On appeal from Superior Court, Law Division, Essex County.
Michels, Muir, Jr. and Keefe. The opinion of the court was delivered by Keefe, J.s.c. (temporarily assigned).
[233 NJSuper Page 158] This case arises out of a motorcycle accident which occurred at the intersection of Eagle Rock Avenue and Mountain Avenue in West Orange. Plaintiff, Louis DeBonis, the operator of the motorcycle, sustained personal injuries. He contends that a contributing factor to the accident was the presence of a large number of small stones at, or near, the intersection and alleges that the stones came from trucks leaving defendant Orange Quarry Company (Orange Quarry). Consequently, plaintiff asserts that Orange Quarry and H.B. Mellott Estates, Inc. (Mellott), the company that allegedly crushed and helped load the stones, deviated from a standard of care applicable to them pursuant to N.J.S.A. 39:4-77 or, in the alternative, breached a
common law duty of care. Plaintiff further alleges that defendant Essex County (Essex), the owner of the roadway, was liable under N.J.S.A. 59:4-2 because a dangerous condition existed at the intersection, of which Essex had notice. Finally, plaintiff contends that defendant Township of West Orange (West Orange), although not the owner of the roadway, had notice of the condition and, thus, had a duty to take immediate and temporary action until Essex could act.*fn1
After extensive discovery was taken, all defendants moved for summary judgment. The motions were granted as to all defendants. Plaintiff appeals the orders for summary judgment entered on behalf of Essex, Orange Quarry, Mellott and West Orange.*fn2
Summary judgments must be granted 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. All inferences or doubts are to be drawn against the movant and in favor of the opponent of the motion. Judson v. Peoples Bank & Trust Co., of Westfield, 17 N.J. 67, 75 (1954). A motion for summary judgment concedes, for the purposes of the motion, the truth of the plaintiff's evidence. Betancourt v. Gaylor, 136 N.J. Super. 69, 72 (Law.Div.1975). In reviewing whether the trial judge was correct in granting summary judgment, the appellate court's inquiry is whether there was a genuine issue of material fact and, if not, whether the motion judge's ruling on the law was correct. Vallillo v. Muskin Corp., 218 N.J. Super. 472, 474-475 (App.Div.1987),
certif. den. 109 N.J. 496 (1987). Considered in a light most favorable to the plaintiff, we now set forth the relevant evidence in the record before us.
On September 7, 1984, shortly before 3:45 p.m., plaintiff left his place of employment on Washington Street, West Orange, operating a motorcycle owned by a friend. He proceeded west on Eagle Rock Avenue followed by another friend who was 20 to 25 feet behind him. Plaintiff and his friend passed an automobile driven by Raymond Carlucci, who stated that the two motorcyclists were "going slow" as they passed him on the right. The approach to the intersection with Mountain Avenue constitutes an "S" curve. First there is a curve to the right, then there is a curve to the left. Plaintiff stated that he knew about the curve and that his speed was about 35 miles per hour as he approached the first curve, and the same speed as he went into the left curve. The speed limit at the location is 40 miles per hour.
Plaintiff said that, as he was going into the left curve, the car 20 feet in front of him moved slightly into his lane. In reaction, plaintiff moved two feet to his right and reduced his speed. Plaintiff then felt gravel and stones under his front wheel which started shaking and his back wheel began to skid. The motorcycle apparently hit the curb propelling plaintiff into a street sign. Plaintiff's account was substantially confirmed by Carlucci. Plaintiff's friend, who was following him, also confirmed plaintiff's account. He stated that there were large patches of stones in the vicinity of Mountain Avenue.
Samuel DeBonis, plaintiff's brother, arrived at the scene a few minutes later and observed "1000" or more stones. West Orange officer James Laing noticed "small" stones of the type excavated at Orange Quarry. He said the stones were scattered across the entire width of Washington Avenue in a configuration "like a path maybe a foot wide." The path followed the imaginary curb line of Eagle Rock Avenue as it crossed the intersection. Laing said he had observed stones
fall from trucks on Eagle Rock Avenue on prior occasions and had given out five or six summons as a result. He said he had also observed trucks on prior occasions exiting the Quarry with stones mounded over the sidewalls or rear gates. Laing further testified that some amount of stones or rocks were always present. However, when he "deemed it to be a situation that was unsafe . . ." some notification was given to Orange Quarry.
A number of individuals, not directly involved in the accident but familiar with the condition of the intersection, were either deposed or gave statements. Ruth Stefel said that she was on Eagle Rock Avenue at 10:30 a.m. on the date of the accident and observed "the grey gravel rocks but large ones. There's always some on the road but that day they were very bad." She recalled that the stones were on the road "for a quarter of a mile in either direction. It was loaded with stones like there had been a big spill. . . ." She observed such a spill on the road "once every six months." Marie Gordon also drove through the intersection on the morning of the accident at about 8:15 to 8:30 a.m. and said that there appeared to be more than the usual amount of stones on the road. She said the wheels on her car "kind of shimmied" when she rode over them. Similar testimony was given by Judith Gibbons and Martin Tobia. Anthony Barbara and Robert Shiel testified that they saw employees of the quarry sweeping rocks and stones from the street on various occasions.
Robert Turlington, Director of the Essex County Division of Road and Bridges, testified that Eagle Rock Avenue is a county road for its entire length, and that he received five or six complaints from people about rocks and gravel on the road, including the intersection in question. The complaints were prior to the accident, but he could not recall the exact dates. The West Orange police had also called, prior to the date of the accident, reporting the spillage of stone and gravel on the road. When the county was notified, perhaps at a minimum of once a month, it swept Eagle Rock Avenue.
Robert Pozzi, vice president of Orange Quarry, stated that the loading of vehicles at the quarry was done by employees of Orange Quarry and H. B. Mellott. H. B. Mellott was the contractor and did the manufacturing, i.e., blasting the rock from the cliffs. After the rocks were reduced in size, the finished product went into a hopper. There were two ways of loading the trucks; from the hopper, which was done by H. B. Mellott employees, and from the stock pile, which was done by both Orange Quarry and H. B. Mellott employees. The truckers were not permitted to do any of the loading. Pozzi said a cover for the trucks was required only if the load was above the body of the truck. Orange Quarry had a sign at the exit which said, "NO STONE SPILLING," or words to that effect. He had men sweep rocks "almost every day" from in front of the entrance way. Pozzi further stated that he received complaints from the police at the rate of once a month about spilling and "maybe once a year" from the public.
Plaintiff's engineering expert, John Lacz, submitted a report which concluded that the accident was caused by the stones on the road, the failure to clear the stones from the road and poor maintenance of the pavement by the county and the township. He stated that the stones served as "small roller bearings" which would cause a cyclist to lose traction. When deposed, Lacz was asked whether Essex County utilized reasonable measures to maintain the roadway. Lacz replied that he didn't have enough information to make that judgment.
LIABILITY AS TO ORANGE QUARRY AND H. B. MELLOTT
Plaintiff argues that Orange Quarry and Mellott deviated from the standard of care applicable to them by N.J.S.A. 39:4-77, and that such deviation was the proximate cause of his injuries. The trial judge held that the statute does not apply. We agree.
N.J.S.A. 39:4-77 provides:
No person shall cause or permit a vehicle to be loaded or operate a vehicle so loaded that the contents or any part thereof may be scattered in any street. Whenever the load of any vehicle is of material other than farm products susceptible to scattering on a street and such load extends above the height of the sides or tailgate or rear of the body of the vehicle, such load shall be securely covered by a tarpaulin or other cover. The director, where public safety so warrants, shall, after a public hearing, prescribe by rule or regulation minimum safety standards for fastening loads on and fix loading procedures for any commercial type flat bed motor vehicle or motor-drawn vehicle. Any ...