DANIEL ENNIS v. ROBERT PORCELLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0333-10T4

DANIEL ENNIS,

Plaintiff-Appellant,

v.

ROBERT PORCELLA,

Defendant-Respondent,

and

GIOVINA DENTE and PAUL DENTE,

Defendants.

_____________________________

Argued June 15, 2011 Decided June 23, 2011

Before Judges Reisner and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-754-09.

David M. Paris argued the cause for appellant (Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys; Daniel R. Bevere, of counsel and on the brief).

William E. Staehle argued the cause for respondent (Law Offices of William E. Staehle, attorneys; Mr. Staehle, of counsel and on the brief; Christina M. Panarello, on the brief).

PER CURIAM

Plaintiff Daniel Ennis appeals from an August 6, 2010 order granting summary judgment dismissing his personal injury lawsuit against defendant Robert Porcella. We affirm.

I

This case arose from an accident in which plaintiff was struck by a car driven by defendant. Plaintiff, who was fourteen years old at the time of the accident, testified at his deposition that he had no memory of what happened. The accident was witnessed by defendant, who was driving west on Chestnut Street in Nutley, and by Giovina Dente, whose car was facing east on Chestnut and was stopped at a traffic light.

According to legally competent evidence submitted by the defense, plaintiff ran into the street from between a line of parked cars along Chestnut Street and "ran into the left side fender" of defendant's car. Plaintiff "bounced off" defendant's car onto Dente's car. According to defendant, his car was traveling under the speed limit at the time. There were crossing guards assisting school children to cross the street at nearby intersections, but instead of crossing at one of the cross-walks, plaintiff ran into the street from between two parked vehicles.

Dente's version of events was similar. She attested that while stopped in traffic she "observed the plaintiff run very fast from the sidewalk in front of my vehicle in an attempt to cross the street. After he ran past my vehicle, a vehicle traveling west on Chestnut Street struck the plaintiff." That impact caused plaintiff to "be thrown into the front left rear portion" of Dente's vehicle. At her deposition she confirmed that she saw plaintiff leave the sidewalk and, without looking around for oncoming traffic, run into the street.

Based on that evidence, Judge Claude Coleman granted summary judgment for defendant. In an oral opinion issued on August 6, 2010, he concluded that in light of the undisputed evidence that plaintiff ran suddenly in front of defendant's car, a rational jury could not decide the case in plaintiff's favor.

II

Our review of the trial court's summary judgment decision is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Using the Brill1 standard, we determine whether, giving the non-moving party the benefit of all favorable inferences, the undisputed material facts entitle the moving party to judgment. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). After reviewing the record, we find no basis to disturb Judge Coleman's decision.

On this appeal, plaintiff contends the evidence created an issue as to whether defendant "should have seen [p]laintiff prior to the impact and taken appropriate action to avoid the collision." He argues that because he ran across the "parking lane" as well as the eastbound lane of traffic, defendant should have had time to see plaintiff and stop his car before plaintiff arrived in the westbound lane of traffic. That argument is inconsistent with the evidence. According to Dente, plaintiff darted across the street in a flash, which she characterized as the length of time it took to snap her fingers. Further, plaintiff did not cross an empty parking "lane" in which he would be visible to defendant. He ran into the street from between two parked vehicles.

Plaintiff also argues that there were material disputes of fact between defendant's description of the accident and Dente's version. While there were some minor differences, they were not material to the issue of whether defendant was negligent. Plaintiff's additional arguments, concerning inferences about defendant's speed of travel, are likewise without merit. There is no evidence from which lay jurors could conclude that defendant's car was traveling at an excessive rate of speed. See Rainaud v. Thorne, 64 N.J. Super. 271, 277-78 (App. Div. 1960), certif. denied, 34 N.J. 327 (1961).

In summary, it is clear that plaintiff caused this accident by heedlessly darting into the street from between parked vehicles, instead of looking out for oncoming traffic before entering the street or crossing at the cross-walk. Even viewing the record in the light most favorable to plaintiff, the undisputed evidence could not support a jury verdict in his favor. Therefore, summary judgment was properly granted for defendant. Estate of Hanges, supra, 202 N.J. at 374.

Affirmed.

1 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).