Gates v. Cnty. of Passaic, A-3436-19

Decision Date08 December 2021
Docket NumberA-3436-19
PartiesROGER C. GATES and LORRAINE GATES, his wife, Plaintiffs-Respondents, v. COUNTY OF PASSAIC, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 29, 2021.

Donald A. Klein argued the cause for appellant (Weiner Law Group LLP, attorneys; Jay V. Surgent, of counsel; Donald A. Klein Andrew J. Kyreakakis, and Howard E. Brechner, on the briefs).

Jeffrey M. Patti argued the cause for respondent (Patti &Patti, Esqs., attorneys; Jeffrey M. Patti, of counsel and on the brief).

Before Fasciale and Sumners, Judges.

PER CURIAM

Defendant County of Passaic (the County) appeals from an August 30 2019 order denying its summary judgment motion; a March 17, 2020 judgment in favor of plaintiffs entered after a jury trial; and a March 27, 2020 order denying its motions for judgment notwithstanding the verdict (JNOV) and for a new trial.

On appeal, the County argues:

POINT I[1]
THE [MOTION JUDGE] ERRED IN DENYING THE COUNTY'S MOTION FOR SUMMARY JUDGMENT.
A. The County Is Immune From Liability For Discretionary Activities Under N.J.S.A. 59:2-3(d).
B. Plaintiffs Cannot Satisfy The Prerequisites For Public Entity Liability Under N.J.S.A. 59:4-2.
1. Oak Ridge Road was not "a dangerous condition" at the time of the accident.
2. The County did not create or have notice of an alleged dangerous condition. 3. The County's conduct was not palpably unreasonable.
POINT II
THE TRIAL [JUDGE] ERRED IN QUALIFYING [MICHAEL] MURPHY AS AN EXPERT, IN NOT STRIKING HIS TESTIMONY IN ITS ENTIRETY AS A NET OPINION, AND IN FAILING TO CURE HIS IMPROPER AND PREJUDICIAL TESTIMONY.
A. Murphy Was Improvidently Qualified As An Expert. B. Murphy's Testimony Was Merely A Net Opinion And Should Have Been Stricken In Its Entirety.
C. The Trial [Judge's] "Curative" Instruction To The Jury Was Not Only Insufficient, It Was Also Impossible To Implement.
POINT III
THE TRIAL [JUDGE] ERRED IN BARRING THE COUNTY FROM PRESENTING EVIDENCE OF ITS "RESOURCES" IMMUNITY AT TRIAL AND INSTRUCTING THE JURY THAT IT SHOULD NOT BE CONSIDERED.
POINT IV THE EVIDENCE AT TRIAL CONFIRMED THAT THE COUNTY WAS NOT LIABLE UNDER N.J.S.A. 59:4-2; AND THE TRIAL [JUDGE] ERRONEOUSLY EXCLUDED RELEVANT EVIDENCE REGARDING THE COUNTY'S IMMUNITY WHICH FURTHER DEMONSTRATED THAT THE COUNTY WAS NOT LIABLE UNDER THIS STATUTE.
POINT V
THE TRIAL [JUDGE] ERRED IN BARRING THE COUNTY FROM PRESENTING EVIDENCE OF "DESIGN" IMMUNITY AT TRIAL.
POINT VI
THE TRIAL [JUDGE] ABUSED HIS DISCRETION IN PERMITTING TESTIMONY BY PLAINTIFFS' WITNESSES CONTRARY TO THE COURT RULES.
POINT VII
THE TRIAL [JUDGE] ERRED IN FAILING TO CURE EGREGIOUS PREJUDICAL STATEMENTS BY PLAINTIFFS' COUNSEL IN HIS SUMMATION.
A. The Trial [Judge] Permitted Plaintiffs To Equate The Standard For Liability Under The Tort Claims Act With Information On The County's Website.
B. The Trial [Judge's] Deficient Response To Improper Remarks By Plaintiffs' Counsel In His Summation Regarding The County's Resources Significantly Compounded Other Errors.
POINT VIII FUELED BY ERRONEOUS EVIDENTIARY RULINGS, THE JURY'S FAILURE TO FIND
[PLAINTIFF] TO BE COMPARATIVELY NEGLIGENT TO ANY DEGREE WAS DEMONSTRABLY AGAINST THE WEIGHT OF THE EVIDENCE.
POINT IX
THE INDIVIDUAL AND CUMMULATIVE EFFECT OF THE TRIAL [JUDGE'S] ERRORS WARRANTS REVERSAL OF THE JURY VERDICT AND JUDGMENT.
POINT X THE TRIAL [JUDGE] ERRED IN DENYING THE COUNTY'S POST-VERDICT MOTIONS.

We affirm all orders under review.

I.

The County was not entitled to summary judgment. We review a ruling on a motion for summary judgment de novo and apply the same standard as the motion judge. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We consider, as the motion judge did, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). A judge grants summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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." R. 4:46-2(c). "To defeat a motion for summary judgment, the opponent must '"come forward with evidence" that creates a genuine issue of material fact.'" Cortez v. Gindhart, 435 N.J.Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J.Super. 1, 32 (App. Div. 2012)). We owe no special deference to the motion judge's legal analysis. Templo Fuente De Vida Corp., 224 N.J. at 199. On such dispositive motions, we must look at the facts in the light most favorable to the non-moving party, here, plaintiffs.

On April 14, 2016, plaintiff Roger C. Gates lost control of his motorcycle after its front wheel struck a large pothole on Oak Ridge Road. Plaintiff was not exceeding the speed limit of forty miles per hour. Although plaintiff attempted to navigate this road, which had been filled with recurrent pothole problems due to the road's state of disrepair, pavement irregularities, and multiple potholes, plaintiff's motorcycle crossed the road into oncoming traffic, struck a minivan, and his body went flying.

Paul Janiec, a Passaic County Road Department district supervisor, explained that the road department had a road crew of approximately fourteen members and two inspectors. He explained that the peak of the pothole season was around February and March when there was a lot of freezing at night and warming during the day. He stated that in April each year, on an as-needed basis, the crew would therefore fill potholes. In the first half of 2016, Janiec would inspect Oak Ridge Road once every two weeks, and an inspector in his district did the same thing. Janiec admitted that in April 2016, there was a "rough patch" of several potholes on Oak Ridge Road at the intersection of Cooper Road, less than a mile south of where the accident occurred, which were filled "on a regular basis." Janiec understood Oak Ridge Road had persistent potholes. He knew of no pothole policy other than fixing the "ones [that] need the most attention first."

Kenneth Simpson, Supervisor of the Passaic County Road Department, knew that since 2014, there was a "recurring [pothole] problem" on Oak Ridge Road in the vicinity of Wallace Cross Road, directly north of where the accident occurred. Importantly, and implicitly characterizing the substantial dangerous condition, Simpson said that during the time of year when the accident occurred, there could be "thousands of potholes in one particular week." In addition, "[d]uring this time frame," potholes in the same location could be filled on a recurring basis. Acknowledging that repair work was unsuccessful, he explained that the road crew "could literally go there in the morning and fill the pothole. And by the time they're coming back, the pothole is out." Simpson stated that Oak Ridge Road was a candidate for resurfacing in April 2016, based on several factors, including the last time it had been resurfaced and the condition of the road, but despite their persistent problems, road resurfacing was not done until April 2018.

A resident (the resident), who lived near the scene of the accident, confirmed that on the day of the accident there were two potholes near the middle of the northbound lane on Oak Ridge Road in front of her house. She estimated that the potholes were three feet long and up to a foot deep. She observed vehicles swerving to avoid the potholes. She notified the Township of the presence of potholes starting in 2014.

Plaintiffs' liability engineering expert, Steven Schorr, concluded that the northbound lane of Oak Ridge Road, approaching the area where the accident occurred, was in "poor condition, including pavement irregularities and potholes," and that this "poor roadway condition" was a significant contributing factor to the accident. After Schorr passed away, his engineering firm submitted a report prepared by Robert Lynch, a licensed professional engineer, who also concluded that the "poor condition" of Oak Ridge Road approaching the curve "presented difficulties" for plaintiff as he approached and navigated the curve. He opined that the potholes caused plaintiff to lose control of the motorcycle and that the "poor roadway conditions" were a significant contributory factor to the accident.

We reject the County's arguments that it was immune from liability under N.J.S.A. 59:2-3(d) and that its conduct was not palpably unreasonable under N.J.S.A. 59:4-2. Here, N.J.S.A. 59:2-3(d) does not apply because the County did not engage in high-level policy-making discretionary decisions; rather, the County made operational decisions. And under N.J.S.A. 59:4-2, a jury was required to resolve whether the County's repeated unsuccessful road work was palpably unreasonable.

A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity. N.J.S.A. 59:2-3(a). Specifically, a public entity is

not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a [judge] concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT