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Schecter v. J.F. Kiely Construction Co.


April 2, 2008


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3235-05.

Per curiam.


Argued November 15, 2007

Before Judges Axelrad and Sapp-Peterson.

Plaintiffs, Stephen and Mary Schecter,*fn1 appeal from the January 24, 2007 order granting summary judgment and dismissing, with prejudice, their complaint against defendant, J.F. Kiely Construction Company (Kiely Construction), in which plaintiffs claimed that as a result of defendant's negligence, plaintiff sustained serious injuries when he drove his bicycle into the rear of defendant's parked construction vehicle. The trial court granted summary judgment after concluding that "no reasonable person could determin[e] that the happening of the accident was more than 50 percent the fault of the defendant[.]" On appeal, plaintiffs claim the trial court (1) improperly invaded the province of the jury by engaging in a comparative negligence analysis as a basis for granting summary judgment and (2) the court's decision was premature because it was reached without the benefit of any consideration of expert evidence that plaintiffs were prepared to present. We affirm the entry of summary judgment for reasons other than those expressed by the motion judge.

The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), disclose that on July 23, 2004, around 2:40 p.m., plaintiff, who at the time was sixty years old and an active cyclist for more than thirty years, was cycling as part of his daily distance training routine along Bay Avenue in Somers Point. When he reached Bay Avenue and Route 9, he dismounted his bicycle to stretch for about fifteen minutes. He resumed his cycling and continued north along Bay Avenue, approaching its intersection with Pierson Avenue. Bay Avenue, at that location, consisted of two traveling lanes, with no shoulder markings. The southbound lane, where the accident occurred, was eighteen feet in width.

Also on July 23, 2007, Kiely Construction had a work crew in the area to connect a gas line from a residence located on the corner of Bay Avenue and Pierson Avenue to the main gas line. In order to perform this operation, the crew needed to open a portion of Bay Avenue. The crew had arrived at the worksite around 7:30 a.m. that day and used a dump truck to tow a backhoe and trailer needed to open the roadway. The crew parked the dump truck and trailer in the southbound lane of Bay Avenue, which was also the lane where the road opening was to be performed. While the crew was engaged in its operations, there were cones and a warning sign placed behind the parked trailer.

The crew completed its work shortly before the accident. They removed the cones and warning signs from the work site and placed them in the foreman's truck parked around the corner on Pierson Avenue. Although the crew had completed their work, they did not immediately leave the site.

According to the deposition testimony of defendant's foreman, Thomas Nelson, approximately three minutes elapsed between the time the cones were picked up and the realization "there had been an occurrence with a bicycle rider[.]" Todd Brophy, defendant's union pipe fitter, was also deposed. He recalled that within five minutes of the cones being picked up, he heard a bang. Adam Pierce, a truck driver/laborer employed by defendant, gave a statement to a private investigator retained on behalf of plaintiffs. Pierce stated that after the signs and cones were picked up, "the foreman parked on the side of the house" and they were "standing over there talking, just wasting time so that [they] [could] finish the day[.]" He then "went over to get a cigarette out [of] the dump truck[,]" and "as [he] was getting out [he] heard a noise[.]"

Plaintiff had no recollection of the accident but, during his deposition, testified that the accident occurred approximately a "[q]uarter to a half a mile" from the intersection where he turned onto Bay Avenue. He could not estimate how far he could see ahead but indicated that he did not see defendant's truck.

In her deposition, Mary Schecter testified that plaintiff told her that he did not know what happened but that "he thought he looked down for a minute or a second[.]" She also acknowledged that she told the officer investigating the accident that plaintiff "'stated to her that he looked down for a brief moment, when he looked up, he made impact with the trailer.'"

Wilson Mathis, III (Mathis) witnessed the accident and apparently was the first person to reach plaintiff following the accident. He found plaintiff conscious and spoke to him. When deposed, Mathis testified that he had been driving his truck approximately 150 to 200 feet directly behind plaintiff after he turned onto Bay Avenue from Shore Road.

A: I was driving down, no traffic, and I noticed the biker on the right-hand side, well-dressed, had his gear on, all his biking gear, which I've done for years. And I noticed him and watched him as I was driving down.

And as I proceeded and he proceeded, I noticed the trailer and the truck in front of him, that I was certainly hoping that he had observed, and he did not observe and drove directly into the back of the truck.

Q: All right. About how long were you traveling behind the person on the bicycle before he hit the trailer, do you know?

A: Half a minute.

Q: From your vantage point traveling behind the plaintiff, would there have been any obstructions in his view?

A: No.

Sergeant Anthony DiSciascio, the officer conducting the investigation at the scene, was also deposed. He testified that defendant's truck and backhoe were legally parked on the west side of the road by the curb.

On December 18, 2006, twelve days before the discovery end date, defendant filed a motion for summary judgment. On the return date of the motion, plaintiff's counsel argued that the applicable safety practices in the construction industry require that "when you have a work vehicle parked in a roadway you must have warning devices including cones and signs in the roadway." Plaintiff urged there was no dispute that defendant deviated from that standard because there were no cones and warning signs in the roadway at the time of the accident and that although there were three employees in the area, "there [was] nobody guarding the back of this trailer." In anticipation that defendant would argue that the condition was open and obvious to any reasonable person, plaintiff's counsel, using the analogy of an obvious and open hole in a floor, argued that "OSHA*fn2 . . . would say even though it's obvious, you have to protect the safety of workers and visitors to the site by guarding, warning or making it safe. Because even though most people would and should see a []hole in a floor you have to guard, because some people won't see it." Defendant argued that no evidence of any negligence had been presented. The court disagreed, stating, "He's over that bar. There is some comparative negligence." The court viewed the remaining issue as whether it was obligated to deny summary judgment where plaintiff has presented some evidence of negligence, even if, in the court's view, that negligence was not greater than fifty percent. The court reserved decision and, five days later, issued an oral opinion from the bench. The court found:

The Court has come to the inescapable conclusion that in a case such as this that, in fact, no reasonable person could determin[e] that the happening of the accident was more than 50 percent the fault of the defendant and as such would prohibit the plaintiff from obtaining a verdict in its favor.

The present appeal followed.

We have carefully reviewed the record and, in light of the applicable law, conclude that there is substantial credible evidence in the record to grant summary judgment and dismiss the complaint with prejudice. Accepting as true all of the evidence supporting plaintiff's position and affording him all favorable inferences, reasonable minds could not differ; no genuinely disputed issue of fact exists. See Brill, supra, 142 N.J. at 535-36, 540. We agree with the judge that the "facts in this case are so overwhelmingly in favor of the defendant[.]" Where we differ, however, is with the judge's apportionment of defendant's liability and, based upon that apportionment, his determination that summary judgment must be granted because no jury could reasonably conclude that defendant's negligence was greater than plaintiff's comparative negligence. Once plaintiff's proofs, viewed most favorably towards plaintiff, establish a genuinely disputed issue of fact as to any negligence on the part of defendant, the degree of that negligence is a jury question. See Brill, supra, 142 N.J. at 537 (holding "if reasonable minds could differ as to whether any negligence ha[s] been shown, the motion should be denied.") (emphasis added) (quoting Bell v. Eastern Beef Co., 42 N.J. 126, 129 (1964)). In our view, defendant breached no duty of care owed to plaintiff. Consequently, summary judgment should have been granted on that basis as a matter of law.

The starting point of any determination of whether there has been a breach of a duty of care owed to another is the determination of whether a duty exists. Ivins v. Town Tavern, 335 N.J. Super. 188, 194 (App. Div. 2000). Duty is an obligation imposed by law and is therefore a question of law. Cheng Lin Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991). The determination of whether a duty exists is a value determination based upon an analysis of public policy considerations that involve the nature of the attendant risk, the relationship of the parties, the opportunity and ability to exercise care, and the public interest in the proposed solution. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).

Here, plaintiff argues that defendant breached a duty of care owed to him by failing to place appropriate cones and warning signs in the work area, as mandated by the regulations and construction industry standards. To support this contention, plaintiff references OSHA and portions of the Manual on Uniform Traffic Control Devices, issued by the United States Department of Transportation, Federal Highway Administration, and its provisions relating to safety requirements for roadway work, including the type and placement of warning devices.

While plaintiff urges on appeal that he was prepared to offer expert opinion on roadway safety guidelines as well as recreational hazards in competitive bicycling, at the time defendant filed its summary judgment motion, plaintiff had not done so, and there is no evidence in the record that plaintiff sought to extend discovery by consent or formal motion in order to produce any expert reports. R. 4:24-1(c). In any event, in our view, such expert testimony would not have altered the outcome of the summary judgment motion.

There is no dispute that at the time the accident occurred, the crew was not engaged in any road construction operations that warranted any warning devices. The work had been completed. There is also no dispute that the trailer and backhoe were legally parked. Under these circumstances, the only duty defendant owed to plaintiff, at that point, was to have its vehicles legally parked, N.J.S.A. 39:4-138, because it is reasonably foreseeable that there is a risk of injury to persons and property where a vehicle is illegally parked. For example, depending upon where a vehicle is parked, it may obstruct a pedestrian's ability to see an approaching vehicle or a motorist's ability to observe conditions at an intersection. See Boody v. Good Bros., Inc., 31 N.J. Super. 439, 443 (App. Div. 1954), aff'd, 17 N.J. 393 (1955) (holding a jury could find that driver negligently parked van obstructing the view of pedestrians and approaching drivers); see also, Carrino v. Novotny, 78 N.J. 355, 364 (1979) (holding the jury could reasonably have concluded that the defendant was negligent in the way that its employee-driver chose to park the van near the traffic light and near ice formations in the center of the road). There are no such circumstances present here.

In summary, we conclude, as a matter of law, no duty was imposed upon defendant to leave warning devices in the roadway giving notice to approaching vehicles and cyclists of legally parked vehicles, whether automobiles, trucks, or trailers, after the work had been completed.


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