On appeal from the Superior Court of New Jersey, Law Division, Union County, L-1161-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and R. B. Coleman.
Plaintiff Benedict Onugha appeals from the dismissal of his complaint on an oral motion made at the start of trial. His complaint arose out of an incident on March 30, 2002, when Onugha, a pedestrian, was struck and injured by a vehicle allegedly owned by defendant Jose Morales and operated by defendant Maria Ramirez-Reyes DeAntigua, an unlicensed driver.
The accident report prepared by the police identified DeAntigua as the driver and noted that she was unlicensed. The addresses listed for her and for Morales were the same, but neither defendant could be found at that address.
Plaintiff filed a complaint against defendant Morales alone on the two-year anniversary of the incident, March 30, 2004. The complaint alleged that Morales was the owner and operator of the vehicle and sought damages for bodily injuries arising out of the motor vehicle accident. On September 7, 2004, an answer was filed on behalf of Morales. Although plaintiff was granted leave to file an amended complaint to add DeAntigua, he never actually filed an amended complaint, and no pleading was ever served on DeAntigua.*fn1 She was never located.
The case was assigned for trial on June 5, 2006, at which time defendant Morales orally moved to dismiss the complaint. Defendant's motion was granted and the complaint was dismissed.
On appeal, plaintiff argues that: (1) defendant Morales, as the owner of the vehicle, owed plaintiff a duty as one who was injured as a direct result and consequence of the operation of his vehicle by an unlicensed driver; and (2) the claim of negligent supervision contained in the plaintiff's complaint sufficiently stated an actionable claim against defendant Morales. After carefully considering plaintiff's arguments in light of the facts and the applicable law, we affirm the dismissal of plaintiff's complaint.
Motions to dismiss for failure to state a claim are granted only in rare instances. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771-72 (1989). However, if the complaint states no basis for relief and discovery would not provide one, dismissal of the complaint is appropriate. Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2 (2007); Camden County Energy Recovery Assocs. v. Dept of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd o.b., 170 N.J. 246 (2001); Holmin v. TRW, Inc., 330 N.J. Super. 30, 32 (App. Div.), aff'd o.b., 167 N.J. 205 (2001); Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005); Gross v. TJH Auto. Co., 380 N.J. Super. 176, 184 (App. Div. 2005). We review such a motion by the same standard applied by the trial court; thus, considering and accepting as true the facts alleged in the complaint, we determine whether they set forth a claim upon which relief can be granted. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). Here, plaintiff failed to state a claim for either negligence or negligent supervision.
Plaintiff argues that Morales is liable for the driver's negligence. Yet, the complaint, which was never actually amended, does not allege that the driver was operating the vehicle as an employee, servant or agent of Morales in order to create a basis for liability. Neither does the complaint allege negligent entrustment. The facts and circumstances viewed most favorably from plaintiff's perspective would establish only that Morales owned the vehicle and did not report it stolen or missing.
Plaintiff's unpleaded claim for negligent supervision, though treated indulgently, would fail, because the only evidence of negligent supervision in this matter was the notation in the police report that the driver was unlicensed. There is no evidence that Morales entrusted the car to DeAntigua or knew that DeAntigua was unlicensed. Even if Morales did allow DeAntigua to use his car, that alone is not negligent entrustment. Moreover, contrary to plaintiff's assertion, the statute on which plaintiff relies, N.J.S.A. 39:3-37.1b, does not provide for per se negligence.*fn2 Rather, the statute, adopted in 2003, subjects the owner to a fine of not less than $200 or more than $500, imprisonment for not more than fifteen days or both. N.J.S.A. 39:3-37.1c. However, where there is no evidence from which agency could be inferred, there is no basis to hold the owner vicariously liable. Harvey v. Craw, 110 N.J. Super. 68, 73 (App. Div.), certif. denied, 56 N.J. 479 (1970).
The absence of any evidence tending to show that DeAntigua was an agent of Morales or that he allowed her to drive his car, knowing that she had no license, demonstrates that there was nothing for the jury to decide. We agree with the motion judge that the complaint simply failed to state a cause for action.
R. 4:6-2, and plaintiff was not in a position on the date of trial to establish a prima ...