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Firstmeyer v. Cohen

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 26, 2008

CONSTANCE FIRSTMEYER, ADMINISTRATRIX OF THE ESTATE OF PAUL A. WITTIG, DECEASED, AND INDIVIDUALLY, WILLIAM K. WITTIG, HER BROTHER, PLAINTIFFS-APPELLANTS,
v.
MARK COHEN, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-1365-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 10, 2008

Before Judges Coburn and Waugh.

In this accident case, plaintiffs appeal from a summary judgment granted to defendant, Mark Cohen. The sole legal argument presented for our consideration is that "[t]he Facts of the Case Did Not Warrant The Granting of Defendant's Motion for Summary Judgment."

After carefully considering the record and briefs, we are satisfied that plaintiffs' argument is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Riva in his oral opinion of August 16, 2007. Nevertheless, we add the following brief comments.

Plaintiff's decedent (hereinafter "plaintiff") was operating his motorcycle in a parking lot at over 35 miles per hour. Surveillance cameras showed him cutting diagonally across two double rows of parking spaces and two travel lanes before he lost control of the motorcycle. Cohen was beginning to back out of one of the parking spaces in this lot. When the plaintiff's motorcycle was about 120 to 130 feet away from Cohen's parking space, plaintiff began to apply his brakes and started to skid. The skid marks were over 40 feet long. The motorcycle fell to the ground, causing plaintiff's death, when he was still a distance from Cohen's parking space. There was no contact between the two vehicles, and there is no evidence that Cohen's action had anything to do with plaintiff losing control of his motorcycle. Moreover, when plaintiff's motorcycle came to a rest, Cohen's car was still entirely in its parking space, although its rear may have been visible to plaintiff.

Plaintiff contends that Cohen violated N.J.S.A. 39:4-126, which provides that a driver should not drive a vehicle backwards unless the movement can be done with safety. But there is no evidence to support a violation of that statute. Furthermore, there is no evidence that Cohen was negligent or that his conduct was a proximate cause of the accident. Although proximate cause is ordinarily a jury issue, it may be ruled on as a matter of law when reasonable minds could not differ. Fleuhr v. City of Cape May, 159 N.J. 532, 543 (1999) (citation omitted). Since there was no evidence of negligence or proximate cause, we are obliged to affirm.

Affirmed.

20080626

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