to have.

In this action plaintiffs commenced snit without serving notice of claim and without the running of a six month settlement period. Such a situation normally would compel that a motion for summary judgment to dismiss be granted without prejudice as described above. However, to grant such a dismissal on the present facts would be inappropriate. Although the defendant public entity did not have the requisite period in which to investigate the claim, over a year has passed since the complaint was filed. During that period defendant has had ample opportunity through pretrial discovery to study the merits of plaintiffs’ claim and work toward a settlement. To dismiss the complaint without prejudice at this late date would he contrary to the intent of our court rules to provide for “simplicity in procedure, fairness in administration and elimination of unjustifiable expense and delay.” R. 1:1-2. If less than six months had passed since the action was commenced or if a showing was made that the municipality was frustrated in undertaking an investigation of the claim, dismissal without prejudice would he appropriate. On the present facts such action by the court would constitute a hindrance rather than a help to efficient disposition of infant plaintiff’s claim. Dismissal without prejudice is therefore rejected.

At oral argument plaintiffs’ counsel suggested that although formal notice provisions were not observed, the filing of the complaint served the same notification function and therefore satisfied the requirements of N. J. S. A. 59:8-8. This argument runs counter to the entire rationale of the notice sections since initiation of litigation makes settlement prior to snit impossible. While our courts recently have applied the doctrine of substantial compliance to the notice provisions of Chapter 8, Dambro v. Union Cty. Pk. Comm., 130 N. J. Super. 450 (Law Div. 1974), the serving of notice by complaint should not be viewed as a permissible liberalization of the notice rules. Unlike Dambro, where the court applied the notice rules expansively as a means of realizing the legislative intention, permitting the complaint to serve as notice of claim would be in derogation of the Legislature’s will. It is axiomatic that the court should not give effect to such an interpretation. Alex. Hamilton Hotel Corp. v. Bd. of Review, 127 N. J. L. 184, 187 (Sup. Ct. 1941); Lynch v. Boro of Edgewater, 8 N. J. 279, 286 (1951). The unwillingness of this court to enforce the six months requirements and dismiss the complaint does not evidence an acceptance of plaintiffs’ argument. Rather it is an attempt to efficiently deal with the situation presented.

As previously noted plaintiffs’ complaint consists of three counts. Since the first two encompass the claim of the infant they are not subject to bar. However, the third count on behalf of the child’s father is not preserved by the last sentence of N. J. S. A. 59:8—8. As the court said in Rost v. Bd. of Ed. Fair Lawn, supra, 130 N. J. Super, at 191, “Under N. J. S. A. 59:8-8 the Legislature did not extend the tolling provisions for the filing of an infant’s claim to the parent’s claim for consequential damages.” The reasoning leading to this conclusion in Rost is persuasive and the facts in that case as to the parent’s claim are indistinguishable from those here. Such being the case the holding in Rost is directly on point. Therefore, summary judgment as to the father’s claim is properly granted and the third count of the complaint is dismissed.

Defendant’s final contention is that infant plaintiff’s potential recovery should be limited to damages for injuries suffered and should not include recovery for permanent injury. This position is based on N. J. S. A. 59:9-2(d):

59:9-2. Interest and limitations of judgments
* * *
d. No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.

Defendant argues that the intent of this section is to prevent recovery of speculative damages in eases where medical expenses incurred are below the stated amount. Based upon answers to interrogatories supplied by plaintiffs to the effect that a total of $447 has been expended on the child’s medical care, the claim is that infant plaintiff is barred from recovering more than her actual loss. Plaintiffs counter with the argument that "pain and suffering” differs from permanent injury as an element of damages and that the section therefore does not preclude recovery for such injuries. Both arguments necessarily depend upon the purpose of the section and the proper characterization of the child’s claim.

In awarding damages in a tort case the rationale is to compensate the plaintiff and make good the injury done or loss suffered. Berg v. Reaction Motors Div., 37 N. J. 396, 412 (1962); N. J. Power & Light Co. v. Mabee, 41 N. J. 439, 441 (1964). In Theobold v. Angelos, 40 N. J. 295 (1963) the court succinctly stated the criteria which the trier of fact should consider to this end:

First, the jurors must decide on the evidence whether the defendant on trial was guilty of negligence * * *. After reaching an affirmative conclusion on that subject, they should then pass to a determination of the amount of compensation to be awarded. Here they have to realize that their duty is to give to the plaintiff the total sum which represents reasonable compensation for his injuries and losses. That means such sum as would be reasonable compensation for his bodily injuries, for the pain and suffering resulting therefrom, past, present and future, for the effect of those injuries upon his health according to their degree and probable duration, and for any permanent disability which in reasonable probability has resulted or will result. To that sum should be added all expense, past and future, reasonably necessary or incidental to plaintiff’s efforts to cure or alleviate his injuries or resulting disability, and all other pecuniary losses suffered or to be suffered in the future as the result of his inability to engage in his usual occupation, (at p. 304)

It is clear from this passage that pain and suffering and permanent disability comprise separate elements in a plaintiff’s overall recovery of "reasonable compensation for his injuries and losses.” Damages for pain and suffering represent recovery for physical discomfort and distress resulting from injuries caused by defendant’s negligence. Botta v. Brunner, 26 N. J. 82, 95 (1958); Doud v. Housing Auth. of Newark, 75 N. J. Super. 340, 346 (App. Div. 1962). Damages for permanent disability on the other hand encompass compensation for permanent or temporary injury resulting in disability to or impairment of plaintiff’s faculties, health or ability to participate in activities. Simmel v. N. J. Coop. Co., 28 N. J. 1, 15 (1958); Mengle v. Shields, 53 N. J. Super. 76, 80 (App. Div. 1958). Assessing damages in both situations is left to the sound discretion of the jury based on their consideration of the evidence and the application of pertinent rules of law. Botta v. Brunner, supra, 26 N. J. 103; Dandrea v. Centofante, 13 N. J. Super. 445, 447 (App. Div. 1951).

On its face N. J. S. A. 59:9-2(d) would appear to limit recovery only for pain and suffering and not for permanent injury. Defendant however places great reliance on the comment accompanying the section which raises a question of the impact of the term "pain and suffering” as it is used therein:

The limitation on the recovery of damages in subparagraph (d) reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, except in aggravated circumstances — cases involving permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000. The limitation that pain and suffering may only be awarded when medical expenses exceed $1,000 insures that such damages will not be awarded unless the loss is substantial, [emphasis supplied]

The italicized phrase read in juxtaposition with the language of the section raises considerable doubt as to the intention of the Legislature in limiting recovery. If “pain and suffering” is merely exemplary of the types of damages which are not recoverable then the limitation assumedly extends beyond “pain and suffering.” The term “non-objective types of damages” is undefined making it difficult to ascertain to what other elements of recovery the limitation was meant to apply. An initial determination must be made as to the effect of the inconsistent language in the section and comment.

It is elementary that the role of the court in construing a statute is to give effect to the legislative intent. State v. Madden, 61 N. J. 377, 389 (1972)] Safeway Trails, Inc. v. Furman, 41 N. J. 467, 477 (1964). In doing this the legislative will should be enforced as written and not according to some unexpressed intention surmised by the court to be present. Lynch v. Boro of Edgewater, supra, 8 N. J. at 286] Hoffman v. Hock, 8 N. J. 397, 409 (1952). The instant situation is unique because the apparent intent expressed in the statute seems to be expanded by the language of the comment. While the court rceognizes this apparent expansion of meaning it cannot ignore the fact that the language of the statute is explicit and clear and free of ambiguity. In such a case it is a rule of long standing that extrinsic evidence should not be viewed as an indication that the Legislature intended something other than what it actually expressed. Bass v. Allen Home Improvement Co., 8 N. J. 219, 226 (1951); Rosenthal v. State Employees’ etc. Sys. of N. J., 30 N. J. Super. 136, 140 (App. Div. 1954). Although the comment is included in our annotated statutes it does not have force of law. To use it to expand the clear statutory language invites the court to speculate upon the legislative will in a manner which is inappropriate. If the Legislature had intended the term “pain and suffering” to encompass other elements of recovery such as permanent injury it would have been a simple matter for it to have said so. The court is unwilling to ascribe such an intent to the lawmakers in the face of the language of the section. It is held as a matter of law that N. J. S. A. 59 :9-2(d) does not bar infant plaintiff’s potential recovery for permanent injuries regardless of her medical expenses.

It should also be noted that the fact that' the child’s medical expenses have not reached $1000 does not necessarily bar recovery for pain and suffering. The term “medical treatment expenses” is defined in the section as “the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant * * *.” Plaintiffs’ counsel represented to the court that because of the child’s tender years it is not yet certain what monies may have to be expended for her care. In such a case “necessary treatment” may well include considerable future expenditures. If “permanent loss of a bodily function, permanent disfigurement or dismemberment” is proved and competent evidence of anticipated future medical expenses is introduced so that the total medical expenses are in excess of $1000 the bar to recovery for “pain and suffering” should be lifted.

Motion for summary judgment dismissing counts one and two of the complaint is denied. Motion for summary judgmen dismissing count three of the complaint is granted. Motion for partial summary judgment as to damages is denied.

Submit an order accordingly.


author: Leonard, P. J. A. D. Allcorn, J. A. D.

text:
    THOMAS MORACA, PLAINTIFF-APPELLANT, AND EVELYN MORACA, PLAINTIFF, v. FORD MOTOR CO., A CORPORATION OF THE STATE OF DELAWARE, AND MERLIN MOTOR CO., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 29, 1973
    Decided February 21, 1974.

      Before Judges Leonaed, Allcorn and Crahay.

      Mr. Thomas Connery argued the cause for appellant (Messrs. Brown, Connery, Kulp, Wille, Purnell & Greene, attorneys).

      Mr. Arthur Montano argued the cause for respondent Ford Motor Co. (Messrs. Kisselman, Deighan, Montano & Bummers, attorneys).
    A statement in lieu of brief for respondent Merlin Motor Co. was filed by Mr. David 6. Eynon (Messrs. Farrell, Fynon and Munyon, attorneys).
   The opinion of the court was delivered by

Leonard, P. J. A. D.

This is an automobile products liability case. Following a jury trial, plaintiff Thomas Moraca appeals from a judgment of no cause of action in favor of defendants and against him.

On November 27, 1967 plaintiff, on behalf of a corporation controlled by him, purchased a new 1968 Lincoln Continental 4-door sedan from defendant Merlin Motor Co. (Merlin). On February 5, 1968 the vehicle was returned to Merlin for a 6,000 mile checkup, although the mileage thereon was only 4,370 miles. Plaintiff experienced no mechanical trouble from the time he took delivery of the automobile until May 28, 1968, the day of the accident here involved. At that time the car had been driven approximately 11,000 miles.

Approximately 11 a.m. on the day in question, plaintiff left his place of business in Cherry Hill, New Jersey, with the intention of driving to Ocean City, Maryland, a distance of about 150 miles. He first stopped at a gas station immediately adjacent to his office. The station attendant, finding that the power steering fluid was very low and that no fluid showed on the dip-stick, added approximately one-third of a quart of transmission oil to the power-steering reservoir. Plaintiff then proceeded south on the New Jersey Turnpike, crossed into Delaware and continued in the same direction on Eoute 13.

At the scene of the accident, Boute 13 curves gradually to the right. When plaintiff entered this curve, he estimated he was traveling 45 miles per hour in the right lane of the dual highway. The speed limit at the location was 60 M.P.H. It was raining rather heavily at the time.

Just after entering the curve, plaintiff heard a noise, which he described as a “gink” in the front end of the vehicle. Immediately following, the car began to slide to the right. The front wheels felt as if they were locked and the steering wheel would not respond to plaintiff’s efforts. It would not turn even though plaintiff exerted force with both hands. The ear traversed the 12 foot right shoulder and into a contiguous field, where it continued in a side-slide down the highway for about 42 feet. It struck a tree located 3 feet from the outside edge of the shoulder. The front portion of the vehicle came to rest against the tree and the remaining part about 30 feet away.

Plaintiff testified that he took his foot off the accelerator when the slide started and did not thereafter increase his speed. He also stated that he did not think he had his foot on the brake as he was attempting to turn the locked steering wheel.

As a result of the accident plaintiff suffered serious personal injuries.

Sometime after the accident, the two sections of the Continental were returned to this state and following notice to both defendants, the power steering system was disassembled in the presence of representatives and experts of all parties.

At trial plaintiff produced two experts. They substantially agreed in their testimony that there existed two manufacturing defects in the power steering sector shaft of plaintiff’s automobile. The first was a rough area along one side of the bearing surface on the lower portion of the shaft, where it would come into contact with the seal. The second was that the sector shaft itself was bent. Both opined that the first would abrade the seal, causing it to eventually fail, resulting in loss of power steering fluid. The second would cause the shaft to rotate in an eccentric fashion, in turn causing the lip of the seal to be stretched so that it would allow power steering fluid to spurt out. Additionally, the first expert testified that as a result of the loss of oil level, the power steering unit would instantaneously lock, making it impossible for a person of ordinary strength to control it. It was his further opinion that the two described defects, with the accompanying loss of oil, were the cause of the instant malfunction, and of the resultant accident.

Defendant in turn offered three experts who contradicted plaintiff’s witnesses. They denied the loss or leakage of power steering fluid or damage to the seals. In their opinion the bend in the sector shaft was due to the accident impact.

At the close of the trial, plaintiff submitted to the court the following written requests to charge:

Nor is the plaintiff required to establish the specific defect that existed in the product. Rather, in order to recover for breach of warranty, the plaintiff must present evidence from which it is reasonable to infer or conclude that more probably than not, the harmful event ensued from some defcet in the product, whether the defect is identifiable or not, and that the defect arose out of the design or manufacture of the product or while it was in the control of the defendant, and that the defective product proximately caused injury or damage to the plaintiff.
A breach of warranty may be established where the total effect of the circumstances shown from purchase to accident is adequate to raise an inference that the product was defective and that such condition was causally related to the mishap that occurred.

Both were denied on the ground that they were “included” in the main charge.'

The case was submitted to the jury on the basis of four special interrogatories, the. last pertaining to damages. The pertinent three follow:

1. Do you find any defect in the automobile operated by plaintiff making it unfit for its intended use, which was a proximate cause of the circumstances resulting in plaintiff’s injuries?
If your answer is “NO” to question No. 1, you need not answer question No. 2. If your answer is “YES” then answer question No. 2.
2. Did such defect exist at the time the automobile left the control of the manufacturer, Ford Motor Co.?
3. Do you find the plaintiff, Thomas Moraca, guilty of negligence which constituted a substantial factor in contributing to the happening of the circumstances, resulting in plaintiff’s injuries? If you answer “YES” to questions No. 1 and No. 2, and “NO” to question No. 3, then answer No. 4. If your answer is “NO” to question No. 1 or “YES” to question No. 3, you need not answer question No. 4.

After a period of deliberation, the jury returned and queried, “If the first question is answered ‘no5 but we also answer question #3 ‘no5 can Ford circumstantially be lurid responsible and Mr. Moraca awarded damages?55.

Plaintiffs counsel renewed his request for a specific charge on “circumstantial evidence.55 This was denied and counsel excepted. Thereafter, the jury returned, answering special interrogataories #1 and #3 in the negative. The court thereupon entered a verdict of no cause of action in favor of both defendants and against the plaintiff.

In this appeal plaintiff contends that since in a product liability action, circumstantial evidence of a malfunction or defect is sufficient to support a finding for an injured plaintiff, the trial court erred in twice refusing to charge his two requests.

Defendants, on the other hand, although they do not deny that liability in this type of a case can be supported by circumstantial evidence of a defect, contend that plaintiff lias the burden of proving that the product was defective as alleged, and that the defect was a proximate cause of the malfunction and resultant accident. They further assert that the resolution of these issues was for the jury and in the instant case the jury resolved them against plaintiffs. Finally, they claim the charge as a whole was sufficiently broad to include “a fundamental equivalent” to a charge on circumstantial evidence.

In this State, in the application of the doctrine of strict liability in tort, evidence of some specific defect or design, manufacture or workmanship as the cause of a malfunction resulting in the injury is not an essential of plaintiff’s burden of proof. The “total effect of the circumstances shown from purchase to accident is adequate to raise an inference that the car was defective and that such condition was causally related to the mishap.” Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 409 (1960). Although the existence of a defect cannot be found on the basis of mere conjecture or guess, yet it is not necessary to exclude every other possible cause which the ingenuity of counsel might suggest. The finding of strict liability may be circumstantially supportable. Id. at 411. Thus “whenever the facts permit an inference that the harmful event ensued from some defect (whether identifiable or not) in the product, the issue of liability is for the jury.” Sabloff v. Yamaha Motor Co., Ltd., 59 N. J. 365, 366 (1971), affirming 113 N. J. Super. 279 (App. Div. 1971). See also Rose v. Port of New York Authority, 61 N. J. 129, 136-37 (1972); Corbin v. Camden Coca-Cola Bottling Co., 60 N. J. 425, 435-36 (1972). cf. M. Dietz § Sons, Inc. v. Miller, 43 N. J. Super. 334 (App. Div. 1957).

Here, the facts testified to by plaintiff permitted such an inference — that the malfunction in the steering apparatus of his automobile was causally related to some defect of design, manufacture or workmanship therein. His testimony was corroborated in part by State Policeman Bethard, who testified to the erratic path of travel of the vehicle. Additionally, two of defendants’ experts conceded that if the power steering system did lose oil, it would pick up air and there would be an audible noise. One expert described it as similar to the noise made by “marbles running down a pipe.” This lent support to plaintiff’s testimony of hearing a “gink” immediately before his steering wheel locked.

By reason of the existing factual background and especially in view of the jury’s request of whether defendant Eord could “circumstantially be held responsible” for plaintiff’s damages, we conclude that the trial court should have charged plaintiff’s two requests. The fact that his experts testified to a specific or identifiable defect did not obviate the necessity of so doing. Sabloff v. Yamaha Motor Co., Ltd., supra, 59 N. J. at 366.

Defendants’ contention that the charge as given was sufficiently broad and included “a fundamental equivalent” to the requested charge on circumstantial evidence is without merit. Although the judge, in his charge and in interrogatory #1, referred several times to “any defect” or to a defect generally, he also made several specific references to plaintiff’s “contended” for or “claimed” defect. Upon a reading of the entire charge, we can only conclude that the issue of liability was submitted to the jury predicated solely upon the specific defects asserted by plaintiff’s experts. This conclusion finds clear support in the colloquy between the Court and plaintiff’s counsel, at the time the latter objected to the failure to charge his two requests. The judge noted that he came “away from this whole trial with the theory that the plaintiff apparently pinpointed the two possible causes for the car’s failure at this given point.” He further added that the case was not tried on any theory that “there must have been some other reason which caused the car to do it, which we can’t explain at all. This would be introducing something entirely new in the theory of the case.”

Upon the totality of the existing circumstances, we hold that the trial court’s failure to charge plaintiff’s two requests deprived him of a substantial right, thus mandating a reversal and a new trial as to liability against both defendants. Leone v. Rutt’s Hut, Inc., 55 N. J. Super. 485, 492-493 (App. Div. 1959); Grammas v. Colasurdo, 48 N. J. Super. 543, 552 (App. Div. 1958); see R. 2:10-2.

Our dissenting colleague principally bottoms his opinion upon the fact that plaintiff’s automobile had been purchased six months before the accident and had been driven approximately 11,000 miles in the interim. He would legally limit the application of the doctrines of Henningsen, supra and Sablof, supra to “newly manufactured” and “virtually unused” vehicles and in all other situations he would eliminate a finding of strict liability supported solely by circumstantial evidence.

Preliminarily, we note that this specific point was not raised by defendants at trial or on this appeal. In any event, we do not perceive the concept noticed in the dissent to be tenable. To the contrary, it is our opinion that prolonged uneventful use prior to the injurious occurrence does not legally bar the raising of an inference from the totality of the existing circumstances that the vehicle was defective and that such defect was causally related to the mishap, nor does it mandate that a plaintiff must identify a specific defect in order to establish a jury question of strict liability. Rather, we feel that the age of and the number of miles traversed by the vehicle are relevant factors to be considered by the jury, together with all other existing circumstances, in determining whether a manufacturer’s defect existed and if it did, whether it was the proximate cause of the vehicle’s malfunction. See Tucker v. Unit Crane & Shovel Corp., 256 Or. 318, 473 P. 2d 862 (Ore. Sup. Ct. 1970); Hawheye-Security Insurance Co. v. Ford Motor Co., 174 N. W. 2d 672, 679-681 (Iowa Sup. Ct. 1970).

The dissenting opinion appears to place an additional and greater burden upon plaintiff of eliminating “wear and tear from normal operation” and the “mere passage of time” as possible causes of the defect. However, Henningsen, supra, at 411, makes it clear that it is not necessary for plaintiff to “exclude every other possible cause.”

Here, the automobile was purchased new, not used, just six months before the accident, and the record is devoid of any proof that during that period it was improperly maintained or otherwise mishandled by plaintiff. Nor can it be said that it was driven “beyond its reasonably expected life span.” Thus, Jakubowski v. Minnesota Mining and Manufacturing, 42 N. J. 177 (1964) and Courtois v. General Motors Corp., 37 N. J. 525 (1962), cited in the dissent, are inapposite.

^Reversed and remanded in accordance herewith.

Allcorn, J. A. D.

(dissenting) : In this action of strict liability in tort, the plaintiffs sought damages arising from a one-car collision, assertedly due to a malfunction of the automobile, in turn the result of an alleged defect of design, manufacture or workmanship.

At the trial, the plaintiffs produced evidence of two specific defective conditions related to the power steering sector shaft of the automobile, which evidence was controverted by witnesses produced on behalf of the defendant. The case was submitted to the jury on a charge which, it is said, limited its consideration to the “claimed defect” — i. e., the specific defects which the plaintiffs’ experts testified as the causes of the malfunction resulting in the accident. The jury returned a verdict in favor of the defendants. The majority of the court reverses on the ground that the plaintiffs were not obligated to prove one or more specific, identifiable defects as the cause of the malfunction in order to recover; but, rather, that the mere showing of “the circumstances . . . from purchase to accident is adequate to raise an inference that the car was defective and that such condition was causally related to the mishap”, quoting from Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 409 (1960).

As stated by the writer in a dissent filed in the case of Realmuto v. Straub Motors, Inc., (A—1034-72, filed December 11, 1973) :

* * xt is true that, in the application of said doctrine [of strict liability in tort] in New Jersey and elsewhere, it is held that evidence of some specific defect of design, manufacturer or workmanship as the cause of the malfunction resulting in the injury, is not an essential of the plaintiff’s burden of proof. The “total effect of the cricumstanees shown from purchase to accident is adequate to raise an inference that the car was defective and that such condition was causally related to the mishap.” Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 409 (1960). Otherwise stated, “whenever the facts permit an inference that the harmful event ensued from some defect (whether identifiable or not) in the product, the issue of liability is for the jury . . .” Sabloff v. Yamaha Motor Co., Ltd., 59 N. J. 365, 366 (1971), affirming 113 N. J. Super. 279 (App. Div. 1971). Compare, M. Dietz & Sons, Inc. v. Miller, 43 N. J. Super. 334 (App. Div. 1957).
Both Henningsen and Sabloff, however, dealt with newly manufactured and virtually unused vehicles. Thus, the Henningsen automobile was purchased new on May 9, 1955, and the malfunction and resulting accident occurred on May 19, 1955 (just ten days later), when the car had been driven less than 500 miles. The motorcycle involved in Sabloff had been operated only 56 miles at the time of its sale, and the malfunction and accident occurred two days succeeding the sale, after it had been driven little more than an additional 50 miles. In the ease of the malfunction of a newly manufactured product, where the lapse of time and the amount of use between the occasion of its purchase and the occurrence of the mechanical failure is minimal, the inference that the malfunction was the result of some defect of design, manufacture, or workmanship in the product itself is not only reasonable but virtually inescapable, simply on the showing of such circumstances. And, on such a showing, evidence of some specific, identifiable defect as the cause of the malfunction proximately resulting in the accident and injury, is not necessary. See, Annotation, “Strict Products Liability — Proof of Defect,” 51 A. L. R. 3d 8 (1973).

In the case presently before the court, however, the automobile had been driven for a period of approximately six months and had accumulated some 11,000 miles. It was no longer a new automobile. And where, as here, the automobile is not hew and the malfunction occurs after a substantial period of use and lapse of time, in order to impose liability upon manufacturer and retailer under the doctrine of strict liability in tort the proof requirement to establish defect and causation necessarily must be greater than in the case of a new and virtually unused vehicle. This for the obvious reason that automobiles deteriorate as the result of wear and tear from normal operation, misuse, poor or faulty maintenance, and even the mere passage of time. Each takes its toll of the various component parts of the vehicle, and affects the entire machine as a functioning whole.

Thus, after some 11,000 miles and six months of operation, an automobile may very well develop a defect as a result of some cause other than improper design, manufacture or workmanship on the part of the manufacturer. Unless this very real possibility is eliminated or rendered improbable by affirmative evidence of a specific, identifiable defect of design, manufacture or workmanship in the automobile as originally made and delivered to the purchaser, the plaintiff has not established his cause of action against the manufacturer or dealer under the doctrine of strict liability in tort. As so aptly stated in Jakubowski v. Minnesota Mining and Manufacturing, 42 N. J. 177, 186 (1964) :

Thus, we have here four possible causes of the break, viz.: manufacturing flaw, inadequate design, misuse or overuse. The plaintiff has introduced no evidence which indicates that one of these causes is more probable than the others. In order to recover, he must present evidence from which it is reasonable to infer that more probably than not the cause of the break was one for which the defendant is responsible. * * *

See also, Courtois v. General Motors Corp., 37 N. J. 525 (1962); Annotation, “Strict Products Liability — Proof of Defect”, 51 A. L. R. 3d 8 (1973).

In view of the foregoing, it follows that the mere showing of a mechanical failure of an automobile following upon 11,000 miles and six months of operation after its purchase new, is not sufficient to sustain a cause of action against the manufacturer and the dealer in an action of strict liability in tort for injury resulting therefrom.

I would affirm the judgment of the Law Division.