February 28, 2008
EMERSON VIANA AND ELKA SANCHEZ VIANA, HIS WIFE, PLAINTIFFS-APPELLANTS,
TOWNSHIP OF BLOOMFIELD, DEFENDANT-RESPONDENT, AND COUNTY OF ESSEX, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7598-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 4, 2008
Before Judges Stern and C.S. Fisher.
Plaintiff and his wife filed a complaint in which it is claimed, among other things, that defendant Township of Bloomfield was negligent in placing a tree planter on a sidewalk, which interfered with his line of sight when struck by a vehicle while crossing that street. After carefully reviewing the record in light of the arguments raised, we reverse in part the summary judgment entered in favor of Bloomfield.
Plaintiff claims he was crossing Dodd Street in Bloomfield at approximately 1:00 a.m. on September 12, 2003, when, as he reached the middle of the roadway, he saw an oncoming vehicle, attempted to turn back, and was struck by the vehicle at or near the roadway's center line. The vehicle stopped, and the driver stepped out, but then quickly re-entered the vehicle and drove off. The impact caused severe injuries and resulted in the amputation of plaintiff's left leg.
Plaintiff originally asserted Bloomfield's negligence with regard to the design of the area, where multiple roads intersect, and with regard to the maintenance of a pedestrian signaling device, which allegedly was not operating at the time of the accident. Later, plaintiff claimed that a planter blocked or hampered his line of sight toward the path traversed by the vehicle that struck him.
Bloomfield moved for summary judgment, arguing that the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, immunized it from the various theories of liability asserted by plaintiff. Bloomfield also argued that notwithstanding these purported tort claim defenses, the location of the planter could have had no effect on plaintiff's line of sight and, therefore, did not constitute a proximate cause of the accident.
The trial judge granted Bloomfield's motion for summary judgment. She first determined that plaintiff's negligent design allegation was without merit because Bloomfield did not design the intersection. In addition, the judge found that even if the pedestrian signaling device was inoperable at the time of the accident, there was no evidence to suggest that Bloomfield was actually aware or had constructive knowledge that it was not then operating. Plaintiff does not now contest these determinations.
The judge also found that it was unnecessary to consider the impact of the Tort Claims Act on the allegation that the planter was negligently placed. Instead, the judge examined the photographs of the intersection, the expert reports, and plaintiff's sworn statements as to how the accident occurred, and concluded that the planter could not have interfered with plaintiff's ability to see oncoming traffic. Plaintiff later unsuccessfully moved for reconsideration.
In his notice of appeal, plaintiff expressly requested our review of the order of June 23, 2006, which granted Bloomfield's motion for summary judgment, and the order of August 4, 2006, which denied plaintiff's motion for reconsideration. In his brief on the merits, plaintiff has also argued that the trial judge abused her discretion by permitting further discovery --by way of orders entered on April 12, 2006 and June 9, 2006 --after the discovery end date. We find no merit in plaintiff's arguments regarding these discovery orders, but we reverse in part the summary judgment and remand for further proceedings.
We first consider plaintiff's arguments regarding the discovery orders. Bloomfield contends that they are not subject to review because plaintiff failed to reference them in his notice of appeal as required by R. 2:5-1(f)(3)(A). Although there is merit to this procedural argument, see, e.g., Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994), we need not give it further thought because we find no merit in plaintiff's claim that the judge abused her discretion in entering these orders.
We briefly outline the circumstances that led up to the discovery orders in question. We first observe that the complaint alleged that Bloomfield was negligent with respect to the overall design of the intersection and the maintenance of a pedestrian signaling device. Neither the original complaint filed on September 23, 2004, nor the amended complaint filed on March 14, 2005 asserted that a planter further down the sidewalk from where plaintiff crossed the street barred or impeded his view of oncoming traffic from that direction.
Plaintiff's liability expert provided a report during the discovery period that referred to the planter, but he did not conclude that the particular placement of the planter was negligent and he did not clearly opine that the planter played a role in the happening of the accident.*fn1 Plaintiff also did not indicate in his answers to interrogatories that the planter had blocked or impeded his view as he attempted to cross the street; indeed, these answers contained no mention of the planter.*fn2
In seeking discovery and the right to serve and rely upon an expert report after the discovery end date, Bloomfield's counsel certified that he and plaintiff's counsel met at the intersection before the period of discovery had concluded in order to clarify how the accident was alleged to have occurred. At that time, plaintiff's counsel indicated that an amended expert report would be provided regarding the planter and its involvement in the occurrence. It was also then agreed, according to Bloomfield's attorney, that Bloomfield would wait to serve its expert report until receipt of plaintiff's amended report. No one applied to the trial court for an extension of the discovery end date, nor did either party seek to preclude these future discovery exchanges.
Plaintiff was apparently then residing or spending considerable amounts of time in Brazil. As a result, his deposition did not occur until the day of the arbitration. At that time, the completion of discovery was again discussed. Plaintiff's counsel indicated that he would provide an updated expert report, and Bloomfield's counsel again indicated he would submit a responding report once the amendment was received. The parties also discussed the exchange of other information, including color photographs of the area and copies of a manual regarding traffic control devices that plaintiff's expert had relied upon in his earlier report. Again, no one then applied to the trial court for an extension of the discovery end date or for an order barring these additional steps in discovery.
Plaintiff finally submitted his amended liability expert report on March 13, 2006, well after both the discovery end date and the arbitration, and less than one month before the scheduled trial date. At that point, plaintiff's counsel indicated he would not consent to Bloomfield's submission of a responding expert report, causing Bloomfield to file a motion, which outlined these circumstances.*fn3
We need not burden the record further with the parties' skirmishes about these matters and the impact of the discovery end date. The trial judge permitted Bloomfield's late expert report, and allowed for the exchange of additional discovery, by way of the discovery orders in question. Despite having also served an amended expert report beyond the discovery end date, plaintiff now argues that Bloomfield should not have been permitted to respond to plaintiff's late expert report with its own late expert report. We do not find an abuse of the judge's discretion in the rejection of this contention.
Indeed, although we do not suggest that discovery may be unilaterally extended by the mere consent of counsel, simple fairness required the approach taken by the trial judge in this particular case. Certainly, it would not have been fair to permit plaintiff to provide an amended expert report beyond the discovery end date without permitting Bloomfield an opportunity to respond. See, e.g., Ponden v. Ponden, 374 N.J. Super. 1, 12 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). As a result, in these circumstances, fairness suggested only two potential courses of action -- the judge could have either barred all the discovery and expert reports exchanged after the discovery date, including plaintiff's late amendment to his liability expert's report, which asserts the very point now in issue, or the judge could have permitted all the late submissions. Had the judge chosen the former, which was well within her discretion, plaintiff's planter theory would not have been sufficiently supported and could not have defeated Bloomfield's summary judgment motion; in choosing the latter, the judge soundly opted for an approach that fostered the overarching goal of our rules of procedure: the presentation and resolution of disputes on their merits and not on procedural niceties. Id. at 11. In short, the same rationale for our review of the discovery orders that went unmentioned in plaintiff's notice of appeal -- fundamental fairness and simple justice -- undergird the judge's resolution of those discovery motions. We have no cause to second guess the judge's discretionary ruling regarding Bloomfield's liability expert report or in permitting the other discovery sought at that time.
In seeking summary judgment, Bloomfield argued that it was entitled to tort claim immunity with regard to its placement of the planter in question,*fn4 and, also, that the planter's location was not a proximate cause of the accident. The trial judge did not reach the first aspect of the motion because she concluded, based upon her review of the evidential materials attached to the parties' motion papers, that the planter could not have impeded plaintiff's ability to see oncoming traffic before and as he crossed the street. We need not presently reach the parties' arguments regarding tort claim immunity because a review of what is before us does not clearly indicate how the accident occurred or whether the planter could have played any role.
In considering the sufficiency of summary judgment regarding whether the planter's location constituted a proximate cause of the accident, we initially state our rejection of plaintiff's argument that the judge engaged in impermissible fact finding. We understand from the judge's oral decision that she examined plaintiff's sworn statements, the expert reports, and the photographs of the intersection that had been provided; based on this examination, the judge concluded that no rational factfinder could conclude that Bloomfield was negligent with regard to the placement of the planter. The standard that governed the judge's disposition of the summary judgment motion permitted her to take that approach in determining whether there was sufficient evidence of negligence to permit a trial. As the Court held in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)), the "essence of the inquiry" is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
However, although there was no defect in the judge's approach, we are unable to share her certainty about how this accident occurred or the potential involvement of the planter. This is through no fault of the judge. It is, instead, a consequence of what is contained in the record on appeal. Having carefully reviewed the materials in the appendices, we have no clear understanding of how the accident occurred,*fn5 nor may we conclude, with sufficient certitude, whether or to what extent the planter may have impacted what occurred. The greater confidence possessed and expressed by counsel and the judge may be a factor of their personal familiarity with the site because it would appear from the comments during oral argument that they live, work or frequently visit in the area. Their understanding, however, has not been adequately conveyed by the record on appeal, and that lack of clarity has precluded our ability to agree or disagree with the conclusion reached by the trial judge. Indeed, we observe that the trial judge greatly relied upon a photograph, which was apparently taken from a spot where plaintiff may have been as he began crossing the street. The record on appeal, however, includes only photocopies of the photographs that were submitted to the trial judge. These poor copies of the actual photographs preclude our ability to safely discern whether the planter is even depicted in one of the photographs; and another photograph, in which the planter is clearly visible, was taken from a great height and obviously not from plaintiff's vantage point as he crossed the street before the accident. Moreover, we question the importance of these photographs -- apparently taken during the day -- when considering that plaintiff was injured while crossing this street at 1:00 a.m. Indeed, at oral argument, we were not assured that the record clearly reveals that the photograph taken from the sidewalk, which was heavily relied upon by the judge in ruling on the motion, was taken from the spot where plaintiff stepped off the curb or whether it otherwise depicts where plaintiff was looking as he stepped off the curb.
We again emphasize that the rules governing the disposition of motions for summary judgment do not preclude a judge from examining the same evidence that would ultimately be presented to a jury and from concluding that no rational factfinder could reach any but one conclusion. Brill, supra, 142 N.J. at 536. Our inability to safely conclude whether the judge reached an appropriate conclusion is based upon the lack of clarity in the record on appeal. It is conceivable, following our disposition of this appeal, that the matter would yet be susceptible to summary judgment on these same grounds. We can only presently say that we are unable to affirm the summary judgment because we are not certain as to the manner in which this accident occurred or what is revealed, in that connection, by the poor photocopies of photographs that are included in the appendices.
For these reasons, the summary judgment under review is affirmed only insofar as it dismissed plaintiff's theories regarding the design of the intersection and the pedestrian signaling device, and reversed insofar as it resolved plaintiff's contentions regarding the placement of the planter and whether the planter's location could constitute a proximate cause of the accident. As we have observed, the problem may not be with the judge's view of the evidence but with the manner in which it has been presented to us. Therefore, we do not foreclose either Bloomfield's pursuit of summary judgment in the future based upon a clearer presentation and description of the factual contentions, or the pursuit of summary judgment based upon the Tort Claims Act because the trial judge never ruled on Bloomfield's contentions in that regard. Consequently, it is not necessary that we consider plaintiff's arguments regarding the denial of his motion for reconsideration. And, finally, we affirm the discovery orders of April 12, 2006 and June 9, 2006.
Affirmed in part; reversed in part; and remanded for further proceedings. We do not retain jurisdiction.