Plaintiff Giuseppe Scaturro was driving a motor vehicle with plaintiff Nelys Hernandez as a passenger when her vehicle was rear ended by the vehicle owned by defendant Ruth Otles. Otles was not in her vehicle at the time of the accident, which was being driven by Sen Turan. The issue in Hernandez v. Otles, 2019 N.J. Super. Unpub. LEXIS 2489 (App. Div. December 9, 2019) was whether summary judgment was properly granted to dismiss the plaintiff’s personal injury complaint based upon the undisputed fact that Turan was not defendant’s agent when the accident occurred.
This matter involved two consolidated actions in which the driver Scaturro and the passenger Hernandez both filed suit against Otles, alleging she was negligent in driving her vehicle in causing the accident. Neither plaintiff sued Turan, nor did the defendant bring him into the actions as a third party defendant. During discovery, when the defendant provided Answers to Interrogatories, she certified that Turan was the driver of her vehicle and she was not in the vehicle when the accident occurred. She stated that her husband, without her knowledge, permitted Turan to use her vehicle to go shopping. She supported this statement by attaching a copy of the police accident report which did identify Turan as the driver of her vehicle that rear ended plaintiff’s vehicle.
The defendant Otles moved for summary judgment, which was supported by her statement in her Answers to Interrogatories that Turan was not driving her vehicle as her agent at the time of the accident. Hence, she argued that there was no agency and she should not be liable for the accident.
The trial court judge relied upon the Appellate Division case of Harvey v. Craw, in which the court held that the use of a vehicle upon a public roadway by one who is not the owner raises a presumption of agency, which can be rebutted by the defendant owner. The trial court judge in this case determined that the defendant Otles had rebutted the presumption that Turan was driving her vehicle as her agent through her motion statement of material facts, which cited to Interrogatory Answers and an Affidavit of No Agency, in support of those facts. The trial court found that the plaintiff’s opposition failed to deny any of the defendant’s statement of material facts or offer any rebutting evidence to the statement that Turan was not acting as her agent, servant, or employee. Hence, the trial court judge dismissed the plaintiff’s complaint because there were no facts demonstrating Turan was driving defendant’s vehicle as her agent.
Upon appeal, the plaintiffs argued that the presumption of agency, as established in Harvey, was not overcome by defendant and that Turan’s permission from defendant’s husband created agency between Turan and defendant. They maintained that the defendant was vicariously liable for Turan’s negligence because defendant’s husband gave Turan permission to use her vehicle. Further, plaintiffs argued that agency should be an issue of fact to be decided by the jury. Plaintiffs asserted that summary judgment should not have been entered in favor of the defendants.
The Appellate Division agreed with the trial court’s interpretation of Harvey. The Court noted that, under Harvey, the presumption of agency can be rebutted by uncontradicted facts. Here, the defendant did assert in her Answers to Interrogatories and in an Affidavit of No Agency that Turan was not her agent. The Appellate Division noted that the plaintiffs failed to provide any facts repudiating the assertion in any certified form that there was any agency between the defendant and Turan. Hence, plaintiffs had not established any genuine issue of material fact regarding agency to defeat summary judgment. Thus, the Appellate Division upheld the trial court’s decision, dismissing the case.
