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Paul Rybkin v. Township of North Bergen


May 17, 2012


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-108-08.

Per curiam.


Argued May 1, 2012 -

Before Judges Fisher, Baxter and Nugent.

Plaintiff Paul Rybkin sustained serious injuries in a motor vehicle accident in which his vehicle hit a patch of black ice, and spun onto the other side of the roadway where it was rear-ended by a Mack truck. The judge granted summary judgment to defendant Township of North Bergen and its Department of Public Works (Township), concluding that plaintiff had not raised a genuine issue of material fact sufficient to defeat the weather immunity conferred by a portion of the Tort Claims Act (TCA), N.J.S.A. 59:4-7. The judge also granted summary judgment to defendant Julio Lorasanchez, the driver of the Mack truck, and to his employer, Interstate Intermodal (Interstate), concluding that no reasonable jury could find a breach of the duty of due care on the part of Lorasanchez as only two seconds elapsed between the time he saw plaintiff's vehicle cross into his, Lorasanchez's, side of the roadway and the time his truck rear-ended plaintiff's vehicle. Next, in granting summary judgment to defendant Nissan North America, Inc. (Nissan) and the dealership from which plaintiff purchased his 2004 Nissan Pathfinder, defendant Nissan World of Springfield, the judge concluded that without the benefit of an expert report, plaintiff had failed to raise a genuine issue of material fact establishing any defect in the seatbelt, or in the design or manufacture of the airbag in the steering column, which failed to deploy during the impact. Finally, the judge denied plaintiff's motion to amend his complaint against Nissan World to add a count for a violation of the Consumer Fraud Act (CFA), based on plaintiff's contention that Nissan World had fraudulently failed to disclose the repairs it made to the vehicle before selling it to plaintiff. We affirm.


On August 21, 2004, plaintiff purchased a 2004 Nissan Pathfinder from defendant Nissan World. He knew it was a "demo model," having been previously driven by the owner of the dealership for approximately 6000 miles. Nevertheless, prior to May 2008, plaintiff had no knowledge "that the vehicle had been worked on" because Nissan World did not inform plaintiff at the time of his purchase of the vehicle that it had performed "corrective [and cosmetic] body work" to fix the vehicle's scratches and dents prior to plaintiff's purchase. None of the repairs involved the vehicle's bumpers, airbag sensors, or airbag system, nor was the vehicle involved in any accidents while owned by Nissan World.

On January 4, 2006, at approximately 7:30 a.m., plaintiff left for work. While traveling on 69th Street in West Bergen, he observed icy conditions on the street "due to precipitation the night before." Plaintiff turned left onto West Side Avenue, a four lane road separated by double yellow lines. After making the turn, the next thing plaintiff recalled was awakening in the hospital.

According to defendant Lorasanchez, he was traveling north in the left lane on West Side Avenue. While traveling approximately twenty miles per hour, he saw plaintiff's vehicle traversing into his lane approximately ten feet before impact. He "could not avoid the impact," and collided with the "right part" of plaintiff's vehicle, which, according to Lorasanchez, was traveling approximately forty miles per hour. In Lorasanchez's statement to Officer Frank Mena of the North Bergen police department, Lorasanchez recalled "that he was traveling north on West Side Avenue and was in the left lane when . . . [plaintiff's vehicle] suddenly appeared in front of him and he never saw . . . [plaintiff's vehicle] and he didn't brake and he struck . . . [plaintiff]." After impact, plaintiff's vehicle traveled approximately twenty feet, coming to rest on a sidewalk; the truck traveled approximately eight feet. The Mack truck had "heavy front, right-side damage," while plaintiff's vehicle had "heavy rear-end damage" and was totaled.

While driving, plaintiff was using a hands-free device to speak to his friend Jazmel Sanchez on his cell phone. Sanchez, who was traveling a distance behind plaintiff, did not witness the crash. Sanchez arrived at the accident scene shortly afterward. As he was turning his vehicle to the side of the road, Sanchez "slid on the conditions of the road" and "went on the curb." When Sanchez found plaintiff, plaintiff was conscious, moaning and motioning to Sanchez to remove his seatbelt. According to Sanchez, plaintiff was badly injured.

Mena's police report stated that, at 7:52 a.m. on January 4, 2006, "there was a very large patch of ice on West Side Avenue for southbound traffic." Based on "the evidence at the scene and the few statements obtained," Mena's accident investigation report concluded that, while traveling south on West Side Avenue, plaintiff: hit the patch of ice and he lost control of his vehicle and spun out and ended in the left lane of the northbound traffic for West Side Avenue and his vehicle crossed the path of the truck who could not foresee this event and the truck struck the right rear of . . . [plaintiff's] vehicle and sent it spinning towards the curb where it came to rest.

Plaintiff later asserted that Mena told him Lorasanchez was exceeding the speed limit prior to impact, but Mena's report contains no such statement.

Mena specifically recalled the airbag to the left of the driver's seat "being deployed." From the photographs he observed, Mena believed that the passenger side airbag had also inflated. Sanchez, in turn, recalled that the passenger side curtain airbag deployed; however, the steering wheel airbag had not.

Mena interviewed plaintiff on January 10, 2006, in the Jersey City Medical Center after plaintiff regained consciousness. Plaintiff did not recall any details of the accident. He also did not know how long the ice patch existed prior to his vehicle sliding on it. Plaintiff's medical records and interrogatory responses specified that he sustained serious injuries, which included spending a week in a coma, incurring permanent damage to his left eye and permanent hearing loss, multiple skull fractures from striking his head on the interior roof of the vehicle, and a fractured pelvis.

According to the police report and plaintiff's deposition testimony, on the morning of the accident, the weather in North Bergen was "clear." According to the police report and plaintiff's deposition testimony, Sanchez believed it had rained the previous day and "was still misty" that morning. Plaintiff also remembered rain having fallen the previous night.

Weather data from the National Climate Data Center revealed that on January 1, 2006, three days before the accident, at Teterboro Airport and Newark Liberty International Airport, the temperature was slightly below freezing during the early morning hours and above freezing during the remainder of the day. On January 2 and 3, the weather at those locations was at or above freezing throughout the day. There were trace amounts of precipitation on January 2 and 3, at which times the temperature consistently stayed above freezing. On January 4, the temperature at the same locations was slightly below freezing during the morning hours and above freezing during the remainder of the day. There was no precipitation on January 4 at or near the time of the accident.

At his deposition, plaintiff testified that a local newspaper reported that three accidents, including his, occurred on West Side Avenue on January 4, 2006. Also, according to plaintiff, Mena told him "about West Side Avenue having accidents." Plaintiff stated that Mena mentioned that there was "a standing order for cleanup on . . . [West Side Avenue] of ice," but did not recall whether the "standing order" was in effect on the day of the accident.

Sanchez testified at his deposition that someone from the North Bergen Police Department told him there had been "a lot of accidents" at or near West Side Avenue "in the previous couple of weeks," although some had resulted from drag racing. Sanchez also asserted that "one of . . . [his] buddies" had advised him that West Side Avenue "floods a lot." Sanchez additionally testified that he knew West Side Avenue to flood at times. However, Sanchez further explained that he did not "recall seeing any floods or any patches of water[] per se" on the day of the accident.

Plaintiff had no knowledge of anyone generally notifying the Township of accidents or road hazards on West Side Avenue, or specifically on the day of the accident. Likewise, North Hudson Regional Fire and Rescue Battalion Chief Michael Falco testified that he had never been notified of any problems with ice accumulation on West Side Avenue.

Plaintiff's Pathfinder was towed from the scene, having been declared an "obvious total loss." Sometime between January 19 and 26, 2006, while in the hospital, plaintiff signed a document that released the vehicle to his insurance company. He was not told what the carrier intended to do with the vehicle, but it was ultimately sold on April 26, 2006, to a purchaser in Kazakhstan.

On January 4, 2008, plaintiff filed a complaint, alleging: (count one) negligence against the Township with respect to its design, construction, maintenance, and control of West Side Avenue; (count two) negligence against Lorasanchez and his employer Interstate Intermodal concerning Lorasanchez's operation of a commercial vehicle in the scope of his employment with Interstate; (count three) violation of the Product Liability Act (PLA) against Nissan World and Nissan North America; and (count four) gross negligence and malicious conduct against "any [d]efendant . . . having prior knowledge of the dangerous condition on the roadway or . . . [having] a duty to help remove said danger and intentionally fail[ing] to report or remove said danger."

The discovery end date (DED) was originally April 2009. At plaintiff's request, the DED was adjusted several times, and was ultimately extended to June 30, 2010. In all, plaintiff was afforded a total of 835 days for discovery. He did not supply any expert reports establishing negligence on the part of either the Township, Nissan North America or Nissan World.

In particular, plaintiff produced no report from an expert opining that there was any defect in the design, construction or maintenance of West Side Avenue that would cause the road to flood or develop icy patches. Nor did plaintiff produce any expert report demonstrating that the icy condition of the roadway on the day in question was due to any factors other than the frigid temperatures. As for the Nissan defendants, plaintiff produced no expert report asserting that either the seatbelt or the airbag system was defectively designed or manufactured, that the steering wheel airbag should have deployed during the accident, or that the steering wheel airbag had any defects that prevented it from doing so. Additionally, plaintiff produced no evidence establishing that the Township had actual notice of the ice on the roadway on the day in question, or actual notice that West Side Avenue was prone to flooding. As to Lorasanchez, plaintiff did not produce a report from an accident reconstruction expert opining that Lorasanchez could have taken evasive action to avoid the crash.

In November 2009, plaintiff moved for leave to file an amended complaint against Nissan World to assert claims of consumer fraud, N.J.S.A. 56:8-2, violation of the New Jersey Uniform Commercial Code, N.J.S.A. 12A:2-714, breach of contract, and vicarious liability. The judge denied the motion, as well as plaintiff's later motion for reconsideration.

All defendants moved for summary judgment in early 2010. At the completion of oral argument on March 5, 2010, the court granted the motions.


Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995). On appeal, this court applies the same standard, deciding first whether there was a genuine issue of material fact. Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011). If there was not, we then must decide whether the judge's ruling on the law was correct. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Legal conclusions are subject to de novo review. Ibid.

First, plaintiff contends the court erred by dismissing his claims against the Township on summary judgment. Specifically, he argues the Township was not entitled to immunity under the TCA, specifically N.J.S.A. 59:4-7, which confers immunity for injuries resulting solely from the effect of weather conditions on the use of public streets and highways. Additionally, plaintiff claims that it was for a jury to determine whether the Township was liable because the Township, according to plaintiff, had both actual and constructive notice of the ice patch, and thus acted in a palpably unreasonable manner by failing to warn motorists and to correct the dangerous condition.

The judge concluded that N.J.S.A. 59:4-7 immunized the Township from liability because the accident was solely caused by weather conditions. Pursuant to the TCA, "public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein." N.J.S.A. 59:1-2. The TCA states:

a. Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

b. Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person. [N.J.S.A. 59:2-1.]

Thus, under the TCA, "'immunity is the dominant consideration.'" Rochinsky v. State of N.J., Dep't of Transp., 110 N.J. 399, 408 (1988) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 498 (1985) (O'Hern, J., concurring)).

N.J.S.A. 59:4-7, which is the statute upon which the judge relied, provides immunity to public entities for injuries caused solely by the effect of weather conditions on a roadway. Pico v. State, 116 N.J. 55, 61 (1989). As the Court held in Pico:

[A] public entity [is not liable] for an injury caused solely by the effect on the use of [streets and] . . . highway[s] of weather conditions. . . . [Thus,] the State may be liable for the failure to correct a known pre-existing dangerous condition unrelated to the weather, but . . . is immune from liability for such a condition caused solely by weather. [Ibid.]

Plaintiff contends the accident was not solely caused by weather conditions because the accident scene was known for flooding and ice formation, and the ice had been present for at least three days. He maintains the Township should have known of the condition and should have treated it. He also asserts, relying on Sanchez's deposition testimony, that West Side Avenue was prone to flooding.

However, Sanchez's deposition testimony that the road was prone to flooding was based on the inadmissible hearsay reports of others. He himself did not "recall seeing any floods or any patches of water[] per se" on the day of the accident. Thus, like Dickson v. Township of Hamilton, 400 N.J. Super. 189, 200 (App. Div.), certif. denied, 196 N.J. 461 (2008), where no additional man-made conditions created the water that froze into ice, weather was the sole cause of the dangerous icy condition here, and N.J.S.A. 59:4-7 affords the Township immunity. Moreover, because the Township did nothing to increase the danger of the ice in its natural condition, the weather immunity statute controls. Pico, supra, 116 N.J. at 61.

Plaintiff's reliance on Meta v. Township of Cherry Hill, 152 N.J. Super. 228 (App. Div.), certif. denied, 75 N.J. 587 (1977), is unavailing, as Meta is distinguishable on its facts. In Meta, we reversed a summary judgment order in favor of the municipality, holding that N.J.S.A. 59:4-7 did not apply where the plaintiff's car skidded on ice that had formed because a ditch at the side of the road was filled with silt and vegetation. Meta, supra, 152 N.J. Super. at 230-31, 233-34. The Township of Cherry Hill was aware of the ditch's tendency for flooding prior to the accident. Ibid. Here, unlike in Meta, there is no evidence that the Township had prior knowledge of the alleged unremediated dangerous condition.

Moreover, even if defendant Township had knowledge that excess water tended to accumulate on the surface of West Side Avenue, such knowledge would not defeat the immunity conferred by N.J.S.A. 59:4-7 or enable plaintiff to benefit from the holding in Meta. Here, unlike in Meta, plaintiff has pointed to nothing other than the weather conditions alone that caused excess water to accumulate. Stated differently, in the absence of evidence of a condition such as the accumulated silt and vegetation that caused the roadway in Meta to flood, id. at 231, here any water accumulation on West Side Avenue was due only to heavy rainfall, for which N.J.S.A. 59:4-7 affords immunity.

The circumstances here are similar to those in Pico, supra, 116 N.J. at 58, 61, where the Court held that N.J.S.A. 59:4-7 afforded immunity to the public entity when the plaintiff, who had alighted from her car, was struck by a passing motorist whose car skidded on ice. The Court held that although a public entity "may be liable for . . . [a] dangerous condition unrelated to the weather, . . . it is immune from liability for such a condition caused solely by weather." Id. at 61. Notably, the Court concluded that even though the State was aware of the icy conditions due to a telephone call from a local police officer a few hours earlier, id. at 57, 61, the weather immunity statute applied nonetheless, as the icy conditions on the roadway were the sole cause of the accident, id. at 61-62.

Unlike the circumstances in Robinson v. City of Jersey City, 284 N.J. Super. 596, 598, 600 (App. Div. 1995), in which a broken water pipe spilled water on the roadway and froze, creating a 355-foot icy patch, or McGowan v. Eatontown, 151 N.J. Super. 440, 443 (App. Div. 1977), in which a restaurant's roadside driveway caused a run-off of a large quantity of water onto the highway that froze in cold temperatures, here the weather was the "sole[]," N.J.S.A. 59:4-7, cause of the roadway conditions that resulted in plaintiff's injuries.

In reaching that conclusion, we reject plaintiff's contention that Lorasanchez's negligence was a "protagonist partner," Horan v. State, 212 N.J. Super. 132, 134 (App. Div. 1986), that defeats the weather immunity conferred by N.J.S.A. 59:4-7. No evidence in the record suggests, and plaintiff does not allege, that some pre-existing road condition or impediment caused Lorasanchez to collide with plaintiff. Nor, as we shall discuss shortly, was any negligence on the part of Lorasanchez a causative factor in plaintiff's injuries. Therefore, plaintiff's injuries were "caused solely by the effect on the use of streets and highways of weather conditions." N.J.S.A. 59:4-7. We affirm the grant of summary judgment to the Township.


Next, plaintiff argues the court erred by granting summary judgment to Lorasanchez and Interstate because Lorasanchez negligently operated his employer's truck on the day of the accident, and it was for a jury to determine whether Lorasanchez was contributorily negligent. The judge dismissed the claims against Lorasanchez and Interstate because nothing in the record suggested that Lorasanchez drove in a negligent manner. Rather, the judge concluded, it was not possible for Lorasanchez to avoid the collision, given that plaintiff's vehicle "all of the sudden . . . sp[u]n[] into his lane of traffic."

To establish a prima facie claim of negligence, a plaintiff must show: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages. Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008). An automobile driver has a duty to use reasonable care in the control, management and operation of his or her vehicle. Goldstone v. Tuers, 189 N.J. Super. 167, 169 (App. Div. 1983).

Drivers may assume that others will observe the proper standard of conduct, and, for that reason, the duty of reasonable care between drivers upon highways is mutual. Tichenor v. Santillo, 218 N.J. Super. 165, 170 (App. Div. 1987). "Negligence is never presumed and the mere happening of an accident, standing alone, will not support an inference of negligence[.]" Crisciotti v. Greatrex, 9 N.J. Super. 26, 28 (App. Div. 1950). Of special significance here, "[t]he duty of a driver to exercise due care does not require him to anticipate that persons not in his path of travel will suddenly place themselves there." Biruk v. Wilson, 50 N.J. 253, 262 (1967).

Plaintiff contends Lorasanchez was negligent because he failed to see plaintiff's vehicle until it was ten feet in front of him, and made no attempt to avoid the collision, even though it was a clear day and nothing blocked Lorasanchez's view of plaintiff's vehicle as it spun out of control. However, Lorasanchez's recollection of the accident is not contradicted in any material way. He faced an emergency situation and was unable to brake and avoid striking plaintiff's vehicle. "The existence of an emergency and the responsibility for its creation are not questions for the jury where they can elicit but one response from reasonable minds." Mijon v. Acquaire, 51 N.J. Super. 426, 443-44 (App. Div.), certif. denied, 28 N.J. 146 (1958). See also Leighton v. Sim, 248 N.J. Super. 577, 580 (App. Div. 1991) (defining a sudden emergency as a situation where a driver "is confronted by am imminent situation over which he or she had no control, without fault on his or her part").

We concur in the judge's determination that a reasonable jury could not conclude that Lorasanchez was negligent or that he was responsible for the emergency, especially in the absence of a report from an accident reconstruction expert opining that Lorasanchez could have taken evasive action in the one or two seconds available to him. Moreover, Lorasanchez was not required to anticipate plaintiff's sudden, unexpected intrusion into his lane. Biruk, supra, 50 N.J. at 262.

The only evidence that conceivably suggests that Lorasanchez was negligent is plaintiff's deposition testimony, in which plaintiff stated Mena told him that Lorasanchez was exceeding the speed limit just prior to impact. However, plaintiff's testimony is unsubstantiated hearsay, N.J.R.E. 801, to which no exception applies. See N.J.R.E. 803, 804. Thus, it is inadmissible, N.J.R.E. 802, and insufficient to defeat summary judgment. See Brill, supra, 142 N.J. at 529-30. See also Neno v. Clinton, 167 N.J. 573, 579-81 (2001) (holding that court erred by admitting into evidence officer's hearsay statements recounting two eyewitnesses' testimony concerning automobile accident).

Nor, do we accept plaintiff's argument that the failure of Lorasanchez to take any evasive action -- applying his brakes or turning the steering wheel -- required the judge to deny Lorasanchez's motion. With plaintiff suddenly veering into Lorasanchez's lane ten feet in front of Lorasanchez's truck, and with only two seconds to spare before the impact, we agree with the judge's determination that no reasonable jury could conclude that the accident was anything other than unavoidable, whether Lorasanchez took evasive action or not.

Finally, plaintiff contends the judge should have applied an enhanced duty of care because "several witnesses testified to the dangerous condition of the black ice on the roadway at the time of the accident." However, the opinions on which plaintiff relies are inapposite because all of those dangerous conditions adversely affected the respective defendants. See Stackenwalt v. Washburn, 42 N.J. 15, 24 (1964) (holding that "the operator of a motor vehicle in a fog which limits his visibility is under a special and greater degree of care commensurate with the increased danger"); Ball v. Camden & Trenton Ry. Co., 76 N.J.L. 539, 540 (E. & A. 1909) (holding the same where fog caused the visual obstruction); Cordts v. Vanderbilt, 7 N.J. Misc. 856, 856-57 (Sup. Ct. 1929) (holding the same where snow obstructed the defendant's view). Here, there is no evidence indicating that an ice patch or other dangerous condition affected Lorasanchez's operation of his truck.

We affirm the grant of summary judgment in favor of Lorasanchez and Interstate, as plaintiff did not raise a genuine issue of material fact on any negligence by Lorasanchez.


Next, plaintiff contends the judge erred by granting summary judgment to Nissan North America. He argues that no expert testimony was needed to establish manufacturing defects in the seatbelt and airbag system and, in any event, the jury could have inferred such defects through the doctrine of res ipsa loquitur.

The judge dismissed the claims against Nissan North America on the ground that, without expert testimony, plaintiff had not raised a genuine issue of material fact on whether his head injuries were caused by a defect in the vehicle's design or manufacture.

N.J.S.A. 2A:58C-2, a portion of the Product Liability Act (PLA), provides, in pertinent part:

A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it . . . deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae[.]

To prove a defect in manufacturing under the PLA, a plaintiff may not merely rely on the presumption of a defect because of the happening of an accident. Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 49 (1996); Lauder v. Teaneck Volunteer Ambulance Corps., 368 N.J. Super. 320, 332 (App. Div. 2004). Rather, a plaintiff must prove that "the defect was present while it was in the control of the particular . . . [manufacturer] being sued." Scanlon v. Gen. Motors Corp., 65 N.J. 582, 591 (1974). The existence of a defect may be proven by reliance on expert testimony or "circumstantial evidence of a defect." Lauder, supra, 368 N.J. Super. at 331.

Expert testimony is 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). If "the case involves a complex instrumentality, expert testimony is needed in order to help the fact-finder understand 'the mechanical intricacies of the instrumentality' and help to exclude other possible causes of the accident." Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 341 (App. Div. 2000) (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 546 (App. Div.), certif. denied, 145 N.J. 374 (1996)).

The doctrine of res ipsa loquitur is inapplicable to a product defect case brought by a plaintiff against a manufacturer. Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 102 (1999). Nevertheless, a plaintiff may be entitled to an inference similar to res ipsa loquitur when the requirements set forth in the Restatement (Third) of Torts § 3 (1997) are met:

It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:

(a) was of a kind that ordinarily occurs as a result of a product defect; and

(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution. [Myrlak, supra, 157 N.J. at 104 (quoting Restatement § 3).]

Plaintiff contends his proofs established that the seatbelt was designed to and should have prevented him from striking the roof of his vehicle and the A pillar.*fn1 Nevertheless, he struck both, and thus no expert testimony was needed to establish a manufacturing defect. Contrary to plaintiff's argument, Nissan made no claim that the seatbelt would prevent all injuries. The vehicle's manual merely states that if the seatbelt is properly adjusted and the individual is sitting properly in the seat, then the "chances of being injured or killed in an accident and/or the severity of injury may be greatly reduced." As is evident, Nissan never claimed that a seatbelt always prevents a person's impact with the roof of a vehicle in a collision, regardless of any other external factors such as the road conditions, the vehicle's speed, or the severity of the impact.

Thus, in the absence of any guarantee from Nissan that a seatbelt will always prevent impact with a vehicle's roof in an accident, plaintiff needed expert testimony to establish that the seatbelt suffered from a manufacturing or design defect. See Lauder, supra, 368 N.J. Super. at 332 (concluding that "the locking mechanism of . . . [a gurney that collapsed] is sufficiently complex to require expert testimony").

Likewise, to establish a defect in the airbag system, plaintiff needed expert testimony. Like the gurney in Lauder, an airbag system is a complex mechanism that requires expert testimony when manufacturing defects are alleged. Without expert testimony, a jury can only speculate as to why the steering wheel airbag did not activate, or whether it was defective. Expert testimony was especially important here, where the impact with plaintiff's vehicle was on the passenger side rear, not the driver's side rear, and it was the steering wheel airbag that did not inflate.

Finally, plaintiff relies on the "indeterminate product defect test," as adopted in Myrlak, supra, 157 N.J. at 90, to establish a manufacturing defect and Nissan North America's corresponding liability. Here, however, the elements of that test have not been satisfied, as common experience does not establish that this alleged incident would not have occurred in the absence of manufacturing defects in the seatbelt and airbag system. Id. at 105.

We affirm the grant of summary judgment to Nissan and to Nissan World.


Last, plaintiff contends the court erred by denying his motion to amend the complaint to assert a CFA claim and other claims against Nissan World. The court denied the motion on the ground that amendment of the complaint would be futile, given that plaintiff had not produced any liability expert reports on the subject and the time for discovery was nearing its end. In particular, at the time the judge denied plaintiff's motion on December 22, 2009, the DED was only two days away.

The denial of a motion to amend pleadings is reviewed for an abuse of discretion. Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998). While motions to amend pleadings should be viewed indulgently, "there remains nevertheless a necessary area of judicial discretion in denying such motions where the interests of justice require." Wm. Blanchard Co. v. Beach Concrete Co., Inc., 150 N.J. Super. 277, 299 (App. Div.), certif. denied, 75 N.J. 528 (1977). "That exercise of discretion requires a two-step process: whether the non-moving party will be prejudiced, and whether granting the amendment would nonetheless be futile." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006).

Regarding futility, "courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted." Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997) (internal quotation marks omitted) (citing Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995)).

Plaintiff's intended cause of action was premised on Nissan World's failure to disclose that the vehicle plaintiff purchased had been damaged prior to its sale and upon the affirmative misrepresentation that the vehicle had not been damaged. As is evident, plaintiff's proposed amended complaint presupposed that his vehicle was damaged or defective prior to purchase, and that such defects directly and proximately caused the collision.

However, plaintiff produced no expert report opining that such vehicle defects caused the accident. The only evidence in the record at the time plaintiff moved to amend his complaint was the certification from Nissan World explaining that the only repairs made to the vehicle were minor repairs to eliminate superficial scrapes and dents. Without an expert report, plaintiff could not establish that any misrepresentations by Nissan World about the status of the vehicle played any role in causing, or contributing to, plaintiff's injuries. Under such circumstances, the granting of leave to amend the complaint was properly denied, as the amendment would have been -- in the absence of an expert report -- futile. See Interchange, supra, 303 N.J. Super. at 256-57.

Finding no abuse of discretion in the court's denial of plaintiff's motion to amend the complaint to assert a CFA claim against Nissan World, we affirm the denial of the motion.


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