NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1580-06T21580-06T2

MARY RUTH TIRPAK and

RUSSELL TIRPAK,

Plaintiffs-Appellants,

v.

NATHANIEL HUTSELL and

NEWELL MAXWELL,

Defendants-Respondents.

_________________________________________________

Submitted October 17, 2007 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, L-3236-04.

McHugh & Brancato, attorneys for appellants

(James P. McHugh, III and Peter Bouton,

on the brief).

Jay L. Edelstein (Edelstein & Steinberg), attorney for respondents.

PER CURIAM

Plaintiffs Mary Ruth Tirpak and her husband, Russell Tirpak, suing per quod, appeal from an order of summary judgment entered against them and in favor of defendants Nathaniel Hutsell and Newell Maxwell, and from a further order denying plaintiffs' motion for reconsideration. We reverse.

We glean the facts of this matter from documents before the motion judge, some of which have been included in the record on appeal; notably, relevant police reports and the handwritten interrogatory answers of Mary Tirpak. Those materials leave unanswered questions in our minds, but provide a factual basis for the following scenario: At approximately 9:00 a.m. on October 13, 2002, defendant Hutsell, while on the exit ramp from Route 287 south to Route 80 west at Exit 41A, lost control of his car, which slid sideways into a light post located along side of the pavement and then struck a second light post, causing both to fall into an area away from the road. Hutsell's car then spun around and came to rest with its front end protruding onto the ramp's roadway. Mary Tirpak and her husband came upon the accident shortly after it had occurred. They stopped their car at an undisclosed location "to see if everyone was alright." According to Tirpak, "They were." At this point, the Tirpaks were joined by another couple seeking to render assistance. Tirpak described in her interrogatory answers what then occurred:

Meanwhile the cars were still com[ing] down the ramp really fast. Another guy stop[ped] in front of our car to assist. He tr[ied] to call 911 for help and he almost got hit by a car. I said someone needs to try to slow traffic down before someone gets hurt. I went up the grass median to the middle area (curve of ramp) and started to sign people down. Most did slow down and waved, some just ke[pt] going. The[n] a jeep type vehicle slow[ed] down only to have the car behind him almost hit him. This car went into a skid to avoid hitting the Jeep type car. This car turn[ed] to the grass median hitting me and dragg . . .

A diagram in the police report of the incident pictures the front of Hutsell's vehicle protruding onto the ramp from the right shoulder. Tirpak's body is pictured in an area designated "grass median" on the left side of the ramp that is separated from the ramp's roadway by a curb and shoulder. The report indicates that the driver of the vehicle that hit Tirpak stated: "As I came down the ramp I saw [Tirpak] trying to slow traffic. I panicked, hit the brakes and tried to stop but my car slid over the ramp curb and struck the wom[a]n." The report also provides the following statement by Tirpak: "I was standing in the grass, on the side of the ramp, trying to slow traffic. I saw the car coming down the ramp and begin to slide towards me. I tried to get out of the way but I slipped on the wet grass and he hit me." Tirpak was injured as a result.

A complaint in the matter was filed on September 2, 2004 that, following various amendments, named as defendants Hutsell, the driver of the car that hit the light posts, Maxwell, the car's owner, Eric Zielinski, the driver of the car that hit Tirpak, and various insurers. Following a settlement between the Tirpaks and Zielinski, Hutsell and Maxwell moved for summary judgment.

At the hearing on the summary judgment motion, defense counsel made a number of factual statements that find no foundation in the record before us, and at most, could have raised an issue of fact precluding summary judgment, including that "Ms. Tirpak [was] running up and down the side of the road trying to direct traffic and be of assistance" and that "she continued to stand in this roadside — on the roadside in a precarious situation." Additionally, defense counsel asserted that "this wasn't a situation where the vehicle was blocking the road" and, later, that "[t]he road [wa]s not blocked." Based upon these statements, defense counsel argued that Tirpak was a volunteer, and that her negligence was a superseding cause of her injury.

The motion judge accepted defense counsel's arguments, finding as a matter of law that Tirpak was a volunteer and that her conduct created an unreasonable risk of harm to herself that constituted a superseding cause of her injury, barring recovery from Hutsell and Maxwell.

In the initial motion, the Tirpaks' counsel had characterized Mary Tirpak as a "Good Samaritan." In the motion for reconsideration filed on the Tirpaks' behalf, counsel specifically argued the applicability of the rescue doctrine to the circumstances presented. However, in a written opinion, the motion judge rejected that argument, relying on our opinion in Seipel v. Sevek, 53 N.J. Super. 151 (App. Div. 1958), rev'd, 29 N.J. 593 (1959) to conclude that "the rescue doctrine does not protect a Plaintiff-rescuer whose injuries are caused by her own negligence." The court continued:

This court has previously determined that the actions of the Defendants were neither the legal or factual cause of the Plaintiff's injures, and that Plaintiff, by virtue of her own actions, was the sole proximate cause of her injuries. By contributing to the perilous situation at hand, plaintiff was contributorily negligent in bring[ing] about the harm she suffered. Regardless of Plaintiff's argument, the fact remains that the Plaintiff placed herself in a perilous and dangerous situation, not directly related to the rescue of the Defendants, and after making observation of the fact that other persons had almost been struck in that same exact location. No matter the cause of the rescue, the Plaintiff must still act as an ordinary, reasonable and prudent person in undertaking such rescue efforts. By undertaking a rescue in such an unreasonable manner, Plaintiff is to be held accountable for her own actions in doing so. Defendant's accident did not relieve the Plaintiff of the duty to ensure her own safety, and Defendants should not be responsible for her failure to do so. Plaintiff's own actions in bringing about her harm simply cannot be ignored.

Our review of this matter is governed by the standards set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), which require our consideration "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party," ibid., or whether the evidence "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed.2d 202, 214 (1986)); see also Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (establishing the same standard upon appellate review).

In deciding plaintiffs' motion for reconsideration, the motion judge did not set forth the facts upon which he relied in reaching his conclusions, as required by R. 1:7-4(a). We are thus incapable of determining with accuracy whether the result arose from a mistaken view of facts that we find either to have been disputed or wrongly stated by defense counsel, as appeared to be the case in the judge's initial decision, or from a mistaken view of the law. We thus consider both.

Viewed most favorably to Tirpak, the facts disclose that, following a one-car accident caused by the negligence of Hutsell, Hutsell's damaged car was left in a position on a curved off-ramp that partially blocked a lane of traffic, thereby causing a safety hazard. Although, upon stopping, the Tirpaks determined that neither Hutsell nor his passenger was injured, a continuing danger to them existed, if they indeed remained in the car (a fact that we do not know). Additionally, a risk of further damage to the car itself remained, as well as a danger to passing motorists who, as the result of the configuration of the ramp, may not have seen the disabled car in time to prevent a collision with it. To avoid these risks, Mary Tirpak crossed the ramp and positioned herself on the grass on the opposite side of the road from Hutsell's car, in a location separated from the roadway by a shoulder and curb, from which place she proceeded to alert oncoming cars of the danger ahead. While standing there, she was hit by the car negligently driven by Zielinski.

These facts invite the application of the rescue doctrine, suggested by the opposition to summary judgment filed initially on behalf of the Tirpaks and invoked with specificity upon reconsideration. We find no grounds for waiver in these circumstances.

The rescue doctrine, evolving from an articulation of its principles by Justice Cardozo in Wagner v. Internat. Ry. Co., 133 N.E. 437 (N.Y. Ct. App. 1921), has been widely implemented in New Jersey. See Saltsman v. Corazo, 317 N.J. Super. 237, 248 (App. Div. 1998) (citing cases). As we stated there: "Originally, the rescue doctrine was created to prevent a plaintiff from being found contributorily negligent as a matter of law when he voluntarily placed himself in danger so as to save another from peril." Id. at 247. And, as Saltsman demonstrates, the doctrine can be applied in circumstances in which "the rescuer plaintiff sues the rescued victim who is either completely, or partially, at fault for creating the peril that invited the rescue." Id. at 249. In such circumstances,

It is not contributory negligence for a plaintiff to expose himself to danger in an effort to save himself or a third person, or the land or chattels of the plaintiff or a third person, from harm, unless the effort itself is an unreasonable one, or the plaintiff acts unreasonably in the course of it.

[Restatement (Second) of Torts,