311 A.2d 208 (N.J.Super.A.D. 1973), Devaney v. Sarno

Citation:311 A.2d 208, 125 N.J.Super. 414
Opinion Judge:[10] Halpern
Party Name:Robert A. DEVANEY, an infant by his Guardian ad Litem John R. Devaney et al., Plaintiffs-Appellants, v. Louis SARNO et al., Defendants-Respondents.
Attorney:[6] Mr. Arthur C. Gundersdorf, attorney for appellants.
Case Date:November 08, 1973
Court:Superior Court of New Jersey
 
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311 A.2d 208 (N.J.Super.A.D. 1973)

125 N.J.Super. 414

Robert A. DEVANEY, an infant by his Guardian ad Litem John

R. Devaney et al., Plaintiffs-Appellants,

v.

Louis SARNO et al., Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

November 8, 1973

Submitted Oct. 24, 1973. [125 N.J.Super. 415]

Arthur C. Gundersdorf, Hackensack, for plaintiffs-appellants. [125 N.J.Super. 416]

Crummy, O'Neill, Del Deo & Dolan, Newark, for defendant-respondent Volkswagen of America, Inc. (Herzfeld & Rubin, P.C., New York Bar, New York City, of counsel).

Gilady & Harwood, Hackensack, for defendant-respondent Central Volkswagen, Inc. [125 N.J.Super. 415]

Before Judges HALPERN, MATTHEWS and BISCHOFF. [125 N.J.Super. 416]

The opinion of the court was delivered by

HALPERN, P.J.A.D.

The salient facts in this controversy are fully and accurately set forth in the trial court's opinion, 122 N.J.Super. 99, 299 A.2d 95, and will be referred to herein only when necessary. The narrow issue before us is whether summary judgment was properly granted in favor of respondents. We have concluded it was not and reverse.

Plaintiffs' (referred to hereinafter as Devaney) suit against Louis Sarno was settled for $20,000. The suit continued

Page 209

against respondents Volkswagen of America, Inc. and Central Volkswagen, Inc., manufacturer and dealer, respectively, of the car sold to and driven by Devaney, sounding in negligence, breach of warranty and strict liability. While the complaint alleged negligence and breach of warranty, for our purposes we consider this suit to be based on strict liability in tort. Devaney sought to recover for the increased extent of his injuries and damages because of the inadvisability of using the defective seat belt furnished for his car which would not unfasten in a normal way. The complaint was dismissed because the trial court determined that Devaney was guilty of contributory negligence as a matter of law in driving the car for pleasure with full knowledge of the defective seat belt, or had assumed the risk of doing so.

It is fundamental that a motion for summary judgment should be granted only if the pleadings, depositions and admissions on file show palpably that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. R. 4:46--2; Judson v. Peoples...

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