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Estate of Leona Eleanor Miller A/K/A Eleanor Miller, Deceased, By Her Administratrix Ad Prosequendum v. Robert J. Ziegler


May 23, 2011


Per curiam.


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 [defendant] did not have alcohol and[/]or drugs in his system.

Pedestrian[s] are not permitted to cross Lakewood Road in the area of the collision. A traffic controlled intersection and pedestrian crosswalk are present approximately 500 feet south of Route 70. Eleanor Miller was familiar with the area since she had been a resident of Dover Woods for several years. Had Ms. Miller utilized the sidewalk on the east side of the highway and crossed at the controlled traffic signal and pedestrian crosswalk at Clover Road, this fatal collision could have been prevented.

The impact on the windshield and the skid marks left by [defendant's] vehicle were consistent with the roadway speed limit. There is no indication that [defendant] was driving in a careless manner or at an excessive speed prior to the collision.

On July 10, 2008, plaintiff filed a complaint seeking judgment against defendant for negligence. In plaintiff's answers to interrogatories, she alleged that defendant had "failed to make proper observations and yield to pedestrians." Defendant died in 2009 from an unrelated medical condition while discovery was still ongoing. Defense counsel filed a motion for summary judgment in September 2009. In a supporting brief, he indicated that the facts were not in dispute and argued that "[t]here [was] no further need for discovery on the issue of liability."

The court granted defendant's motion and entered summary judgment against plaintiff on November 20, 2009. In an oral decision, the motion judge concluded that the incident, while tragic, was "basically an unavoidable accident." On appeal, plaintiff asserts that "the available evidence was sufficient to present a jury question, and summary judgment therefore should have been denied." We do not agree.

Summary judgment is appropriate where the pleadings and evidence "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). As the Court has stated: a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. The "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)).]

When reviewing summary judgment orders, we utilize the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must first determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 536 (quoting Liberty Lobby, supra, 477 U.S. at 251-52, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214). If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct. Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258 (App. Div. 1987). "[I]t is ordinarily a plaintiff's burden to prove negligence, and [negligence] is never presumed." Khan v. Singh, 200 N.J. 82, 91 (2009) (citing Hansen v. Eagle-Pitcher Lead Co., 8 N.J. 133, 139 (1951)). "In order to sustain a common law cause of action in negligence, a plaintiff must prove four core elements: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages." Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008) (quotation and editing marks omitted) (quoting Weinberg v. Dinger, 106 N.J. 469, 484 (1987)).

The Model Jury Charge relating to pedestrians and motor vehicles provides: Vehicular operators and pedestrians have a common right to the use of a public highway. Their rights and duties are mutual and relative and each is charged with a duty of reasonable care, commensurate with the risk of danger involved in the particular circumstances. Thus a motorist is required to make such observations for pedestrians who are in, or may come into his/her path of travel, as a reasonably prudent person would make.

[Model Jury Charge (Civil), 5.30G(2), "Duty of Automobile Driver to Make Observations" (2009).]

Here, plaintiff has presented no evidence to establish that defendant acted negligently on December 24, 2007. To the contrary, Bachonski's report reveals the defendant was traveling at a safe speed with his headlights illuminated. His ability to see Miller was limited by dim lighting and Miller's dark clothing, and under the circumstances he could not reasonably have been expected to anticipate a pedestrian at that location in the roadway.

In sum, we find the evidence to be so one-sided that no reasonable jury could find defendant liable for plaintiff's injuries. See Brill, supra, 142 N.J. at 536. Because plaintiff failed to present a prima facie case of negligence, summary judgment was properly granted by the trial court. Affirmed.


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