CYNTHIA CONLON v. UNION COUNTY POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CYNTHIA CONLON,

Plaintiff-Appellant,

v.

UNION COUNTY POLICE DEPARTMENT,

OFFICER LEE KRASNER, UNION COUNTY

BOARD OF CHOSEN FREEHOLDERS,

Defendants-Respondents.

May 29, 2015

Submitted February 11, 2015 Decided

Before Judges Maven and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3296-12.

Daggett, Kraemer & Gjelsvik, attorneys for appellant (George T. Daggett, of counsel; Mr. Daggett and Kelly A. Sherwood, on the briefs).

Robert E. Barry, Union County Counsel, attorney for respondents (Christopher M. Howard, Assistant County Counsel, on the brief).

PER CURIAM

Plaintiff Cynthia Conlon appeals from the summary judgment dismissal of her negligence complaint against defendants Union County Police Department, Officer Lee Krasner, and the Union County Board of Chosen Freeholders (collectively defendants). We affirm.

We view the facts in the light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On September 23, 2010, while playing with her dogs in Echo Lake Dog Park in Mountainside, plaintiff was knocked down and injured by an unidentified dog. Plaintiff's husband called 9-1-1, and an ambulance and Union County Police Officer Lee Krasner were dispatched to the scene. In an interrogatory answer, plaintiff recounted that

When the police officer arrived along with the ambulance, the officer asked me what happened. I told him I had been hit and knocked upside down by a pit bull. He snapped back at me and said that pit bulls were nice dogs and he had one. I replied that I didn't say it bit me, I said it hit me. The ambulance drivers put me in the ambulance, while [my husband] took the police officer back to the dog park to point out the owner so he could get their contact information.

According to plaintiff, Krasner investigated the incident but, despite having conversed with the owner of the dog, he failed to obtain the owner's name or include that information in his investigation report.

On September 21, 2012, plaintiff filed a civil negligence complaint against defendants, seeking compensatory and punitive damages. Plaintiff alleged that "[d]efendants were negligent in failing to conduct a proper investigation of the incident, specifically by not obtaining the dog owner's name which dog caused [p]laintiff's injuries."1

After the close of discovery, defendants moved for summary judgment, claiming that (1) defendants were under no duty to plaintiff to collect information for potential civil litigation purposes; and (2) plaintiff did not produce objective medical evidence to show she suffered substantial and permanent injuries as required under N.J.S.A. 59:9-2(d), and failed to document her lost wage claim. The motion court agreed, and therefore granted summary judgment in defendants' favor.

On appeal, plaintiff contends that Krasner was negligent in his ministerial duties by not fully completing a police report that included the dog owner's name in connection with his investigation of the incident. Plaintiff also argues that the motion judge erred in not reopening discovery. We disagree.

We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).

"'[A] negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (alteration in original) (quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013)). "The plaintiff bears the burden of establishing those elements," ibid. (citing Buckelew v. Grossbard, 87 N.J. 512, 525 (1981)), "'by some competent proof,'" ibid. (quoting Overby v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953), aff'd o.b., 14 N.J. 526 (1954)).

"The issue whether a defendant owes a legal duty is generally a question of law for the court to decide." Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997) (citing Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1997)); Peguero v. Tau Kappa Epsilon, 439 N.J. Super. 77, 88 (App. Div. 2015). Likewise, "the scope of a duty owed is a matter of law." Clohesy, supra, 149 N.J. at 502 (citing Kelly v. Gwinnell, 96 N.J. 538, 552 (1984)).

"[N]o bright line rule . . . determines when one owes a legal duty to prevent a risk of harm to another." Wlasiuk v. McElwee, 334 N.J. Super. 661, 666 (App. Div. 2000). The imposition of a duty depends on the interplay of many factors, including: (1) the relationship of the parties; (2) the nature of the attendant risk; (3) the ability and opportunity to exercise care; and (4) the public interest in the proposed solution. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). "Ultimately, [New Jersey] Supreme Court cases repeatedly emphasize that the question of whether a duty exists is one of 'fairness' and 'public policy.'" Wlasiuk, supra, 334 N.J. Super. at 666-67 (quoting Hopkins, supra, 132 N.J. at 439).

In the present case, we agree with the trial court's analysis that Jackson v. Heymann, 126 N.J. Super. 281 (Law Div. 1973), while not binding, constitutes persuasive authority that defendants have no duty to provide information to plaintiff for use in her personal injury claim against the dog's owner. In Jackson, Vineland police commenced a routine motor vehicle accident investigation after plaintiff, a pedestrian, was injured when struck by a motor vehicle. Id. at 282. Plaintiff filed a personal injury action, which included a claim that the City of Vineland failed to properly investigate the accident, as a result of which plaintiff was unable to identify and recover compensation from the tortfeasor. Id. at 283.

The issue in Jackson was "whether a municipality is under a duty to conduct an investigation of an accident in order to assist the victim to recover for any injuries or damages incurred." Id. at 284-85. The court concluded no such duty exists, reasoning

In spite of the near avalanche of municipal negligence cases in our jurisdiction, no prior decision has considered the issue presented by the case at bar. This court is able to gain some insight from a recent New York decision, Falco v. City of New York, 34 A.D.2d 673, 310 N.Y.S.2d 524 (1970), which involved a similar factual situation. In Falco the plaintiff filed a suit for personal injuries by basing his action on the alleged negligence of a city police officer who investigated the plaintiff's accident. The police officer had made a gratuitous promise to the injured plaintiff to obtain the name of the other individual who was allegedly involved in the accident. The officer failed to honor his promise, thus making it impossible for plaintiff to institute a negligence action against the driver of the other vehicle. The trial court set aside the verdict for plaintiff and the Appellate Division affirmed, stating

There was no such relationship on the part of the plaintiff to the defendant as created a duty to use due care for the benefit of particular persons or classes of persons and as imposed liability on the part of the municipality for negligence of the police officer.

[34 A.D.2d at 674, 310 N.Y.S.2d at 525.]

It should be noted that Falco presents a more compelling case for plaintiff, for, in addition to the police officer's responsibility to investigate motor vehicle accidents, he had made a gratuitous promise to obtain information for the injured plaintiff.

It is the opinion of this court that, as a matter of law, a municipality does not owe a duty to victims to conduct an investigation of their motor vehicle accidents. Since the city owes no duty to plaintiff, it can not be held answerable to plaintiff in negligence. Brody v. Albert Lifson & Sons, 17 N.J. 383 (1955). This court is unwilling, absent legislation, to extend the police officer's role in the investigation of accidents to that of an investigator for civil [litigants]. The issues herein presented are solely legal, no factual issues are presented; and summary judgment is a proper vehicle for disposition of this case. . . .

[Jackson, supra, 126 N.J. Super. at 286-87.]

Despite the passage of time, plaintiff has not called our attention to any contrary authority or legislative enactment that would create a duty on the part of these defendants to conduct an investigation in order to assist plaintiff to recover for injuries or damages that she may have incurred in the incident.

Even if plaintiff were able to establish such a duty, because she asserts claims against a public entity, she is legally obligated to satisfy the requirements of the New Jersey Tort Claims Act, N.J.S.A.59:1-1 to 12-3 (TCA). The TCA prohibits recovery from a public entity or employee for pain and suffering, unless two criteria are met

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $ 3,600.00.

[N.J.S.A. 59:9-2(d).]

Thus, in order to meet the threshold required to maintain this action, the TCA requires proof that plaintiff has (1) suffered a permanent injury and (2) incurred related medical expenses that exceed the statutory threshold, now $3600. See Butkera v. Hudson River Sloop Clearwater, Inc., 300 N.J. Super. 550, 557 (App. Div. 1997); Thorpe v. Cohen, 258 N.J. Super. 523, 529 (App. Div. 1992). Applying these criteria, the motion judge concluded that plaintiff did not meet her burden of proof. The judge found that

plaintiff has provided no documentation whatsoever to . . . vault the . . . threshold. I find that [plaintiff has not] provided any documentation to support that [she] sustained an injury which, in objective medical terms, was one of a permanent loss of a bodily function and that is substantial.

After conducting our own independent de novo review of the record before us, we share the trial court's conclusion. Plaintiff was asked in Interrogatories to identify all proposed expert witnesses, including treating physicians, and to provide defendants with copies of the experts' reports. Plaintiff originally left the response blank. When requested to provide a more specific response, on October 3, 2013, plaintiff answered "None at this time." Additionally, on May 15, 2013, in response to a supplemental interrogatory seeking essentially the same information, plaintiff answered that no experts had yet been identified. In short, plaintiff did not present any evidence to establish that she had suffered a permanent injury. Accordingly, plaintiff's complaint was properly dismissed on this basis.

On appeal, plaintiff does not challenge the trial court's ruling that that she failed to satisfy the statutory threshold to maintain this action, or that she failed to document her lost wage claim. Instead, plaintiff argues that the trial court erred in not reopening the discovery period. We disagree.

We review the trial court's discovery ruling under an abuse of discretion standard. Bender v. Adelson, 187 N.J.411, 428 (2006). When the request to reopen discovery occurs after a date has been fixed for trial or non-binding court arbitration pursuant to Rule4:21A, the party making the motion must show "exceptional circumstances." R.4:24-1(c). Here, a date for arbitration had previously been scheduled for February 6, 2014.

In Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.), certif. denied, 185 N.J.296 (2005), we listed the showing of "exceptional circumstances" required to reopen and extend discovery

[T]he moving party must satisfy four inquiries: (1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

See also Zadigan v. Cole, 369 N.J. Super. 123, 133 (Law Div. 2004) (similar listing of exceptional circumstances for extending discovery). If any of these factors is not satisfied, the motion should be denied. Ibid. Furthermore, a party "'requesting additional time for discovery should establish that he or she did make effective use of the time permitted under the rules. A failure to pursue discovery promptly, within the time permitted, would normally be fatal to such a request.'" Rivers, supra, 378 N.J. Super. at 79 (quoting Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)).

Here, plaintiff allegedly sustained her injuries on September 23, 2010. Her complaint was filed nearly two years later on September 21, 2012. Discovery was originally set to close on August 28, 2013. With the consent of counsel, the discovery end date was extended for sixty days until October 27, 2013. On August 28, 2013, defendants again requested the names and addresses of plaintiff's experts and, as noted, on October 3, plaintiff replied "[n]one at this time." On December 18, after discovery had closed, defendants moved for summary judgment. It was not until then that plaintiff's counsel, in opposing the motion, first sought to reopen discovery. In a subsequent January 28, 2014 certification, plaintiff's counsel averred

In October, my firm was experiencing difficulties in connection with our computer system, one of which was the failure to maintain the date for discovery end. What I believe happened in this case is that we lost track of the [discovery end] date. It was not maintained in the computer system. If that had been maintained, a request to extend the discovery period could have been filed. None was filed. We have subsequently replaced our entire system.

While we have no reason to question counsel's representation, it leaves unexplained the failure to retain an expert or procure an expert report in the three-year period since plaintiff allegedly sustained her injuries, or during the extended sixty-day discovery period. Because plaintiff did not show exceptional circumstances, the trial court did not abuse its discretion in declining to reopen discovery.

Affirmed.

1 In a separate count of the complaint plaintiff sought damages against "John/Jane Doe," the owner(s) of the pit bull who attacked her. That count is not the subject of this appeal.