Five experienced bicyclists were riding downhill on the westbound shoulder of Parsonage Hill Road in Millburn. One of the bicyclists, whom we'll call Martha, was riding behind the pack. Martha's bicycle hit a sharp "depression" in the road.  The “depression” measured two feet in diameter, and was about an inch and a half deep. Martha lost control of her bicycle. Tragically, despite the fact that she wore a bike helmet, Martha suffered a catastrophic head injury. She never regained consciousness.

Martha passed away 26 days later. The accident occurred on August 18, 2001. In 2002, Martha’s husband filed suit against Essex County, which was responsible for maintaining the road. Eventually, the trial judge threw the case out of court, because of certain defects in the evidence.

An intermediate appellate court reversed the trial judge's ruling, and found for the victim. However, the New Jersey Supreme Court reversed the intermediate appellate court's decision. In doing so, the Supremes sent the case back to the trial judge, to make certain required factual findings. All this took six years. (No one ever said that justice in New Jersey was always swift.)

Again, the trial judge ruled in favor of Essex County, and threw out the lawsuit. One more time, an intermediate appellate court reversed, and ruled against the county. The appellate court stated that the county could indeed be responsible for Martha's death, if a jury found that the county failed to have a proper inspection program for the roadway and shoulder.

Was this the end of the case? Of course not. The county appealed again to the New Jersey Supreme Court. In January 2012, for the second time, the Supreme Court ruled in favor of the county, and reinstated the trial judge's dismissal of the case.

In its ruling, the Supreme Court discussed many technical issues, having to do with special immunities that are afforded the government when it is sued for negligence. (You aren't so naïve so as to believe that the government has to play by the same rules that everyone else does, now are you?) I would like to focus on one aspect of the Supreme Court's long and complicated ruling.

One of the reasons the Supreme Court gave for ruling in favor of the County was that bicyclists are supposed to ride as near to the right side of the road as possible. However, they are not supposed to ride off of the road. Therefore, they are not supposed to ride on the shoulder. The court further stated that the intended use of the road was for motor vehicles, not bicycles. In this regard, the court suggested that any inspection of the road by the county would only have to be on the lookout for defects that were large enough to destabilize a car. A pothole that, say, was only big enough to send a bicyclist flying, but not a car, was deemed by the court to be unimportant.

In my view, the Supreme Court got it wrong, for several reasons. First, despite what the law may say about where on the road bicyclists are required to ride, the reality is that they are going to use the shoulder much of the time. This not only keeps the bicyclists safer, it makes driving on such roads easier. When you pass a bicycle rider, would you rather the rider be on the road itself, which might force you to cross the center median in order to pass? Or would you prefer that the rider be on the shoulder, so that you do not have to swerve into the oncoming lane?

Second, by essentially telling bicycle riders that they're on their own when they choose to use the shoulder, the court is discouraging, unintentionally or not, the use of bicycles as a form of transportation. With all the energy problems we have, not to mention the epidemic of obesity in this country, we should be encouraging bicycle ridership.

Finally, when a case is tossed out of court, as this one was, before allowing a jury to decide whether to hold someone responsible, the jury system has been thwarted. These cases are only supposed to be thrown out of court if they are so far off base that no reasonable juror could possibly find in favor of the victim. Doesn't the fact that several appellate judges twice found in favor of the victim strongly indicate that reasonable jurors might have done the same?

Thus, the lesson we can all draw from this case is that the Supreme Court has officially ruled that appellate judges aren't always reasonable.

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Marc S. Berman is an attorney with offices in Fair Lawn and Paramus.  Disclaimer: The articles posted here  are for informational purposes only, and are not intended as legal advice for specific cases. Readers  should not act, or refrain from acting, based upon any information presented here, but rather should retain an attorney to advise them.