ALMA MILEY VS. ANDREW M. FRIEL (L-0084-18, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3388-18T1
ALMA MILEY,
Plaintiff-Appellant,
v.
ANDREW M. FRIEL,
Defendant-Respondent.
Argued December 10, 2019 – Decided January 9, 2020
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Docket No. L-0084-18.
Mario A. Iavicoli argued the cause for appellant.
Harold H. Thomasson argued the cause for respondent
(Amy F. Loperfido & Associates, attorneys; Harold H.
Thomasson, on the brief).
PER CURIAM
In this automobile accident case, plaintiff Alma Miley appeals the Law
Division's summary judgment dismissal of her personal injury and property
damages complaint against defendant Andrew M. Friel, the driver of the car that
struck plaintiff. Because we conclude genuine issues of material fact precluded
summary judgment, we reverse.
When reviewing an order granting summary judgment, we apply the same
standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A court should grant summary
judgment when the record reveals "no genuine issue as to any material fact" and
"the moving party is entitled to a judgment or order as a matter of law." R. 4:46-
2(c). We owe no special deference to the motion judge's conclusions on issues
of law. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995). We therefore consider the facts in a light most favorable to plaintiff.
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
The accident occurred at the intersection of Holly and High Streets in
Glassboro, when the front end of the vehicle driven by plaintiff was struck by
the car driven by defendant. Plaintiff's direction of travel was controlled by a
stop sign; defendant's direction of travel was not.
Plaintiff claimed she "stopped at [the] stop sign on Holly Avenue [sic] and
looked both ways, proceeded into the intersection" traveling five to seven miles
per hours "when in the middle of the intersection, almost to the other side" the
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front end of her vehicle was struck by defendant's vehicle. Further, "defendant
was driving well above the speed limit[,]" causing the collision. As a result of
the impact, plaintiff's car jumped the curb, landing on a residential front lawn.
Defendant's version of the events differed significantly. He claimed he
was traveling twenty miles per hour while plaintiff was traveling "probably
[thirty], [forty] miles an hour" but "definitely over the speed limit" at the time
of the impact. Defendant stated he noticed plaintiff's vehicle "at the very last
second . . . when she was coming through" the intersection.
Defendant's passenger partially corroborated and partially contradicted
the accounts of both parties. According to the passenger, "both vehicles [we]re
traveling about the same speed" at the time of impact: plaintiff was traveling
"at least [thirty-five] to [forty] miles per hour"; defendant was traveling
approximately thirty-five miles per hour. Defendant's passenger testified there
was no "indication that [plaintiff] attempted to stop before the impact . . . ."
Prior to the close of discovery, defendant moved for summary judgment,
arguing the record was devoid of any evidence demonstrating defendant was
speeding at the time of impact. Plaintiff countered the record "at least"
supported a comparative negligence theory. Plaintiff also argued the stop sign
was erected without prior approval of the Commissioner of Transportation
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pursuant to N.J.S.A. 39:4-8 and N.J.S.A. 39:4-202, rendering the intersection
uncontrolled. Because she was the first vehicle to enter the intersection, plaintiff
claimed she had the right of way.
Following argument, the motion judge rendered an oral decision,
supplemented by a written decision, granting defendant's motion. The judge
concluded "the evidence [wa]s so in favor of [d]efendant that [p]laintiff ha[d]
not stated a claim from which . . . reasonable minds could differ in deciding that
[plaintiff] was not at least [fifty-one percent] or more at fault." In reaching his
decision, the judge found "[p]laintiff had the stop sign and [d]efendant had the
right of way . . . . Moreover, there [wa]s no evidence to indicate what speed
would be necessary to push a car the distance [p]laintiff's was pushed under all
the circumstances."
According to the judge, the "conflicting testimony of the speeds of the
involved cars would have to be reviewed scientifically . . . requiring expert
testimony." Because discovery had not yet closed, the motion judge dismissed
plaintiff's complaint without prejudice, affording her the opportunity to retain
an accident reconstruction expert to opine that the vehicle driven by defendant
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was speeding at the time of impact. 1 The judge also rejected plaintiff's argument
that the stop sign was illegal.
On appeal, plaintiff renews her arguments, asserting the motion judge
erred in granting defendant's motion for summary judgment. More particularly ,
plaintiff presents the following points for our consideration:
I. THE STOP SIGN AT HOLLY AND HIGH
STREETS, GLASSBORO, NJ, IS ILLEGAL AND
THEREFORE OF NO LEGAL EFFECT SINCE
GLASSBORO DID NOT ADOPT AN
ORDINANCE APPROVING THE
INSTALLATION OF THE STOP SIGN AND
SINCE THE COMMISSIONER OF THE NJ
DEPARTMENT OF TRANSPORTATION DID
NOT APPROVE THE INSTALLATION OF THE
STOP SIGN AND GLASSBORO VIOLATED THE
LAW REGARDING THE INSTALLATION OF
THAT STOP SIGN.
II. . . . PLAINTIFF HAS DEMONSTRATED THAT
SUFFICIENT EVIDENCE EXISTS IN THE
RECORD THAT SUPPORTS A DENIAL OF THE
SUMMARY JUDGMENT MOTION BECAUSE,
AMONG OTHER FACTORS, . . . DEFENDANT
ON [FEBRUARY 5, 2016] WAS SPEEDING, DID
NOT YIELD THE RIGHT OF WAY AT THE
1
An order dismissing plaintiff's complaint with prejudice was not provided on
appeal, but it is undisputed that plaintiff did not retain an accident
reconstructionist before the close of discovery. Because the order under review
"dispose[d] of all claims against all parties[,]" Janicky v. Point Bay Fuel, Inc.,
396 N.J. Super. 545, 549-50 (App. Div. 2007), it is a final judgment appealable
as of right. R. 2:2-3(a)(1).
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CONTROLLED INTERSECTION, FAILED TO
MAKE PROPER OBSERVATIONS, NEVER SAW
[PLAINTIFF'S] VEHICLE BEFORE IMPACT,
AND THE TRIAL COURT DECISION SHOULD
BE REVERSED.
III. THE [TRIAL] COURT COMMITTED ERROR IN
ITS RULING THAT THERE WAS NO EVIDENCE
OF . . . DEFENDANT'S NEGLIGENCE, EVEN
THOUGH THE [TRIAL] COURT FOUND THAT
. . . DEFENDANT WAS EXCEEDING THE SPEED
LIMIT IMMEDIATELY BEFORE THE
ACCIDENT AND BY RULING THAT . . .
PLAINTIFF WAS LEGALLY REQUIRED TO
OBEY AN ILLEGALLY INSTALLED STOP
SIGN.
At the outset, we have carefully considered plaintiff's contentions in
points I and III that challenge the legal effect of the unapproved stop sign in
view of the governing law and conclude they lack sufficient merit to warrant
discussion in our written opinion. R. 2:11-3(e)(1)(E). We add the following
brief remarks.
As the motion judge accurately determined, "the administrative procedure
towns must follow to install stop signs does not negate a driver's responsibility
to follow the rules of the road[,]" requiring plaintiff "to follow the stop sign for
the notice it gave to stop and make observations." Quoting N.J.S.A. 39:4-144,
the judge recognized plaintiff then "was required to 'proceed only after yielding
the right of way to all vehicular traffic on the intersecting street which [wa]s so
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close as to constitute an immediate hazard.'" See Davidson v. Fornicola, 38 N.J.
Super. 365, 379 (App. Div. 1955) (observing the unlawful installation of a stop
sign does not render the sign ineffective for purposes of imposing civil liability
because "[m]otorists may reasonably expect that a stop sign will be respected,
otherwise it will become a trap to innocent persons who rely upon it .").
Turning to the arguments raised in points II and III, we agree with plaintiff
that genuine issues of material fact required resolution by a jury . In an
automobile negligence action, "[q]uestions of proper speed and control of a
vehicle are pre-eminently questions of fact for the jury to determine." Universal
Underwriters Grp. v. Heibel, 386 N.J. Super. 307, 321 (App. Div. 2006). We
also have observed the "favored driver" approaching an intersection "has a
continuing duty to exercise due care even though the disfavored driver has a
stop sign to obey." Piccone v. Stiles, 329 N.J. Super. 191, 195 (App. Div. 2000).
In Piccone, we found summary judgment improper – where the parties
disputed whether the defendant entered an intersection at an excessive speed and
adequately observed the roadway – even though the defendant had the right of
way. Id. at 195-96. We noted the defendant's "obligation to make proper
observations and to take action to avoid an accident [wa]s still very much in
issue, especially . . . where an intersection accident took place." Id. at 195.
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Accordingly, we held "it must be left to the jury to determine who was negligent,
and, assuming that comparative fault is found, what appropriate percentage of
negligence should be allocated to each of the parties at fault." Id. at 196; see
also Town of Kearny v. Brandt, 214 N.J. 76, 98 (2013) (observing that the
factfinder must "assign to each party . . . a percentage of fault" when evaluating
comparative negligence); N.J.S.A. 2A:15-5.2.
We conclude from our review of the record there are material issues of
fact as to whether defendant made proper pre-accident observations and whether
he took reasonable and effective measures to avoid the accident. In our view,
the facts are not so "one-sided" that defendant is entitled to prevail as a matter
of law. Brill, 142 N.J. at 540.
We also disagree with the motion judge that expert testimony is necessary
to resolve the conflicting versions of the speed of both vehicles at the time of
the collision. While expert testimony can assist the trier of fact, our Supreme
Court has observed "[t]raditional examples of permissible lay opinions include
the speed at which a vehicle was traveling." State v. McLean, 205 N.J. 438, 457
(2011); see also State v. Hyman, 451 N.J. Super. 429, 442 (App. Div. 2017);
N.J.R.E. 701 ("[T]he [lay] witness' testimony in the form of opinions . . . may
be admitted if it . . . is rationally based on the perception of the witness and . . .
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will assist . . . in determining a fact in issue."). Accordingly, the parties and
defendant's passenger may all testify as to their perceptions of each vehicle's
speed as the accident unfolded, without the necessity of expert testimony.
Reversed and remanded for further proceedings. We do not retain
jurisdiction.
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