NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Graves and Messano.
Plaintiff Donna M. Baker, individually and as the administratrix ad prosequendum of the estate of Leona Eleanor Miller, appeals from an order granting summary judgment to defendant Robert J. Ziegler. We affirm.
At approximately 6:42 p.m. on December 24, 2007, Patrolman Eugene J. Bachonski of the Toms River Police Department was dispatched to the scene of a motor vehicle accident on Lakewood Road in Toms River. The weather was "[c]ool, clear, and dry," and the area was dark. Upon arrival, Bachonski discovered defendant and his family sitting in their black PT Cruiser on the shoulder of the road. The vehicle had contact damage to the hood, bumper, fender, and windshield. A pedestrian, Eleanor Miller (Miller), "was lying face up with her head facing east on the west shoulder of Lakewood Road." Miller "was wearing a black jacket and dark blue jeans." She was pronounced dead by paramedics at 6:48 p.m.
A subsequent investigation revealed that Miller "suffered from psychological disorders," including schizophrenia, "and consumed numerous prescription medications on a daily basis."
She was a resident of Dover Woods Health Care Center, a retirement community located nearby.
Bachonski interviewed defendant, who reported that he had been driving approximately forty-five miles per hour in the southbound lane of Lakewood Road when Miller "cut in front of [his] car." Defendant's description of the accident was corroborated by Kellie Kolis, an eyewitness who also gave a statement to the police. In his report, Bachonski summarized the events as follows:
[Defendant] reported he was traveling on Lakewood Road southbound with his headlights illuminated at approximately 45 mph. All of a sudden, he observed an object in front of his vehicle. [Defendant] explained that he took an evasive maneuver to avoid collision by applying brakes and steering to the left. Twenty seven feet of skid marks were left by the right tires and twenty five feet of skid marks by the left tires of [defendant's] PT Cruiser.
[Defendant] then came to a controlled stop in the southbound lane of Lakewood Road and activated his emergency hazard lights. [Defendant] feared cars would pass him on the right and collide with pedestrian in the right shoulder so he steered his vehicle off to the right shoulder. He then backed up approximately two feet to protect the pedestrian with his car. He exited the vehicle and called 911.
Bachonski's report concluded that "fault in this collision [lay] with the pedestrian, Eleanor Miller":
The investigation revealed that Ms. Miller was walking westbound across Lakewood Road. . . . This area is dark due to the lack of overhead lighting on the east side of the highway. Furthermore, the two overhead lights on the west side are set off the roadway and do not properly illuminate the lanes of travel. Ambient lights from the Ramada do not adequately provide enough light for safe passage of pedestrians.
In addition to the lighting concerns, Eleanor Miller was wearing a black jacket and dark blue jeans and was crossing at a dark area of the roadway. Had Ms. Miller been wearing some type of light or reflective clothing, this may have afforded [defendant] more visibility to see the pedestrian and avoid the collision. [Defendant] was unable to see Ms. Miller while she was crossing the roadway due to the limited contrast from the dark surroundings.
[Defendant] did not appear to be impaired in any way at the scene and I did not detect an odor of an alcoholic beverage on his breath. He consented to a voluntary blood test on the night of the collision. The results of this test confirmed that ...