On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8708-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted:*fn1 February 11, 2010
Before Judges Cuff, Payne and C.L. Miniman.
Plaintiff Sundarraj Chinnaraj was struck by a car and suffered catastrophic injuries. We granted leave to appeal four summary judgment orders that left the driver of the car who struck plaintiff as the only remaining defendant. We affirm the summary judgments entered in favor of New Jersey Transit (NJT) and the County of Middlesex (County), but reverse the summary judgments entered in favor of Wilner Livery Service and David J. Wilner (the Wilner defendants), Jai Hsiv Shambhu, LLC (Shambhu), and Ritu Batra and Triloki Batra (the Batra defendants).
Oak Tree Road in Edison is a five-lane road. Two lanes head east, two lanes head west, and a turning lane forms the fifth lane. On November 15, 2005, at approximately 9:15 p.m., plaintiff attempted to cross Oak Tree Road from the south side to the north side of the road. Defendant Nabil Hussein Chehab was driving west on Oak Tree Road in the far right lane. Plaintiff had crossed four of the five lanes. When he walked into the far right lane, the fifth lane, Chehab struck plaintiff.
The accident occurred where Minebrook Road intersects Oak Tree Road from the south, and where a one-way exit road from a shopping plaza intersects Oak Tree road from the north. The parties stipulated for motion purposes that plaintiff crossed the road within the crosswalk.*fn2
Plaintiff contends that the accident occurred due to several dangerous conditions at that area of the road. He identifies the following dangerous conditions that contributed singly or in combination to the accident: (1) the absence of a marked pedestrian crosswalk; (2) the absence of a pedestrian crossing sign on the westbound side of Oak Tree Road; (3) the improper placement of an advance pedestrian crossing sign for westbound drivers; (4) the placement of a bus stop sign too close to the advance pedestrian crossing sign; and (5) placement of large commercial signs creating visual clutter. Consistent with these contentions, plaintiff named the County, NJT, New Jersey Department of Transportation (NJDOT), and the owners and occupiers of commercial property (the Wilner defendants, the Batra defendants and Shambhu) as defendants.*fn3
We granted leave to appeal summary judgment orders entered in favor of the County, NJT, NJDOT,*fn4 the Wilner defendants, the Batra defendants and Shambhu.
In this appeal, we review four orders granting summary judgment. In doing so, we must apply the standard articulated in Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995):
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Id. at 540.]
Therefore, we must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Id. at 536. However, a court "may pick and choose inferences from the evidence to the extent that 'a miscarriage of justice under the law' is not created." Ibid. (quoting R. 4:49-1(a)). To prevail on a summary judgment motion, defendants must show that plaintiff's claim "was so deficient as to warrant dismissal of [the] action." Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J. Super. 550, 557 (App. Div. 1997). We address the summary judgment orders entered in favor of the public entities first.