ROSEMARY FORMOSO v. YOUVIN R. DALEY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1978-20
ROSEMARY FORMOSO,
Plaintiff-Appellant,
v.
YOUVIN R. DALEY,
Defendant,
and
DARIUSZ BYSTROWSKI,
Defendant-Respondent.
__________________________
Argued March 9, 2022 – Decided March 28, 2022
Before Judges Whipple, Geiger, and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0175-19.
Edward A. Genz argued the cause for appellant
(Montenegro, Thompson, Montenegro & Genz, PC,
attorneys; Edward A. Genz, of counsel and on the
briefs).
Kelly A. Weber argued the cause for respondent
(Chasan Lamparello Mallon & Cappuzzo, PC,
attorneys; John V. Mallon, of counsel and on the brief;
Kelly A. Weber, on the brief).
PER CURIAM
In this personal injury action, plaintiff Rosemary Formoso appeals from
the Law Division's February 11, 2021 order denying reconsideration of a
December 22, 2020 order granting summary judgment to defendant Dariusz
Bystrowski. We reverse and remand.
The following facts are derived from the evidence presented in support of,
and in opposition to, Bystrowski's motion for summary judgment, viewed in the
light most favorable to the non-moving plaintiff. See Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995).
On January 17, 2017, plaintiff Rosemary Formoso was attempting to cross
Belleville Turnpike (also known as Route 7) in Kearny. Belleville Turnpike has
one lane of traffic in each direction. There is no crosswalk or traffic control
device in that area of the Turnpike. A supermarket is located on the other side
of the Turnpike.
As she attempted to cross the Turnpike to go to the supermarket, plaintiff
was struck by a vehicle operated by defendant Youvin Daley. Before the impact,
Daley was travelling behind Bystrowski's vehicle on the Turnpike. Bystrowski
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slowed, briefly stopped, and executed an illegal left turn into the supermarket's
parking lot.1 Daley stopped for several seconds then began to "creep up" or
drive slowly on the Turnpike. Daley did not see plaintiff before his vehicle
struck plaintiff. Daley then heard a "bump" and stopped his vehicle. Plaintiff
was lying unconscious on the road in front of Daley's vehicle.
As Bystrowski's vehicle entered the supermarket's parking lot, he heard
the impact of Daley's vehicle striking plaintiff. When Bystrowski looked in his
rearview mirror he saw plaintiff laying in the roadway in front of Daley's
vehicle. Bystrowski parked his vehicle and called police.
Plaintiff was wearing dark clothing. It was dark and raining. A dashcam
video from Bystrowski's car showed plaintiff on the side of the Turnpike,
stepping into the roadway and raising her hand, as if to signal traffic to stop so
that she could cross the Turnpike. Bystrowski testified that he thought plaintiff
was signaling for a bus. Traffic in the opposing direction appeared to be heavy.
Bystrowski does not know if plaintiff was moving as he made his left turn
because he was "already focusing on the left to make the turn."
1
To assist the reader in visualizing the accident scene, attached as an exhibit is
a diagram of the accident scene contained in a crash investigation report
prepared by a Kearny police officer, which was included in the motion record.
The diagram does not indicate if it is drawn to scale or the distance to the nearest
intersection.
A-1978-20
3
Plaintiff remembers nothing between initially leaving her home and being
at University Hospital and cannot provide her own version of the accident. She
alleges that both Bystrowski and Daley proximately caused the accident.
Plaintiff claims that Bystrowski's illegal left turn forced Daley to make a full
stop, indicating that she was free to cross the roadway. She alleges that but for
Bystrowski's illegal left turn, Daley's vehicle would not have struck her.
Plaintiff contended that even if a pedestrian is jaywalking, a car must stop for
them.
Both defendants moved for summary judgment. Bystrowski argued that
his actions did not proximately cause plaintiff's injuries. During oral argument,
plaintiff's counsel acknowledged that if the case went to trial, the jury would
find plaintiff comparatively negligent. The judge then commented that she
"unders[tood] that. And [she thought] it probably [was] going to be over [fifty-
one] percent." However, the judge focused on proximate causation, not
comparative fault.
The judge found that plaintiff's argument was "a stretch." She stated she
could not find Bystrowski was a concurrent cause of the accident because
plaintiff did not remember anything about the accident, there was no proof of
contact between plaintiff and Bystrowski's vehicle, and there was no proof that
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had Daley not stopped he would not have hit plaintiff anyway. The judge found
that the dashcam video did not help plaintiff's case and noted that plaintiff did
not have a causation expert, and needed to provide "competent proofs" not
"hypothetical[s.]"
In her written decision granting summary judgment to Bystrowski, the
judge explained:
The dashboard camera footage shows that [d]efendant
Bystrowski passed the Plaintiff while making his turn
into a parking lot. There is no indication that his
vehicle struck the [p]laintiff. Neither does the audio of
the video appear to indicate that this vehicle struck
[p]laintiff.
The [c]ourt does not find that [d]efendant
Bystrowski's left hand turn into a parking lot
proximately caused [p]laintiff to be struck in the
roadway . . . . The dashboard camera footage shows
that the [p]laintiff was already standing in the road
while traffic proceed[ed] in both directions. Whether
or not [d]efendant Bystrowski made a turn in front of
Plaintiff, or was even present at the time of the accident,
does not provide a basis for [p]laintiff's claim that
[d]efendant Bystrowski proximately caused her injury.
Plaintiff moved for reconsideration, arguing that the trial court failed to
consider the duties imposed on Bystrowski by N.J.S.A. 39:4-36 and the principle
of concurrent causation explained in Davis v. Brooks, 280 N.J. Super. 406 (App.
A-1978-20
5 Div. 1993). In her written decision denying the motion, the judge rejected
plaintiff's arguments, stating:
Here, the [c]ourt finds that it did not base its
December 22, 2020 decision granting [s]ummary
[j]udgment to [d]efendant Bystrowski on a palpably
incorrect or irrational basis, nor did it fail to consider
any probative, competent evidence in issuing this
[o]rder. First, the [d]efendant Bystrowski provided
dash-cam footage of the incident that showed his
vehicle turning away from the [p]laintiff. Plaintiff did
not provide any evidence that she remembered
Bystrowski's vehicle striking her. Moreover,
[d]efendant Daley, who settled with [p]laintiff, testified
that he felt a bump while operating his vehicle while
[p]laintiff crossed the street at night, where no
crosswalk existed, while it rained. Considering this
against the actual footage of the incident, this [c]ourt
granted [s]ummary [j]udgment in favor of [d]efendant
Bystrowski because a reasonable juror could not
determine that his vehicle struck the [p]laintiff since the
video showed him turning away from her as she only
just entered the roadway.
Second, [p]laintiff argues that this [c]ourt did not
consider N.J.S.A. 39:4-36 in making its decision to
grant [s]ummary [j]udgment as to [d]efendant
Bystrowski. This is incorrect as the [c]ourt . . .
specifically discussed the statute. . . . Plaintiff attempts
to argue that the statute created a situation that
obligated [d]efendant Bystrowski to yield to her as she
entered the roadway. However, in its memorandum of
decision, the [c]ourt stated that it did "not find that
[d]efendant Bystrowski's left hand turn into a parking
lot proximately caused [p]laintiff to be struck in the
roadway."
A-1978-20
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Upon reconsideration, the [c]ourt finds that
N.J.S.A. 39:4-36 is inapplicable as section 4, which
[p]laintiff does not even mention in [her] papers, states
that "[e]very pedestrian upon a roadway at any point
other than within a marked crosswalk or within an
unmarked crosswalk at an intersection shall yield the
right-of-way to all vehicles upon the roadway." Here,
the dash-cam footage clearly shows that the [p]laintiff
had entered the roadway where no crosswalk exists
while traffic continued in both directions. The [c]ourt
also expressed serious doubts that Bystrowski's left
hand turn somehow caused the [p]laintiff to be struck
by a different vehicle while attempting to cross the
roadway. We expressed on the record that the link
between Bystrowski's operation of his vehicle and
[p]laintiff's injuries were far too attenuated.
Accordingly, the [c]ourt does not find that this statute
is a reliable basis for [p]laintiff's argument that
[d]efendant Bystrowski caused her injury by failing to
yield to her.
The [c]ourt also disagrees with [p]laintiff's claim
that it ignored Davis v. Brooks, 280 N.J. Super. 406
(App. Div. 1993). The [c]ourt allowed [p]laintiff's
counsel to read portions of the case into the record
during oral argument. [The court] specifically rejected
the arguments in Davis when stating that[:] "Whether
or not [d]efendant Bystrowski made a turn in front of
[p]laintiff, or was even present at the time of the
accident, does not provide a basis for [p]laintiff's claim
that [d]efendant Bystrowski proximately caused her
injury."
The court denied Daley's motion for summary judgment. He also moved
for reconsideration. While that motion was pending, plaintiff settled her claims
against Daley.
A-1978-20
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This appeal followed. Plaintiff raises the following points:
POINT I
THERE WERE SUBSTANTIAL MATERIAL FACTS
SO AS TO DEFEAT THE MOTION FOR SUMMARY
JUDGMENT FILED BY DEFENDANT DARIUSZ
BYSTROWSKI.
POINT II
THE ERROR BY THE COURT WAS THE FAILURE
TO RECOGNIZE THE CONDUCT OF DEFENDANT
BYSTROWSKI WAS A CONCURRENT CAUSE OF
THE ACCIDENT.
POINT III
PLAINTIFF HAD A BASIS FOR THE MOTION FOR
RECONSIDERATION OF THE COURT GRANTING
SUMMARY JUDGMENT TO DEFENDANT,
DARIUSZ BYSTROWSKI.
POINT IV
THE COURT FAILED TO CONSIDER AND RULE
THAT DEFENDANT DARIUSZ BYSTROWSKI
WAS REQUIRED TO STOP FOR PLAINTIFF
ROSEMARY FORMOSO WHEN HE OBSERVED
HER IN THE ROADWAY AS HIS VEHICLE
APPROACHED HER. THIS WAS CLEARLY
ERROR.
POINT V
THE NEW JERSEY SUPREME COURT IN BRILL V.
GUARDIAN LIFE INS. CO. OF AM., 142 N.J. 520
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(1995) SET OUT THE STANDARD FOR SUMMARY
JUDGMENT MOTIONS.
POINT VI
THE FOLLOWING COLLOQUY FOR THE ORAL
ARGUMENT OF DECEMBER 18, 2020 INDICATES
THE FAILURE OF THE COURT TO APPRECIATE
THE APPLICABILITY OF N.J.S.A. 39:4-36.
POINT VII
[THE] CERTIFICATION OF EDWARD A. GENZ,
ESQ. DATED DECEMBER 11, 2020 PROVIDED
[THE] COURT WITH COLOR PHOTOGRAPH OF
ACCIDENT SCENE.
We review a grant of summary judgment using the same standard that
governs the trial court's decision. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
Under that standard, summary judgment will be granted when "the competent
evidential materials submitted by the parties[,]" viewed in the light most
favorable to the non-moving party, show that there are no "genuine issues of
material fact" and that "the moving party is entitled to summary judgment as a
matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)
(quoting Bhagat, 217 N.J. at 38); see also R. 4:46-2(c). "An issue of material
fact is 'genuine only if, considering the burden of persuasion at trial, the
evidence submitted by the parties on the motion, together with all legitimate
A-1978-20
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inferences therefrom favoring the non-moving party, would require submission
of the issue to the trier of fact.'" Ibid. (quoting Bhagat, 217 N.J. at 38).
We owe no special deference to the trial court's legal analysis, RSI Bank,
234 N.J. at 472 (quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co., 224 N.J. 189, 199 (2016)), or its "application of legal principles to [its]
factual findings[,]" Lee v. Brown, 232 N.J. 114, 127 (2018) (quoting State v.
Nantambu, 221 N.J. 390, 404 (2015)).
In order to establish a prima facie case of negligence, plaintiff must
establish: (1) a duty of care; (2) breach of that duty; (3) proximate cause; and
(4) damages. Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div. 2002).
N.J.S.A. 39:4-36(a) imposes duties on both drivers and pedestrians. It provides,
in relevant part:
a. The driver of a vehicle shall yield the right-of-way to
a pedestrian crossing the roadway within any unmarked
crosswalk at an intersection, except at crosswalks when
the movement of traffic is being regulated by police
officers or traffic control signals, or where otherwise
regulated by municipal, county, or State regulation, and
except where a pedestrian tunnel or overhead
pedestrian crossing has been provided:
(1) The driver of a vehicle shall stop and remain
stopped to allow a pedestrian to cross the roadway
within a marked crosswalk, when the pedestrian is
upon, or within one lane of, the half of the roadway,
upon which the vehicle is traveling or onto which it is
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turning. As used in this paragraph, "half of the
roadway" means all traffic lanes conveying traffic in
one direction of travel, and includes the entire width of
a one-way roadway.
(2) No pedestrian shall leave a curb or other place of
safety and walk or run into the path of a vehicle which
is so close that it is impossible for the driver to yield or
stop.
(3) Whenever any vehicle is stopped to permit a
pedestrian to cross the roadway, the driver of any other
vehicle approaching from the rear shall not overtake
and pass such stopped vehicle.
(4) Every pedestrian upon a roadway at any point other
than within a marked crosswalk or within an unmarked
crosswalk at an intersection shall yield the right-of-way
to all vehicles upon the roadway.
(5) Nothing contained herein shall relieve a driver from
the duty to exercise due care for the safety of any
pedestrian upon a roadway. Nothing contained herein
shall relieve a pedestrian from using due care for his
safety.
[N.J.S.A. 39:4-36(a).]
Plaintiff acknowledges that the accident did not occur at an intersection,
the scene of the accident was not regulated by a traffic control signal, and she
was not within a marked or unmarked crosswalk. The accident occurred at night.
It was dark and raining. The dashcam video from Bystrowski's car shows
plaintiff on the shoulder, raising her hand as if to signal she wanted to cross the
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road. There was significant traffic in both directions. Bystrowski slows, briefly
stops, and makes a left turn into the parking lot of a strip mall, without striking
plaintiff. Daley, who had briefly stopped behind Bystrowski, moves forward
and strikes plaintiff, who was then in the lane of travel. Daley claimed he did
not see plaintiff before he struck her.
Plaintiff claims that Bystrowski was negligent by turning into the parking
lot rather than waiting for her to cross the lane of travel, and but for that
negligence, Daley would not have struck her. Plaintiff acknowledges that each
party had some degree of comparative fault.
Because plaintiff was not "within a marked crosswalk" or within an
"unmarked crosswalk at an intersection," she was under a duty to "yield the
right-of-way to all vehicles upon the roadway." N.J.S.A. 39:4-36(a)(4). Both
Bystrowski and Daley were under a duty to be observant and to "exercise due
care for the safety of any pedestrian upon a roadway." N.J.S.A. 39:4-36(a)(5).
They were also both under a duty to exercise "due caution and circumspection,
in a manner so as [not] to endanger, or be likely to endanger, a person or property
. . . ." N.J.S.A. 39:4-97. We instruct juries in accident cases:
[T]he driver of an automobile upon a public highway is
under the duty of exercising for the safety of others that
degree of care, precaution and vigilance in the
operation of his/her car which a reasonably prudent
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person would exercise under similar circumstances. It
has sometimes been defined as care commensurate with
the risk of danger. Thus, the driver of an automobile is
required to use reasonable care in the control,
management and operation of his/her machine. He [or]
She is required to make such observation for traffic and
road conditions and to exercise such judgment to avoid
collision or injury to others on the highway, as a
reasonably prudent person would have done in the
circumstances. This duty of reasonable care by users
of the highways is mutual and ordinarily each may
assume that the other will observe that standard of
conduct in the use thereof. Negligence is then the
failure to adhere to this standard of conduct.
[Model Jury Charges (Civil), 5.30A, "General Duty
Owing" (approved Sept. 1999).]
In cases involving a collision between a pedestrian and a vehicle, we
further instruct the jury:
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 the motorist's path of travel, as a reasonably
prudent person would make.
[Model Jury Charges (Civil), 5.30G(2), "Duty of
Automobile Driver to Make Observations – For
Pedestrians" (rev. Mar. 2021).]
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In Davis, we provided the following explanation of concurrent cause and
superseding intervening cause:
There is no question that there may be any
number of causes intervening between a negligent act
and a final injurious occurrence. If they are reasonably
foreseeable, each intermediate cause may be deemed a
proximate result of the first wrongful act. The original
negligence is deemed to continue and operate
contemporaneously with all intervening acts of
negligence that might reasonably be foreseeable, so that
the original negligence is regarded as a concurrent
cause of the final resulting injury. The causal
connection may be broken by a superseding intervening
cause. Such a cause must be one that so entirely
supersedes the operation of the first tortfeasor's
negligence that it alone caused the injury, without the
first tortfeasor's negligence contributing thereto in any
material way. But where the original tortfeasor's
negligence is an essential link in the chain of causation,
such a causal connection is not broken if the intervening
cause is one which might, in the natural and ordinary
course of things, be anticipated as not entirely
improbable.
[ 280 N.J. Super. at 412.]
Ordinarily, proximate cause is a jury issue. Vizzoni v. B.M.D., 459 N.J.
Super. 554, 575 (App. Div. 2019). The issue of proximate cause may only be
removed from the jury "in the highly extraordinary case in which reasonable
minds could not differ on whether that issue has been established." Townsend
A-1978-20
14
v. Pierre, 221 N.J. 36, 60 (2015) (quoting Fleuhr v. City of Cape May, 159 N.J.
532, 543 (1999)).
Here, Bystrowski acknowledges that his left turn into the parking lot was
illegal. Daley had come to a stop and then proceeded forward, striking plaintiff,
claiming he did not see her. Under these circumstances, viewing the facts in a
light most favorable to plaintiff, we are satisfied that a reasonable jury could
conclude that Bystrowski's illegal left turn was "an essential link in the chain of
causation." Davis, 280 N.J. Super. at 412. As we explained in Davis, the
"original negligence" – in this instance, the concededly illegal left turn and
failure to yield to plaintiff – "is deemed to continue and operate
contemporaneously with all intervening acts of negligence that might be
reasonably foreseeable, so that [it] . . . is regarded as a concurrent cause of the
final resulting injury." Ibid. On these facts, a reasonable jury might find that
the causal connection between Bystrowski's illegal turn and the immediately
ensuing collision between the vehicle behind him and plaintiff was not broken
because such an occurrence could "be anticipated" and was "not entirely
improbable." Ibid. In turn, a reasonable jury could find that Daley and plaintiff
were also negligent, and their respective negligence concurrently caused the
accident, rendering each party to some degree comparatively at fault.
A-1978-20
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Accordingly, Bystrowski did not demonstrate he was "entitled to a judgment or
order as a matter of law." R. 4:46-2(c).
A trial court should not decide the merits of "a dispute on which a rational
jury could go either way." Pressler & Verniero, Current N.J. Court Rules, cmt.
2.3.2 on R. 4:46-2(c) (2022). Here, in determining whether summary judgment
was appropriate, the court "resolved a dispute on the merits that should have
been decided by a jury. It was not the court's function to weigh the evidence
and determine the outcome . . . . " 2 Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 50
(2012) (quoting Gilhooley v. Cnty. of Union, 164 N.J. 533, 545 (2000)).
Granting Bystrowski summary judgment and denying reconsideration was error.
Reversed and remanded. We do not retain jurisdiction.
2
When considering whether to grant summary judgment, the trial court's
function was not to weigh the evidence and speculate about plaintiff's likelihood
of success at trial or how a jury would apportion comparative fault.
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