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Schecter v. J.F. Kiely Construction Co.

April 2, 2008

STEPHEN SCHECTER AND MARY SCHECTER, PLAINTIFFS-APPELLANTS,
v.
J.F. KIELY CONSTRUCTION COMPANY, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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