On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-2155-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and LeWinn.
Plaintiffs appeal from an order entered on April 26, 2007, granting summary judgment in favor of defendants Walmart Stores, Inc., McLane Company, Inc., McLane Foodservice, Inc., and Transco, Inc. and dismissing their complaint with prejudice. We affirm.
The facts pertaining to this appeal are relatively straightforward. Plaintiff Joseph Dadura (Dadura) was employed by McLane Foodservice, Inc. as a "driver specialist."*fn1 On the morning of January 10, 2003, Dadura departed from Burlington, New Jersey, with a tractor-trailer loaded with food products that were to be delivered to various restaurants in New York City and New Jersey. Dadura's partner David Miller accompanied him on this route.
Dadura made deliveries at three restaurants in New York City and in northern New Jersey before proceeding to a Taco Bell restaurant on Bergenline Avenue in West New York, New Jersey. Dadura and Miller arrived there between 5:30 a.m. and 6:00 a.m. Dadura explained that in that area, Bergenline Avenue near 67th Street is a two-way street with one lane for moving traffic and another lane for parking on each side of the street.
Dadura parked the tractor-trailer on Bergenline Avenue in front of the Taco Bell. At his deposition, Dadura testified that he was not permitted to park on 67th Street, and therefore he had to double-park. Dadura said that he activated the "four-way" lights on the vehicle. Dadura stated that he did not utilize any other warning devices, such as cones or orange triangles, because his employer did not "issue any safety equipment." According to Dadura, the weather was "dry and cold." He described Bergenline Avenue as "flat" and said that it was illuminated by streetlights.
Dadura and Miller began unloading the truck. Dadura said that his routine was to check the invoice to determine the products that were needed for that particular location, and then unload the products in the street. Dadura and Miller then would deliver the products to the restaurant using hand-trucks. Miller was inside the truck and Dadura was standing in the street on the back end of the trailer.
Miller noticed a Honda Civic approaching from a distance. He stated that the vehicle was traveling in the lane of traffic where the tractor-trailer was parked. The car approached a red light at the intersection directly behind the tractor-trailer. Miller saw that the car was not slowing down and was going to pass the red light without stopping. The vehicle went through the red light. Miller thought that the car would not avoid hitting the tractor-trailer, since it was traveling at a high rate of speed. Miller called out to Dadura to move but Dadura was struck by the vehicle. Plaintiff sustained serious injuries in the accident.
The driver of the vehicle was identified as Raul Rodriguez. The police investigation revealed that Rodriguez and a friend had been at certain nightclubs in River Edge, New Jersey, and Queens, New York, on the evening before the accident. At around 2:30 a.m., Rodriguez consumed two beers and a beverage called a "Long Island Iced Tea." Rodriguez admitted that he fell asleep at the wheel before his car struck plaintiff and crashed into the tractor-trailer. Rodriguez was convicted of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7). He was sentenced to three years of probation.
Dadura testified that most of the restaurant locations on his delivery route were "free-standing" facilities with parking lots that allowed Dadura to pull his tractor-trailer off the street and off-load safely. However, the Taco Bell in West New York is on a corner in a very busy downtown urban shopping district and it did not have such an arrangement. Dadura said that his employer did not provide him with instructions on the procedures that should be followed when making deliveries at that location.
Dadura also stated that during several previous deliveries to the Taco Bell in West New York, he attempted to park the tractor-trailer on 67th Street, which is a one-way street near the Taco Bell. However, the local police told him that he had to double-park the truck on Bergenline Avenue. Dadura asserted that when he did so, he was dangerously exposed to the ongoing traffic.
Dadura claimed that, prior to the accident, he complained on numerous occasions to his supervisors, James Fox, Thomas Foster, and Belinda Jackson. Dadura said that he had expressed his concerns about the fact that he had to double-park on Bergenline Avenue, and he was exposed to exactly the kind of accident that occurred on January 10, 2003. Dadura asserted that his complaints were not ...