MIGUEL A. ALVARADO v. CITY OF PERTH AMBOY

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5353-08T2

MIGUEL A. ALVARADO,

Plaintiff-Appellant,

v.

CITY OF PERTH AMBOY, PERTH

AMBOY POLICE DEPARTMENT,

MIDDLESEX COUNTY IMPROVEMENT

AUTHORITY, JESSICA DEJESUS,

Defendants-Respondents,

and

COUNTY OF MIDDLESEX and

STATE FARM INSURANCE COMPANY,

Defendants.

__________________________________

October 14, 2010

 

Argued: September 15, 2010 - Decided:

 

Before Judges Axelrad and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8030-07.

 

Milagros C. Alvarez argued the cause for appellant (Law Offices of Karim Arzadi, attorneys; Ms. Alvarez, on the brief).

 

Fredrick L. Rubenstein argued the cause for respondents (James P. Nolan and Associates, LLC, attorneys; Mr. Rubenstein, on the brief).

PER CURIAM

Plaintiff Miguel Alvarado appeals from summary judgment dismissal of his complaint against defendants, Officer Jessica DeJesus, her employer, Perth Amboy Police Department ("Police Department") and the City of Perth Amboy ("City"), and the Middlesex County Improvement Authority, owner of the patrol car, for injuries sustained when the officer's vehicle struck the parked car in which plaintiff was sitting. The judge found defendants immune from liability under the Tort Claims Act (TCA), N.J.S.A. 59:3-3, which states that "[a] public employee is not liable if he [or she] acts in good faith in the execution or enforcement of any law." Plaintiff also appeals from denial of his motion for reconsideration in which he sought, in part, to submit eyewitness statements obtained both after the discovery end date and the grant of summary judgment. We affirm.

Viewed most favorably for plaintiff, Brill v. Guardian Life Insurance Co. of Am., 142 N.J. 520, 523 (1995), the motion record reveals the following. On the evening of September 23, 2005, plaintiff was sitting in his parked car on Herbert Street in Perth Amboy and speaking to Jose Ramos, who had just exited plaintiff's vehicle. A patrol car driven by Officer DeJesus turned right from Smith Street onto Herbert Street on wet pavement, lost traction and skidded, spun around three times, and the rear struck the front of plaintiff's parked vehicle and then a utility pole. The responding officer issued no ticket, noting on his report that the wet road was the main contributing factor of this accident. Plaintiff apparently suffered serious personal injuries as a result of the impact and filed a timely Notice of Tort Claim. See N.J.S.A. 59:8-4.

On September 20, 2007, plaintiff commenced this Tort Claims action, seeking damages due to the alleged negligence of DeJesus.1 Plaintiff testified in his deposition that Officer DeJesus' patrol car had its overhead lights on, although not the siren, and he estimated the officer was driving approximately fifty-five miles per hour. Plaintiff further stated that "from what [he] heard," the officer was "going towards a fight." He elaborated that "[t]here was a fight on Market Street and prior to the accident a car went by real fast, another police car, towards Market Street." Officer DeJesus' statements noted in the police report and contained in her interrogatory answers similarly reflected that she was responding to a dispute at 215 Grant Street involving approximately fifteen people.

Mutual depositions for plaintiff and Officer DeJesus had been scheduled for August 20, 2008, before the expiration of the initial discovery period. According to defense counsel, the depositions were adjourned notwithstanding his having informed plaintiff's counsel that Officer DeJesus would not be available again until mid-November due to job training activities with her new employer, the Secret Service. Based primarily on the officer's unavailability, the court granted the parties' joint motion to extend discovery by order of November 7, 2008, which required all depositions to be completed by November 30, 2008, and set a new discovery end date of January 31, 2009. Plaintiff never rescheduled the officer's deposition for November or any subsequent date and never filed a motion to compel her deposition. An arbitration was conducted on February 13, 2009, after which defendants filed a demand for trial de novo. Trial was scheduled for June 1, 2009.

On February 25, 2009, defendants filed a motion for summary judgment and plaintiff filed a response and cross-motion to strike defendants' answers and affirmative defenses for failing to produce the officer for depositions. Following oral argument on April l7, 2009, Judge Edward Ryan granted summary judgment in favor of defendants, finding that while Officer DeJesus may have been negligent in the operation of her vehicle, "it [wa]s clear [she] was acting in an objectively reasonable manner when she responded to an emergency situation on [the accident date]," and thus good faith immunity attached pursuant to N.J.S.A. 59:3-3, as interpreted in Canico v. Hurtado, 144 N.J. 361, 365-66 (1996). By separate order of the same date, the judge then denied, without prejudice, plaintiff's motion to suppress defendant's pleadings, finding the issue to be moot.

Plaintiff belatedly amended his answers to interrogatories by listing two eyewitnesses and annexing their affidavits, supplying sixteen new photographs, and providing a July 2005 newsletter from the Union County Prosecutor's Office, evidencing DeJesus' recent graduation from the police academy. In particular, the May 6, 2009 affidavits of Ramos, who had been a passenger in plaintiff's car immediately preceding the accident, and Moises Pinero, an employee of a business located near the intersection of Smith and Herbert Streets, reported they observed Officer DeJesus speeding with no lights or sirens, abruptly turn onto Herbert Street and both opined her driving was "reckless." Relying on these newly-identified discovery materials, plaintiff moved for reconsideration of both orders. Following oral argument on June 12, 2009, and order of that date, the judge denied reconsideration, finding plaintiff's submissions to be untimely. This appeal ensued.

On appeal, plaintiff argues: (1) it is debatable whether Officer DeJesus was reckless; (2) the judge should have granted plaintiff's motion to strike based on the failure of Officer DeJesus to appear at depositions, which prejudiced his case by depriving him of the ability to obtain information about her training and experience; and (3) on reconsideration, the judge should have considered the eyewitness affidavits because pursuant to Rule 4:17-7, defense counsel acquiesced in the submission of the supplementing interrogatories by not filing a motion objecting to the submission.

Based on our review of the record and the briefs and oral arguments of counsel, we find unpersuasive all of plaintiff's arguments and affirm substantially for the reasons articulated by the motion judge. We add the following comments.

The record is devoid of any evidence that Officer DeJesus refused to attend depositions and thus no sanctions were warranted against defendants. Plaintiff was aware Officer DeJesus would be unavailable until mid-November as a result of her Secret Service training out-of-state. Plaintiff never attempted, by notice or court order, to secure the officer's deposition during the extended discovery period.

Pursuant to Rule 4:46-2, summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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." "Bare conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. l961). When reviewing summary judgment, we use the same standard as the trial court, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, l 54 N.J. 608 (1998), and do not hesitate to grant summary judgment when the evidence "is so one-sided that one party must prevail as a matter of law," Brill, supra, 142 N.J. at 540 (citation and internal quotation marks omitted).

We are satisfied the evidence before the trial judge when he heard the summary judgment motion failed to raise a question of material fact that Officer DeJesus was more than negligent so as to pierce the statutory good faith immunity afforded public employees and public entities. Police officers will not be held liable for their actions if they act "in good faith in the execution or enforcement of any law." N.J.S.A. 59:3-3. See also Canico, supra, 144 N.J. at 365. This immunity also applies to the Police Department and the City. N.J.S.A. 59:2-2(b) (stating that "[a] public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable"). See also Fielder v. Stonack, 141 N.J. 101, 118 (l995).

The Supreme Court has held that "immunity as the general rule and liability as the exception" is consistent with both the statutory language and the legislative choice favoring vigorous law enforcement over compensation of injured persons. Canico, supra, 144 N.J. at 364. The law is clear that "a plaintiff must prove more than ordinary negligence" to pierce this qualified immunity and summary judgment is appropriate "if public employees can establish that their acts were objectively reasonable or that they performed them with subjective good faith." Id. at 365.

With all facts and inferences viewed in his favor, plaintiff cannot defeat defendants' claim of good-faith immunity. The record is undisputed that at the time of the accident Officer DeJesus was responding to an altercation necessitating police intervention. The officer's statements contained in the police report and her interrogatory answers to this effect are consistent with plaintiff's own acknowledged belief, based on independent information, that the officer was responding to a police call.

The record is also devoid of evidence to establish that Officer DeJesus acted recklessly. We have held that "'[r]ecklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others . . . . [It also] requires a substantially higher risk [than negligence].'" Dunlea v. Twp. of Belleville, 349 N.J. Super. 506, 513 (App. Div.) (quoting Schick v. Ferolito, 167 N.J. 7, 19-20 (2001)), certif. denied, l74 N.J. l89 (2002). "Reckless behavior must be more than any 'mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention . . . .'" Dunlea, supra, 349 N.J. Super. at 513 (quoting Prosser & Keaton on the Law of Torts, 34 at 214 (5th ed. l984)). The facts before the motion judge were that the road conditions were wet, Officer DeJesus was responding to the report of a fight involving a significant number of individuals, and she lost control of her vehicle. Although plaintiff estimated the officer was driving about fifty-five miles per hour, he failed to present any correlative evidence that such speed could be considered reckless under the circumstances.

There is also no merit to plaintiff's reliance on N.J.S.A. 39:4-9l as a basis to preclude summary judgment or to pierce statutory good-faith immunity.2 Unlike the case where a police car collides with another moving vehicle, Canico, supra, l44 N.J. at 366; Dunlea, supra, 349 N.J. Super. at 514, Officer DeJesus' failure to activate the siren on her patrol car had no bearing whatsoever on her striking of plaintiff's parked car. Moreover, the Supreme Court has expressly held that this motor vehicle statutory provision does not affect the immunity conferred on police officers by the TCA. Tice v. Cramer, 133 N.J. 347, 369 (1993).

We further discern no abuse of discretion by Judge Ryan in his denial of plaintiff's motion for reconsideration. Rule 4:17-7, permitting a party to amend interrogatories after the end of the discovery period, is inapplicable to a party's request to submit additional information after the entry of an adverse judgment. Nor can plaintiff avail himself of the remedy of Rule 4:50-l. After summary judgment was entered in defendants' favor, plaintiff obtained the affidavits of two eyewitnesses to the accident. Plaintiff failed to address why these two individuals could not be located within the discovery period, or even prior to the judge's consideration of defendants' summary judgment motion. Plaintiff's lack of due diligence is particularly evident with regard to the affidavit of Ramos, who had been an occupant of plaintiff's car, whose name and address were both contained in the police report and recited by plaintiff in his deposition eight months before Ramos' affidavit was obtained. It is patent that Ramos' affidavit could have been submitted in response to the summary judgment motion. As to Pinero, plaintiff provided no explanation as to how he ascertained the purported eyewitness' identity and why, with due diligence, his affidavit could not have been obtained in a timely fashion, so as to comply with one of the prongs of Rule 4:50-1(b). Moreover, plaintiff cannot satisfy the second-prong requirement of Rule 4:50-l(b), i.e., that these affidavits would have "probably alter[ed] the [April l7, 2009] judgment." These laypersons' characterizations of Officer DeJesus' driving as "reckless" were not competent evidence to raise a debatable issue and defeat summary judgment.

Affirmed.

1 Plaintiff also named the County of Middlesex and State Farm Insurance Co. as additional defendants, but dismissed them in 2008.

2 N.J.S.A. 39:4-9l provides, in pertinent part:

The driver of a vehicle upon a highway shall yield the right of way to any authorized emergency vehicle when it is operated on official business, or in the exercise of the driver's profession or calling, in response to an emergency call or in the pursuit of an actual or suspected violator of the law and when an audible signal by bell, siren, exhaust whistle or other means is sounded from the authorized emergency vehicle . . . .