Boucher v. Grant, Civil Action No. 98-2812 (D. N.J. 11/22/1999)

• Decision Date: 22 November 1999
• Docket Number: Civil Action No. 98-2812.
• Parties: WALTER C. BOUCHER, et al., Plaintiffs, v. ALARICK B. GRANT, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

Page 1

WALTER C. BOUCHER, et al., Plaintiffs, v. ALARICK B. GRANT, et al., Defendants.

Civil Action No. 98-2812.

United States District Court, D. New Jersey.

November 22, 1999.

Robert Cleary, Esq., Acting United States Attorney.

Paul A. Blaine, Esq., Assistant United States Attorney, United States Attorney's Office, Camden, NJ, Attorneys for Defendant and Cross-Claimant, United States of America.

Jeffrey A. Libert, Esq., Woodbury, NJ, Attorney for Plaintiffs, Walter C. Boucher and Diane Boucher.

Thomas P. Farnoly, Gruccio, Pepper, Giovinazzi, De Santo, Farnoly, P.A., Vineland, NJ, Attorneys for Defendants, Alarick B. Grant and Suzie Messado.

OPINION

STEPHEN M. ORLOFSKY, District Judge:

At a time when "road rage" has become commonplace on our highways, this case requires this Court to decide whether a courteous wave by one driver to another can give rise to liability. Approximately three years ago, Plaintiff Walter C. Boucher ("Boucher") and Defendant Alarick B. Grant ("Grant") were involved in an automobile accident outside of the Getty gas station on Blackwood-Clementon Road in Clementon, New Jersey. In his Complaint, Boucher alleges, among other things, that Grant's vehicle was negligently "waved" out of the gas station by an unidentified employee of the United States Postal Service. See Complaint at ¶ 4. The United States of America, one of the defendants in this action, has moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56(e),¹ against Plaintiff, Boucher. See Notice of Motion (filed May 4, 1999). For the reasons set forth below, I shall deny the motion of the United States because I find that there are genuine issues of material fact and that the United States is not entitled to judgment as a matter of law.

I. BACKGROUND

The accident giving rise to this negligence action, brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. ("FTCA"), occurred on December 6, 1996, near the intersection of Blackwood-Clementon Road and College Drive in Clementon, New Jersey. See Gov't Br. Supp. Summ. J. ("Gov't Brief") at 1. The summary judgment record reveals that Blackwood-Clementon Road has east and west lanes of travel, with varying numbers of lanes at different points along the road. See Gov't Ex. 6. A Getty gas station is located on the easterly side of Blackwood-Clementon Road, near the intersection of College Drive. See generally Complaint at ¶ 4.

On December 6, 1996, Boucher was in his automobile traveling eastbound on Blackwood-Clementon Road. See Complaint at ¶3; Gov't Brief at 2. Of the three lanes running east, Boucher was traveling in the left-turn-only lane, or the lane farthest to the left. See Ex. 5 (Boucher Dep.) at 50. Simultaneously, Grant, with his left turn signal activated, was attempting to exit the Getty gas station to travel west on Blackwood-Clementon Road, see Ex. 8 (Grant Dep.) at 79, a direction of travel that would require Grant to cross the three eastbound lanes of traffic.

The traffic light at the intersection of Blackwood-Clementon Road and College Road turned red and cars began to slow and stop accordingly. See Ex. 5 (Boucher Dep.) at 55; Ex. 8 (Grant Dep.) at 53-55. Grant testified that the driver of a United States Postal Service ("USPS") delivery truck, traveling in the middle eastbound lane, and an unidentified passenger automobile, traveling in the far-right lane (nearest the Getty station), both stopped just before reaching the Getty station exit. At that point, the unidentified postal employee indicated with a hand wave or gesture that Grant could "come on out." See Ex. 8 (Grant Dep.) at 63-64, 67-68, 73, 81; see also Ex. 8 Diagram. After waiting a few seconds, Grant drove out past the passenger and USPS vehicles and stopped directly in front of the USPS truck. See Ex. 8 (Grant Dep.) at 76-80.

At that point, Grant looked in both directions. To his right, Grant saw that the traffic light was still red. See id. at 80-81. The view to Grant's left, however, the left-turn-only lane, was obstructed by the USPS truck. See id. at 81. Grant testified that he did not remember the USPS employee making any further gestures. See id. at 76. As Grant brought his car into the left-hand-turn only lane, he collided with Boucher's oncoming vehicle, spinning Boucher's car so that it came to a stop facing west, or in the opposite direction from which it originally had been traveling, and allegedly injuring Boucher. See Ex. 5 (Boucher Dep.) at 92; see generally Ex. 8 (Grant Dep.) at 83, 85 (stating that after he inched the car forward and it hit Boucher's vehicle, Grant's car was in the same position while "[Boucher's] car was down the street").

Boucher testified that seconds before the crash, he saw the postal worker in the USPS delivery truck's left side-view mirror and that the postal worker saw either Boucher or Boucher's car. See Ex. 5 (Boucher Dep.) at 82-85. Boucher's deposition testimony established that he never directly observed the postal employee, see id. at 83-84, and it later was established that the USPS truck was a right-hand-side driven vehicle. See Gov't Supplemental Brief at 9 n. 6 (citing Ex. 8 (Grant Dep.) at 72; Ex. 9 (USPS Handbook Excerpts)). However, Boucher testified that, through the side-view mirror, "I saw his face. I'm pretty sure—he either saw my face or he saw my car. He was looking at me or my car . . . at that instance." Ex. 5 (Boucher Dep.) at 85.

Boucher further testified that, within a minute after the accident, Grant alighted from his vehicle, approached Boucher's car, asked Boucher if he was alright, apologized, and told Boucher that "[h]e thought the road was clear because the guy in the truck waved him on, said it was okay to come out." See Ex. 5 (Boucher Dep.) at 97-98; see also Ex. 4 (Boucher Interrog.) at ¶ 17 ("Grant came up to my car immediately after the accident and told me he thought the way was clear because the postman 'waived [sic] me on'").

On June 15, 1998, Boucher brought suit against, among others, the United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. (1994), alleging that John Doe #1, the unidentified USPS employee that waved to Grant, negligently "fail[ed] to keep a proper lookout, fail[ed] to sound a warning, negligently signal[ed] defendant Grant to enter the highway when the roadway was not clear, fail[ed] to yield to a vehicle in the roadway and such other acts of negligence as may be disclosed through pretrial discovery and/or testimony at the time of trial." Complaint at ¶ 7.

On May 4, 1999, the United States moved before this Court for summary judgment, pursuant to Federal Rule of Civil Procedure 56(e). See Notice of Motion (filed May 4, 1999). In support of its motion, the Government alleges that there are no genuine issues of material fact on two elements of Boucher's negligence claim and, therefore, the United States is entitled to judgment as a matter of law. See Gov't Brief at 7; Gov't Supp. Brief at 8. Specifically, the Government contends that the USPS employee's signal was not the proximate cause of the automobile accident because: (1) Grant interpreted the USPS employee's signal as simply allowing Grant to occupy the space in front of the USPS truck, not as an "all lanes are clear" signal; and (2) Grant did not rely on the "hand wave" because he hesitated in leaving the gas station. Moreover, the Government argues that the summary judgment record contains no evidence that the unidentified postal worker acted negligently.

In opposition to the Government's motion, Boucher argues that genuine issues of material fact exist because Grant relied on the postal employee's signal, interpreted as meaning "[g]o ahead." Pl.'s Br. Opp. Summ. J. ("Pl.'s Brief") at 4. In support of his argument, Boucher relies on both the deposition testimony and Grant's statements to Boucher immediately following the accident, which he contends are admissible for purposes of summary judgment because the statements are either an admission by a party opponent, pursuant to Fed. R. Evid. 801(d)(2)(A),(C), and (D), a present sense impression, or excited utterance, under Fed. R. Evid. 803(1) and (2), respectively, or res gestae. See Pl.'s Brief at 2-3. Furthermore, Boucher argues that under Thorne v. Miller, 317 N.J. Super. 554 (Law Div. 1998), the issue of the postal employee's negligence is "a factual issue appropriate for a jury." See id. at 5 (quoting Thorne, 317 N.J. Super. at 561).

II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT

"On a motion for summary judgment, the court must determine whether the evidence shows that 'there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Fed. R. Civ. P. 56(c)). "Any factual dispute invoked by the nonmoving party to resist summary judgment must be both material in the sense of bearing on an essential element of the plaintiff's claim and genuine in the sense that a reasonable jury could find in favor of the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-251 (1986)). "In opposing summary judgment, a party 'must do more than simply show that there is some metaphysical doubt as to material facts,' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), but a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence." Abraham, 183 F.3d at 287. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Abraham, 183 F.3d at 287. "Thus, while the nonmoving party must present enough evidence to demonstrate a dispute is genuine, all inferences in interpreting the evidence presented by the parties should be drawn in favor of...