CLARY E. CARPIO, Administratrix of the Estate of VICTOR F. CARPIO, deceased, Plaintiff-Respondent,
STATE OF NEW JERSEY; STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendants-Appellants, and FORD MOTOR COMPANY, Defendant/Third-Party Plaintiff,
MICHAEL PALUMBO, RONALD GARRETT, SHARENE BARNES, and POINT SAFETY AND INSURANCE COMPANY, Third-Party Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2013
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2399-10.
Robert H. Murphy, Deputy Attorney General, argued the cause for appellants State of New Jersey and State of New Jersey Department of Transportation (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Esther E. Bakonyi, Deputy Attorney General and Mr. Murphy, on the brief).
Ernest P. Fronzuto argued the cause for respondent Clary E. Carpio (Fronzuto Law Group, attorneys; Mr. Fronzuto, of counsel; Casey Anne Cordes, on the brief).
Before Judges Messano, Sabatino, and Hayden.
On leave granted in this wrongful death case, we review the trial court's January 18, 2013 discovery order and ensuing March 26, 2013 order denying reconsideration, which direct the State and the Department of Transportation ("DOT") to furnish plaintiff's counsel with copies of reports of accidents occurring between mileposts 25 and 30 on Interstate 80 for the years 2003 through 2008. The trial court rejected the State defendants' contention that the records sought were absolutely privileged under a federal statute, 23 U.S.C.A. § 409.
For the reasons that follow, we vacate the trial court's order compelling disclosure and remand for (1) further proceedings to develop the record more fully concerning the specific purposes for which the reports are maintained by the DOT, and (2) to enable the trial court to consider in the first instance the potential significance of the Third Circuit's recent opinion in Zimmerman v. Norfolk Southern Corp., 706 F.3d 170 (3d Cir. 2013), construing the scope of the federal statutory privilege.
Plaintiff alleges that on August 4, 2008, her decedent husband, Victor Carpio, was operating a 1999 Ford Ranger when he was involved in a multi-vehicle accident at or around milepost 28.7 on Interstate Route 80 in Morris County. Plaintiff alleges that her husband's Ford was struck by another vehicle that had crossed the grass median into oncoming traffic. According to the complaint, the Ford was overturned by the collision and engulfed in flames, resulting in decedent's death.
Plaintiff filed a complaint against the State, the DOT, and the Ford Motor Company ("Ford") in the Law Division, alleging that they were liable in tort and on other theories for their respective roles in connection with her husband's fatal accident. With regard to the State defendants, plaintiff asserted in the complaint that they were palpably unreasonable in their maintenance of and control over the allegedly dangerous condition of the portion of Route 80 where the collision occurred. See N.J.S.A. 59:4-2. The State defendants jointly filed an answer denying liability. Ford, meanwhile, filed a third-party complaint against several other individuals and an insurance company.
During the course of discovery, plaintiff's counsel sent to the DOT a request for the production of documents, including "[a]ny and all accident reports for Route 80 between mile-markers 25-30." The DOT responded that such documents were confidential and non-disclosable pursuant to 23 U.S.C.A. § 409. That federal statute, in its current amended form, instructs as follows:
Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.
As we explain in Part II, infra, the main purpose of this federal statute is to encourage states to evaluate the safety of their public roadways and to compile and report certain materials and data concerning accidents on those roadways to the federal government without allowing such items to be readily obtained from state highway departments by potential plaintiffs who would want "an effort-free tool in litigation against state and local ...