Decision Against Route 38 Bridge Lawsuit Upheld by Appellate Court

Jeffrey Lee’s family went after almost everyone they could in a lawsuit after the teen had his leg amputated in 2004, when he was struck by a car while trying to cross Route 38 where the old pedestrian bridge had once stood.

That fight is effectively over, though, following a three-judge appellate panel’s decision on Wednesday to uphold a lower court ruling against the family.

The Lees’ suit targeted 37 defendants—from the Cherry Hill Mall to the Loews movie theater to the entire township council and former Mayor Bernie Platt, some erroneously—who they claimed bore some responsibility for Jeffrey’s injuries.

Jeffrey, then 15, was hit by a Mustang going roughly 75 mph as he straddled the median barrier while trying to cross the six-lane highway around where the old bridge stood—something he admitted in court documents to doing 20 or 30 times before the accident—and his family’s attorney argued public officials had created a dangerous condition by not replacing the bridge, and that nearby businesses breached their duty to keep pedestrians safe.

The appellate judges disagreed, and ruled public officials could not be held responsible for the May 2004 crash, given the circumstances surrounding the old pedestrian bridge’s destruction in 1999, when a trash truck slammed into the span, and the timeline for its replacement.

“The state did not affirmatively create the condition alleged by plaintiff. A truck driver employed by a private company, not the state, crashed into and destroyed the original pedestrian bridge,” the judges wrote. “Even if we were to determine that the absence of the bridge somehow constituted a defect in the roadway, the state could not be charged with creating a dangerous condition on its property.”

The judges, who noted the state’s work in starting the wheels in motion to replace the bridge back in 2002, before its eventual replacement in 2008, also pointed to human factors weighing the most in the crash that cost Jeffrey his leg.

“There was no defect in Route 38 on the night of plaintiff's accident. The accident was caused by the activities of people on Route 38; plaintiff's, in crossing the highway other than at a controlled intersection or pedestrian walkway, and the drivers', who were speeding, and perhaps racing,” they wrote. “Plaintiff's conduct was so objectively unreasonable that the condition of Route 38 cannot reasonably be said to have caused his tragic injuries.”

Similarly, the judges ruled nearby businesses, including the Cherry Hill Mall, Kohl’s and Loews Theaters, where Jeffrey and several friends had left to meet their ride at the mall, weren’t negligent, despite claims by the Lees’ attorney that steps left over from the old bridge created an attractive nuisance that enticed pedestrians to try to cross where the bridge stood.

Even further, the judges cited the nearby safe crossings—a pedestrian crossing at the light at Hillview Drive, and a sidewalk along Haddonfield Road, each roughly 1,000 feet from the old bridge—as evidence Jeffrey didn’t act with due care on the day of the crash.

“The nature of the risk plaintiff encountered—being struck by a car while crossing Route 38 where he attempted to cross—was a risk inherent in his own conduct, not that of the surrounding property owners,” they wrote. “Plaintiff had the immediate opportunity and ability to exercise due care by crossing Route 38 at an intersection or designated pedestrian crosswalk…in addition to those considerations, we cannot ignore the patently obvious risk…or the fact that plaintiff's conduct violated state law.”

The judges also dismissed a claim against the township, citing a lack of evidence Cherry Hill has any control over Route 38.