Juliann Alicino and Kristin Gummoe Secure Appellate Victory

On February 3, 2025, Juliann Alicino and Kristin Gummoe prevailed on behalf of their client in the appeal of the trial court’s decision in the Sivak v. Chrzanowski matter. The Appellate Division re-visited the applicability of Mockler v. Russman, 102 N.J. Super. 582 (App. Div. 1968) certify. denied 53 N.J. 270 (1969), as it applies to roadways that are wet, not from snow or ice, but only rain.

In Sivak, the parties were traveling southbound on the New Jersey Turnpike in heavy traffic. All parties testified at trial that both the weather and road conditions were wet due to heavy rain, and traffic was stop-and-go and bumper-to-bumper. The plaintiff testified that the traffic conditions caused him to slow down. Defendant Chrzanowski testified that in response, he applied his brakes unexpectedly and as a result, slid into the plaintiff’s vehicle.

The plaintiffs subsequently filed a personal injury suit that went to trial. At the conclusion of the trial, and during the charge conference, the Defendants proposed a Mockler defense due to the rain and wet roadway conditions. Specifically, the trial court cited page 587 of Mockler and instructed:

"Defendant denies that he violated this section of the motor vehicle laws, and makes the following contention regarding the operation of … his motor vehicle: That defendant maintains that at the time of the accident, the condition of the road was such that he could not be held responsible for or at fault for the accident."

"It is a common knowledge that the sudden and unexpected skidding of an automobile is one of the natural hazards of driving on slippery roads, and that it may befall even the most cautious of drivers. If such a driver is operating his car as would a reasonably prudent person under the circumstances, he is not to be held negligent merely because his car skidded, resulting in damage or injury to another. However, skidding may be evidence of negligence if it appears that it was caused by the failure of the driver to take reasonable precautions to avoid it when conditions of which he knew or should have known made such a result probable in the absence of such precautions."

The Jury returned a no cause verdict in favor of the Defendant. The Plaintiffs then appealed, arguing that the trial court erred in giving a Mockler instruction.

Historically, in the fifty-five years between Mockler and the Appellate Division’s decision in Sivak, there were very few published opinions that cite the use of a Mockler instruction. Among those, none specified what caused the slippery roadway conditions leading to such an instruction, whether it was snow, another substance, or rain.

In holding that a Mockler instruction was applicable in a case wherein it was raining and the roadways were wet, the Appellate Division cited, Walker v. Costco Wholesale Warehouse, 445 N.J. Super. 111 at 120 (App. Div. 2016), and noted that “[i]n civil matters, the trial court should give an instruction that appropriately guides the jury on the legal basis of a plaintiff’s claim or a defendant’s affirmative defense, so long as there is a reasonable factual basis in the evidence to support that claim or defense.”

Accordingly, the Appellate Division in Sivak found ample evidence in the record that the roadway was wet at the time of the collision. Therefore, the use of the Mockler defense was appropriate, particularly in the way that it was crafted, with specific reference to Mockler at page 587, as noted above.

In short, the Appellate Division has held that when there is ample evidence, the Mockler defense applies not only to snow or ice, as established in the original 1968 opinion, but also to wet roadways caused by rain. This ruling provides an affirmative defense for Defendants who slide due to rain-related roadway conditions.