Opinion
DOCKET NO. A-3049-12T3
04-28-2016
ANN AARONS, Administratrix Ad Prosequendum and General Administratrix of Estate of Cordell R. Aarons, Jr., deceased, CORDELL R. AARONS, SR., Individually, and ANN AARONS, Individually, Plaintiffs-Appellants, v. KATHERINE APONTE, STATE OF NEW JERSEY, COUNTY OF OCEAN, TOWNSHIP OF TOMS RIVER, and TOWNSHIP OF LAKEWOOD, Defendants-Respondents.
Kenneth Rosellini argued the cause for appellant Ann Aarons. Anthony W. Guidice argued the cause for respondent Katherine Aponte (Barry, McTiernan & Wedinger, P.C., attorneys; Laurel A. Wedinger, on the brief). Benjamin H. Zieman, Deputy Attorney General, argued the cause for respondent State of New Jersey (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Zieman, on the brief). Jared J. Monaco argued the cause for respondent Township of Toms River (Gilmore & Monahan, P.A., attorneys; Mr. Monaco, on the brief). Adam S. Picinich argued the cause for respondent Township of Lakewood (Bathgate, Wegener & Wolf, P.C., attorneys; Mr. Picinich, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-4165-09 and L-4281-09. Kenneth Rosellini argued the cause for appellant Ann Aarons. Anthony W. Guidice argued the cause for respondent Katherine Aponte (Barry, McTiernan & Wedinger, P.C., attorneys; Laurel A. Wedinger, on the brief). Benjamin H. Zieman, Deputy Attorney General, argued the cause for respondent State of New Jersey (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Zieman, on the brief). Jared J. Monaco argued the cause for respondent Township of Toms River (Gilmore & Monahan, P.A., attorneys; Mr. Monaco, on the brief). Adam S. Picinich argued the cause for respondent Township of Lakewood (Bathgate, Wegener & Wolf, P.C., attorneys; Mr. Picinich, of counsel and on the brief). PER CURIAM
Plaintiffs appeal from orders entered by the Law Division in this matter, which dismissed their claims against defendant Katherine Aponte with prejudice, and granted summary judgment to defendants State of New Jersey, Township of Lakewood, and Township of Toms River. We affirm.
I.
We briefly summarize the relevant facts and procedural history. On November 11, 2007, at around midnight, Cordell R. Aarons, Jr. (decedent) was walking in an easterly direction along Route 70 in Toms River, when he was tragically struck and killed by a vehicle driven by Aponte. Officer Christopher M. Dudzik of the Toms River Police Department arrived on the scene. He conducted an investigation of the accident and issued a report, in which he concluded that fault for the collision rested solely with decedent.
In his report, Officer Dudzik noted that on Route 70, a new lane of vehicular travel was under construction on Route 70, adjacent to the eastbound lane of travel. The lane under construction was not paved but it was "protected by a line of construction barrels" placed approximately eighty feet apart.
Officer Dudzik determined, based on his observations of the scene and the location of decedent's duffle bag, that decedent had been walking in the eastbound vehicular lane of travel at the moment of impact. The officer noted that if decedent had been walking in the new lane of travel that was under construction, the accident would not have occurred.
Officer Dudzik also noted that, at the time of the accident, decedent was wearing "all black clothing" in an area that was "heavily wooded on both sides" and had "no ambient lighting." The officer concluded that, if decedent been wearing some type of light colored or reflective clothing, he would have been more visible to the driver, and the driver could possibly have made an "evasive maneuver" upon seeing him.
On November 10, 2009, plaintiffs filed a complaint in the Law Division in which they named Aponte, the State, the County of Ocean, Toms River, and Lakewood as defendants. In 2011, the trial court entered an order dismissing the claims against the County. On March 16, 2012, the court entered orders granting motions for summary judgment by Toms River and Lakewood. On November 16, 2012, the court granted the State's motion for summary judgment. Aponte's motion for summary judgment was denied.
Trial of plaintiffs' claims against Aponte was scheduled for January 15, 2013. On that date, the process of selecting the jury began. It appears that the following day, while the judge was ruling on certain pre-trial motions, plaintiffs' attorney, Richard Roberts of the firm Roberts & Saluti, informed the judge that plaintiffs wanted to settle their claims against Aponte. Mr. Roberts noted that $100,000, the full amount of coverage available under Aponte's insuance policy, previously had been paid into court.
We note that plaintiffs have had several attorneys in this matter, and at times, represented themselves. The firm of Roberts & Saluti appears to have been retained sometime after March 2012. --------
Plaintiffs were sworn and the following colloquy ensued between Mr. Roberts and plaintiff Ann Aarons:
Q. Mrs. Aarons, I'm going to direct my questions to you initially. I have represented you on this matter for some time; is that not so?
A. That's correct.
Q. And although we've had our disagreements on things, it's my understanding that you're satisfied with my representation of you at this time.
A. That's correct.
Q. We started picking a jury, but we've had a chance to speak to each other during the selection session after the [c]ourt yesterday and this morning, as well; is that correct?
A. That's correct.
Q. And it's my understanding that at this point you wish to accept the offer from the insurance company of $100,000; is that so?
A. That's correct.
Q. And there's no question about that, that you want to accept that at his time?
A. That's correct.
Mr. Roberts also questioned plaintiff Cordell Aarons, Sr.:
Q. Mr. Aarons, I'm going to ask you the same question. Again, we've had our ups and downs in this case, but it's my understanding that you are satisfied with my representation of you at this time, is that correct?
A. That's correct.
Q. And we've had extensive discussions on whether or not to settle this case. We started picking a jury but as a result of continuing conversations, it's my understanding that your desire is now to accept the $100,000 offer in this case; is that so?
A. That's correct.
Q. There's no question in your mind that you wish to accept that offer at this time?
A. That's correct.
Mr. Roberts then addressed Mrs. and Mr. Aarons. He stated, "Both of you do not wish to proceed to trial, but want to accept the offer? Mrs. Aarons stated, "That's correct." Mr. Aarons replied, "Yes."
The trial judge then commented that on several occasions he had spoken directly to both Mrs. and Mr. Aarons on the record. The judge noted that he had listened to a recording of a previous hearing in the case before another judge, during which that judge had explained to plaintiffs that the only remedy available to them was a civil remedy. The trial judge observed that on the day before, he said "the same thing" to plaintiffs.
The judge asked Mrs. and Mr. Aarons whether anything he, the other judge, or "anyone else may have said" that made plaintiffs "feel pressured in entering into this settlement." Mrs. Aaron stated, "I'm sorry, Your Honor?" The judge's discussion with plaintiffs continued:
THE COURT: I want to make sure the settlement is of your own voluntary will. Has this settlement been entered into by both of you voluntarily?
MRS. AARONS: Yes, Your Honor.
THE COURT: You, Mr. [Aarons]? Yes, you've indicated, Mr. Aarons?
MR. AARONS: Yes.
THE COURT: No one has pressured you, no one has coerced you?
MRS. AARONS: No, Your Honor.
MR. AARONS: No.
THE COURT: Nothing that the [c]ourt may have said to you may have made you feel coerced in entering this settlement? You may understand the reality of the situation, but you're not coerced; is that my understanding?
MRS. AARONS: Yes, correct.
THE COURT: Mr. Aarons, you said yes?
MR. AARONS: Yes.
The judge concluded, "I'm satisfied that the settlement has been entered knowingly and voluntarily by both Mr. and Mrs. Aarons as well as by the defendant." The judge stated that "this case is hereby adjudicated settled." The judge entered an order dated January 15, 2013, dismissing the matter with prejudice, and directing that the settlement proceeds of $100,000 be released for disbursement. On that date, plaintiffs executed a document releasing their claims against Aponte, in exchange for the payment of $100,000.
On March 1, 2013, Mrs. Aarons filed a pro se notice of appeal, which stated that she was appealing from the trial court's orders dated March 16, 2012, November 16, 2012, and January 15, 2013. Thereafter, Mrs. Aarons filed a motion in the trial court to stay the distribution of the settlement monies. The trial judge considered that application on March 18, 2013.
Mrs. Aarons told the judge that she had been coerced into settling the case. The judge noted that this allegation had not been raised before, and Mrs. Aarons had not moved to vacate the settlement. Gerald M. Saluti of Roberts & Saluti told the judge that the case had been settled, and the settlement proceeds disbursed to the firm's trust account.
Mr. Saluti said the firm had taken its fee from the settlement proceeds and plaintiffs had authorized the firm to resolve a pending claim for funeral expenses. Mrs. Aarons stated that she never authorized the firm to take its fees, and the firm was no longer representing her. The judge denied Mrs. Aarons' motion.
The judge observed that the case had been settled and the order dismissing the case stated that the monies deposited into court would be released. The judge commented that there was no order precluding a further disbursement of the settlement proceeds. The judge refused to require the firm to return the monies, which were disbursed pursuant to a settlement entered in open court. The judge also noted that Mrs. Aarons had filed a notice of appeal and the trial court no longer had jurisdiction in the matter.
On appeal, plaintiffs argue: (1) the matter should be remanded to the trial court for a plenary hearing to determine whether they were coerced into entering into the settlement of the claims against Aponte; and (2) summary judgment should not have been granted to the State, Toms River, or Lakewood, because there were genuine issues of material fact as to the liability of these parties.
II.
We turn first to plaintiffs' contention that the matter should be remanded for a plenary hearing to determine whether they willingly assented to the settlement of their claims against Aponte. They contend a plenary hearing is required to determine whether the settlement should be enforced. We disagree.
New Jersey has a strong public policy to foster and uphold the settlement of litigation. Brundage v. Estate of Carambio, 195 N.J. 575, 501 (2008); see also Jersey City v. Roosevelt Stadium Manna Inc., 210 N.J. Super. 315, 509 (App. Div. 1986). Generally, "settlements are favored, and will be enforced whenever voluntarily agreed to by the parties." Capital City Prods. Co. v. Louriero, 332 N.J. Super. 499, 508 (App. Div. 2000). Accordingly, an agreement to settle a lawsuit should be considered a binding contract and enforced in the absence of fraud or other compelling circumstances. Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (citations omitted), certif. denied, 94 N.J. 600 (1983).
We are convinced that the record supports the trial judge's determination that plaintiffs voluntarily and knowingly consented to the settlement of their claims against Aponte. As we have explained, plaintiffs were sworn in and stated under oath that they wanted to settle the matter.
Plaintiffs informed the trial judge they were satisfied with the services that Roberts had provided, and they were not coerced into agreeing to settle the case. Based on plaintiffs' sworn statements, the trial judge properly determined that the claims against Aponte were settled.
We note that, after the trial court entered the order dated January 16, 2013, dismissing the case, Mrs. Aarons filed a pro se motion in the trial court seeking to enjoin the distribution of the settlement proceeds. When Mrs. Aarons made that application, she told the judge that she had been coerced into settling the case.
However, plaintiffs never filed a motion to set aside the order of January 16, 2013. Plaintiffs never provided the trial court with the factual basis for the claim that they had been coerced into settling the case. They did not allege the settlement should not be enforced due to fraud or some compelling circumstance. Accordingly, we reject plaintiffs' contention that the matter should be remanded to the trial court for a plenary hearing.
III.
Plaintiffs additionally argue that the trial court erred by granting summary judgment in favor of the State, Toms River, or Lakewood. Again, we disagree.
When reviewing an order granting a motion for summary judgment, we apply the same standard that the trial court applies when ruling on the motion. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). We must view the evidence in the light most favorable to the non-moving party, and determine if there is any genuine issue of material fact in dispute, and whether the moving party is entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Here, plaintiffs asserted claims against three public entities: the State, Toms River, and Lakewood. Claims against public entities are governed by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-10. The TCA was the Legislature's response to the abrogation by our Supreme Court of the doctrine of sovereign immunity in Willis v. Dep't of Cons. & Econ. Dev., 55 N.J. 534, 540-41 (1970).
The TCA provides that a public entity is not liable "[e]xcept as otherwise provided" therein, N.J.S.A. 59:2-1(a). "[A] public entity is 'immune from tort liability unless there is a specific statutory provision' that makes it answerable for the negligent act or omission." Polzo v. Cty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)).
In this matter, plaintiffs alleged that the public entities were liable for the injuries that decedent sustained when he was struck by Aponte's vehicle. Plaintiffs claimed the public entities were responsible for a dangerous condition of the roadway where decedent was struck. The TCA provides:
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 [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.The TCA defines the term "dangerous condition" to mean "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." N.J.S.A. 59:4-1a.
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.
[N.J.S.A. 59:4-2.]
For purposes of determining whether the property was being used with "due care," the court must consider whether the injured person "had engaged in an activity that is so objectively unreasonable that liability for resulting injuries may not be attributed to the condition of the property." Garrison v. Twp. v. Middletown, 154 N.J. 282, 292 (1998). If the nature of the property indicates that it poses no risk to any person using due care, and is "dangerous only when used without due care," then the property is not in a "dangerous condition." Id. at 287.
We are convinced that the motion judge did not err by granting summary judgment to the State. As noted previously, Officer Dudzik determined that decedent was struck and killed while walking on the eastbound lane of vehicular travel on Route 70. The officer noted that, at the time of the accident, a new lane of vehicular travel was under construction adjacent to the eastbound lane of travel on Route 70.
According to Officer Dudzik, the new lane for vehicles was unpaved but protected by a line of orange-colored construction barrels placed about eighty feet apart. Moreover, the officer noted that decedent had been walking on the roadway late at night in an area without ambient lighting. Decedent was wearing dark clothing and had no reflective gear. The officer concluded that the fault for the accident rested solely with decedent.
Based on the evidence before the court, the motion judge properly determined that the roadway in the location where decedent was struck was not a dangerous condition of public property. Decedent was struck while walking in the eastbound travel lane for vehicles, and he would not have been hit if he had been walking in the adjacent unpaved lane which was under construction and protected by spaced, orange-colored barrels. The record thus established that the place where decedent was struck was only dangerous when it was not being used with due care, and decedent was not using the property with due care.
Plaintiffs argue that there was a genuine issue of material fact as to whether the section of the roadway where decedent was struck was in a dangerous condition. They claim the area was not properly lighted, marked, or protected with construction barriers. They also claim the construction site was not properly controlled or maintained.
However, plaintiffs did not provide an expert report or other evidence that would have allowed a reasonable fact finder to conclude that the property was in a dangerous condition, or that decedent was using the property with due care at the time he was struck. We are convinced that summary judgment was properly granted to the State because the evidence before the court on these issues was "'so one-sided'" the State was entitled to prevail as a matter of law. Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).
We are also convinced that the trial court did not err by granting summary judgment in favor of Toms River and Lakewood. It is undisputed that decedent was struck and killed on Route 70, which is a roadway owned and controlled by the State. Plaintiffs presented no evidence indicating that Toms River or Lakewood, or any employee of these public entities, created or maintained the alleged dangerous condition at that location. Thus, there was no genuine issue of material fact as to the alleged liability of these entities, and the trial court correctly found they were entitled to judgment as a matter of law. Brill, supra, 142 N.J. at 540.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION