On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-108-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...