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Borerro v. New Jersey Department of Transportation

United States District Court, D. New Jersey

November 10, 2014



PETER U.SHERIDAN, District Judge.

This matter is before the Court on a motion for summary judgment brought by Defendant New Jersey Department Transportation (ECF No. 38). There is diversity jurisdiction.


On Route 78 eastbound in Greenwich, New Jersey, there is an inspection facility[1] designed and constructed by the New Jersey Department of Transportation ("NJDOT"), and operated by the New Jersey State Police. Within the inspection facility there is an open pit area about 2.5 feet wide and 5 feet deep that runs through the middle of a lane. Its purpose is to accommodate an inspector to easily descend into the pit and to inspect the undercarriage of a truck.

On January 21, 2010 at approximately 8:00 a.m., Plaintiff Louis Borerro ("Plaintiff" or "Borerro") was operating a truck loaded with furniture. At that time, Plaintiff pulled into the inspection facility and was directed by Defendant Jeffrey Oslislo (hereinafter "Trooper Oslislo") to stop and exit the truck, and to unlatch the hood of the truck. While unlatching the hood, Plaintiff did not observe the pit and fell into it, severely damaging his ankle and back.

Plaintiff brings this suit on the basis that there were no warning signs, distinguishing yellow markings, temporary railings or a grate over the pit as OSHA and New Jersey safety regulations require. Plaintiff relies on the report of Ronald A. Fermano, Jr., of Robson Forensic, an architect and premises safety expert. (ECF No. 40-4). Mr. Fermano finds that the pit is a "dangerous.. hazard." Mr. Fermano opines that good safety management requires the use of warning techniques to alert individuals of the hazard. Mr. Fermano states that there are "well-known Standard Principals (sic) of accident prevention, " including the use of safety guards, and warnings to instruct pedestrians about dangerous conditions. Mr. Fermano cites to OSHA Code 1910.23 which requires that an open pit "shall be constantly attended by someone or shall be protected on all exposed sides by removable standard railings." In addition, the American National Standards Institute ("ANSI") regulations require that the edge of the pit be painted bright yellow to give warning of the hazard, or place warning signs and cones in a conspicuous spot. See also ANSI A-1264, 1-2007 Safety Requirements for Workplace. Mr. Fermano's conclusion is that NJDOT's failure to provide warning stripes, guards, visual cues, and appropriate signage to warn truck drivers that a hazard exists violates the standard of care for safe public access.


Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cam-xot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported allegations... and pleadings are insufficient to repel summary judgment." Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990); see also Fed. R. Civ. p. 56(e) (requiring nonmoving party to "set forth specific facts showing that there is a genuine issue for trial"). Moreover, only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a court determines, "after drawing all inferences in favor of [the non-moving party], and making all credibility detenninations in his favor that no reasonable jury could find for him, summary judgment is appropriate." Alevras v. Tacopina, 226 Fed.App'x 222, 227 (3d Cir. 2007).


Defendant NJDOT argues that any design defect is immune from liability under the New Jersey Tort Claims Act ( N.J.S.A. 59:4-6). NJDOT argues that the inspection facility was designed by an engineering/architectural firm and approved by NJDOT personnel in 2002. As such, the design fits within the immunity section. The statute reads:

59:4-6. Plan or design immunity
a. Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.

Although the Plaintiffs expert is an architect and safety engineering expert, and his report reads accordingly, NJDOT views the expert as an expert in design deficiencies. However, in reviewing the final pre-trial order (ECF No. 43), it states that the defendants are ...

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