Opinion
DOCKET NO. A-0234-12T4
05-02-2013
ESTATE OF JULIANA KOEBERLE by KATHERINE WAUMANS, individually and as executrix of the estate and MAX KOEBERLE, individually and as executor of the estate, Plaintiffs-Appellants, v. KYLE J. TOPPING, RAYMOND J. TOPPING, ANGELO'S PIZZERIA & RESTAURANT, LLC, PUBLIC SERVICE ELECTRIC and GAS COMPANY (henceforth known as PSE&G), CITY OF CLIFTON, COUNTY OF PASSAIC, TRAVELERS AUTO INS. CO. OF N.J., NEW JERSEY CURE, INDIANA INS. CO., PROGRESSIVE INS. CO., EDF ENTERPRISES LLC, EFD MANAGEMENT, GOURMET DESSERTS OUTLETS, BOLLYWOOD VIDEO, RINTEL DISTRIBUTORS, SHIYANA DISTRIBUTORS, WALGREEN EASTERN COMPANY, INC., PREMIERE CATERERS, JOSEPH BURAK, and ANTHONY S. CUPO AGENCY, Defendants, and HOLLY CEDRO, Defendant-Respondent.
Dennis G. Polizzi argued the cause for appellant (Weiner & Mazzei P.C., attorneys; Mr. Polizzi, of counsel and on the brief). Harry D. Norton, Jr., argued the cause for respondent (Norton, Sheehy & Higgins, P.C., attorneys; Mr. Norton, of counsel and on the brief; Kelly P. Corrubia, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3784-10.
Dennis G. Polizzi argued the cause for appellant (Weiner & Mazzei P.C., attorneys; Mr. Polizzi, of counsel and on the brief).
Harry D. Norton, Jr., argued the cause for respondent (Norton, Sheehy & Higgins, P.C., attorneys; Mr. Norton, of counsel and on the brief; Kelly P. Corrubia, on the brief). PER CURIAM
Plaintiffs Katherine Waumans and Max Koeberle, individually and as co-executors of the Estate of Juliana Koeberle (decedent), appeal the summary judgment dismissal of their wrongful death action against defendant Holly Cedro. We affirm.
All other defendants are not parties to this appeal.
At approximately 6:15 p.m. on February 15, 2010, decedent, who was sixty-eight years of age, was struck and killed by an automobile as she was crossing Mount Prospect Avenue in Clifton. Kyle Topping was the driver of the vehicle that struck her. Topping was traveling southbound on Mount Prospect Avenue at the time of the accident. Cedro was traveling in the opposite direction on Mount Prospect Avenue, south of the intersection with Van Houten Avenue, which is controlled by a traffic light.
In a hand-written statement to the police immediately following the accident, Cedro stated:
Traveling on Mt. Prospect Ave. heading towards Van Houten Ave. I slowed down by Walgreens to let the woman cross Mt. Prospect Ave. . . . As the light turn[ed] green I continued [on] Mt. Prospect before getting to Van Houten. The white vehicle [traveling southbound on] Mt. Prospect had crossed over Van Houten and hit her. She was just about to reach [the] driveway of [a] building when the car hit her, [a]s it crossed over Van Houten. I believe she was trying to avoid the snow pile/white van parked and walked in road to get to Van Houten.
Later that evening, Cedro gave a videotaped statement to the Passaic County Prosecutor's Office. Cedro explained that as she approached the intersection, there were "three or four" cars stopped at the red light. While coming to a stop, Cedro "noticed a woman standing there that want[ed] to cross the street," and Cedro "waved for her to go." Cedro further stated that decedent was not in a crosswalk and "it was difficult to see her," because she was wearing "dark clothing." Additionally, Cedro stated that when she looked across Van Houten Avenue there were no cars traveling on Mount Prospect Avenue in the southbound lane.
After decedent crossed the northbound lane of Mount Prospect Avenue in front of Cedro's car, the traffic light turned green and Cedro's vehicle moved forward. Cedro testified she did not know if decedent "got exactly across the road," but she "thought that the woman had made it across." Cedro also stated: "I noticed there was the snow bank, and there was a van there. So I don't know if she went around . . . after that. I thought she had gotten to the sidewalk. I didn't really pay attention. My light turned green, and I continued to go as the cars in front of me moved." Cedro surmised Topping's vehicle approached the light at the intersection, "while still in motion, and then, it turned green."
Plaintiffs alleged that Cedro was negligent because she waved to decedent "to allow her to . . . cross Mt. Prospect Avenue." In response to plaintiffs' interrogatories, Cedro described the accident as follows:
There was a woman in the driveway of Walgreens standing in the road trying to cross Mt. Prospect Avenue. She crossed in front of me. The light was still red as the woman crossed Mt. Prospect Avenue to the parking lot located across the street from the entrance to Walgreens. The light, thereafter, turned green and the woman was still walking north toward Van Houten Avenue. . . . As the light turned green, I proceeded down Mt. Prospect Avenue toward Van Houten Avenue. There was a white station wagon approaching the intersection of Mt. Prospect Avenue and Van Houten Avenue with a green light. I did not see the impact between this white station wagon and the woman, but I did hear it. I, thereafter, made a u-turn and returned to the scene.In addition, during her deposition on February 22, 2012, Cedro testified she saw decedent "make it to the parking lot" and then saw her walking on "Mount Prospect Avenue towards Van Houten Avenue" out of "the corner of [her] eye."
Cedro's motion for summary judgment was granted after oral argument on June 15, 2012. An order entered the same day dismissed the complaint against Cedro with prejudice. A "settlement order" was entered as to all other defendants on August 14, 2012.
Plaintiffs argue on appeal that defendant's motion for summary judgment should have been denied, because there was ample evidence "for a reasonable jury to infer that [decedent] relied upon the wave of defendant Cedro." 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 stated by the Court:
[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 an order granting summary judgment, 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 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).
"New Jersey has joined a host of other states in finding that a driver who gratuitously 'waves' to another driver, in an effort to facilitate the 'waved driver's' course of passage, assumes a duty of care." Boucher v. Grant, 74 F. Supp. 2d 444, 448-49 (D.N.J. 1999) (citing Thorne v. Miller, 317 N.J. Super. 554, 557-58 (Law Div. 1998)). "Once this duty is undertaken, the waving driver must act reasonably under all the circumstances" confronting the parties. Id. at 449. Thus, like other negligence actions, the essential elements of an actionable claim of negligence in a "waving driver" case are: "(1) duty of care, (2) breach of duty, (3) proximate cause, and (4) actual damages." Weinberg v. Dinger, 106 N.J. 469, 484 (1987) (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts, § 30 at 164-65 (5th ed. 1984)).
Thorne has been cited by neighboring jurisdictions in the context of a pedestrian relying on the wave of a motorist. See e.g. Ohlhausen v. City of New York, 898 N.Y.S. 2d 120, 123-24 (N.Y. App. Div. 2010) ("In appropriate circumstances, a driver may incur a duty to another by gesturing that it is safe to cross the road.")
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The scope of the duty owed by a waving driver is "determined by the 'totality of the circumstances' and the relevant duty is to act reasonably under all the circumstances." Thorne, supra, 317 N.J. Super. at 560. "It is relatively easy for waving drivers to check if passage is safe, and if unable to so, a driver contemplating a gesture should not take on the responsibility of directing traffic." Ibid. As explained by the Court, "We ordinarily evaluate a defendant's conduct on the basis of what a 'prudent man' would have done in defendant's circumstances." Weinberg, supra, 106 N.J. at 484.
Here, plaintiffs have presented no evidence to establish that Cedro acted negligently prior to the unfortunate accident on February 15, 2010. To the contrary, Cedro's statements to the police the day of the accident and the day after establish that when she stopped in the northbound lane of Mount Prospect Avenue and signaled to decedent, there were no vehicles traveling in the southbound lane of Mount Prospect Avenue. Moreover, decedent was dressed all in black, and she was not in a crosswalk when she was struck by Topping's vehicle in the southbound lane.
In view of the foregoing, we are satisfied the evidence is so one-sided that no reasonable jury could find Cedro liable. See Brill, supra, 142 N.J. at 536. Because plaintiffs failed to present a prima facie case of negligence, summary judgment was properly granted by the trial court.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION