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Anthony Lemma and Gail Grinkevich v. Pennwood Racing

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 11, 2011

ANTHONY LEMMA AND GAIL GRINKEVICH, PLAINTIFFS-APPELLANTS,
v.
PENNWOOD RACING, STATE OF NEW JERSEY, DIVISION OF N.J. RACING COMMISSION, DEFENDANTS-RESPONDENTS, AND PATRICK BERRY, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5564-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 22, 2011

Before Judges Parrillo, Yannotti and Skillman.

Plaintiffs Anthony Lemma (Lemma) and Gail Grinkevich (Grinkevich) appeal from orders entered by the Law Division dismissing their claims against defendants Pennwood Racing (Pennwood), and the State of New Jersey, Division of Racing Commission (State). We affirm.

I.

On November 23, 2005, Lemma was the driver of a horse named "Cocoa Aulait," which was entered in the eleventh race at Freehold Raceway (Raceway). Lemma alleges that he had finished the post-parade warm up and was "scoring down" his horse when another driver, defendant Patrick Berry (Berry), entered the racetrack, lost control of his horse and collided with Lemma's cart and horse, causing Lemma to sustain severe and permanent personal injuries.

On November 23, 2007, Lemma and Grinkevich filed a complaint in the Law Division, naming Pennwood, the State and Berry as defendants.*fn1 Lemma alleged that Pennwood and the State were negligent because they failed to enforce certain regulations governing the "scoring down" of horses at the Raceway. Lemma also alleged that Pennwood was negligent in the ownership, maintenance and operation of the Raceway. He further claimed that Berry had negligently driven his horse, causing the collision that threw him to the ground. In addition, Grinkevich asserted a per quod claim.

On March 3, 2008, the State filed a motion for summary judgment pursuant to Rule 4:46-2. The State argued that it was immune from liability under the Tort Claims Act, N.J.S.A. 59:1-1 to 9-7 (TCA). The court granted the State's motion and entered an order dated April 14, 2008, dismissing plaintiffs' claims against the State, finding that the State was entitled to immunity under the TCA, specifically N.J.S.A. 59:2-4.

After Pennwood filed its answer, the court entered a case management order which required plaintiffs to produce their expert reports by March 11, 2009. Thereafter, the court entered another order which extended the time for plaintiffs to produce their expert reports, scheduled depositions, and directed that discovery be completed by October 15, 2009.

Because plaintiffs had not complied with the court's case management order, Pennwood filed a motion in July 2009 to compel them to produce their expert reports. On August 20, 2009, the court entered an order which extended discovery to December 11, 2009, and required plaintiffs to produce their expert reports by September 14, 2009, and barred any expert reports that were not produced by that date.

Plaintiffs did not comply with the court's order. In September 2009, Pennwood filed a motion for summary judgment. Pennwood argued that, because plaintiffs had not produced any expert reports, they failed to establish that Pennwood had breached a duty of care owed to Lemma. The court did not grant the motion. Instead, the court entered an order dated November 6, 2009, which extended the discovery end date to April 15, 2010.

The court gave plaintiffs additional time to produce their expert reports. The court required plaintiffs to serve their medical expert reports by December 31, 2009, and their liability expert reports by January 31, 2010. Plaintiffs did not serve their expert reports within the times required by the order.

On March 5, 2010, Berry filed a motion for summary judgment, in which he alleged that Lemma's claims against him were barred by the Workers' Compensation Act, N.J.S.A. 34:15-1 to -69.3, because Berry was Lemma's co-employee. Berry also argued that Grinkevich could not pursue a per quod claim because she was not married to Lemma.

On March 23, 2010, Pennwood filed another summary judgment motion, and also argued that Grinkevich's per quod claim should be dismissed because she and Lemma were not married. Plaintiffs filed a cross-motion, seeking a further extension of time for discovery.

The court considered the motions on April 16, 2010, and entered an order that day granting Pennwood's motion for dismissal of Grinkevich's claim and Berry's motion for dismissal of all claims against him. The court also denied plaintiffs' motion to extend discovery and barred them from serving any expert reports.

On April 16, 2010, Pennwood filed yet another motion for summary judgment, arguing that, without expert testimony, Lemma could not maintain his claims against it. The court heard argument on May 14, 2010, and granted the motion. The court entered an order dated May 14, 2010, memorializing its decision.

On June 28, 2010, plaintiffs filed a notice of appeal from the April 14, 2008, order dismissing plaintiffs' claims against the State; the April 16, 2010, order dismissing Grinkevich's claims against Pennwood; and the May 14, 2010, order dismissing Lemma's claims against Pennwood.

II.

Plaintiffs argue that the trial court erred in granting the State's motion for summary judgment. We disagree.

The TCA provides that "public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles" set forth therein. N.J.S.A. 59:1-2. The "dominant theme of the TCA was to re-establish the immunity of all governmental bodies in New Jersey, subject only to the TCA's specific liability provisions." Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 207 (2004). Under the TCA, "'immunity from tort liability is the general rule and liability is the exception.'" Coyne v. State, Dep't of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)).

The TCA provides that "[a] public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2(a). However, N.J.S.A. 59:2-1(b) states that "[a]ny liability of a public entity established by this act is subject to any immunity of the public entity[.]"

Here, the trial court found that the State was entitled to immunity under the TCA, specifically N.J.S.A. 59:2-4, which provides that "[a] public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law." Under N.J.S.A. 59:2-4, a public entity has absolute immunity from liability where the essential conduct associated with the injury consists "of a failure to act, an omission, or non-action" and qualified immunity for actions taken in good faith in enforcing the law. Bombace v. City of Newark, 125 N.J. 361, 367-68 (1991). Absolute immunity for failure to enforce a law applies when there is no "act" that "'requires an external manifestation of the actor's will.'" Id. at 368 (quoting Marley v. Borough of Palmyra, 193 N.J. Super. 271, 293 (Law Div. 1983)).

In this case, plaintiffs alleged that the State's Racing Commission negligently failed to enforce its regulations. In support of these allegations, plaintiffs cite various regulations, including N.J.A.C. 13:70-19.31 (requiring the track superintendent to exercise control over the course as may be necessary "to protect its condition and the rights of all parties entitled to its use"); N.J.A.C. 13:70-16.4 (stating that stewards have the power and duty "to regulate and govern the conduct of all racing officials" as well as "other persons attendant on horse during, before, and after races" unless the power and duty resides with the Commission); N.J.A.C. 13:71- 17.5(a) (providing for removal of a horse if, in the opinion of the judges or starter, the horse is "unmanageable or liable to cause accidents"); and N.J.A.C. 13:71-8.24(a)(2) (requiring judges to observe "preliminary warming up of horses and scoring" and to note the behavior of the horses, including "any unusual incidents pertaining to horses or drivers participating in races"). Plaintiffs contend that, because the State and its employees failed to enforce these regulations, Berry failed to control his horse during the "scoring down" process and collided with Lemma and his horse.

We are satisfied that the State is absolutely immune under N.J.S.A. 59:2-4 from liability on such claims, which are based on allegations of inaction rather than any specific affirmative steps taken by the State's employees at the Racetrack. As we have explained, the TCA provides absolute immunity where, as here, "the critical causative conduct by government employees consists of non-action or the failure to act with respect to the enforcement of" the applicable regulations. Bombace, supra, 125 N.J. at 373. We therefore conclude that the trial court correctly determined that the State was entitled to absolute immunity under N.J.S.A. 59:2-4.

Plaintiffs argue, however, that the trial court erred by granting the State's motion because these parties had not yet exchanged discovery. Again, we disagree. An affirmative defense, such as immunity from liability under the TCA, may be raised in a motion to dismiss under Rule 4:6-2(e) based upon the allegations in the pleadings. If a Rule 4:6-2(e) motion is based on any material outside of the pleadings, the motion must be treated as one seeking summary judgment. Ibid.

Here, the State filed what it called a motion for summary judgment but its motion was addressed solely to the allegations in the pleadings. The court correctly determined that, based on the facts in the complaint, the State was entitled to immunity under N.J.S.A. 59:2-4. Moreover, even if we accept the State's characterization of its motion as one for summary judgment, the court did not err by granting the motion before plaintiffs had the opportunity for discovery. Discovery would not have had any bearing on whether the State was entitled as a matter of law to summary judgment, based on the allegations in the complaint. Welling v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003).

III.

Next, plaintiffs argue that the trial court erred by granting Pennwood's motion for summary judgment. Again, we disagree.

In this case, plaintiffs alleged that Pennwood was negligent in its operation of the Raceway. Plaintiffs claimed that Pennwood had an obligation to monitor and oversee all pre-race activities of the drivers and horses entered in the race, and to enforce the State's regulations regarding the "scoring down" of horses at the track.

The trial court determined that the standard of care for the management of racetrack operations was not "within the ken of typical jurors" and thus required expert testimony, which plaintiffs failed to produce within the time required by the court's case management orders. The court therefore concluded that Pennwood was entitled to judgment on the claims asserted against it.

Plaintiffs contend that the trial court erred by finding they were required to present expert testimony in order to support their claim that Pennwood negligently operated the Raceway. In order to succeed in a suit based on negligence, the plaintiff must establish that the defendant owed it a duty to exercise reasonable care, the defendant breached that duty and the breach was a proximate cause of the plaintiff's injury. Polzo v. City of Essex, 196 N.J. 569, 584 (2008); Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994), certif. denied, 139 N.J. 441 (1995).

Where the court finds that a defendant owed the plaintiff a duty to exercise reasonable care, expert testimony will be required when "the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982); see also Kelly v. Berlin, 300 N.J. Super. 256, 269 (App. Div. 1997).

In support of their claims, plaintiffs cite numerous regulations that a horse track operator must comply with, including N.J.A.C. 13:70-3.13, which requires the operator to "maintain its grounds and facilities . . . with special consideration for the comfort and safety of patrons, employees and other persons whose business requires their attendance[.]" In addition, N.J.A.C. 13:70-19.31 provides that a track superintendent must "exercise such control over the course as may be necessary to protect its condition and the rights of all parties entitled to its use."

These regulations do not, however, specify the actions a track operator must take in order "to protect" the conditions of the track and its users during the "scoring down" process. Moreover, such actions are not "matters of common judgment and experience," and therefore jurors cannot be expected to know, without the guidance of expert testimony, whether Pennwood's alleged acts or omissions breached a duty of care owed to Lemma.

Plaintiffs argue, however, that our decision in Calhanas v. S. Amboy Roller Rink, 292 N.J. Super. 513 (App. Div. 1996), supports their argument that expert testimony was not required for their claims against Pennwood. In Calhanas, the plaintiff alleged that he sustained personal injuries while skating at the defendant's roller rink. Id. at 516. The plaintiff said that he was injured when a young child, who was allegedly "going a little wild," crossed the rink and collided with him. Id. at 517. The plaintiff brought suit against the rink owner, alleging that it was negligent because it failed to adequately supervise the rink or enforce its safety rules. Ibid. The trial court granted the defendant's motion for summary judgment. Id. at 518. The plaintiff appealed. Id. at 516.

We noted that, under the New Jersey Roller Skating Rink Safety and Fair Liability Act, N.J.S.A. 5:14-1 to -7 (the RSRFLA), skaters are deemed to assume the risks of roller skating, including injuries that result from "'incidental contact'" with other skaters. Id. at 519 (quoting N.J.S.A. 5:14-6). We also noted that the RSRFLA barred any suit by a skater against the operator of the rink for injuries resulting from the assumed risk, unless the operator violated some specific duty or responsibility imposed by the RSRFLA. Ibid. (citing N.J.S.A. 5:14-7).

We concluded that the trial court erred by granting summary judgment to the rink operator because, based on testimony that the child had been "skating in an obviously reckless manner for some minutes before" running into the plaintiff, a jury could reasonably determine that the collision with the child "was not a normal incident of skating." Id. at 522-23. We additionally found that summary judgment should not have been granted because there was a genuine issue of material fact as to "what actually caused or contributed to the collision[.]" Id. at 523.

In our view, plaintiffs' reliance upon Calhanas is misplaced. As we have explained, Calhanas dealt with whether the rink operator was immune under the RSRFLA. There is no comparable statute at issue in this case. Moreover, Calhanas involved the supervision of roller skating rinks and their inherent risks, which are matters that jurors of common knowledge and experience can evaluate. The handling of horses during the "scoring down" process, and the manner in which track owners should supervise that process, is more complex and esoteric. Therefore, while expert testimony may not have been required in Calhanas, it was required here.

Plaintiffs also contend that, because Pennwood is a commercial establishment and the public is invited onto its premises, it has a duty to exercise reasonable care and discover and eliminate dangerous conditions, maintain the premises in a safe condition and avoid creating conditions that would render the premises unsafe. Plaintiffs contend that Pennwood had a heightened duty to warn persons at the track of concealed hazardous conditions that Pennwood knew or should have discovered through the exercise of reasonable diligence.

These contentions fail, however, because the duties that plaintiffs rely upon pertain to dangerous conditions of property. See Bauer v. Nesbitt, 198 N.J. 601, 615 (2009). In this matter, Lemma was not injured as a result of an alleged dangerous condition of the racetrack's property. Rather, Lemma was injured when Berry allegedly lost control of his horse and collided with Lemma's horse and cart. Furthermore, in their reply brief, plaintiffs concede that the collision did not occur because of a dangerous condition on the racetrack property.

IV.

Plaintiffs also argue that the trial court erred by refusing to grant their motion for a further extension of time for discovery. Again, we disagree.

Rule 4:24-1(a) specifies the time in which discovery must be completed, ranging from 150 to 450 days, depending upon the track to which the particular case is assigned. The parties may agree to extend the discovery period for an additional sixty days. R. 4:24-1(c). If the parties do not agree to such an extension, or if a longer extension of time is sought, a motion must be made and may be granted on a showing of good cause. Ibid. The rule states that "[n]o extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." Ibid.

Plaintiffs contend that, because the case had not been scheduled for trial and an arbitration date had not been fixed, the trial court should have granted their motion for another extension of time for discovery. Plaintiffs assert that they established good cause for a further extension of the discovery period.

Plaintiffs assert that they were unable to obtain the expert medical reports because certain doctors allegedly failed to cooperate with Lemma and his attorney. They also assert that, despite their best efforts, they were unable to complete depositions of a number of fact witnesses at the Raceway and, as a consequence, could not obtain their liability expert reports prior to the discovery end dates set by the court.

We are satisfied, however, that the trial court did not err by denying plaintiffs' last motion to extend the time for discovery. As we explained previously, on January 27, 2009, the trial court required the production of expert reports by March 11, 2009. Plaintiffs did not produce their reports by that date. On March 9, 2009, the court extended the time for discovery, requiring plaintiffs to serve their expert reports in April and June 2009. Plaintiffs failed to meet these deadlines. On August 20, 2009, the court again extended the discovery end date and ordered plaintiffs to provide their expert reports by September 14, 2009. Plaintiffs did not meet this deadline.

On September 24, 2009, Pennwood filed a motion for summary judgment. The court did not grant that motion but again extended the time for discovery to April 15, 2010, and directed plaintiffs to file their expert medical reports by December 31, 2009, and their liability expert reports by January 31, 2010. Plaintiffs did not meet these deadlines.

After Pennwood filed another summary judgment motion, and Berry filed a motion seeking the same relief, plaintiffs sought a further extension of time for discovery. The denial of that motion was not a mistaken exercise of discretion because the trial court had repeatedly extended the time for discovery, and plaintiffs failed to provide the court with a suitable explanation for their failure to provide their expert reports within the times prescribed by the court. Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 168-69 (App. Div.), certif. denied, 200 N.J. 502 (2009).

V.

Grinkevich argues that the court erred by granting summary judgment in favor of Pennwood and Berry on her per quod claims. New Jersey recognizes a spouse's derivative claim for loss of consortium. Friedman v. Klazmer, 315 N.J. Super. 467, 469 (Law Div. 1998). However, our courts have not extended this cause of action to unmarried individuals, including engaged couples and unmarried cohabitants. See Childers v. Shannon, 183 N.J. Super. 591, 593 (Law Div. 1982). Grinkevich argues that the right to pursue a per quod claim should be extended to her because she and Lemma have allegedly been "longtime, live-in companions."

We decline to address Grinkevich's argument. Her per quod claim is a derivative claim. Here, the trial court dismissed the claims against the State, Pennwood and Berry. Plaintiffs have not challenged the dismissal of their claims against Berry, and we have concluded that the trial court correctly granted summary judgment to the State and Pennwood. Because Grinkevich's claims are also premised on the alleged negligence of these parties, her claims were properly dismissed as well.

Affirmed.


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