Lakewood Township's attorneys are finally fighting to get dismissed from a lawsuit that claims that a guardrail that was once removed from Cedar Bridge Avenue in Lakewood is heavily to blame for a traffic crash fatality in the summer of 2021. The family of the juvenile fatal victim is now fighting flimsily to keep the Township in litigation.
The guardrail was removed and not replaced during the Lakewood Housing Authority's redevelopment of the nearby Chambers Crescent apartments. Cedar Bridge Avenue is owned by Ocean County. The Chambers Crescent apartments is private property, not owned or maintained by the Township. This is a key point that should vindicate the Township in litigation. However, the Plaintiff has simply not yet come to terms with this fact.
A hearing on this matter is now set for next Friday.
The suit involves a fatal traffic crash that took place on the evening of July 5, 2021, on Cedar Bridge Avenue at Clover Street in Lakewood.
According to the Lakewood Township Police Department report, a multi-agency investigation revealed that Dimitriy N. Kurik, a juvenile, was driving with 2 passengers - one being Volodimir Vlasyuk, a juvenile - eastbound on Cedarbridge Avenue approached the cross street of Clover Street at a high rate of speed. An unidentified vehicle was in the left-hand turn lane attempting to make a left-hand turn onto Clover Street. Dimitriy Kurik attempted to navigate around that vehicle and lost control of the vehicle. The vehicle left the roadway and struck the face of a building. The vehicle overturned and came to an uncontrolled rest on its hood.
Volodimir Vlasyuk, the juvenile passenger who was seated in the rear of the vehicle, was ejected from the vehicle and was pronounced deceased at the scene.
Just one month prior to the crash, the juvenile driver received citations for driving an unregistered vehicle and displaying fictitious plates, and just 2 days prior to the crash, the he was issued a citation for driving under the influence of liquor or drugs.
As first reported here on FAA News, back in May 2022, the family of the deceased juvenile, represented by Old Bridge Attorney Zlata Rudikh of Rudikh and Associates, filed a lawsuit charging his parents for failing to restrain their "out of control" child.
The lawsuit also charged Eshmatie Persaud, the owner of the motor vehicle. The lawsuit asserts that because there were no reports of this vehicle being stolen, the owner must have consented to it being operated by this driver.
Additionally, the lawsuit charges that there used to be a guardrail on the side of this road, and its removal is heavily to blame for this fatality.
Guardrails are protective devices for redirecting errant vehicles from colliding with an obstruction, and they are designed to reduce the severity of crashes.
Prior to redevelopment of the adjacent Chambers Crescent apartments, there was a guardrail along this section of Cedar Bridge Avenue.
The Chambers Crescent apartments were redeveloped by contractors working for the Lakewood Housing Authority, and at some point during the construction process, the contractors removed the guardrail. The Ocean County Engineering Department typically inspects construction sites along county-owned roads such as Cedar Bridge Avenue to ensure that all existing road infrastructure is replaced. Somehow, in this particular case, the County was unaware that the guardrail was removed, and failed to oversee its replacement, records show that county officials have confirmed, the lawsuit charges.
Between 2019 and August 20, 2021, there were over 100 reportable motor vehicle crashes on this section of Cedar Bridge Avenue, police records show.
The lawsuit was filed by Alex Vlasyuk and Tetyana Vlasyuk, as parents / administrators of the Estate and by way of Ad Prosequendom for the Estate of Volodimir Vlasyuk, the deceased minor.
The lawsuit named as defendants to the suit Dimitriy Kurik, the operator of the vehicle, as well as his parents Natalia Kurik and Vyacheslav Polushkin, and the owner of the vehicle Eshmatie Persaud, Lakewood Township, Ocean County Engineering Department, as well as the Lakewood Housing Authority, and their co-developers and construction contractors, Chambers Crescent Apartments, R. Stone and Company, and Community Investment Strategies, Inc. as well as Maser Consulting, the engineer for the housing project.
To ensure that roadside safety features are capable of performing their intended functions, periodic review, inspection, and maintenance of traffic barriers are necessary and should be a part of the normal maintenance function, and inspection should also be triggered by a crash report indicating a high severity or incidence of run-off-road crashes, the lawsuit contends.
The suit seeks "compensatory damages for conscious pain and suffering, wrongful death, survivorship damages, and past and future economic damages together with interest, attorney's fees, and costs of suit."
Maser Consulting, the engineer for the housing project, immediately settled out of court and was dismissed without prejudice.
The parents of the driver as well as the owner of the vehicle have been dismissed from the case due to the Plaintiff's failure to serve them.
The complaint also named as Defendant's the 3 auto insurance carriers of the passengers and alleged that they owe uninsured/ underinsured motorist coverage as the juvenile driver was uninsured. One insurance carrier has already been dismissed completely from the case on the basis that the car was properly insured with sufficient coverage so as to not require the uninsured/ underinsured motorist coverage benefits to be garnished. A second insurance carrier has been partially dismissed on the same basis.
The Lakewood Housing Authority and County of Ocean have been granted their motions to get dismissed from the case on the basis that the Plaintiff's Tort Claims Act notices were faulty.
This leaves only co-developers and construction contractors, Chambers Crescent Apartments, R. Stone and Company, and Community Investment Strategies... and Lakewood Township as defendants in this case.
Finally, as previously reported here on FAA News, back in May 2023, Attorney Peter Van Dyke Esq. representing the Township finally filed a Motion for Summary Judgement, seeking to get dismissed from the Township with prejudice.
The motion argues simply that "in order to establish liability on the part of a public entity the Plaintiff must prove that the public entity owned or controlled the property on which the incident occurred. While the property of the crash does exist within the Township's geographic area, Cedar Bridge Avenue is not owned or under the jurisdiction of the Township. Additionally, Chambers Crescent Apartments is also not owned or under the jurisdiction of the Township. Therefore, unless the Plaintiff can establish that the property on which the Plaintiff was injured was public property, as the New Jersey Tort Claims Act (TCA) defines that term, the Court should grant summary judgement in favor of the Township."
Attorney Jessica J. Francis Esq. representing the Plaintiff today filed Opposition to the Township's Motion for Summary Judgement.
The Opposition ignores the Township's assertion that neither Chambers Crescent Apartments, where the crash occurred, nor Cedar Bridge Avenue, the adjacent roadway, are owned or under the jurisdiction of the Township.
Ms. Francis wrote:
The instant case involves a fatal motor vehicle accident which was likely significantly
exacerbated because there were no guardrails in place to stop the car from careening into the Chambers Crescent apartment building. The “guardrails question” is just one of many material
issues in dispute which should prevent the Defendant’s Motion for Summary Judgment from
being granted at this juncture. Who exactly “owns or controls” the specific property and how that
property fits into this case will only crystalize through discovery, and thus Defendant’s Motion
for Summary Judgment must be denied. Lakewood Township owns all property involved in the
instant case, which is why the Defendant’s Brief focuses mostly on asserting they do not assert
“possessory control” of these properties.
However, further discovery is necessary to even make these preliminary arguments. It
should be noted that it was Lakewood Township Police Department that responded to the crash site, issued all associated traffic tickets, and prepared the full police report. The Plaintiffs should
be allowed the opportunity to conduct a full course of discovery as to Defendant, Lakewood Township, to determine if liability will apply under the TCA, and thus, their Motion for Summary Judgment must be summiarily denied.
When deciding summary judgment motions, court rules provide that a court should grant
summary judgment only when the record indicates that there is no genuine issue as to
any material fact challenged and that the moving party is entitled to a judgment or order as a
matter of law.
The Court in Brill v. Guardian Life Ins. Of Am reasoned that the trial court's function is not to engage in fact
finding and the weight of the evidence in determining the truth of the matter, but rather whether
there is a genuine issue for trial.
It is well settled that whether a dangerous condition existed at the time of injury is a question for a jury. Vincitore v. New Jersey Sports and Exposition Authority, (finding that whether a railroad crossing was reasonable was a question for a jury).
Although there are numerous material facts in dispute, the issue of who owned or controlled the property under the TCA should be enough to deny Defendant’s Motion for Summary Judgment as discovery is needed to clarify this issue.
For the reasons set forth above, it is respectfully requested that the Court DENY the
Defendant’s Motion for Summary Judgment and allow this case to proceed accordingly.
The Township's reply brief is due Monday, June 19, 2023.
Judge Wellerson has scheduled oral arguments on the motion to be held next Friday, June 23.
R. Stone Company recently expanded the litigation with the filing of a 3rd party complaint against Your Construction, Inc. and Seminole Construction, their subcontractors for this project.
As previously reported here on FAA News, a separate lawsuit was subsequently filed by two additional plaintiffs who were standing inside their home and were injured when the car came crashing inside their home.
The Township has not yet answered the second complaint.
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