On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-354-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued October 5, 2009
Before Judges Payne, Miniman and Waugh.
Plaintiff Alex Pluchino appeals the dismissal on summary judgment of his complaint against defendants Rutherford Board of Education (Board) and County of Bergen (County). We affirm.
Pluchino, who was then sixteen years old, was severely injured in an automobile accident on September 15, 1999. At the time, Pluchino was a student at Rutherford High School (RHS), which is operated by the Board. He was also a member of the RHS football team, which routinely holds practices on school property following the normal academic day. As a member of the team, Pluchino was generally required to attend practices.
Following practice on September 15, Pluchino left the football field in a car driven by third-party defendant Jason Bille, a fellow student and team member. The car belonged to Bille's sister, third-party defendant Jennifer Bille, who did not have automobile liability insurance as required by N.J.S.A. 39:6B-1. Ray Perez, another fellow student and team member, accompanied them.
Approximately one-half mile from the football field, while going around a curve, Bille lost control of the car, which spun around and then struck a tree. Pluchino, who was sitting, unrestrained, in the rear passenger seat, was taken to the hospital following the accident with very severe head injuries, which continue to be debilitating.
Pluchino sued Bille and his sister, but withdrew that action after discovering that they were uninsured. He subsequently settled an uninsured motorist claim against his carrier. Pluchino then sued the Board and the County, both of which successfully moved for dismissal under the single controversy rule. We reversed, Pluchino v. Rutherford Board of Education, No. A-5645-02T5 (App. Div. Nov. 18, 2004), but on remand the parties agreed to a voluntary dismissal of that action without prejudice.
Pluchino subsequently filed a second suit against the Board and the County.*fn1 He alleged that the Board was negligent because school officials (1) failed to cancel the football practice on September 15 despite predictions that a hurricane was approaching New Jersey and (2) permitted him to ride home with an uninsured fellow student under the then current weather conditions. Pluchino alleged that the County, which owned the road on which the accident took place, was negligent because of the inherently dangerous condition of the curve at the accident site.
Following the completion of discovery, the Board and the County moved for summary judgment. Pluchino filed a cross-motion to strike their expert reports. Following oral argument in October 2007, the Law Division granted summary judgment to both defendants, finding that the Board and its employees were not negligent given the actual weather conditions on September 15 and that the County was immune under provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Her ruling rendered Pluchino's cross-motion moot.
The following additional facts inform our decision.
A. Weather Conditions and Actions by the RHS Officials
On September 15, Governor Christine Todd Whitman issued Executive Order No. 101 (E.O. 101) with respect to the approach of Hurricane Floyd. She set forth the following reasons for declaring "that a State of Emergency exist[ed] in the State of New Jersey":
WHEREAS, the most recent weather reports as of Wednesday September 15, 1999, indicate that severe weather conditions are imminent due to the approach of Hurricane Floyd; and WHEREAS, the storm poses a serious danger and constitutes a disaster from a natural cause which threatens and presently does endanger the health, safety or resources of the residents of one or more municipalities or counties of this State; and which may become in parts of the State, too large in scope to be handled in its entirety by normal municipal operating services; . . .
In the body of E.O. 101, Governor Whitman authorized the Superintendent of the State Police (Superintendent) to determine the control and direction of the flow of such vehicular traffic on any State highway, municipal or county road, including the right to detour, reroute or divert any or all traffic, to prevent ingress or egress from any area and to remove parked abandoned vehicles from State highways that he, in his discretion, deems necessary for the protection of the health, safety and welfare of the public.
The Superintendent was also authorized to order the evacuation of all persons, except for those emergency and governmental personnel whose presence he deems necessary, from any area where their continued presence would present a danger to their health, safety or welfare because of the conditions created by this emergency.
There is, however, nothing in the record to indicate that the Superintendent ever exercised those powers in Rutherford, Bergen County, or anywhere else in the State on September 15. Despite the weather predictions referenced in E.O. 101, none of which are contained in the record, there is no evidence in the record that Hurricane Floyd actually caused "severe weather conditions" in New Jersey on September 15, particularly in the northern part of the State in which Bergen County is located.
Neither Pluchino nor Bille had any recollection of the facts surrounding the accident or the events of the day, including the weather conditions. There was evidence that it did rain that day, but no evidence of hurricane-type conditions, such as very heavy winds and rain. According to Perez, it rained all day and "got heavier as the day went on." Gary Andolena, the head football coach, recalled September 15 as "a rainy day, but nothing out of the ordinary." According to precipitation reports contained in the record, the total rainfall for September 15 was 0.67 inches, approximately 0.39 inches of which had fallen by the time of the accident, shortly after 6:00 p.m.
Pluchino's own liability expert, Edward F. Dragan, Ed.D., did not "have specific information" about the actual weather conditions on September 15, but it was his "understanding" that it was "at least raining, and may have been raining very severely." (Emphasis added.) He also conceded that Hurricane Floyd did not make landfall in New Jersey on September 15. Dragan's opinion that football practice should have been cancelled was based solely on the weather predictions, the issuance of E.O. 101, and the assertion by Perez that there was an announcement over the RHS public address system that after school activities for "pretty much every other sport" except football were cancelled. Dragan conceded that football is a sport that is played in the rain.
According to Leonard Goldblatt, Pluchino's engineering expert: "At the time of the accident there was rainfall that preceded by one day the major rainfall brought by Hurricane Floyd[,] which began on the morning of September 16, 1999. All indications are that the road at the time of the accident did not puddle." In contrast to the 0.67 inches of rainfall on September 15, the precipitation records reflect that the total rainfall for the following day, September 16, was 6.72 inches.
Rutherford's Superintendent of Schools did not close school on September 15, and did not advise the high school to cancel any athletic activities. William D. Bauman, the principal of RHS, did not recall any safety measures taken on September 15 in connection with the approach of Hurricane Floyd, nor did he recall any announcements canceling athletic activities that day.
Andolena did not know that the Governor had "declared a statewide emergency because of a hurricane that morning" and had not heard, seen, or read anything about an impending hurricane prior to football practice and the accident. In contrast to Perez, Andolena did not remember an announcement canceling other athletic events or practices. At his ...