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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...