On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-257-07.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Messano and LeWinn.
Plaintiff Potomac Aviation, LLC appeals from the grant of summary judgment to defendants the Port Authority of New York and New Jersey ("the Port Authority"), First Aviation Services ("FAS"), and Robert De Stefano (collectively, "defendants"), and the subsequent denial of its motion for reconsideration. We have considered the arguments plaintiff raises in light of the record and applicable legal standards. We affirm.
At approximately 4:20 a.m. on January 12, 2006, while driving a car owned by defendants Marcial and Violeta Benavides, defendant Alejandra Benavides fell asleep at the wheel. The vehicle jumped the curb of Industrial Avenue, which runs along the perimeter of Teterboro Airport, plowed through a chain link fence, and struck plaintiff's airplane that was parked on the tarmac, causing significant damage. On January 10, 2007, plaintiff filed its complaint alleging that FAS and its employee De Stefano directed plaintiff "to park . . . [its] [a]ircraft at a specific location . . . [that] was unsafe." Plaintiff alleged that the Port Authority, which owned and operated the airport, "breached [a] duty of care by negligently selecting a fence which failed to protect [the] aircraft . . . ."*fn1
After discovery, defendants moved for summary judgment. The motion record revealed that FAS functioned as a "fixed base operator" at the airport and leased its facility from the Port Authority. Among other services, FAS provided parking and hangar facilities for various aircraft, including plaintiff's. When FAS commenced its lease in 1986, it agreed to replace the existing, deteriorated chain link fence with a new one along the Industrial Avenue perimeter of its leasehold; this new fence was still in place on the date of the accident. While the Port Authority was responsible for fencing in the common areas of the airport, it was the responsibility of the individual lessees, like FAS, to maintain the fencing along the perimeter of their leased premises.
The portion of Industrial Avenue along the perimeter of FAS's facility is a straight road without any driveways, ingress or egress points. It is a two-lane county road, approximately thirty-five feet wide, with a posted speed limit of twenty-five miles per hour. There are no guide rails along this section of Industrial Avenue, including that section adjacent to a public bus stop that is across the roadway from the airport.
On the morning of the accident, De Stefano, a ground service manager for FAS, was summoned to the airport after receiving a phone call "[t]hat a vehicle had come through the fence and hit an aircraft . . . ." De Stefano observed Benavides's black SUV "roughly under the right wing of the aircraft . . . ." He estimated the aircraft was parked approximately seventy-five feet from Industrial Avenue.
Plaintiff's expert Christopher P. Statile, P.E., prepared a report. He noted that FAS's property was enclosed with a cyclone fence, but "[o]ther portions of the airport [we]re enclosed by steel picket fencing connected to tubular steel posts" designed to deter trespassing. However, Statile also observed that the perimeter fencing nearest the Port Authority's offices at the airport was "protected by steel beam guide rail." Statile opined that in order "[t]o prevent errant motor vehicles from trespassing into the aircraft taxiways and parking areas, a typical beam guide rail system . . . [wa]s appropriate," and such a design would have prevented the collision in this case.
Statile cited as support for his opinion, section 8.02.4 of the New Jersey Department of Transportation's (the "D.O.T.") "Roadway Design Manual." That section provided "where fixed objects are found such as wood poles or posts with greater than a 50 square inch cross section[,]" guide rail protection should be used. Noting the presence of telephone and lighting poles along Industrial Avenue, Statile opined that guide rails should have been in place.
However, Section 8.02.4(2)(b) of the design manual also stated the following:
Although utility poles have a cross-sectional area greater than 50 square inches (8 inches diameter), they should not be handled the same as other warranting obstructions. It is questionable whether a safer roadside would result from installing guide rail for the sole purpose of shielding utility poles within the clear zone.
The design manual further provided that "guide rail should not be installed indiscriminately. Every effort should be made to eliminate the obstruction for ...