Russell v. Cooke

OPINION PER CURIAM. This is a Superior Court civil action in which the plaintiff has appealed the grant of the defendants’ motion for summary judgment. On March 28, 1977, at 11 p.m., the plaintiff, Robert E. Russell (Russell), was operating his vehicle on Elmwood Avenue in the vicinity of Roger Williams Park. It was raining, and visibility was somewhat impaired. At this location, Elmwood Avenue is a four-lane highway with two lanes serving southbound traffic and two lanes serving the needs of the northbound motorist. Directly in front of Russell and traveling in the same direction was an automobile operated by defendant Leonard E. Cooke (Cooke). As Cooke proceeded along the roadway, he observed directly ahead of him an unlighted excavation guarded by sawhorses. He swerved to his right and avoided the obstruction. Russell was not so fortunate. He knocked down the sawhorses and entered the excavation. His car went out of control and struck a pole; when it came to rest, the vehicle was upside down. In his suit, Russell claims that Cooke was negligent in that he failed in his duty to drive in such a manner as would allow Russell sufficient opportunity to observe what was ahead in the highway and thereby avoid the excavation site. On October 26, 1982, Russell, through counsel, appeared before a panel of this court and attempted to show cause why his appeal should not be summarily dismissed. Counsel’s zeal was to be commended, but he has failed to convince us that Cooke owed the duty alleged by Russell. Consequently, the plaintiff’s appeal is denied and dismissed. MURRAY and SHEA, JJ., did not participate.