RONALD SULLIVAN v. NEW JERSEY TRANSIT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4015-10T2

RONALD SULLIVAN,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT, ALSTOM

TRANSPORTATION, INC.,

Defendants-Respondents,

and

FAIVELEY TRANSPORT, USA AND UNITED

KNITTING MACHINE CO., INC.,

Defendants.

_________________________________

December 20, 2011

 

Argued November 16, 2011 - Decided

 

Before Judges Fuentes, Harris, and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5726-08.

 

Nathaniel M. Davis argued the cause for appellant (Nathaniel M. Davis, P.C., attorney; Mr. Davis and Clara S. Licata, on the brief).

 

 

 

 

 

 

Seth R. Tipton argued the cause for respondent New Jersey Transit (Florio, Perrucci, Steinhardt & Fader, LLC, attorneys; Brian R. Tipton and Jessica L. Cardone, on the brief).

 

Barbara J. Davis argued the cause for respondent Alstom Transportation, Inc. (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Davis, of counsel and on the brief; Jessica D. Wachstein, on the brief).

PER CURIAM

Plaintiff Ronald Sullivan was injured as he entered a Comet V railcar manufactured by defendant ALSTOM Transportation, Inc. (ALSTOM) and operated by defendant New Jersey Transit (NJT). He appeals from six orders of the Law Division, the combined effect of which was to dismiss all of his claims against those entities:

February 18, 2011 order denying Sullivan's motion to extend discovery for the sixth time.

 

April 1, 2011 order denying Sullivan's motion to suppress the answer of NJT.

 

April 1, 2011 order denying Sullivan's reconsideration motion to extend discovery and permit the inspection of the railcar.

 

April 1, 2011 order granting Alstom's motion for summary judgment.

 

April 4, 2011 order denying Sullivan's motion for summary judgment as to NJT.

 

April 4, 2011 order granting NJT's motion for summary judgment.

 

 

After our review of the record, we conclude that the motion judge (1) did not abuse his discretion in ending discovery, (2) properly denied reconsideration, and (3) accurately granted summary judgment dismissing all of Sullivan's claims. Accordingly, we affirm.

I.

A.

We present Sullivan's best case in this recitation of facts. We do so because ALSTOM and NJT prevailed on their motions to dismiss Sullivan's complaint on summary judgment, and therefore we "'must view the facts in the light most favorable to the non-moving party' plaintiff." Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 565 (2011) (quoting Bauer v. Nesbitt, 198 N.J. 601, 604-05 n.1 (2009)); see also R. 4:46-2(c).

On July 28, 2006, as Sullivan was boarding railcar 6525, which was part of a ten-car NJT train at New York City's Penn Station, he partially fell between the platform and portal. An unidentified fellow-passenger "grab[bed] [Sullivan] under [his] arms by [his] body . . . and pull[ed] [him] up and [stood] [him] on [his] feet." Sullivan asserted that when he stepped upon the railcar's yellow threshold extension bar, it gave way under his weight causing his left leg to become temporarily wedged between the railcar and the concrete platform, and his right leg was bent back into a hurdler position along the railcar's door threshold. Consequently, Sullivan claims he suffered two herniated discs and now endures their painful sequelae.

After being hoisted up, Sullivan described his ordeal to an NJT conductor, identified as "Mr. F[urqan] Mohammed." Sullivan requested that Mohammed fill out an incident report of the accident and was assured that such a report would be completed and then made available to Sullivan at a later date.

At his deposition, Muhammad indicated that he did not remember the date of the accident. Nevertheless, he described the process of completing an NJT Form 1055, which identified any observed defects in the railcars, and testified that he "sure did" fill out such a form on the date in question. However, a Form 1055 for the date of the incident has never surfaced in this litigation.

 

 

 

 

 

 

 

B.

Sullivan commenced this action in July 2008, naming NJT and

ALSTOM as the sole defendants.1 Discovery was undertaken and extended five times: once by consent of the parties, once by a case management order, and thrice by motions to extend discovery. The last extension, memorialized in a case management order entered on September 18, 2010, scheduled various discovery events, including depositions and the exchange of expert reports. The last date permitted for all discovery was December 30, 2010.

When Sullivan could not complete his discovery pursuant to the September 18 order, he moved for yet another extension. His motion sought (1) to compel an inspection of railcar 6525 at a rail terminal and not in a rail yard and (2) another ninety days of discovery to finalize his expert reports. The motion was not served upon defendants, and was ultimately rescheduled to be heard in February 2011. At that time, the motion court noted that court-sponsored arbitration had been scheduled in anticipation that the parties would comply with the December 30 discovery expiry. It recognized that consideration of the motion could not be made "in a vacuum," and carefully outlined the procedural history of the litigation. The court made the following observations:

The railcar could have been inspected "many, many months before." The court found that there was no legitimate explanation provided "as to why [the inspection] took so long to get to that particular point."

 

"Plaintiff wanted to proceed on his own schedule," not the court's.

 

The court was previously "very indulgent" when it denied ALSTOM's and NJT's earlier motions for summary judgment and allowed Sullivan to re-open discovery and obtain an expert.

 

Sullivan failed to effectively utilize the summer of 2010 and the weeks following the September 18 case management conference to complete depositions.

 

"The court finds that plaintiff's counsel has not been diligent in pursuing discovery during the discovery time period."

 

"The additional discovery disclosure . . . is essential to this case. Plaintiff has said how important it is to the case, but his actions belie the importance that the discovery is to the case because he did not have any sense of urgency in getting this discovery prior thereto."

 

Ultimately, finding that the discovery delinquencies were not beyond the control of Sullivan's counsel, the court found no exceptional circumstances to warrant a sixth discovery extension. Additionally, good cause was not demonstrated because

every time the plaintiff asked for an extension to discovery this court was indulgent, but at some point in time the court's patience has to run out, and when the court indicates no further adjournments and the court doesn't follow its own orders it lends very little credibility to any type of scheduling which could occur in this case.

On February 18, 2011, the Law Division entered an order denying a further extension in discovery.

In short order, Sullivan moved for reconsideration, an order compelling an inspection of railcar 6525, and suppression of NJT's answer due to its putative discovery delinquencies; NJT moved for summary judgment, to which Sullivan responded with a cross-motion for summary judgment; and ALSTOM also moved for summary judgment. All of these motions were argued on April 1, 2011.

The motion court denied Sullivan's application for reconsideration, ruling that its decision not to extend discovery was not arbitrary or irrational, and that Sullivan's counsel had been the cause of virtually all of the discovery delays. Furthermore, it relied upon Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996), in reproving the repetitious and redundant arguments made by Sullivan. Its ultimate ruling stated the following:

The [c]ourt gave [p]laintiff a warning on September 16[, 2010], to move it. I've given you more than enough chances. Get those expert reports. Plaintiff's counsel should have [gone] right there and had that inspection set up for the beginning of October, not the middle of November. [Depositions] should have been noticed to have taken place by November 1st, not December the 20th.

 

The totality of the circumstances in this case show extreme delay and dilatoriness by the [p]laintiff. Five prior discovery end date extensions, numerous arbitration cancellations. Plaintiff's complaint being dismissed for failure to provide discovery. Two defendants brought in very late when the [p]laintiff knew their identity a year and a half before.

 

Plaintiff retaining an expert a year before, but not disclosing it in his answers to interrogatories and waiting to do an inspection. Plaintiff's violation of Rule 4:17-7 regarding no identification of a proposed expert, no notice to the [d]efendants of inspections of their own property and photos being submitted on the return date of this motion for the first time.

 

Plaintiff had 809 days to complete his discovery as of December 30, 2010. For all those reasons and if the prior transcript wasn't enough, maybe this one is to the [p]laintiff's motion for reconsideration is denied.

 

Sullivan argued that NJT's answer should be suppressed because NJT refused to cooperate in making railcar 6525 available for inspection. In fact, the railcar was scheduled to be examined by Sullivan's expert in November 2010, but the expert refused to execute a release that NJT insisted upon, before granting access to the railcar at its Kearny train yard. The tardy alternative transporting the railcar to the Hoboken station for inspection, and requiring the expert's release for that locale was not feasible because discovery had already expired. The motion court denied Sullivan's motion to suppress NJT's answer, finding that "[p]laintiff did not pursue discovery diligently" and "the failure to inspect the train within the discovery end date was entirely the [p]laintiff's fault and the fault of [p]laintiff's expert."

ALSTOM argued that it was entitled to a summary judgment dismissal of the complaint because the railcar was delivered to NJT on September 17, 2002, and the warranty expired on September 28, 2005. More importantly, it contended that "[t]here's no evidence of a product defect in this case." Summary judgment was granted in favor of ALSTOM after Sullivan conceded that "unless [counsel] can inspect the train, [plaintiff] can't prove a product defect as to [ALSTOM]."

The cross-motions for summary judgment vis- -vis NJT and Sullivan were not as straightforward. Sullivan contended that NJT was not entitled to summary judgment under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, because he was entitled to an adverse inference that a defect in the railcar existed on the date of the accident because NJT spoliated evidence the missing Form 1055. NJT argued that the uncontradicted evidence belied any evidence of a defect, much less its actual or constructive notice of a defect, and that spoliation had not occurred. After listening to oral argument, the motion court reserved decision.

A few days later, the court issued a written opinion, which determined there was no evidence "that this 1055 form would be the key piece of information to make or break plaintiff's case." Finding Sullivan's argument "creative but unpersuasive," the motion court noted that Sullivan's supposed entitlement to an adverse inference of a dangerous condition or defect because of the missing Form 1055 was irretrievably eroded because "[i]f there was a defect the train would be locked out and a [different form] would be filled out. Here the train was never locked out and there is no [other] form."

The court granted NJT's motion after finding that there were no genuine issues of material fact in dispute regarding negligence or a dangerous condition of public property. Accordingly, the court held that in the absence of an expert report, Sullivan could not (1) satisfy the elements required of a dangerous condition, and (2) prove knowledge (actual or constructive) of such condition by NJT, both required under N.J.S.A. 59:4-2. Noting that NJT had produced an inspection report for railcar 6525 dated just one week prior to Sullivan's incident, the court held that "constructive knowledge cannot be shown." The court granted NJT's motion and denied Sullivan's cross-motion. This appeal followed.

II.

A.

Generally, "the disposition of discovery issues is left to the sound discretion of the trial court. Its determination of these issues [is] entitled to deference in the absence of a mistaken exercise of discretion." Medford v. Duggan, 323 N.J. Super. 127, 133 (App. Div. 1999) (citing Payton v. N.J. Turnpike Auth., 148 N.J. 524, 559 (1997)). A trial judge abuses his or her discretion when the "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Here, the motion court explained in definite terms the reasons why a sixth discovery extension was unwarranted. We discern no abuse of discretion in its treatment of the matter, and we pay particular attention to the court's impression of Sullivan's counsel's lackadaisical discovery efforts. Our review is neither animated by the sheer number of discovery extensions nor the hundreds of days of discovery that were provided. Rather, it is our conclusion that the Law Division being closer to the dispute and thoroughly familiar with its details correctly exercised its sound judgment in putting an end to discovery after a more-than-reasonable duration had elapsed.

B.

We review a trial court's order denying reconsideration under an abuse of discretion standard. Davis v. Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010), certif. granted, 205 N.J. 78 (2011). Sullivan reprised his earlier arguments at the motion for reconsideration hearing. A motion for reconsideration is not an opportunity to regale a motion court with the same contentions already presented (and rejected).

A motion for reconsideration is analyzed in accordance with Rule 4:49-2, which provides, in relevant part, that "[t]he motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." A motion for reconsideration should be granted in the interest of justice, and is appropriate

only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

 

[Dover-Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 196 (App. Div.) (quoting Cummings, supra, 295 N.J. Super. at 384), certif. denied, 208 N.J. 338 (2011).]

 

We discern no abuse of discretion in the motion court's refusal to grant Sullivan's motion for reconsideration of its February 18, 2010 order.

C.

Considerable latitude is afforded to a trial or motion court's determination relating to evidence, including whether to apply an adverse inference due to spoliation, and a ruling on evidence will only be upset if it constitutes an abuse of discretion. See State v. Feaster, 156 N.J. 1, 82 (1998). Spoliation of evidence "'occurs when evidence pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition.'" Manorcare Health Servs., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 226 (App. Div. 2001) (quoting Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 364 (App. Div. 1998)); see also Tartaglia v. UBS PaineWebber, Inc., l 97 N.J. 8l, 118 (2008) (holding that to prevail on a spoliation claim, a plaintiff must prove the five elements of fraudulent concealment as articulated in Rosenblit v. Zimmerman, 166 N.J. 39l, 406-07 (200l), which includes that a "defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation").

We, like the motion court, view the missing Form 1055 as inconsequential. Its capacity to affect the summary judgment calculus, much less convince a rational trier of fact of a defect, is nil. In the absence of any affirmative evidence from Sullivan of a defect, a dangerous condition, or knowledge, we cannot say that the motion court should have elevated NJT's gaffe to a level creating a genuine issue of disputed fact. We detect no misuse of discretion in the court's treatment of the lost form, and no reason to deny summary judgment.

D.

Our scope of review of summary judgment is de novo, and we apply the same legal standard as the Law Division. Canter v. Lakewood of Voorhees, 420 N.J. Super. 508, 515 (App. Div. 2011). Thus, we consider, as the motion court did, "'whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Ingraham v. Ortho-McNeil Pharm., 422 N.J. Super. 12, 20 (App. Div. 2011) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

Sullivan's claim against ALSTOM was properly viewed under the lens of the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to -11. Pursuant to that statute, a plaintiff must prove "that the product was defective, that the defect arose while in the control of the defendant, [] and that the plaintiff suffered injury thereby." Scanlon v. Gen. Motors Corp., 65 N.J. 582, 590 (1974). It is not sufficient for a plaintiff to merely establish that something was wrong with the product and that an accident thereby resulted. A plaintiff must also show that the defect existed while the product was in the control of the particular defendant being sued. See Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 170 (1979)(holding plaintiff must show "the defect did in fact exist when the product was distributed by and was under the control of defendant"); see also Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 98 (1999). Given Sullivan's failure to demonstrate the nature of the defect in railcar 6525, coupled with his inability to link any such defect to when the railcar left ALSTOM's dominion and control, summary judgment in the manufacturer's favor was properly granted.

We further conclude that summary judgment in favor of NJT was also properly granted. The TCA narrowly prescribes the liability of a public entity for injury caused by a condition of its property. N.J.S.A. 59:4-2 states:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

 

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

 

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

 

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

 

Thus, in order to impose liability on NJT, Sullivan must prove: (1) railcar 6525 was in a dangerous condition; (2) the dangerous condition created a foreseeable risk of, and actually caused, injury to Sullivan; (3) NJT knew of the dangerous condition; and (4) the action taken by NJT to protect against the dangerous condition was palpably unreasonable. See Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003).

Sullivan bears the burden of proving that NJT acted in a palpably unreasonable manner. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 493 (2005). "Palpably unreasonable" "implies behavior that is patently unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). Although the question of whether a public entity acted in a palpably unreasonable manner is generally one of fact, see Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 130 (2001), under some circumstances it can be decided as a matter of law. See Muhammad, supra, 176 N.J. at 199-200; Carroll v. N.J. Transit, 366 N.J. Super. 380, 390 (App. Div. 2004).

Our review of the record yields the same conclusions that the Law Division reached: (1) Sullivan presented no competent evidence of a defect that would qualify as a dangerous condition; (2) res ipsa loquitur was inapplicable as a means to demonstrate a dangerous condition, see Rocco v. New Jersey Transit Rail Operations, Inc., 330 N.J. Super. 320, 340 (App. Div. 2000); and (3) Sullivan presented no evidence that NJT had actual or constructive notice of a dangerous condition. These conclusions, coupled with a lack of evidence that NJT acted in a palpably unreasonable manner, convince us that summary judgment in favor of NJT was properly granted.2

Affirmed.

 

 

1 In March 2010, Sullivan filed an amended complaint, adding two parties Faiveley Transport, USA and United Knitting Machine Co. as defendants. Although the record reflects that these defendants answered and participated in the discovery process, we are uncertain of their status, and are concerned that Sullivan's claims against them have not yet been resolved. If so, then this appeal would be interlocutory, and we would be justified in dismissing it under our well-established interlocutory appeal jurisprudence. See Vitanza v. James, 397 N.J. Super. 516, 517-18 (App. Div. 2008). We decline to do so, however, in the interest of justice. See Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002).

2 As a respondent, NJT can raise alternative arguments in support of the motion court's judgment. See Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 256 n.1 (App. Div. 2011)(citing Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443 (App. Div. 1984)).