ANITA KAVANAUGH VS. COUNTY OF SOMERSET (L-1005-16, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-0583-18T3

ANITA KAVANAUGH, as
Administratrix ad Prosequendum
of THE ESTATE OF GEORGE R.
KAVANAUGH, JR., and ANITA
KAVANAUGH, Individually,

Plaintiff-Appellant,

v.

COUNTY OF SOMERSET,
BOROUGH OF SOMERVILLE,
LINCOLN HOSE FIRE CO #4,
and LINCOLN HOSE COMPANY,

Defendants,

and

BRUCE VAN ARSDALE,

Defendant-Respondent.
____________________________

Submitted May 26, 2020 – Decided May 28, 2020

Before Judges Sabatino, Sumners and Geiger.
 On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-1005-16.

Davis, Saperstein, & Salomon, PC, attorneys for
appellant (Steven Benvenisti and Michael E. Wachtel,
on the briefs).

Cipriani & Werner, PC, attorneys for respondent
(Richard C. Bryan, on the brief).

PER CURIAM

On the night of March 6, 2015, retired fire chief George Kavanaugh was run

over by a car outside a Somerville firehouse and died. The sole known eyewitness

to this hit-and-run accident identified the car as a "gray or white" sport utility vehicle

("SUV"). The eyewitness did not describe the SUV driver. The police recovered no

other evidence that night, physical or otherwise, establishing the make, model, year,

license plate, specific color, or driver of the SUV. Over five years later, no further

competent evidence of identification has apparently come to light, and no arrests

have been made.

Under these tragic circumstances, the decedent’s widow has pursued her own

efforts to identify the driver who caused her husband's death. That, in turn, led to

this wrongful death lawsuit. After the case was winnowed down to dismiss other

parties, plaintiff maintains defendant Bruce Van Arsdale was driving the SUV.

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 The parties conducted extensive discovery, which entailed at least seventeen

depositions, including of Van Arsdale and his wife. As the case proceeded, the trial

court denied motions by plaintiff to change venue and conduct an in camera review

of the prosecutor's criminal investigation materials. The court also granted defense

motions to strike certain requests for admission and to seal the record. Ultimately,

the court granted Van Arsdale summary judgment, and this appeal ensued.

On appeal, plaintiff mainly contends she presented sufficient circumstantial

proof to defeat the summary judgment motion. As part of that core contention, she

maintains Van Arsdale has been inconsistent and untruthful about his whereabouts

at the time of the fatal accident. She further argues the court erred in not changing

venue, in declining to review the prosecutor's file, in striking her demands for

admissions, and in sealing the case. She argues that, in lieu of summary judgment,

the court should have done no more than to dismiss her lawsuit without prejudice,

enabling the case to be revived if a criminal investigation or other efforts identified

Van Arsdale as the responsible driver.

We affirm the trial court’s order granting summary judgment. Even viewing

the record indulgently in a light most favorable to plaintiff, there is simply

insufficient competent evidence of the driver’s identity to present a genuine issue of

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defendant’s claimed liability to a jury. We also uphold the judge’s other rulings that

are challenged on appeal, with the exception of the sealing decision that we have

previously vacated by a separate order.

I.

We presume the parties' familiarity with the details of the fatal accident and

the associated facts and allegations, which need not be repeated here. In the interests

of brevity, we incorporate the trial court's description of that factual and procedural

history.

The crux of the dispute is over plaintiff's theory that defendant was the driver

of the vehicle that produced this tragedy. Among other things, plaintiff emphasizes

that defendant happens to own or have access to a light-colored SUV, that he

operates a business located several blocks from the point of impact, and that he had

been near the scene of the accident at about the time it occurred. She describes other

circumstantial evidence that allegedly supports defendant's culpability.

Defendant has denied under oath that he was the driver of the vehicle that

struck decedent. He stresses that no eyewitness has identified him personally as

being behind the wheel of the vehicle. He also notes the fatal accident was

investigated by law enforcement, and that no charges were ever lodged against him.

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 A.

In reviewing whether the court erred in granting defendant's motion for

summary judgment, we apply several well-established principles. On such a

motion, the court must "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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995); see also R. 4:46-2(c). If there is competent evidence reflecting

materially disputed facts, the motion for summary judgment should be denied.

Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, 142 N.J. at 540.

To grant the dispositive motion, the court must find that the evidence in

the record "'is so one-sided that one party must prevail as a matter of law.'" Brill,

142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986)). Mere speculation by the non-moving party "does not meet the

evidential requirements which would allow it to defeat a summary judgment

motion." Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super.

556, 563 (App. Div. 2005).

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 Our de novo review of an order granting summary judgment must observe

the same standards. See IE Test, LLC v. Carroll, 226 N.J. 166, 184 (2016)

(citing Brill, 142 N.J. at 540). We likewise review de novo the trial court's

rulings on any questions of law. See Manalapan Realty, L.P. v. Manalapan Twp.

Comm., 140 N.J. 366, 378 (1995).

In granting summary judgment here, the trial court wrote that "the

undisputed facts [for purposes of this summary judgment motion] are that

[decedent] was hit by a light colored SUV and that there are inconsistencies

between witness statements and statements made by Defendant." The opinion

detailed numerous alleged factual inconsistencies between Van Arsdale's

testimony and that of deposition witnesses and described other allegedly

inculpatory evidence presented by plaintiff.

As the trial court correctly noted, "one of the most fundamental facts

required to be proven [in an auto negligence case, like the one here] . . . is that

Defendant was the driver of the vehicle." On this crucial requirement, the court

found there was "not one scintilla of evidence that proves that either the BMW

[owned by the Van Arsdales] was the exact car [in the accident] and that

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Defendant was behind the wheel," and, in fact, there was compelling evidence

that neither allegation was true.

It is axiomatic that in order to support a prima facie claim of negligence,

a plaintiff must demonstrate that the named defendant actually caused harm to a

victim. See, e.g., Komlodi v. Picciano, 217 N.J. 387, 422 (2014) (quoting

Conklin v. Hannoch Weisman, P.C., 145 N.J. 395, 417 (1996)) ("In the routine

tort case, the law requires proof that the result complained of would not have

occurred 'but for' the negligent conduct of the defendant."); see also Restatement

(Second) of Torts § 430 (Am. Law. Inst. 1965) ("In order that a negligent actor

shall be liable for another's harm, it is necessary not only that the actor's conduct

be negligent toward the other, but also that the negligence of the actor be a legal

cause of the other's harm.").

As to this critical element of the actor's identity, the undisputed facts

offered by the plaintiff on summary judgment can be summarized as follows:

decedent was struck and killed by a vehicle described as a light-colored SUV;

defendant's wife apparently owned a light-colored SUV and he could have had

access to it; defendant was near the scene of the accident on the night in

question; and defendant has made several statements about his whereabouts and

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actions on the night that were internally inconsistent or at odds with those of

other witnesses.

Even analyzing the record in a light most favorable to plaintiff, she has

not produced competent evidence that sufficiently identifies the vehicle that

struck and killed her husband, or that reasonably establishes defendant was the

vehicle's driver. We agree with the trial court that based on the record presented,

her claim of defendant's culpability is speculative.

We recognize, as did the trial court, that it is undisputed that defendant

was in the vicinity of the accident after it had already occurred. Even so, an

inference that defendant could have been at the accident scene before it took

place does not create a material factual issue to survive summary judgment.

As we have already noted, no witness has testified that he or she saw

defendant when the accident happened. The testimony of at least two witnesses

largely supports defendant's sworn testimony that he left work some time close

to 9:30 p.m. and arrived at a restaurant next to the scene of the accident after it

had already occurred.

Plaintiff claims that defendant admitted to her and two other persons that

he had witnessed the accident and that he saw another individual driving the

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vehicle, but that he later recanted those statements. The trial court reasonably

did not treat this claim, even if it were assumed to be true, as a sufficient basis

to withhold summary judgment. None of the alleged statements, whether they

be true or false, establish defendant was the culpable motorist.

Plaintiff further asserts defendant lied about not owning a light-colored

SUV, and that his testimony was refuted by his wife's statement that she owned

such a vehicle. However, the wife testified that the SUV belonged to her

daughter, that her husband never drove it, that she and her husband were

separated and living apart at the time, and that her daughter was driving the SUV

on the night of the accident. Further, no competent evidence establishes that the

particular SUV owned within defendant's family was the same vehicle that

struck decedent. Nor does this establish that defendant had been driving the

SUV at the accident location. Indeed, multiple witnesses testified that defendant

regularly drove a sedan convertible, and that they could not remember him ever

driving an SUV.

The trial court did not misapply its discretion in declining to rely upon a

hearsay statement allegedly made to plaintiff by a member of the community,

who she claims recounted that defendant had confessed to him as being the

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culpable driver. Evidentiary decisions on a summary judgment motion are

subject to an abuse of discretion review standard. Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). A hearsay statement that

includes another embedded hearsay statement is only admissible if both

statements independently meet an exception. N.J.R.E. 805.

Plaintiff argues the community member's alleged revelation to her must

be deemed admissible as a hearsay statement against his social interest under

N.J.R.E. 803(c)(25). We are unpersuaded this hearsay exception applies. It

would not have been manifestly against the declarant's social interest to reveal

information that could lead to the apprehension of the person who killed the

town's beloved retired fire chief.

In any event, even if this unsworn double-hearsay passed muster under

N.J.R.E. 803(c)(25), its probative value is simply too attenuated to repel

summary judgment. Notably, despite the asserted importance of this evidence,

plaintiff produced no supporting certification from the hearsay declarant in

compliance with Rule 1:6-6. The trial court had the prerogative to disregard it.

We have duly considered the remaining arguments of plaintiff relating to

summary judgment, including her perception that defendant's gestures and

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demeanor during his videotaped deposition are indicative of his culpability, and

conclude they are without merit.

Based on the record as it was developed, the trial court soundly concluded

that plaintiff failed to marshal adequate competent evidence that could

reasonably establish defendant was the driver of the vehicle that struck and

killed her spouse. We surely understand why this result is disappointing to

plaintiff. Yet she bears the burden of proof in this tragic case, and she cannot

proceed to a jury trial based upon speculation and innuendo. Merchs. Express

Money Order Co., 374 N.J. Super. at 563.

II.

We only need to say a few words about plaintiff's other arguments

unrelated to the summary judgment ruling. We address them in turn.

The trial court did not misapply its broad discretion over discovery matters

in its handling of defendant's responses to plaintiff's requests for admission.

Torres v. Pabon, 225 N.J. 167, 184-85 (2016).

Venue was properly lain in the vicinage where the accident occurred

pursuant to Rule 4:3-2. Despite the asserted notoriety of the fatality and local

prominence of the parties, the court did not misapply its discretion in declining

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to transfer the case elsewhere under Rule 4:3-3. In re Estate of Roccamonte,

324 N.J. Super. 357, 366 (App. Div. 1999). Had plaintiff presented an adequate

objective basis to overcome summary judgment, there is no reason to presume a

fair and impartial trial could not occur in the county of origin. R. 4:3-3(a).

The court also did not commit reversible error in denying plaintiff's

motion, over the prosecutor's objection, to conduct an in camera review of the

criminal investigatory files. River Edge Sav. & Loan Ass'n v. Hyland, 165 N.J.

Super. 540, 544 (App. Div. 1979). Also, it does not appear that plaintiff brought

an action to compel production under the Open Public Records Act, N.J.S.A.

47:1A-6, which would have been subject to the applicable statutory exceptions.

The court was not obligated to dismiss this civil case without prejudice

based upon plaintiff's hope that the criminal or investigatory process might at a

future time reveal facts supportive of her theory. Shulas v. Estabrook, 385 N.J.

Super. 91, 98 (App. Div. 2006) (illustrating concerns about voluntary dismissals

that open the door to renewed litigation at a later time). The court did not abuse

its discretion in declining the request.

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 Lastly, by separate administrative order, we have already vacated as

improvident the trial court's sealing of the case under Rule 1:38. Defendant has

not sought review of that order and the matter is now unsealed.

To the extent that we have not discussed them expressly, the remaining

points raised on appeal do not warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

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