In a highly contested “who done it” wrongful death claim, the Appellate Division recently affirmed the grant of summary judgment in favor of the defendant in the case of Kavanaugh v. Van Arsdale, A-0583-18T3.  

On March 6, 2015, Somerville, New Jersey retired fire chief George Kavanaugh was struck and killed by a hit and run driver while in the driveway area of a local fire house.  At the time, the fire house was hosting a wake for another fireman who recently passed away.  A viewing at a local funeral home occurred earlier that evening.  The decedent and his life-long best friend attended the wake and were leaving when the incident occurred.  As the best friend walked down the driveway of the firehouse to retrieve his car, he noted a vehicle idling on the driveway.  He believed the decedent was talking to someone on the passenger side of the idling vehicle.  As the best friend reached his car which was parked across the street, he heard a scream and turned and saw the vehicle driving away, running over the decedent a second time.  The vehicle was described by the best friend as a light colored SUV.  There was no description of the driver, the make or model of the vehicle or its license plate.  Police investigated the accident and failed to identify the driver or the vehicle. 

Understandably frustrated by the tragic death of her husband caused in all likelihood by a fellow fireman who attended the wake and lack of any progress by the police and prosecutors office, the decedent’s widow initially pursued social media and news outlet campaigns seeking any information as to the identity of the driver.  It was suspected that the firefighting community was protecting one of its own by failing to disclose who the driver was.  Subsequently, a law suit was filed in an effort to utilize subpoenas and depositions of the attending firemen to figure out the driver’s identity.  The suit named the County, the fire department and conspicuously named a prominent businessman in town who operated the funeral home where the viewing occurred prior to the wake.  He was also a fireman who intended to later attend the wake.  Richard C. Bryan, Esq., a partner in the firm's Mt. Laurel office, was assigned his defense. 

Once the suit was filed, the plaintiff’s attorney provided interviews and solicited the involvement of news media to assist in the investigation.  Given the prominence of our client in the community and the lack of factual basis for the direct claim against him, we successfully moved to seal the records from the public.  Thereafter, over seventeen depositions were conducted of the attending firemen.  The plaintiff attempted to build a case against our client based upon alleged “inconsistencies” in his testimony about where he was at the time of the accident, whether he owned a light colored SUV at the time of the accident and statements that he allegedly made to people after the accident occurred.  Plaintiff claimed that our client stated to people that he saw the accident occur and that therefore he was at the scene.  Plaintiff claimed that our client’s daughter owned a light colored SUV.  The plaintiff further relied upon an alleged hearsay within hearsay statement of an undeposed “witness” who allegedly stated that our client admitted he was the driver.  The plaintiff attempted to utilize improper requests for admissions against our client which we successfully quashed. 

At the conclusion of discovery, attorney Bryan moved for summary judgment on the basis that plaintiff had not established that our client was the driver, and that there was no question of fact that could rationally be used by a jury to conclude he was the driver.  Moreover, the alleged hearsay within hearsay statement of the undeposed witness was inadmissible.  Plaintiff characterized its position as the case being one of “circumstantial” evidence given inconsistencies between our client’s testimony and other witness testimony.  Plaintiff urged the court to view the video deposition of our client which she claimed showed that he was untruthful and therefore he was the driver.  We argued in response that the alleged inconsistencies had nothing to do with the client being the driver, the circumstantial evidence was nothing but mere speculation, and that the fact that his daughter owned a light colored SUV did not permit the inference that he was driving it and struck the decedent.  Moreover, the client’s alleged statements that he “saw” the accident did not permit the inference that he was involved in the accident, even if believed by a jury. 

During the pendency of the motion for summary judgment plaintiff attempted to change venue of the case to a more favorable location.  Attorney Bryan successfully defeated this argument and the court granted summary judgment in the client’s favor. 

On appeal, the Appellate Division affirmed the trial court’s granting of summary judgment, finding that the plaintiff had not produced any competent evidence that the defendant was the driver.  It held that the fact that the defendant’s daughter operated a light colored SUV did not infer that it was the involved vehicle or that the defendant was driving it.  The inconsistencies in testimony cited by the plaintiff, were found to be not probative as to the defendant being the driver.  The Appellate Division further held that the hearsay within hearsay statement was indeed inadmissible and that the trial court did not abuse its discretion in not considering it.  In sum, the Appellate Division concluded that plaintiff had no right to proceed to a jury trial based upon “speculation and innuendo” which is what this case was from the outset. 

Richard C. Bryan, Esq. is a Partner in the firm's Mount Laurel office and can be reached at (856) 761-3800 or by email at Rbryan@c-wlaw.com.