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Torre v. DCH Investments

December 17, 2007

CAROL TORRE, PLAINTIFF-APPELLANT,
v.
DCH INVESTMENTS, INC., KAY MOTORS/DCH MOTORS, INC., INDIVIDUALLY AND TRADING AS KAY HONDA, AND COWBAY SPRINKLER CORP., D/B/A COWBAY CONTRACTING, DEFENDANTS-RESPONDENTS,
AND LAM ASSOCIATES, LLC, THOMAS SANTRY, P.E., T&M ENGINEERING, RICHARD SCHULZ, P.E., ALL-PRO CONTRACTING, LLC, AND PAUL SPADACCENE, DEFENDANTS,
AND DCH INVESTMENTS, INC., AND KAY MOTORS/ DCH MOTORS, INC., INDIVIDUALLY AND TRADING AS KAY HONDA, THIRD-PARTY PLAINTIFFS,
v.
COWBAY SPRINKLER CORP., D/B/A COWBAY CONTRACTING, LAM AND ASSOCIATES, INC., THIRD-PARTY DEFENDANTS,
AND BOROUGH OF EATONTOWN AND DAVE WROBLEWSKI, THIRD-PARTY DEFENDANTS/RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1885-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 28, 2007

Before Judges Lisa and Lihotz.

Plaintiff, Carol Torre, appeals from the trial court's December 15, 2006 order denying her motion to reconsider a prior order denying her motion for leave to file a tort claim notice against the Borough of Eatontown and its construction officer, Dave Wroblewski (defendants), for their alleged role in the design of a stepped walkway on a privately-owned commercial establishment where plaintiff allegedly slipped and fell and was injured in November 2004. Plaintiff argues that she did not know and could not be reasonably charged with knowledge of the actions of the public entity and public employee until she discovered their involvement in May 2006. Within ninety days, on June 12, 2006, she filed her application to permit the late filing of a tort claim notice. Thus, plaintiff argues on appeal that the trial judge erred in failing to recognize and apply the discovery rule. We disagree with plaintiff and affirm.

Plaintiff alleges she fell on November 17, 2004 while ascending the outside concrete stepped walkway of the Kay Honda car dealership in Eatontown. The stepped area had no handrails. Prior to this date, a renovation project was performed at the dealership, which included the installation of the stepped walkway.

On April 27, 2005, plaintiff filed the initial complaint against the owner of the property, DCH Investments, Inc., and the car dealership, Kay Motors/DCH Motors, Inc. She named fictitious parties as responsible for the design and construction of the renovation, alleging that they failed to conform with applicable standards, codes and regulations, resulting in an unsafe condition that proximately caused her fall. The answer filed by defendants included a third-party complaint identifying Lam & Associates, Inc. as the architect responsible for the design and Cowbay Contracting, Inc. as the party performing the construction. Plaintiff promptly filed an amended complaint adding those parties as defendants.

Discovery progressed. The parties exchanged answers to interrogatories. Plaintiff received records from the Eatontown Building Department pursuant to subpoena. On November 21, 2005, the parties deposed Dave Wroblewski, the former construction official of Eatontown.*fn1 On January 10, 2006, plaintiff filed an affidavit of merit issued by a licensed engineer, William Poznak. Poznak concluded that the stairway violated various building codes and posed a hazard to patrons. The affidavit claimed that the care exercised by other individuals and entities, not relevant to this appeal, fell below the acknowledged professional standard.

Lam & Associates moved for summary judgment, contending that it adhered to the requisite standard of care and that no affidavit of merit was provided as to it. The motion was granted on March 3, 2006. Plaintiff's new counsel filed a third amended complaint on March 14, 2006, adding the names of the parties mentioned in Poznak's affidavit.

On May 3, 2006, the parties deposed Lawrence Lam. He believed the municipality engaged one of the newly named defendants, T&M Engineering, to consult on the ultimate approval of the construction project. The original design provided by Lam consisted of a ramped walkway. Lam denied that he was responsible for changing the plan to a stepped walkway. He did not know who designed the stepped walkway, but he had "thoughts" on the subject. Based on visits to the site and conversations with the builder, he believed Wroblewski may have designed the stairway. He believed Wroblewski took a high level of interest in the project and played an "active" role in it. Lam said Wroblewski objected to the use of a smooth, continuous surface sidewalk to enter the showroom and directed Lam to submit as-built plans showing a series of steps in order to secure a certificate of occupancy. Lam believed handrails would be installed and originally drew the as-built plans to reflect their presence. However, Wroblewski modified the plans and directed that the addition of handrails was unnecessary.

According to Lam, Wroblewski drove "this particular piece of the project," because he "wanted this entrance a certain way." Lam did not challenge Wroblewski because there was no building code provision requiring the extra handrails. He could not recall any specific conversations with Wroblewski about the modifications. He added that Wroblewski was "the final authority for built structures in this township."

After this deposition, plaintiff submitted on June 12, 2006 an application for an order to permit her to file a late tort claim notice. In support of the motion, plaintiff's counsel certified that "[b]efore the deposition of Mr. Lam, there was no suggestion by any person or entity that the Borough of Eatontown caused or contributed to plaintiff's injury. For that reason, plaintiff, Carol Torre, could not and should not have had any basis to file a claim against the Borough of Eatontown, David Wroblewski, or Wallace Englehart, of the Eatontown Building Department."*fn2 Counsel further certified that plaintiff did not know the notice requirement existed: "Plaintiff's delay in filing such Notice of Claim was not a result of procrastination or ambivalence but merely lack of knowledge of the statute."

In response to the motion, defendants urged that plaintiff's cause of action accrued on the date she fell or, alternatively, she should have discovered the possible claim against the public entity defendants no later than Wroblewski's November 21, 2005 deposition. Thus, the proposed notice of claim fell outside the ninety-day deadline and required a showing of extraordinary circumstances and lack of prejudice to be allowed.

On July 13, 2006, the judge denied plaintiff's motion. Referring to Wroblewski's deposition testimony, he concluded that "a fair reading of those questions and answers indicates a degree of unsureness by [Lam] of [Wroblewski's] knowledge regarding the handrails at the dealership." He also noted the argument that plaintiff should have known of the municipality's potential fault as early as January ...


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