On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-8762-04.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Gilroy and Baxter.
Defendant Hapag-Lloyd AG (H-L) appeals from a trial court order dated September 16, 2005, applying New York law to defendant's potential liability in this personal injury case; an order dated September 28, 2006, entering judgment on a jury verdict in favor of plaintiffs Paul Dolan and his wife Kathleen Dolan; and an October 18, 2006 order denying defendant's motion for a new trial. We affirm.
This case concerns a January 2, 2004 accident which occurred on Route 46 in Palisades Park, New Jersey, between a car driven by plaintiff Paul Dolan (Dolan) and a container that fell off a tractor-trailer. The tractor-trailer (truck) was composed of a chassis and an intermodal container belonging to H-L, an ocean carrier, and a cab belonging to Sea Transfer Corp., a motor carrier.*fn1 The Sea Transfer truck was transporting H-L's cargo from the Howland Hook terminal in Staten Island to H-L's customer in the Bronx.
The most direct delivery route would have been to drive entirely through New York. However, at the direction of his employer Sea Transfer, the driver Jose Gonzalez drove a portion of the trip through New Jersey in order to avoid New York City traffic. His prescribed route involved taking the Goethals Bridge to the New Jersey Turnpike, to Route 46, to the George Washington Bridge.*fn2
In granting a motion for summary judgment on the issue of the driver's negligence, the trial judge concluded that the accident occurred because Gonzalez failed to properly secure the container to the truck chassis before he left the Staten Island terminal. Instead, knowing that the two front locking pins on the chassis were not properly inserted in the container, Gonzalez chose to drive the truck anyway, skipping the optional "roadability" inspection on his way out of the terminal.
Roadability inspections are done to "ensure that the unit is roadworthy to be taken out on public streets."
As he was driving east on Route 46, a divided highway with two lanes in each direction, Gonzalez moved his truck so that it occupied both northbound lanes, to anticipate the possibility of drivers merging onto Route 46 from the side. According to the judge's written opinion, Gonzalez "proceeded around a curve in the road, and as he started to move back into the right lane, the container became dislodged from the chassis and fell over the divider into the Westbound lane of traffic of Route 46."*fn3 In addition, the chassis itself separated from the truck cab and slid over the divider.
Dolan, a plumber employed by the City University of New York (CCNY) at 138th Street in Manhattan, was on his way home from work.*fn4 He followed his usual route across the George Washington Bridge into New Jersey, and then onto Route 46, heading for the New Jersey Turnpike. However, as Dolan's minivan was proceeding westbound on Route 46, it collided head-on with the container that had fallen off Gonzalez's truck. The front of Dolan's vehicle was virtually destroyed. The investigating officer on the scene testified that he had "never seen damage like that to a vehicle and somebody surviving." Dolan sustained massive injuries which, according to his expert witnesses, resulted in his total disability.
Plaintiffs first filed suit in New York. However, the New York judge dismissed the action solely on forum non conveniens grounds. The judge declined to decide whether New York or New Jersey law would apply to the underlying controversy, and in fact noted that "any New Jersey Court may apply New York law where warranted."
In granting plaintiffs' motion to apply New York law to the issue of H-L's liability, the New Jersey trial judge reasoned that the negligent act which was at the root of the accident occurred in New York, when Gonzalez, a New York resident and employee, operating a truck based in New York, failed to properly attach the container to the chassis. That the accident occurred in New Jersey was a fortuitous circumstance. ("Everything that occurred here occurred in New York but the happening of the accident itself.")
The jury returned the following verdict for Paul Dolan: $8 million for pain and suffering, $150,000 for past medical expenses, $138,000 for past lost wages, and $914,000 for future lost wages. The jury awarded Kathleen Dolan $2 million for loss of consortium.
In ruling on defendant's motion for a new trial, the judge reasoned that the verdict was not a miscarriage of justice. "The injuries which this gentleman suffered were unimaginable. . . . [T]he medical testimony was overwhelming that this gentleman, but for the grace of God, probably should be dead and not alive. There wasn't any doubt in my mind, and obviously there was no doubt in the jury's mind that this gentleman is totally disabled, and that he is going to suffer because of these enormous injuries for the rest of his life."
The case presents two issues. The first is the applicability, under choice-of-law principles, of New York law, which imposes vicarious liability on the owner of a motor vehicle for the negligence of a permissive user of the vehicle.
See N.Y. Vehicle and Traffic Law § 388(1).*fn5 There is no issue in this case that in New York, an entity such as H-L that requires a driver to use its chassis and other motor vehicle equipment is subject to § 388. At oral argument, defendant's counsel agreed that if this accident had occurred in New York (i.e., if it were an undisputed "New York accident"), H-L would be vicariously liable for the negligence of the driver. New Jersey law, on the other hand, does not impose liability on the owner of a motor vehicle for the negligence of a permissive user who is not the owner's agent. See Fu v. Fu, 160 N.J. 108, 118 (1999).
The second issue is whether the trial judge should have granted H-L a new trial based on an improper comment by plaintiffs' counsel about H-L's "negligence," and certain inappropriate references to specific amounts of money ...