July 19, 2013
ESTHER SEGAL, individually and as Administratrix of the ESTATE OF RABBI SEGAL and RABBI ZEV SEGAL, deceased, Plaintiff-Appellant,
COUNTY OF HUDSON, HUDSON COUNTY PARK COMMISSION, and DEE-JAY DEPOT, Defendants-Respondents, and THE CITY OF JERSEY CITY, THE STATE OF NEW JERSEY, RICH TRANSPORTATION and FIRST STUDENT INC.,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1259-10.
Robert M. Mayerovic argued the cause for appellant (Zemel Law Firm, P.C., attorneys; Fred M. Zemel and Kevin Campbell, on the brief).
Michael L. Dermody, First Assistant County Counsel, argued the cause for respondents County of Hudson and Hudson County Park Commission (Donato J. Battista, Hudson County Counsel, attorney; Mr. Dermody, on the brief).
Laurel A. Wedinger argued the cause for respondent Dee-Jay Depot (Barry, McTiernan & Wedinger, attorneys; Ms. Wedinger, on the brief).
Before Judges Graves, Ashrafi, and Guadagno.
Rabbi Zev Segal was driving along Duncan Avenue in Jersey City when his vehicle reached the road's terminus and plunged into the Hackensack River. Rabbi Segal died. Plaintiff Esther Segal, Rabbi Segal's wife, filed a survival and wrongful death action individually and on behalf of Rabbi Segal's Estate, against six defendants. Plaintiff appeals from two orders entered by the Law Division: (1) the July 11, 2011 order dismissing plaintiff's complaint against defendant Dee-Jay Depot, Inc. (Dee-Jay); and (2) the October 11, 2011 order granting summary judgment to defendant Hudson County. We affirm.
On March 5, 2008, Rabbi Zev Segal, at the time aged ninety-one, was with his son, Yigal, in Jersey City at 8:15 a.m. Yigal gave his father directions to a school in Livingston where the Rabbi was going to pick up his mail. The Rabbi drove away in a green 1999 Mercury Marquis intending to meet his son later that morning.
When the Rabbi failed to appear, Yigal contacted the school in Livingston and learned that his father never arrived. A few hours later, Yigal filed a missing persons report with the Jersey City Police Department.
On March 6, 2008, a Jersey City Public Works employee was eating lunch at the end of Duncan Avenue near the Hackensack River when he spotted the Mercury upside-down in the river. The police were notified and responded to the scene.
The vehicle was found approximately thirty feet from the shore and roughly two hundred thirty feet south of the Duncan Avenue terminus. After a dive team removed part of the vehicle's side window, a body, later identified as Rabbi Segal, was discovered in the driver's seat.
Duncan Avenue is a city owned roadway, which runs in an east-west direction, perpendicular to the Hackensack River at the westerly end of the road. On the northbound side of the road is the property owned by Dee-Jay. There is no curb, barrier, or any other delineation between the asphalt of the roadway and the asphalt of Dee-Jay's lot.
The vehicle sustained impact to the left front end and scratches on the undercarriage. While there were no eye witnesses to the event, it is not disputed that decedent's car entered the Hackensack River by way of Duncan Avenue, where that road meets the river. Plaintiff maintains that the vehicle crossed onto property owned by Dee-Jay, but Dee-Jay contends there is no proof as to the path decedent's vehicle took before plunging into the river.
On the westward end of Duncan Avenue, there is a guard rail, approximately eighteen to twenty feet in length which is set back approximately twenty feet from the bulkhead. Depending upon the tide, the drop from the bulkhead to the water is between nine and twelve feet. Plaintiff's theory is that the vehicle struck the guardrail and careened onto Dee-Jay's property before plunging into the river.
On March 4, 2010, plaintiff filed a complaint against the County of Hudson, the City of Jersey City, the Hudson County Park Commission,  the State of New Jersey, Dee-Jay, Rich Transportation, Inc., and First Student, Inc., seeking damages under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6 and the Survivor's Act, N.J.S.A. 2A:15-3. Our review requires an examination of the somewhat complex procedural history.
On April 21, 2010, First Student moved to dismiss. On May 14, 2010, after hearing oral argument, the Law Division granted First Student's motion to dismiss based upon plaintiff's failure to state a claim upon which relief could be granted. Nearly one year later, plaintiff moved to vacate the May 14, 2010 order. After hearing oral argument on May 27, 2011, the Law Division denied plaintiff's motion.
Plaintiff filed a motion for reconsideration. First Student opposed this motion. Dee-Jay filed a cross-motion in which it urged denial of plaintiff's motion for reconsideration. In the cross-motion, Dee-Jay also moved for dismissal. The Law Division denied plaintiff's motion for reconsideration and granted Dee-Jay's cross-motion for dismissal, finding that there was "absolutely no foreseeability for the sequence of events leading to the death of plaintiff's decedent in this matter despite the protestations of the plaintiff to the contrary."
Jersey City then filed a motion for reconsideration of the order dismissing Dee-Jay from the case. Jersey City also sought leave to file a third-party complaint against Dee-Jay, seeking contribution and indemnification. Jersey City maintained that a legal duty existed between Dee-Jay and plaintiff because the tragedy was foreseeable. Dee-Jay opposed both of Jersey City's motions.
On August 11, 2011, plaintiff joined Jersey City's motion for reconsideration. After oral argument, the Law Division denied both of Jersey City's motions. Jersey City then filed a motion for summary judgment, and Hudson County filed a cross-motion for summary judgment. The Law Division granted Hudson County's motion but denied Jersey City's motions, finding several unresolved questions of fact. Eventually, Jersey City settled with plaintiff.
Plaintiff appeals the dismissal of Dee-Jay as well as the order granting Hudson County's summary judgment motion.
Plaintiff argues that the cross-motion brought by Dee-Jay was not actually a cross-motion but a new motion to dismiss and should not have been attached to a motion for reconsideration filed by another party. Plaintiff relies on the language of Rule 1:6-3(b), which provides that cross-motions must be filed by the party opposing the motion and must be related to the original motion. Defendant Dee-Jay responds that plaintiff failed to preserve this argument because she never challenged the procedural correctness of the cross-moving papers before the trial court.
Generally, our review of a decision on appeal "is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). "[T]he making of contemporaneous objections [is] the principal and almost exclusive means of preserving an issue for appeal . . . ." Id. at 20. In the absence of an objection, we retain the inherent authority to "notice plain error not brought to the attention of the trial court[, ]" provided it is "in the interests of justice" to do so. R. 2:10-2.
Plaintiff had ample opportunity to raise the issue of the procedural deficiency of Dee-Jay's cross-motion, so that it could be "explored first and fully before [the] trial court." Robinson, supra, 200 N.J. at 20. We decline to address this argument, raised for the first time on appeal, as the issue is not jurisdictional, nor does it substantially implicate the public interest. Ibid.
Plaintiff next challenges the trial court's finding that plaintiff failed to state a cognizable claim against Dee-Jay as Dee-Jay owed no legal duty to decedent. Plaintiff claims that its complaint, when viewed in a light most favorable to her, plainly describes a factual situation in which a claim for relief could be made.
The determination of whether a duty to exercise reasonable care to avoid the risk of harm to another exists is generally considered "a matter of law properly decided by the court." Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991). "The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Kelly v. Gwinnell, 96 N.J. 538, 544 (1984).
In order for a defendant to be liable for negligence, there must exist a legally recognized duty on the part of defendant towards the plaintiff, and the defendant must have breached that duty. Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382 (1963); Mergel v. Colgate-Palmolive-Peet Co., 41 N.J.Super. 372 (App. Div. 1956). There can be no recovery in a negligence action if the actor violated no duty owed to the injured party. Krauth v. Geller, 54 N.J.Super. 442, 458-59 (App. Div. 1959), aff'd, 31 N.J. 270 (1960). It is the nexus between duty and liability which is the proof of negligence. Dwyer v. Skyline Apartments, Inc., 123 N.J.Super. 48, 52 (App. Div.), aff'd, 63 N.J. 577 (1973). "A major consideration in the determination of the existence of a duty of reasonable care under 'general negligence principles' is the foreseeability of the risk of injury." Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999).
The Law Division found Dee-Jay owed no duty to decedent because there was no foreseeability for the sequence of events leading to decedent's death. The "[a]bility to foresee injury to a potential plaintiff does not in itself establish the existence of a duty, . . . but it is a critical element in determining whether imposition of a duty on an alleged tortfeasor is appropriate." Carter Lincoln-Mercury, Inc. v. Emar Group, Inc., 135 N.J. 182, 194 (1994). In addressing the imposition of a duty based on principles of foreseeability, it is more significant that a plaintiff may be found in the "'range of harm' emanating from a tortfeasor's activities, " than "whether the parties stand in a direct contractual relationship." Id. at 195. "Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." Kelly, supra, 96 N.J. at 543.
Applying these principles, it is not readily foreseeable that someone driving a vehicle along Duncan Avenue would reach the terminus of the road, strike the protective guardrail, and proceed onto Dee-Jay's adjacent property before crossing over the bulkhead and plunging into the river.
Even if plaintiff had established foreseeability as to DeeJay, further determination would be necessary as to whether considerations of fairness and policy warrant imposing a duty. Carter Lincoln-Mercury, Inc., supra, 135 N.J. at 194-95. "One factor bearing on considerations of fairness and policy is the relationship of the parties." Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 574 (1996). Viewing the evidence in the light most favorable to plaintiff, and accepting her theory that decedent's vehicle entered the river after crossing DeeJay's property, decedent was not on Dee-Jay's property "by invitation, express or implied." See Lordi v. Spiotta, 133 N.J.L. 581, 584 (Sup. Ct. 1946). Nor, did decedent fall into the category of one "not invited but whose presence is suffered." Ibid. If decedent was a trespasser, no duty would be owed "except to abstain from acts willfully injurious." Badalamenti v. Simpkiss, 422 N.J.Super. 86, 95 (App. Div. 2011) (quoting Meade v. Purity Bakers, 115 N.J.L. 471, 472 (E.& A. 1935)).
Plaintiff argues that even if decedent was a trespasser, Dee-Jay had a duty to warn of the risk of death from the unprotected bulkhead. In support of this proposition, plaintiff relies on Ocasio v. Amtrack, 299 N.J.Super. 139 (App. Div. 1997). We find this reliance misplaced. In Ocasio, the plaintiff was injured while attempting to cross defendant's railroad tracks via a shortcut through an abandoned station. Id. at 143. The plaintiff filed a suit against defendant railroad, among others, to recover on the grounds that defendant's negligence in failing to block access to the shortcut proximately caused plaintiff's injuries. Id. at 143-44. We affirmed the trial court's determination that defendant railroad was liable for the plaintiff's injuries because the defendant breached its duty of reasonable care when it failed to block access to a shortcut across it tracks. Id. at 160. Judge Skillman noted that, although the plaintiff was a trespasser on Amtrak's property, Amtrak had received twenty-four incident reports in the two-year period preceding plaintiff's accident. These reports indicated that persons were trespassing in the area and train operators had been forced to resort to emergency measures on some occasions to avoid hitting them. Id. at 150. By contrast, the only evidence in the record that Dee-Jay had knowledge of prior trespassers involved drivers on Duncan Avenue occasionally making U-turns onto Dee-Jay's property.Nothing in the record supports plaintiff's claim that "Segal's death and the manner of Segal's death was clearly a foreseeable event." Under these circumstances, we perceive no basis, whether premised upon basic fairness or notions of public policy, to impose liability upon Dee-Jay for decedent's death.
The remainder of plaintiff's arguments lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), and require only the following brief comments.
Plaintiff argues that the location of the Hudson County Prosecutor's Office on Duncan Avenue, directly across the street from Dee-Jay, is evidence that "Hudson County owned, occupied and/or controlled the area in and around where Segal's car entered the Hackensack River." We disagree. Hudson County did not own or control the road or the adjacent property where this incident occurred. As such, no duty was owed to decedent by the County and summary judgment was properly granted.
ASHRAFI, J.A.D., concurring.
Although I agree that the trial court correctly determined as a matter of law that defendant Dee-Jay Depot did not have a duty to take safety measures that might have prevented the accident, I reach that conclusion on somewhat different grounds from the trial court and my colleagues.
This case does not fit well into factors generally applicable when determining liability for a dangerous condition of property. Premises liability cases rely heavily on the nature and foreseeability of the dangerous condition and the legal status of the injured person while on the property. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-36 (1993). I would affirm the trial court's ruling, but not because the accident was unforeseeable or because Rabbi Segal was technically a trespasser on Dee-Jay's property. Rather, I would apply the four factors listed in Hopkins, supra, 132 N.J. at 439,  and conclude that Dee-Jay did not have a duty of care imposed by the law to prevent Rabbi Segal's accident based on the relative responsibilities of the public entity that maintains the roadway and those of the adjacent property owners, such as Dee-Jay. See, e.g., Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (an appellate court will affirm a valid order of the trial court on grounds different from the trial court's reasoning).
In the negligence context, "[a] duty is an obligation imposed by law requiring one party 'to conform to a particular standard of conduct toward another.'" Acuna v. Turkish, 192 N.J. 399, 413 (2007) (quoting Prosser & Keeton on Torts: Lawyer's Edition § 53, at 356 (5th ed. 1984)), cert. denied, 555 U.S. 813, 129 S.Ct. 44, 172 L.Ed.2d 22 (2008). Whether a duty of care exists with respect to a particular plaintiff "is generally a matter for a court to decide." Ibid.
The New Jersey Supreme Court recently analyzed again the common law principles that apply to premises liability and the imposition of a legal duty of care to prevent injury to another. Estate of Desir ex. rel. Estiverne v. Vertus, N.J. (2013). As the Court did in Desir, I would ground our holding in this case on considerations of fairness and public policy. In the context of the common law powers of the court in determining the appropriate contours of premises liability, such public policy matters may be determined by judges, at least initially. Id. at 32-33.
Foreseeability is a relevant factor in determining whether a party had a legally-imposed duty to take measures to prevent injury to others. See Hill v. Yaskin, 75 N.J. 139, 143-48 (1977). Here, plaintiff asserts that a dangerous condition of Dee-Jay's property existed because of the absence of a guardrail or other barrier on Dee-Jay's property to protect against vehicles going over the bulkhead and into the river, together with the absence of a curb or other delineation marking the boundary of Dee-Jay's paved parking lot and Duncan Avenue. Plaintiff contends it was foreseeable that a vehicle would veer off Duncan Avenue, continue unimpeded onto Dee-Jay's parking lot, and fall into the river over the unprotected bulkhead.
Although "important, " foreseeability of accident and injury is "not dispositive" in determining whether the law imposes a legal duty on the owner of the property. Desir, supra, slip op. at 39 (quoting Kuzmicz v. Ivy Hill Park Apts., 147 N.J. 510, 515 (1997)). Here, the accident and resultant injury may have been reasonably foreseeable, but "[u]ltimately, the determination of the existence of a duty is a question of fairness and public policy." Kuzmicz, supra, 147 N.J. at 515; accord Desir, supra, slip op. at 33 ("[w]hether a duty exists is ultimately a question of fairness" (quoting Weinberg v. Dinger, 106 N.J. 469, 485 (1987))).
Also, the traditional common law designations of the injured party's status as invitee, licensee, or trespasser, see Desir, supra, slip op. at 22-24, do not help to determine whether Dee-Jay had a duty to protect Rabbi Segal from the mishap that occurred. Rabbi Segal's momentary, non-volitional presence across Dee-Jay's property does not fit readily into any traditional common law designation. Id. at 24. He was not an invitee, or a licensee. The common law states that "an accidental trespasser is still . . . a trespasser, " Restatement (Second) of Torts § 329 cmt. c (1965), but courts, commentators, and the Restatement itself are less harsh when it comes to vehicles that unintentionally stray from the road. See, e.g., Edgarton v. H.P. Welch Co., 74 N.E.2d 674, 679-80 (Mass. 1947) (decedent who was a passenger in a tractor-trailer that left the roadway and collided with the defendant's power lines was not a trespasser on defendant's property). The Restatement, for example, states that a landowner that permits an "artificial condition" to remain on property near a roadway is liable for harm to motorists or pedestrians if the condition "involves an unreasonable risk to others accidentally brought into contact" with it. Restatement (Second) of Torts § 368 (1965).
Prosser and Keeton also recognize that a motorist is not treated as the ordinary accidental trespasser. In a passage called "Danger to Highway, " they write that landowners whose property abuts a highway may be liable to motorists for unreasonable risks created on their property, even if the driver must "stray a few feet from [the roadway] inadvertently" before encountering the dangerous condition. Prosser & Keeton on Torts: Lawyer's Edition § 57, at 388-89 (5th ed. 1984). In sum, applying the common law designation of "trespasser" to the rabbi does not absolve Dee-Jay of a duty to have protected him from a dangerous condition of its property.
The pertinent question for our consideration is not whether the accident was foreseeable, or whether Dee-Jay had a duty to Rabbi Segal as an accidental trespasser. The question is whether as a matter of fairness and public policy the law should impose upon a private property owner a duty to erect and maintain a barrier or warning signs to protect against cars veering off the public roadway and into a river.
In this case, warning signs are irrelevant; they could not have prevented the accident. Plaintiff's accident reconstruction expert concluded that the rabbi's car struck the end of the existing guardrail at the terminus of Duncan Avenue and was propelled across Dee-Jay's parking lot, over the unguarded bulkhead, and into the river. One or more warning signs on Dee-Jay's property would not have prevented such an accident because the driver had no ability to stop the car from entering Dee-Jay's property.
The duty that plaintiff would impose upon Dee-Jay is to have erected and maintained a guardrail or other barrier to prevent cars from leaving the roadway and falling into the river from Dee-Jay's property. But a duty to prevent cars from veering off the roadway should normally be placed on the entity responsible for the roadway, not on the adjacent private property owner. Otherwise, countless property owners whose land borders on dangerous sections of public roadways would be charged with the responsibility of building guardrails or other barriers to prevent accidents on their property.
As the Court recognized in Desir, supra, slip op. at 34-35, the imposition of a duty by the common law should not achieve a result in a single case but establish "generally applicable rules to govern societal behaviors." Our holding in this case must apply as well to similar factual circumstances and properties. The public entity responsible for building or maintaining the road is best able to take the proper precautions to prevent accidental injury to motorists, and that is where the duty should lie. The government presumably has safety standards for the type of barriers needed to protect against vehicles leaving the roadway or falling into the river. The public entity is most likely to have the expertise to position barriers and warning signs to maximize safety. On the other hand, the contrary conclusion that individual landowners have such a duty could lead to confusion and danger as landowners make their own decisions about what protection is appropriate.
Instead of focusing on foreseeability or the legal status of the rabbi while on Dee-Jay's property, the "full duty analysis, " id. at 24 (quoting Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44 (2012)), with emphasis on fairness and public policy, should be utilized to determine whether Dee-Jay owed a duty of care to prevent the accident that killed the rabbi. I would hold for the reasons I have stated that Dee-Jay had no duty to erect or maintain barriers on its property to prevent vehicles using Duncan Avenue from veering off the public roadway and falling into the river.