Potomac Aviation LLC v. Port Auth. Of N.Y. And N.J.

• Citation: 994 A.2d 536,413 N.J.Super. 212
• Parties: POTOMAC AVIATION, LLC, Plaintiff-Appellant,v.PORT AUTHORITY OF NEW YORK AND NEW JERSEY, First Aviation Services and Robert De Stefano, Defendants-Respondents,andAlejandra Benavides, Marcial Benavides and Violeta Benavides, Defendants.
• Decision Date: 05 May 2010
• Court: Superior Court of New Jersey

413 N.J.Super. 212

994 A.2d 536

POTOMAC AVIATION, LLC, Plaintiff-Appellant,v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, First Aviation Services and Robert De Stefano, Defendants-Respondents,andAlejandra Benavides, Marcial Benavides and Violeta Benavides, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Feb. 9, 2010.

Decided May 5, 2010.

COPYRIGHT MATERIAL OMITTED

Dennis S. Deutsch, Fort Lee, argued the cause for appellant (Kaufman, Bern, Deutsch & Leibman, LLP, attorneys; Mr. Deutsch, on the brief).

Brian M. Murphy, Montvale, argued the cause for respondent Port Authority of New York and New Jersey.

Steven H. Kaplan, New York, NY (Jones Hirsch Connors & Bull) argued the cause for respondents First Aviation Services, Inc. and Robert De Stefano.

Before Judges GRALL, MESSANO and LeWINN.

The opinion of the court was delivered by

MESSANO, J.A.D.

Plaintiff Potomac Aviation, LLC appeals from the grant of summary judgment to defendants the Port Authority of New York and New Jersey (“the Port Authority”), First Aviation Services (“FAS”), and Robert De Stefano (collectively “defendants”), and the subsequent denial of its motion for reconsideration. We have considered the arguments plaintiff raises in light of the record and applicable legal standards. We affirm.

I.

At approximately 4:20 a.m. on January 12, 2006, while driving a car owned by defendants Marcial and Violeta Benavides, defendant Alejandra Benavides fell asleep at the wheel. The vehicle jumped the curb of Industrial Avenue, which runs along the perimeter of Teterboro Airport, plowed through a chain link fence, and struck plaintiff's airplane that was parked on the tarmac, causing significant damage. On January 10, 2007, plaintiff filed its complaint alleging that FAS and its employee De Stefano directed plaintiff “to park ... [its] [a]ircraft at a specific location ... [that] was unsafe.” Plaintiff alleged that the Port Authority, which owned and operated the airport, “breached [a] duty of care by negligently selecting a fence which failed to protect [the] aircraft....” ¹

After discovery, defendants moved for summary judgment. The motion record revealed that FAS functioned as a “fixed base operator” at the airport and leased its facility from the Port Authority. Among other services, FAS provided parking and hangar facilities for various aircraft, including plaintiff's. When FAS commenced its lease in 1986, it agreed to replace the existing, deteriorated chain link fence with a new one along the Industrial Avenue perimeter of its leasehold; this new fence was still in place on the date of the accident. While the Port Authority was responsible for fencing in the common areas of the airport, it was the responsibility of the individual lessees, like FAS, to maintain the fencing along the perimeter of their leased premises.

The portion of Industrial Avenue along the perimeter of FAS's facility is a straight road without any driveways, ingress or egress points. It is a two-lane county road, approximately thirty-five feet wide, with a posted speed limit of twenty-five miles per hour. There are no guide rails along this section of Industrial Avenue, including that section adjacent to a public bus stop that is across the roadway from the airport.

On the morning of the accident, De Stefano, a ground service manager for FAS, was summoned to the airport after receiving a phone call “[t]hat a vehicle had come through the fence and hit an aircraft....” De Stefano observed Benavides's black SUV “roughly under the right wing of the aircraft....” He estimated the aircraft was parked approximately seventy-five feet from Industrial Avenue.

Plaintiff's expert Christopher P. Statile, P.E., prepared a report. He noted that FAS's property was enclosed with a cyclone fence, but “[o]ther portions of the airport [we]re enclosed by steel picket fencing connected to tubular steel posts” designed to deter trespassing. However, Statile also observed that the perimeter fencing nearest the Port Authority's offices at the airport was “protected by steel beam guide rail.” Statile opined that in order “[t]o prevent errant motor vehicles from trespassing into the aircraft taxiways and parking areas, a typical beam guide rail system ... [wa]s appropriate,” and such a design would have prevented the collision in this case.

Statile cited as support for his opinion, section 8.02.4 of the New Jersey Department of Transportation's (the “D.O.T.”) “Roadway Design Manual.” That section provided “where fixed objects are found such as wood poles or posts with greater than a 50 square inch cross section[,]” guide rail protection should be used. Noting the presence of telephone and lighting poles along Industrial Avenue, Statile opined that guide rails should have been in place.

However, Section 8.02.4(2)(b) of the design manual also stated the following:

Although utility poles have a cross-sectional area greater than 50 square inches (8 inches diameter), they should not be handled the same as other warranting obstructions. It is questionable whether a safer roadside would result from installing guide rail for the sole purpose of shielding utility poles within the clear zone.

The design manual further provided that “guide rail should not be installed indiscriminately. Every effort should be made to eliminate the obstruction for which the guide rail is being considered.”

In his report, defendants' liability expert, Thomas H. Chastain, P.E., noted that the federal Traffic Safety Administration (the “TSA”) issued security guidelines for all general aviation airports like Teterboro. The TSA's Security Guidelines for General Aviation Airports, Information Publication A-001 (May 2004) (SG for GAA) provides,

Security fencing is the most common means of securing a perimeter. Fencing can vary in design, heights, and type depending on local security needs. Typically, fences are low-maintenance, provide clear visibility for security patrols, and are available in varieties that can be installed in almost any environment....

Fencing can vary in design and function depending on the facility. Such barriers can range from chain link fencing topped with barbed wire ... to a simple split rail fence designed to alert individuals to the presence of the airport operations area.

The guidelines suggested that a “clear zone” of ten to thirty feet be maintained between the fence and any aircraft.

The TSA's Recommended Security Guidelines for Airport Planning, Design and Construction (June 2006) (RSG for APDC) provides,

Chain link fencing is a common type of fencing and is often the most cost-effective solution when deterrence, as opposed to prevention of forced entry, is the primary security objective....

Noting these guidelines, and those contained in the D.O.T.'s design manual, Chastain opined that no guide rail was necessary along the Industrial Avenue perimeter of the FAS site.

Oral argument on defendants' summary judgment motion was held on November 21, 2008, during which FAS stipulated that it was the bailee of plaintiff's aircraft.² In a short written opinion that accompanied the separate orders granting defendants' motions, the judge concluded “that [d]efendants h [ad] rebutted the presumption of negligence created by the bailment ... with evidence that it [sic] did not breach its [sic] duty of care with respect to [p]laintiff's aircraft.” The judge further concluded that the accident was unforeseeable and, therefore, “[d]efendants [we]re not required to exercise such diligent care to protect from even [sic] unforeseeable risk.”

On December 10, 2008, plaintiff moved for reconsideration. It argued that the judge had overlooked deposition testimony indicating that a car had breached the airport fencing along Charles Lindbergh Drive, another perimeter road, prior to the accident in question. Plaintiff contended that this demonstrated the instant accident was foreseeable. The judge denied the motion by order dated January 29, 2009. Plaintiff filed its appeal on March 2, 2009.

II.

Plaintiff contends that since defendants were bailees of the plane, their negligence was presumed, and whether defendants rebutted that presumption remained a factual question for the jury to determine. Plaintiff also argues that in light of the prior accident on Lindbergh Drive, the question of foreseeability was a disputed material fact to be resolved by the jury, and, therefore, summary judgment was inappropriate.

Defendants argue that any appeal of the grant of summary judgment is untimely, and that our review should be limited to only the order denying plaintiff's motion for reconsideration. FAS further contends that under all the circumstances presented, it rebutted any presumption of negligence, and that summary judgment was appropriate. The Port Authority argues that “no rational factfinder could ... reasonably conclude that” it was negligent under the circumstances. Defendants also argue that Statile's opinion was a “net” opinion and should not be considered as competent evidence.

Plaintiff did not file its appeal within forty-five days of the November 21, 2008 order granting defendants summary judgment, as required by Rule 2:4-1(a). Although the time to file the appeal was tolled by the filing of a motion for reconsideration see Rule 2:4-3(e), the forty-five day clock did not start anew from the date that motion was denied. Instead, plaintiff's last day to serve and file its notice of appeal was February 24, 2009; the appeal was not filed until March 2, 2009. Therefore, only plaintiff's appeal from the denial of its reconsideration motion is timely.

We have, in the past, exercised our discretion sua sponte to provide relief from strict compliance with the time frames contained in our Rules, particularly when it is necessary to resolve all issues presented by the parties. See Pressler Current N.J. Court Rules, comment 3 on R. 2:4-4 (2010) (citing Panetta v. Equity One, Inc., 378 N.J.Super. 298, 309, 875 A.2d 991 (App....