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Ralph Batten v. Estate of Theodore Wulderk

April 14, 2011

RALPH BATTEN, PLAINTIFF-APPELLANT,
v.
ESTATE OF THEODORE WULDERK, ALLISON HICKMAN, WILLIAM MULVEY, DEFENDANTS-RESPONDENTS, AND WILLIAM MULVEY, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
WAYNE E. PIERCE, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1054-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 28, 2011

Before Judges Reisner and Ostrer.

Plaintiff Ralph Batten appeals from three separate August 27, 2010 orders granting summary judgment dismissing his personal injury complaint against defendants Estate of Theodore Wulderk, Allison Hickman and William Mulvey. Plaintiff also appeals from orders dated April 30, 2010, June 25, 2010, and August 6, 2010, which denied his motions to extend discovery and barred him from filing an expert report. Because we conclude that plaintiff could not prove proximate cause, with or without the expert report, we affirm the August 27, 2010 orders dismissing his complaint.

I

These are the most pertinent facts. Plaintiff attended a yard sale held by defendants Hickman and Mulvey at a house owned by defendant Estate of Theodore Wulderk. There were many attendees at the sale, and therefore there were cars parked on both sides of Route 77, the road on which the Wulderk property was located. Plaintiff parked his car across the road from the sale.

As plaintiff was walking back across Route 77 after buying some merchandise, he was struck and injured by a motorcycle driven by Wayne E. Pierce. Plaintiff reached a settlement with Pierce, and then sued Hickman, Mulvey, and the Estate. Plaintiff contended that these defendants were negligent in failing to post signs advising shoppers that they could park in the Estate's driveway rather than on the shoulder of the road. He also contended that they should have put up signs alerting approaching motorists of the yard sale.

At his deposition, Pierce testified that as he approached the Estate's property, he knew there was a yard sale going on. He could see cars parked on either side of the road. He also saw plaintiff crossing the road. According to Pierce, plaintiff was not looking where he was going but was walking with his head down. Pierce blew his horn and yelled to plaintiff, who ignored his warnings and continued walking into the path of Pierce's motorcycle. At her deposition, plaintiff's companion testified that she was walking next to plaintiff, but stopped and "backed up" to let traffic pass. However, plaintiff continued walking into the roadway and was struck by Pierce's motorcycle.

After the discovery period had been extended twice, plaintiff moved for another extension, contending that his "expert need[ed] additional time in order to prepare a report." On April 30, 2010, the trial judge initially denied plaintiff's motion without prejudice to plaintiff obtaining the report and then re-filing the motion together with a more complete explanation establishing good cause for the discovery extension. See R. 4:24-1(c).

Plaintiff obtained the expert report and filed a second motion on June 7, 2010, which was again denied as untimely and inadequately justified. In denying the motion, the judge considered that plaintiff's attorney had consulted the expert back in December 2009, during the discovery period, but had delayed in obtaining a report until months later, due to counsel's "indecision as to whether to use an expert or not." The judge found that this intentional delay did not constitute exceptional circumstances to extend discovery at that point, "on the eve of arbitration." See R. 4:24-1(c). The court also granted defendant's motion to bar plaintiff from filing an expert report.

In granting summary judgment, however, the judge did not decide the issue addressed by plaintiff's expert -- whether defendants had a duty to post signs about the yard sale.*fn1

Rather, in his oral opinion of August 27, 2010, the judge addressed the report's conclusion and found that it would make no difference to the outcome of the motion. Instead, the judge based his decision on Pierce's undisputed deposition testimony that he knew there was a yard sale "a half mile" before he reached the accident site. He also considered Pierce's testimony that, even if there had been signs alerting motorists about the sale, he "wouldn't have done anything differently." Thus, he concluded that even if there existed a duty to post signs, the failure to post them did not proximately cause the accident.

In addressing plaintiff's alternative argument, that defendants should have posted signs that parking was permitted in their driveway, the judge reasoned that parking was legal along the shoulder of Route 77 in Upper Deerfield. He further concluded that defendants had no legal duty to provide off-street parking for the yard sale attendees. Therefore, he found no merit in plaintiff's ...


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