NJ Appeals Court Affirms Dismissal of Wrongful Death Suit Over Chief’s Hit and Run Death

The Appellate Division of the New Jersey Superior Court has affirmed the dismissal of a wrongful death suit brought by the widow of a retired fire chief who was struck and killed by a hit and run driver in front of a firehouse.

Retired Somerville Fire Chief George Kavanaugh was killed on March 6, 2015 in front of Hose Company 4’s firehouse on Warren Street. Police were unable to identify the vehicle or the driver, and no charges were ever brought. Chief Kavanaugh’s widow, Anita, filed suit naming 23 defendants, including Somerset County, Somerville Borough, Lincoln Hose Company 4, Lincoln Hose Company, an individual and several John Does.

Superior Court Judge Yolanda Ciccone dismissed the lawsuit, concluding the evidence was too speculative as to who was actually responsible for the accident. Mrs. Kavanaugh appealed. The appellate division, in an unpublished decision issued today, agreed with Judge Ciccone.

  • 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.”
  • 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.'”
  • Mere speculation by the non-moving party “does not meet the evidential requirements which would allow it to defeat a summary judgment motion.”
  • 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 Defendant] was the exact car [in the accident] and that 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.
  • 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.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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