Stewart v. New Jersey Turnpike Authority

Annotate this Case

In Spring 2015, plaintiffs Thomas and Julie Stewart were injured when they lost control of their motorcycle while riding over a Garden State Parkway overpass. Thomas testified that, after he and his wife passed through the Toms River toll plaza, their bike began to “shimmy,” and Thomas suspected that he had suffered a flat tire. As they tried to pull over, they crossed the expansion joint between the roadway and the bridge, and the bike’s back end bounced up and ejected Julie. Thomas then let go of the bike, slid to the ground, and both he and Julie suffered serious injuries. They brought this action against defendants, the New Jersey Turnpike Authority and several of its paving and roadwork contractors, including Earle Asphalt. The parties engaged in over two years of discovery, with plaintiffs requesting extensions seven times. During argument before the trial court on defendants’ joint motion for summary judgment, plaintiffs changed their theory of liability. They argued, for the first time, that defendants failed to properly pave a portion of roadway on the overpass, leaving a height differential in the pavement. Under that newly asserted theory, plaintiffs alleged that it was the height differential in the roadway, rather than the joint, that caused them to lose control of the motorcycle. The trial court declined to consider the new theory and granted summary judgment to the Authority on its immunity defense and to Earle on its derivative immunity defense. The Appellate Division reversed, finding a genuine issue of material fact existed based on the testimony of one of the motorcyclists who accompanied plaintiffs and claimed to have seen a piece of metal in the roadway. The New Jersey Supreme Court reversed the Appellate Division’s judgment. The Supreme Court agreed with the trial court that plaintiffs’ new theory should not have been considered given its late presentation. Nonetheless, for completeness, the Court held that plaintiffs’ new theory also did not raise an issue of material fact. The trial court’s grant of summary judgment in favor of defendants was reinstated, and the complaint was dismissed with prejudice.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

Thomas J. Stewart v. New Jersey Turnpike Authority (A-61/62-20) (085416)

Argued November 8, 2021 -- Decided February 9, 2022

SOLOMON, J., writing for a unanimous Court.

In this appeal, the Court considers whether plaintiffs’ premises liability claim
under N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act (TCA) should survive summary
judgment after plaintiffs belatedly altered their factual theory of liability.

A friend who had been riding with plaintiffs claimed in a deposition to have
observed a “piece of metal . . . between the asphalt and concrete bridge,” which is where
the accident occurred. Plaintiffs filed a complaint against defendants, the New Jersey
Turnpike Authority (the Authority) and Earle Asphalt (Earle), one of the Authority’s
paving and roadwork contractors, for their alleged negligence in reconstructing the
overpass, which had recently reopened. Plaintiffs alleged that they lost control of the
motorcycle when they struck a piece of metal in the bridge’s expansion joint that jutted
out of the roadway (the joint theory).

The parties engaged in over two years of discovery, with plaintiffs requesting
extensions seven times. During argument before the trial court on defendants’ joint
motion for summary judgment, plaintiffs changed their theory of liability. They argued,
for the first time, that defendants failed to properly pave a portion of roadway on the
overpass, leaving a height differential in the pavement (the asphalt theory). Under the
newly asserted asphalt theory, plaintiffs alleged that it was the height differential in the
roadway, rather than the joint, that caused them to lose control of the motorcycle.

The trial court distinguished the joint theory from the asphalt theory and
considered only the joint theory. The trial court found that plaintiffs failed to allege a
1
disputed fact as to any of the required elements for negligence under N.J.S.A. 59:4-2.
Accordingly, the trial court found that the Authority was entitled to immunity under the
TCA and that Earle was entitled to derivative immunity.

The Appellate Division reversed. Conflating the joint and asphalt theories and
relying on the friend’s testimony about the protruding object, the appellate court found
disputed issues of fact as to whether the alleged height differential created a dangerous
condition under the TCA. The court also concluded that Earle had not demonstrated that
it was entitled to claim derivative immunity.

The Court granted certification. 246 N.J. 314 (2021); 246 N.J. 326 (2021).

HELD: The Court agrees with the trial court that plaintiffs’ new theory should not have
been considered given its late presentation. The Court nonetheless holds, for
completeness, that plaintiffs’ new theory did not raise an issue of material fact. The
Court reinstates summary judgment in favor of defendants and dismisses the complaint
with prejudice. The Court also finds that Earle is entitled to derivative immunity.

1. Application of the summary judgment standard here must account for the fact that
under the TCA, immunity of public entities from tort liability is the general rule and
liability is the exception. A public entity’s liability for injuries to those traveling on its
roadways depends upon several elements; if one or more of those elements is not
satisfied, a claim of liability must fail. The element at issue in this appeal is whether
plaintiffs established the existence of an issue of material fact regarding whether there
was a dangerous condition on the overpass. - - N.J.S.A. 59:4-1(a). (pp. 14-15)
See

2. As to derivative liability, where a public entity provides plans and specifications to an
independent contractor, the public contractor will not be held liable for work performed
in accordance with those plans and specifications. (p. 16)

3. The Court agrees with the trial court that the asphalt theory was not properly raised
and finds that summary judgment was appropriate on that ground alone. (p. 17)

4. Nevertheless, for completeness, the Court notes that it does not find that either of the
two items of evidence to which plaintiffs point establishes the existence of an issue of
material fact on the asphalt theory. First, the friend’s testimony that something metal
appeared in the roadway may have supported the now-abandoned joint theory, but it does
not substantiate the asphalt theory. Second, the photographs on which plaintiffs rely --
which were supplied by defendants -- do not appear to show a height differential in the
roadway, and plaintiffs do not present any competent evidence demonstrating that the
photographs do show a height differential. In short, plaintiffs do not present anything to
rebut defendants’ evidence that there was no height differential in the roadway, metal or
asphalt. (pp. 18-20)
2
5. The Authority’s project supervisor explained that the Authority regularly inspected
Earle’s work and confirmed that Earle constructed the overpass in accordance with the
Authority’s plans. Additionally, Earle’s corresponding progress reports were submitted
in support of defendants’ joint motion for summary judgment. Derivative immunity is
appropriate because it is uncontroverted that Earle performed in accordance with the
Authority’s plans and specifications. (pp. 20-21)

REVERSED. Summary judgment in favor of defendants is REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’s
opinion.

3
SUPREME COURT OF NEW JERSEY
A-61/
62 September Term 2020
085416

Thomas J. Stewart and Julie Stewart,

Plaintiffs-Respondents,

New Jersey Turnpike Authority/
Garden State Parkway and Earle Asphalt,

Defendants-Appellants,

and

Stavola Contracting Company and
George Harms Construction,

Defendants.

On certification to the Superior Court,
Appellate Division.

Argued Decided
November 8, 2021 February 9, 2022

Dawn Attwood argued the cause for appellants New
Jersey Turnpike Authority/Garden State Parkway
(Pashman Stein Walder Hayden, attorneys; Dawn
Attwood, and Jason D. Attwood, on the briefs).

Fay L. Szakal argued the cause for appellant Earle
Asphalt (GluckWalrath, attorneys; Fay L. Szakal, of
counsel and on the briefs).

1
Steven L. Kessel argued the cause for respondents
(Drazin & Warshaw, attorneys; Steven L. Kessel, on the
briefs).

William J. Rudnik argued the cause for amici curiae New
Jersey State League of Municipalities and the New Jersey
Institute of Local Government Attorneys (Gebhardt &
Kiefer, attorneys; Richard P. Cushing, and Kelly A.
Lichtenstein, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

This appeal requires us to determine whether plaintiffs’ premises

liability claim under N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act

(TCA), N.J.S.A. 59:1-1 to 12-3, should survive summary judgment after

plaintiffs belatedly altered their factual theory of liability.

Plaintiffs were injured when they lost control of their motorcycle while

riding over a Garden State Parkway overpass. They brought this action against

defendants, the New Jersey Turnpike Authority and several of its paving and

roadwork contractors, including Earle Asphalt, alleging that they lost control

of the motorcycle when they struck a piece of metal in the bridge’s expansion

joint that jutted out of the roadway.

The parties engaged in over two years of discovery, with plaintiffs

requesting extensions seven times. During argument before the trial court on

defendants’ joint motion for summary judgment, plaintiffs changed their

2
theory of liability. They argued, for the first time, that defendants failed to

properly pave a portion of roadway on the overpass, leaving a height

differential in the pavement. Under that newly asserted theory, plaintiffs

alleged that it was the height differential in the roadway, rather than the joint,

that caused them to lose control of the motorcycle.

The trial court declined to consider that newly minted theory and granted

summary judgment to the Authority on its immunity defense and to Earle on

its derivative immunity defense. The Appellate Division reversed, finding a

genuine issue of material fact existed based on the testimony of one of the

motorcyclists who accompanied plaintiffs and claimed to have seen a piece of

metal in the roadway.

We now reverse the Appellate Division’s judgment. We agree with the

trial court that plaintiffs’ new theory should not have been considered given its

late presentation. Nonetheless, for completeness, we hold that plaintiffs’ new

theory also did not raise an issue of material fact. We therefore reinstate the

trial court’s grant of summary judgment in favor of defendants and dismiss the

complaint with prejudice.

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I.

The summary judgment record reveals that on a spring day in 2015,

plaintiffs Thomas and Julie Stewart were riding Thomas’ motorcycle on the

Garden State Parkway. Thomas was operating the motorcycle and Julie was

the passenger. The two were accompanied by several friends on their own

motorcycles. With Thomas and Julie leading, the group rode northbound on

the Parkway and passed through the Toms River toll plaza in the leftmost lane

heading toward the overpass.

Defendant, the New Jersey Turnpike Authority, had just reopened the

overpass after its codefendant, Earle Asphalt, finished a reconstruction project.

Andrew McConnell, the Authority’s project supervisor, explained in his

deposition that, where it connects to the asphalt roadway, the overpass consists

of two sections. First, a concrete block abuts the asphalt roadway -- “the

header,” as McConnell called it -- after which there is the remainder of the

concrete bridge. Between the header and the rest of the bridge lies a metal

expansion joint. Such joints are included in roadway bridges, among other

structures, to accommodate shrinkage and expansion due to variations in the

temperature. Thus, as McConnell explained, a car crossing the overpass in the

manner the Stewarts did would begin on asphalt roadway, cross onto the

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concrete header, cross the metal expansion joint, and then proceed across the

rest of the concrete bridge.

Dominic Salsa, Earle’s project engineer, explained in his deposition that

Earle gradually tapered the surface of the roadway approaching the overpass to

correct any change in the height by putting down what is known as a transition

layer. He further explained that if Earle had not put down this layer, there

would have been a two-inch height differential in the roadway where the

asphalt met the concrete. By the time of the accident, the only step in

reconstruction of the overpass that remained was removal of the transition

layer and its replacement with a smoother final layer; that final step would not

have affected the tapering.

At some point after the toll plaza, Thomas testified that his bike began to

“shimmy.” Jordan Vergara, one of the other riders, saw an object he described

as black and about the size of a phone fall off Thomas’ bike. Thomas

suspected that he had suffered a flat tire. Thomas’ bike began what he

described as a “death wobble,” during which Thomas struggled to control the

bike as its front and rear end lurched in and out. Thomas attempted to pull

over to the side of the road, but when he crossed the expansion joint, the bike’s

back end bounced up and ejected Julie. Thomas then let go of the bike, slid to

the ground, and both he and Julie suffered serious injuries.

5
In his deposition, Vergara claimed to have observed a “piece of metal

. . . between the asphalt and concrete bridge,” which is where the accident

occurred. He guessed this was a “gap” that caused the accident. Although he

never measured it or took any photographs of it, he opined that it looked

“higher than normal.” Vergara crossed the overpass himself without incident,

and the Authority received no complaints from any other drivers regarding the

overpass despite its heavy use. Vergara also stated that he reported the gap to

the police, but the police report in the record does not reflect any such

observation.

The Stewarts filed a complaint against the Authority and several of its

contractors, including Earle, for their alleged negligence in reconstructing the

overpass. All parties other than the Authority and Earle were voluntarily

dismissed from the case pursuant to ---- 4:37-1(a), after which the Stewarts
Rule

filed an amended complaint alleging that “a steel strip that projected above the

surface placed there in connection with repaving work . . . caus[ed] [Thomas]

to lose control of the motorcycle and crash” and that defendants “negligently

allowed a dangerous condition to exist on the roadway, specifically debris

evidently a steel strip, which condition was the proximate cause of the crash.”

6
After 757 days of discovery and seven discovery extensions, the only

evidence supporting any height differential in the roadway was Vergara’s

unsupported assertion that the expansion joint “looked higher than normal.”

Defendants jointly moved for summary judgment, supported by photographs of

the overpass taken two weeks after the accident, progress reports, and

deposition testimony and certifications from McConnell and Salsa, all of

which set forth the work that had been done, the timing of the work, and

asserted that no work had been done on the overpass between the accident and

the taking of the photographs. Defendants asserted that evidence demonstrated

that there was no defect in the expansion joint. They further contended that no

one had complained about the overpass despite the many vehicles that had

traversed it since its reopening.

In response to defendants’ joint statement of material facts, the Stewarts

admitted that defendants had not done any work on the overpass between the

day of the accident and the day the photos were taken, but they still objected to

the use of the photos use at oral argument before the trial court, claiming an

insufficient foundation to demonstrate that the photos reflected the condition

7
of the overpass on the day of the accident. They also admitted that the

transition layer was in place on the day of the accident. 1

At the hearing on defendants’ motion for summary judgment, the

Stewarts -- for the first time -- argued that there was a height differential

between the asphalt roadway and the concrete header, apparently abandoning

the joint theory with which they began this litigation.2 The trial court

distinguished the joint theory from the asphalt theory and noted that the

Stewarts failed to allege any issue with the asphalt in their discovery

disclosures and that the complaint only alleged that something metal protruded

from the roadway and caused the accident. The Stewarts argued before the

trial court that their pleadings should conform to the evidence, but the court

rejected their assertion, concluding that allowing the Stewarts to raise the

asphalt theory would be prejudicial to defendants. The court reviewed

Vergara’s deposition testimony and determined that his observations were only

1
The Stewarts now aver -- without any support -- that this admission was in
error but acknowledge that they are bound by that admission given their failure
to correct it. See R. 4:22-2.
2
To avoid confusion, we refer to the Stewarts’ first theory alleging a metal
protrusion from the expansion joint as the joint theory and refer to the
Stewarts’ second theory alleging a height differential in the roadway due to
improper paving as the asphalt theory.
8
relevant to the joint theory, finding that no witness described any issue with

the pavement.

Thus, the trial court -- only considering the joint theory -- found that the

Stewarts failed to allege a disputed fact as to any of the required elements for

negligence under N.J.S.A. 59:4-2. Accordingly, the trial court found that the

Authority was entitled to immunity under the TCA and that Earle was entitled

to derivative immunity because McConnell stated that Earle had performed in

accordance with the Authority’s plans.

The Appellate Division reversed the trial court’s judgment in an

unpublished opinion. It noted that “[t]he parties sometimes referred to the

divider, as an expansion joint or an acclivity in the surface of the road ,”

conflating the joint and asphalt theories.3 Accepting Vergara’s testimony --

which supported the joint theory that the Stewarts had abandoned rather than

the asphalt theory -- the Appellate Division found disputed issues of fact as to

whether the alleged height differential created a dangerous condition under the

TCA. The court found that defendants’ witnesses did not have personal

3
Because of its conflation, the Appellate Division did not address the fact that
the trial court did not consider the asphalt theory because it was raised too late
into the litigation, instead considering it the Stewarts “revised theory of
liability.”
9
knowledge of the roadway’s condition nor did defendants submit documentary

evidence that showed that the roadway was properly tapered. It thus

concluded that regardless of its cause, the issue of whether the alleged height

differential was a dangerous condition under the TCA should have gone to a

jury. The court then reasoned that if the Stewarts could prove a dangerous

condition existed, a jury could find that the condition was the proximate cause

of the accident. On the issue of notice, the court found that if a height

differential could have existed, it might also have been open and obvious

enough that defendants should have been aware of it. 4

As to Earle’s derivative immunity defense, the Appellate Division found

that it failed to “present any approved plans or designs” and failed to “present

evidence [that] the transition or intermediary layer . . . was incorporated into

any approved plans and that it followed such plans.” Accordingly, the court

concluded that Earle had not demonstrated that it was entitled to claim

derivative immunity.

We granted defendants’ petitions for certification, 246 N.J. 314 (2021);

246 N.J. 326 (2021), and allowed the New Jersey League of Municipalities and

4
All parties agree that the failure to prove one element of a negligence claim
under the TCA is fatal to the claim. See Polzo v. County of Essex, 196 N.J. 569, 585 (2008). Thus, we only address their arguments as to the first
element: whether the overpass was a dangerous condition.

10
the New Jersey Institute of Local Government Attorneys (collectively, NJLM)

to jointly participate as amici.

II.

The Authority argues that the Appellate Division erroneously concluded

that the Stewarts provided evidence of a dangerous condition under the TCA

because the Stewarts were required to present expert evidence to that effect.

The Authority also asserts that the Appellate Division disregarded clear

photographic evidence that contradicts the Stewarts’ contention that there was

a height differential in the roadway. In addition, the Authority contends that

neither Vergara nor any other witness supports the Appellate Division’s

conclusion, now asserted by the Stewarts, that Earle failed to properly pave a

portion of the roadway by not putting down the transition layer of asphalt, and

thus the Stewarts’ height differential theory must fail.

Earle echoes many of the Authority’s arguments, contending that the

Appellate Division erroneously conflated the Stewarts’ two theories of liability

in reversing the trial court’s judgment. Given that the Stewarts consistently

asserted that a “steel strip” was the alleged defect, Earle submits that

defendants had no notice regarding the Stewarts’ claim that the roadway had

not been tapered properly. Earle further argues that consideration of the new

theory of liability asserted at the time of argument on the motion for summary

11
judgment would substantially prejudice both defendants. Even so, Earle

asserts that the photographic evidence belies Vergara’s testimony, as the

photos conclusively show no height differential in the roadway. Thus, Earle

contends that there are no genuine issues of material fact as to the asphalt

theory.

Earle additionally argues that the Appellate Division erred in denying it

derivative immunity for failing to present any plans approved by the Authority

that included the alleged defect. Earle contends that the defect the Stewarts

now allege could not have existed and thus could not have appeared in any

plans. Earle points us to cases holding that compliance with written or verbal

directions from a public entity is sufficient to obtain derivative immunity.

NJLM echoes defendants’ arguments that the Stewarts belatedly changed

their theory because their original theory was not viable, and that Vergara’s

testimony is not competent evidence and accordingly does not create a genuine

dispute of a material fact. NJLM further argues that the Appellate Division

improperly shifted the burden of proof to defendants by rejecting Earle’s

inspection reports and finding without any evidence that Earle may have

negligently inspected the overpass.

The Stewarts respond that their reliance on the presence of a height

differential between the asphalt pavement and the expansion joint is not a

12
different legal theory but a change in the factual basis of their argument that

the overpass was a dangerous condition. They further assert that defendants

failed to provide the testimony of a witness with personal knowledge that there

was no height differential in the roadway to rebut Vergara’s observation of a

differential. Regarding the photos of the overpass, the Stewarts assert that

defendants failed to lay the proper foundation that the photos represent the

condition of the Parkway on the day of the accident and argue that, in any

event, the photos do not accurately represent the overpass on the day of the

accident because Earle took them after it finished working on the bridge.

Regarding derivative immunity, the Stewarts argue that Earle must

identify the specific instruction it followed when it failed to properly taper the

roadway. They further allege that, because the Authority is not immune, Earle

cannot derivatively benefit from the Authority’s immunity.

III.

In this appeal, we consider a motion for summary judgment in the TCA

context. As we would in any tort case, we review a grant of summary

judgment de novo, applying the same standard as the trial court. Woytas v.

Greenwood Tree Experts, Inc., 237 N.J. 501, 511 (2019). That is, when “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

13
any material fact challenged and that the moving party is entitled to a

judgment or order as a matter of law,” summary judgment is appropriate. Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995) (quoting R.

4:46-2). But we must not “ignore the elements of the cause of action or the

evidential standard governing the cause of action.” Bhagat v. Bhagat, 217 N.J.
22, 38 (2014).

The Legislature passed the TCA after this Court abolished the common

law doctrine of sovereign immunity in Willis v. Department of Conservation &

Economic Development, 55 N.J. 534, 540-41 (1970). Vincitore ex rel.

Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 124 (2001). In

doing so, the Legislature provided that public entities could only be held liable

for negligence “within the limitations of [the TCA].” N.J.S.A. 59:1-2.

Application of the summary judgment standard here must therefore

account for the fact that under the TCA, “immunity [of public entities] from

tort liability is the general rule and liability is the exception.” Coyne v. Dep’t

of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. Township of

Middletown, 154 N.J. 282, 286 (1998)); see N.J.S.A. 59:1-2. Thus, “[w]hen

both liability and immunity appear to exist, the latter trumps the former.” Tice

v. Cramer, 133 N.J. 347, 356 (1993).

14
Under the TCA, a public entity’s liability for injuries to those traveling

on its roadways depends upon establishment of the following:

a plaintiff must establish the existence of a “dangerous
condition,” that the condition proximately caused the
injury, that it “created a reasonably foreseeable risk of
the kind of injury which was incurred,” that either the
dangerous condition was caused by a negligent
employee or the entity knew about the condition, and
that the entity’s conduct was “palpably unreasonable.”

[Vincitore, 169 N.J. at 125 (quoting N.J.S.A. 59:4-2).]

These elements are “accretive; if one or more of the elements is not satisfied, a

plaintiff’s claim against a public entity alleging that such entity is liable due to

the condition of public property must fail.” Polzo v. County of Essex, 196 N.J.
569, 585 (2008). At issue in this appeal is whether the Stewarts established

the existence of an issue of material fact regarding whether there was a

dangerous condition on the overpass.

N.J.S.A. 59:4-1(a) defines a “dangerous condition” as “a condition of

property that creates a substantial risk of injury when such property is used

with due care in a manner in which it is reasonably foreseeable that it will be

used.” A substantial risk is “one that is not minor, trivial or insignificant ,” and

presents a more stringent burden than that of mere negligence. Kolitch v.

Lindedahl, 100 N.J. 485, 493 (1985) (quoting Polyard v. Terry, 160 N.J. Super.
497, 509 (App. Div. 1978), aff’d o.b., 79 N.J. 547 (1979)).
15
Independent contractors, such as Earle, “share to a limited extent the

immunity of public entities with whom they contract.” Vanchieri v. N.J.

Sports & Exposition Auth., 104 N.J. 80, 85 (1986). Where, for example, “a

public entity provides plans and specifications to an independent contractor,

the public contractor will not be held liable for work performed in accordance

with those plans and specifications.” Id. at 86. Thus, if a contractor does “not

deviate[] independently and negligently from that contract,” then it is entitled

to derivative immunity. Ornes v. Daniels, 278 N.J. Super. 536, 541-42 (App.

Div. 1995). Immunity is an affirmative defense, and the party asserting

immunity carries both the burden of production and persuasion. Vanchieri,

104 N.J. at 87.

IV.

In applying the familiar summary judgment standard to the Stewarts’

theory of liability, we reiterate that they have abandoned the joint theory --

that a height differential at the expansion joint caused their injuries . Before

us, the Stewarts assert that defendants failed to demonstrate that Earle put

down the transition layer thus leaving a height differential where the asphalt

meets the concrete header that caused the accident -- despite their

contradictory admission. They argue that the height differential in the asphalt

16
theory is the “dangerous condition” required to impose liability under the

TCA.

We agree with the trial court that the asphalt theory was not properly

raised and find that summary judgment was appropriate on that ground alone.

See Lynch v. Galler Seven-Up Pre-Mix Corp., 74 N.J. 146, 150-51 (1977) (per

curiam) (finding no abuse of discretion when the trial court denied plaintiffs’

motion to amend because the new theory was “totally at variance with their

pretrial discovery disclosures and the evidence”); R. 4:9-2 (permitting parties

to amend their pleadings to conform to the evidence presented unless the

objecting party demonstrates that such a change would be prejudicial to it).

Defendants could not reasonably anticipate that the Stewarts were going

to change their theory of liability given that they failed to mention anything

regarding the pavement in their complaint or throughout the 757 days of

discovery. See Bauer v. Nesbitt, 198 N.J. 601, 610 (2009) (“Although '[a]ll

pleadings shall be liberally construed in the interest of justice,’ the fundament

of a cause of action, however inartfully it may be stated, still must be

discernable within the four corners of the complaint.” (quoting R. 4:5-7)).

Consideration of that new theory at the eleventh hour “would have redounded

to the prejudice of defendants.” Lynch, 74 N.J. at 151. We do not suggest that

parties cannot revise their theories throughout the litigation process. But a

17
change in theory as fundamental and belated as the one here cannot be

countenanced.

Nevertheless, for completeness, we address whether there is a triable

issue of material fact with respect to the asphalt theory -- whether the asphalt

was improperly tapered. To establish the existence of an issue of material fact

on that theory, the Stewarts point to two items of evidence -- Vergara’s

observations and the photo provided by Earle. We believe that neither creates

an issue of material fact.

First, although Vergara’s observation that something metal appeared in

the roadway may have supported the now-abandoned joint theory, that the

metal expansion joint caused the height differential, it does not substantiate the

asphalt theory that the Stewarts now allege -- that the failure to taper the

roadway by not applying a transition layer caused a height differential in the

asphalt. Indeed, all of their discovery disclosures consistently refer to some

sort of metal protrusion rather than anything having to do with how the

roadway was paved. The trial court recognized this distinction when it granted

summary judgment for defendants.

In addition, according to the Stewarts’ counsel only, the photographs

show that the overpass was a dangerous condition. It is axiomatic that

counsel’s arguments do not constitute evidence. See DeHanes v. Rothman,

18
158 N.J. 90, 95-96 (1999); Model Jury Charges (Civil), 1.11A “Preliminary

Charge: Role of Jury, Judge and Attorneys” (rev. May 2007). Indeed, on

observation, the photographs, which were supplied by defendants in support of

their motion for summary judgment rather than by the Stewarts in opposition

to the motion, do not appear to show a height differential in the roadway.

Nevertheless, irrespective of what counsel for either side claims that the

photographs show, the Stewarts do not present any competent evidence --

expert or otherwise -- demonstrating that the photographs show a height

differential in the roadway. 5 Here, the photographs alone do not create an

issue of material fact.

Also, records submitted by defendants, the parties asserting immunity

and who bear the burden of proving entitlement to immunity, see Vanchieri,

104 N.J. at 87, including progress reports and testimony from both the project

engineer and project supervisor, demonstrate that there was no height

differential in the roadway, metal or asphalt. The Stewarts do not present

anything to rebut those records.

Because we find that the Stewarts fail to establish an issue of material

fact with respect to the first element of their TCA premises liability claim --

5
Vergara, the only person who claims to have seen any defect, did not view
the photos or explain how they relate to what he saw on the day of the
accident.
19
that the overpass was a dangerous condition -- and the failure to prove one

element of a negligence claim under the TCA is fatal, we need not address the

other elements of the Stewarts’ TCA claim. See Polzo, 196 N.J. at 585. As

“immunity . . . is the general rule and liability is the exception,” we find that

the Authority has met its burden and is accordingly entitled to immunity under

the TCA. Coyne, 182 N.J. at 488 (quoting Garrison, 154 N.J. at 286); see

N.J.S.A. 59:2-1.

As to the Stewarts’ assertions that Earle was negligent, we find that

Earle is entitled to derivative immunity. McConnell, the Authority’s project

supervisor, explained that the Authority regularly inspected Earle’s work and

confirmed that Earle constructed the overpass in accordance with the

Authority’s plans. Additionally, Earle’s corresponding progress reports were

submitted in support of defendants’ joint motion for summary judgment.

Thus, derivative immunity is appropriate because it is uncontroverted that

Earle “performed in accordance with [the Authority’s] plans and

specifications.” Vanchieri, 104 N.J. at 86; see also N.J.S.A. 59:4-6;

Ciambrone v. Dep’t of Transp., 233 N.J. Super. 101, 107 (App. Div. 1989)

(affirming summary judgment where a New Jersey Department of

20
Transportation official certified that an allegedly defective condition was

approved “by the appropriate employee of the D.O.T.”).

The judgment of the Appellate Division is reversed and the trial court’s

grant of summary judgment in favor of defendants reinstated.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’s
opinion.

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