STEPHEN T. McKESSY v. DOREEN M. STEVENS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1323-04T51323-04T5

STEPHEN T. McKESSY,

Plaintiff-Appellant,

v.

DOREEN M. STEVENS,

Defendant,

and

SOLOMON D. CHARLEY,

Defendant-Respondent.

___________________________________

 

Argued November 2, 2005 - Decided

Before Judges Wecker and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Middlesex

County, Docket No. L-3317-02.

Michael L. Pescatore argued the

cause for appellant (Rinaldo and Rinaldo

attorneys; John J. Sharkey, Jr., on the

brief).

Nicholas J. Lombardi argued the

cause for respondent (Harrington

and Lombardi, attorneys; Mr. Lombardi,

on the brief).

PER CURIAM

Plaintiff, Stephen McKessy, appeals from the judgment of the Law Division granting defendant Solomon D. Charley's motion for summary judgment and dismissing his personal injury cause of action. Plaintiff argues that the motion judge erred because there are material issues of fact in dispute that preclude the final disposition of this matter by way of summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We disagree and affirm.

The salient facts of this case were succinctly set out by Judge Waugh in his oral opinion of June 28, 2004:

This matter arises out of an automobile accident that occurred on August 15, 2001, on the Garden State Parkway. There is some dispute about the facts of the case, and there are basically two versions of the event.

According to the moving defendant, Solomon Charley, and co-defendant, Doreen Stevens, shortly before the accident, Ms. Stevens began experiencing difficulties with her automobile and, subsequently, pulled onto the left shoulder. It appears that she did not pull her car completely into the left shoulder and, consequently, that the right rear portion of her car was partially left in the -- I'm sorry. I'm using too many words that are the same and meaning different things in the context, so I'm going to start over.

However, it appears that when she pulled onto the shoulder, the car was not completely on the shoulder and, consequently, the right front -- the right rear portion of her automobile was still on the left most roadway of the Garden State Parkway, which was at that time in the, I believe, southbound direction, a four-lane roadway.

Thereafter, Mr. Charley pulled his vehicle in front of the Stevens vehicle to offer assistance. It appears that Mr. Charley engaged his hazard lights, although Ms. Stevens did not.

The plaintiff, McKessy, was driving in the left lane of the parkway and struck the Stevens vehicle. The other version of the events is from Mr. McKessy's deposition, which is one of the exhibits in the moving papers beginning at Page 22.

Q. "When did you first notice Ms. Stevens' vehicle?

A. After the car in front of me veered away.

Q. Did you notice what type of car it was?

A. I believe it was a Mazda.

Q. Now, I want to know, did you recognize it as a Mazda when you saw it or do you know that from the police report?

A. I know it when I see it.

Q. Do you know if there was anyone in the car?

A. I didn't notice.

Q. Did you notice if there was anyone standing next to the car?

A. No.

Q. Did you notice that there was -- if there was a vehicle in front of the Mazda?

A. Can you say it, again?

Q. Did you notice -- you said you first noticed the Mazda?

A. While he was driving.

Q. Was that the vehicle that veered off?

A. In front of me, yawp.

Q. So a Mazda was in front of you, and then it veered off?

A. Yes.

Q. Okay. And then you noticed why it veered off. Is that correct?

A. Well, after he veered off, there was the other car.

Q. Okay. Do you know what type of car that was?

A. No. At that time, no.

Q. And that car was stopped?

A. Yes.

Q. So the Mazda was the car that veered away?

A. Veered away.

Q. And then you saw a car stop?

A. Yes, I did.

Q. Did you notice if there was a car in front of that stopped vehicle?

A. No.

Q. How far, if you can tell me, in distance were you from the stopped vehicle when you noticed it?

A. I can't recollect.

Q. Can you tell me in time?

A. No, I can't.

Q. Were you listening to music on the radio or anything on the radio when you were driving?

A. I think so.

Q. You had -- did you have your headlights on?

A. Yes.

Q. Do you know what speed you were traveling?

A. The speed limit."

Against this factual backdrop, Judge Waugh concluded that respondent had no legal duty to warn plaintiff of the location of Stevens's vehicle. We agree. As the Supreme Court recently reaffirmed:

"[W]hether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Hopkins, [v. Fox & Lazo Realtors], supra, 132 N.J. [426] at 439, 625 A.2d 1110 (citing Goldberg v. Hous. Auth. of City of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962)). That inquiry involves "identifying, weighing and balancing several factors [including] the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110 (alteration in original).

[Monaco v. Hartz Mountain Corp., 178 N.J. 401, 418 (2004).]

Applying these well-settled principles to the facts outlined by Judge Waugh, it is patently obvious that respondent did not owe any legal duty to plaintiff to warn him of any dangerous condition created by Stevens's disabled vehicle. We thus affirm, substantially based on Judge Waugh's well-reasoned oral opinion of June 28, 2004.

Affirmed.

 

(continued)

(continued)

6

A-1323-04T5

December 7, 2005