October 21, 2008
ROBERT MIDONECK, DANIEL MIDONECK AND MELODY MIDONECK, PLAINTIFFS-APPELLANTS,
DONALD REDD, COACH USA, INC., SUBURBAN TRAILS, INC., AND COACH LEASING, INC., DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,*FN1 THIRD-PARTY DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6484-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 10, 2008
Before Judges Cuff, Fisher, and Baxter.
Plaintiffs Robert Midoneck and Daniel Midoneck were driving northbound on the Garden State Parkway when the right rear tire of a tour bus disintegrated causing debris to spread over the highway. The vehicle operated by plaintiff Robert Midoneck struck tire debris, causing damage to the vehicle and injuries to plaintiff and his son, plaintiff Daniel Midoneck. Both appeal the summary judgment orders entered in favor of defendants Coach USA, Inc., Suburban Trails, Inc., Coach Leasing, Inc., and Donald Redd (the bus defendants), and Bridgestone Firestone North American Tire, LLC (Bridgestone).*fn2
We affirm summary judgment in favor of defendant Bridgestone; we reverse the order granting summary judgment to the bus defendants.
On appeal, we apply the same standard as the motion judge. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must determine whether there are any genuine issues of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This requires a review of the competent evidential materials in the light most favorable to the non-moving party to determine whether a rational fact-finder could resolve the issue in favor of the non-moving party. Brill, supra, 142 N.J. at 540.
On October 26, 2003, plaintiff Robert Midoneck was driving northbound on the Garden State Parkway at approximately 7 p.m. It was dark and the road was damp. As he drove over a small bridge at mile marker 51.8, Midoneck*fn3 hit something "big and black." The object hit the hood of his car, bounced and smashed through the sunroof of his car. Midoneck pulled the car onto the right shoulder and stopped.
Shortly before this incident occurred, defendant Donald Redd was driving a forty-five foot long, fifty-five passenger bus for defendant Suburban Trails, Inc. (Suburban) from Atlantic City to New Brunswick. Around mile marker 52.1, he felt a subtle bumpy change to the ride. A passing car signaled and pointed to the rear of the bus. Redd pulled the bus onto the shoulder and discovered that the right rear tag tire had disintegrated. The tag tire is the last of the rear tires on a bus.
Redd notified dispatch that he had a bad tire. Police were also called. Shortly after he pulled off the road, Redd noticed two cars do the same. One was the Midoneck car; the other was a dark sedan. Redd assumed that the cars had hit some of the debris. He called the dispatcher a second time to report his suspicion that the two cars had hit debris from the shredded tire. In his incident report, Redd later reported "3,4,5 cars hit debris -- 2 cars damaged" because he was unsure how many vehicles actually hit the debris.
Redd approached the Midoneck car but did not see any debris in the roadway. Daniel Midoneck stated that he observed big black scraps on the roadway and the scraps seemed to be parts of tire because they had tread on it. Daniel Midoneck also reported that the bus was missing a tire. Midoneck and Redd both testified that they did not see the object the Midoneck car hit. A mechanic arrived and replaced the tire; Redd did not leave the scene until he inspected the work of the mechanic.
The bus driven by Redd was owned by defendant Coach USA, Inc., (Coach) and operated by defendant Suburban on October 26, 2003. Ronald Kohn, General Manager of Suburban, described the preventative maintenance program conducted by Suburban. As part of this program, the tire pressure is checked and each tire is examined for wear and damage. All buses are inspected every 4000 miles, or about every three weeks. Kohn stated that every bus operator is taught to inspect the tires as part of the pre-trip inspection. In addition, a New Jersey Department of Transportation (NJDOT) inspection report for the bus involved in this accident notes that the tires were checked and passed inspection on September 5 through September 15, 2003.
Redd testified that Suburban taught him how to perform a pre-trip inspection when he commenced his employment in 1997. The training included inspection of tires and the entire wheel assembly. He was instructed to look for underinflation, low tire tread, broken wheels, and missing or loose lug nuts. He was taught the minimum requirements for tire tread. Prior to every trip, he looked for bald spots and low tread; he did so by a visual inspection. He was not trained to use a tire gauge.
He was instructed to apply pressure to the tire by kicking it or hitting it. He was informed that if there was movement or he heard a hollow sound when he kicked a tire, the tire should be considered underinflated and he should notify a mechanic. On October 23, 2003, Redd recalled that he pushed the tires on the bus before he left New Brunswick and when he arrived in Atlantic City. He noted no problem with any tire.
Coach had an agreement with defendant Bridgestone to furnish Coach and its subsidiaries, including Suburban, with tires to keep all Coach vehicles fully equipped. Under this agreement, Bridgestone retained ownership of all tires. Coach reported the amount of miles on the tires to Bridgestone monthly, along with a record of the tires removed from service. Bridgestone charged Coach a per mile tire rate for the use of its tires. Damaged tires were included in the rate; there was no additional charge for damaged tires. The supply agreement also included a service component. The service agreement provided:
1. SERVICE: "BY MUTUAL AGREEMENT WITH OPERATOR," [Bridgestone] agrees to provide the following tire service at Operator's terminals. [Bridgestone] agrees to repair, maintain spare stock inflations, mount and demount tires from rims during scheduled work hours. [Bridgestone] and Operator shall determine from time to time the number of tire service people necessary to adequately perform the services set forth above and may make changes in the number of such service people, their work schedules and work locations in order to perform such services in the most economical manner. [Bridgestone]'s service people shall not move or otherwise drive Operator's vehicles, except upon full acceptance of all liabilities by Operator.
Pursuant to this agreement, Bridgestone provided one on-site employee to Coach and Suburban. Timothy Barnes was the person assigned to the Coach account.
According to the agreement, Coach and its subsidiaries were responsible for maintaining the inventory of tires. Thus, Coach and Suburban were responsible for inflating the tires, maintaining the recommended inflation and providing roadside assistance to any of its vehicles. Bridgestone was only responsible for mounting tires on rims and repairing flats, if repairable. It did not mount tires on buses. It was not responsible for determining whether tires had low tread once mounted on a bus, unless the vehicle was being sold. Bridgestone had a policy of repairing tires if the puncture was in the tread area with 3/8 of the tread left and no puncture was in the sidewall. If the repair was a simple nail hole, then no documentation of the repair would be made.
Barnes was the on-site representative for Bridgestone. He had been at the Suburban depot since 1987 when he was the Goodyear on-site representative. He received on-the-job training from the Goodyear employee he replaced. When Coach switched its tire supplier from Goodyear to Bridgestone, Barnes became a Bridgestone employee. He remained on the Suburban site until December 2003.
Barnes worked mainly, but not exclusively, at the Suburban New Brunswick depot. In 2003, Barnes spent Monday through Thursday at the New Brunswick depot; on Fridays, he went to the New Jersey Transit depot. He did not work weekends. The accident between the Suburban bus and the Midoneck vehicle occurred on a Sunday.
Barnes's job duties included dismounting and mounting tires, repairing tires, and checking the buses every month. He was not responsible for mounting tires on a bus. Barnes explained the manner in which tires were rotated. For example, if a tire was removed for repair from the front axle, once repaired it would be placed on the back axle or the tag position. The tag position is behind the rear tire and is used to provide support for the rear of the bus.
Barnes testified that he tried to inspect the tires of every bus before it left the depot each morning. He noted that he was never formally instructed to do so but did it because he believed the customer, i.e. Coach and Suburban, wanted him to do so. The morning inspections included a visual inspection of each tire. He also hit the tires with his fist. He stated he was looking for bald or flat tires. He also checked the tread, noting that Suburban required a minimum depth of 5/32. If he found an underinflated tire or one with low tread, he informed the foreman.
In addition to his morning checks, Barnes tried to inspect each bus at least once a month using an air and tread depth gauge. He also performed inventory inspections. This inspection allowed Bridgestone to keep an accurate count of the tires issued to the New Brunswick depot.
The motion record also reveals that the bus involved in this accident was lent to another depot for approximately six weeks after the NJDOT inspection. When the bus returned to the New Brunswick depot, Barnes was not on duty. Thus, Barnes had no opportunity to perform any work on this bus for several weeks prior to the October 26 accident.
Michael Felice, the Bridgestone northeast field manager, Jeffrey Ketchman, plaintiff's expert, and James Gardner, the Bridgestone expert, agreed about the number and configuration of the tires, the rotation policy, and the mileage expectations of tires on a bus of the type involved in this accident. A bus like the one involved in the accident uses eight tires. There are two front or steering tires, four rear drive tires, and two tag tires. The tag tire is mounted behind the rear tire. A tire has a life expectancy between 60,000 and 80,000 miles, although a tire may have 90,000 miles before it is taken out of service. New tires are mounted in front and are rotated to the rear position when fifty percent of the tread is gone. A tire is rotated to the tag position generally when it has been in service for 35,000 to 45,000 miles. Documents produced in the course of discovery revealed that the failed right tag tire had traveled at least 80,000 miles and possibly 90,000 miles before it failed.
Based on the reports submitted by Redd and the observations of Robert and Daniel Midoneck, Ketchman, plaintiffs' expert, initially opined that the right tag tire experienced tread separation, which in turn might have been caused by underinflation, weardown of tread beyond minimum allowable limit, misalignment, gouging of tread by part of the bus, manufacturing defect, or defective retreading/regrooving. He also opined that underinflation was attributable to improper maintenance. At his deposition, he opined to a reasonable degree of engineering certainty that the tread separation was caused by underinflation, which in turn was caused by improper maintenance. The improper maintenance was demonstrated by the practice of visual and tactile inspection rather than use of a gauge to measure inflation and tread.
On the other hand, Gardner, Bridgestone's expert, opined that Ketchman's opinion was based on flawed methodology. He noted that many factors can contribute to tire failure other than a manufacturing defect or improper maintenance. Moreover, because the tire was not recovered after the accident, it was impossible to assess a cause of the failure with any certainty.
In response to summary judgment motions filed by the bus defendants and Bridgestone, the motion judge found that plaintiffs' expert could not render an opinion with the requisite certainty as to the cause of the tire failure. The motion judge found that plaintiff's expert simply speculated about the cause of the failure and such speculation could not support a negligent maintenance claim against the bus defendants. As to Bridgestone, the motion judge found that plaintiffs failed to adduce any evidence of product defect or any facts to support the proposition that the tire manufacturer and supplier negligently installed or repaired the failed tag tire. Consequently, the motion judge granted both motions for summary judgment.
On appeal, plaintiffs argue that their expert was qualified to render an opinion and the opinion rendered by him regarding the cause of the tread separation cannot be considered a net opinion. As to Bridgestone, plaintiffs concede they have no evidence to support their product defect claim but urge that they submitted sufficient evidence to establish a material issue of fact that Barnes failed to properly inspect the bus tires.
If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness with specialized knowledge acquired through education, training or experience will be received in the form of an opinion. N.J.R.E. 702; Hake v. Manchester Twp., 98 N.J. 302, 314 (1985). We are satisfied that Ketchman possessed the requisite education, skill, and training to render an opinion as to the cause of the tire failure.
The critical inquiry is whether the opinion submitted by plaintiffs' expert is a net opinion as urged by defendants and as found by the motion judge. The net opinion rule bars admission of an opinion that is unsupported by factual evidence. Scully v. Fitzgerald, 179 N.J. 114, 129 (2004). In other words, "[t]he net opinion rule reflects the well-established notion 'that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible.'" Ibid. (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).
In the report submitted by plaintiffs' expert, Ketchman opined that the right tag tire failed due to tread separation which, in turn, could have been caused by several factors, some of which did not implicate any negligence by the bus defendants. At his deposition, however, Ketchman opined that the cause of the tread separation was due to underinflation and negligent inspection of the tires. In support of this opinion, he cited the practice of visual and tactile inspections by the bus operator, which he found were not adequate to detect underinflation. Stated differently, the only effective way to assure that a tire is adequately inflated and will not run flat is to use a tire gauge. Yet Redd testified that he was instructed to make his inspection by looking at the tire and kicking or pressing the tire. Moreover, Ketchman relied on evidence that the tire was at the end of its useful life. Although Ketchman acknowledged that he could not state that underinflation was the cause of the tread separation with absolute certainty, he did testify that he advanced this opinion to a reasonable degree of engineering certainty. That is all that is required to support his opinion. Creanga v. Jardal, 185 N.J. 345, 362-63 (2005). Moreover, Ketchman's inability to inspect the failed tire does not negate his opinion; it simply goes to the weight of his opinion. In short, plaintiffs presented sufficient evidence to defeat the bus defendants' summary judgment motion.
On the other hand, we affirm the summary judgment entered in favor of Bridgestone. Plaintiffs concede that they submitted no evidence to support their claims of product defect. Moreover, the evidence submitted in support of and in opposition to this motion demonstrates that Bridgestone had no duty to inspect the tires. Even if we could find that Bridgestone had assumed a duty to inspect based on its prolonged practice at this site, the evidence established that the bus was not in the New Brunswick depot for weeks prior this accident, and the only Bridgestone employee who conducted any inspection was not on site for three days prior to the day the bus left the depot. In short, the motion judge properly granted the Bridgestone motion for summary judgment.
Affirmed in part; reversed in part.