Opinion
DOCKET NO. A-3200-12T2
07-18-2014
GONZALEZ & SONS, INC., A New Jersey Corporation, Plaintiff-Appellant, v. LDM TRANSPORT, L.L.C., Defendant-Respondent, and LDM TRANSPORT, L.L.C., Defendant/Third-Party Plaintiff/Respondent, v. GMJ ROAD SERVICE AND TRANSPORT, Third-Party Defendant.
Barry, McTiernan & Wedinger, attorneys for appellant (Laurel A. Wedinger, on the brief). Traub Lieberman Straus & Shrewsberry, L.L.P., attorneys for respondent (Stuart A. Panesky, of counsel and on the brief; Laura M. Faustino, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and St. John.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7266-10.
Barry, McTiernan & Wedinger, attorneys for appellant (Laurel A. Wedinger, on the brief).
Traub Lieberman Straus & Shrewsberry, L.L.P., attorneys for respondent (Stuart A. Panesky, of counsel and on the brief; Laura M. Faustino, on the brief). PER CURIAM
Plaintiff Gonzalez & Sons, Inc., appeals from an order granting summary judgment and dismissing its negligence complaint against defendant LDM Transport, LLC, by which it sought compensation for fire damage to its property. We reverse.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010). We must "consider 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "[T]he appellate court should first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court's ruling on the law was correct." Henry, supra, 204 N.J. at 330 (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)).
Viewed most favorably to plaintiff Gonzalez & Sons, Inc., the summary judgment record established the following facts.
Plaintiff owned commercial property located at 489-499 Chancellor Avenue in Irvington. Plaintiff rented the property to third-party defendant GMJ Road Service & Transport, L.L.C. ("GMJ"), which operated a truck repair service at that location. Defendant-third-party plaintiff LDM Transport LLC ("LDM") owned a tractor-trailer that needed repairs.
On February 9, 2010, Luis Soto, the principal of LDM, brought the tractor-trailer to the GMJ repair facility. He told an employee of GMJ, Jose Montiel, about a fuel leak that needed repair. As Soto was backing the tractor-trailer into the repair yard, the air hose, cables, and electric wires became entangled in the drive shaft, and the brakes locked up. Soto unhooked the "dump trailer" from the truck cab and untangled the hose, cables, and wires by hand. After Soto picked up debris that had fallen to the ground, Montiel told him to back the truck cab into the garage. Soto did so and then left the repair shop to purchase parts for the needed repair.
While Soto was gone, a fire started under the truck cab. Montiel tried unsuccessfully to put the fire out with a fire extinguisher. Soto returned as the fire was spreading through the building and made an emergency call to 911. Firefighters arrived and extinguished the fire. The fire caused extensive damage to the building and the truck. An adjustor calculated plaintiff's loss at more than $507,000.
Plaintiff filed a complaint against LDM in August 2010, followed by an amended complaint in October 2010. Plaintiff alleged that the negligence of LDM caused the fire losses to its building and personal property. LDM filed an answer denying liability, and subsequently filed a third-party complaint against GMJ for indemnification and contribution. GMJ never answered the third-party complaint, and LDM obtained a default judgment in November 2012 holding GMJ liable to LDM for any damages for which LDM might be found liable at a trial.
In the meantime, plaintiff was in arrears on its mortgage and tax payments on the property. Plaintiff's mortgagee, TD Bank, N.A., filed a complaint for foreclosure of the property in July 2010. A final judgment of foreclosure was granted to TD Bank against plaintiff on May 19, 2011.
In this negligence case, LDM moved for summary judgment against plaintiff after the discovery period ended. It argued that plaintiff did not have evidence to prove any of the elements of its negligence claims. In its opposition, plaintiff submitted an expert report concluding that the fire had started under LDM's truck cab because of faulty electrical wires igniting fuel vapors in an enclosed garage, and also opining that LDM had improperly tampered with the truck's electrical wires. Based on his examination of the fire-damaged truck, the expert also concluded that other repairs were improperly done to the truck. Also in opposition to summary judgment, plaintiff submitted an affidavit of an employee of GMJ, David Leon, recounting the events that led to the fire as we have recited them and asserting that Soto did not tell him or Montiel about the mechanical and electrical problems of the truck except that it had a fuel leak.
The trial court initially denied summary judgment to LDM, concluding that Leon's affidavit showed there were material facts in dispute regarding the conduct of Soto and the cause of the fire. LDM argued, however, that Leon's affidavit had been submitted beyond the discovery period without Leon having been identified in plaintiff's interrogatory answers as a witness. The court reopened discovery to allow LDM to depose Leon and then to re-file its motion for summary judgment.
In his deposition, Leon testified that his affidavit was written by plaintiff's attorney, and he signed it believing its contents to be true. At the same time, he testified he was in the repair yard working on another truck when the events of February 9, 2010, occurred and he did not have personal knowledge of what happened or what conversation Soto may have had with the other mechanic, Montiel.
LDM moved for summary judgment again, arguing that Leon could not provide competent testimony regarding what occurred that constituted Soto's and LDM's alleged negligence. The court heard argument and this time granted summary judgment dismissing plaintiff's complaint. In an oral decision, the court stated that LDM did not have a duty of care to prevent or warn plaintiff of the dangerous condition of its truck because it had brought the truck to GMJ for repair of its faulty condition. The court stated that the truck was in the sole possession of GMJ when the fire started and only GMJ had a duty to plaintiff to prevent the fire. Additionally, the court ruled that plaintiff did not have sufficient evidence of the proximate cause of the fire, since no fact witness testified about what Soto had done or how the fire started.
On appeal, plaintiff argues that the court erred in granting summary judgment because there are material facts in dispute and, if viewed favorably to plaintiff, the facts can establish LDM's negligence as the proximate cause of the fire. We agree.
We begin by addressing the arguments made by LDM in response to the appeal that are either irrelevant or of secondary importance in deciding the summary judgment motion.
LDM argues that plaintiff cannot show it suffered any damages as a result of the fire because the property was foreclosed upon and TD Bank was the beneficial owner of the property and not plaintiff. However, when the losses occurred on February 9, 2010, plaintiff was the owner of the property. There was no foreclosure judgment in favor of TD Bank at that time. Plaintiff's losses predated the foreclosure, and plaintiff is entitled to recover for those losses if LDM was liable for causing them. See 495 Corp. v. N.J. Ins. Underwriting Ass'n., 86 N.J. 159, 167-68 (1981); Elvins v. Del. & Atl. Tel. & Tel. Co., 63 N.J.L. 243, 244 (E. & A. 1899). In addition, plaintiff's owner submitted a certification stating that plaintiff was still indebted to TD Bank after the foreclosure judgment in an amount greater than $300,000. TD Bank's foreclosure was irrelevant to plaintiff's claims against LDM.
Nothing in the record suggests a risk that TD Bank could make a claim against LDM for the same damages as claimed in plaintiff's complaint. If necessary, LDM could protect against such a risk by seeking the joinder of TD Bank in this litigation.
Also irrelevant for purposes of plaintiff's tort claim against LDM is the lease between plaintiff and GMJ. LDM argues that the lease has provisions regarding responsibility for protecting the property against fire hazards and additional provisions regarding insuring the property. The lease and any insurance policy, if one exists, were matters of contract between parties other than LDM. LDM's potential liability to plaintiff is not extinguished by the tenant's duties in protecting the premises against fire, or the mutual agreement of plaintiff and GMJ to insure the premises.
Next, the parties expend much of their argument on the conflicting statements of Leon, between his affidavit and his deposition, as to what occurred that caused the fire and what Soto may or may not have revealed regarding the dangerous condition of his truck. Leon's disavowal of personal knowledge at his deposition may have damaged his usefulness as a witness for plaintiff, but plaintiff's case is not entirely dependent on Leon. Although plaintiff never deposed Soto or Montiel, the summary judgment record includes Soto's admission that the hose, cables, and electrical wires of the truck became entangled in the drive shaft, that he picked up those items and continued to back the truck into the garage on Montiel's instructions, and that when he returned to the garage he saw that a fire had started under the truck. Soto's admissions are sufficient in the summary judgment record to establish the factual basis of plaintiff's claims of LDM's negligence in causing the fire.
The summary judgment record includes a statement signed by Montiel on April 13, 2010, that describes the facts as we recounted them earlier in this opinion. In addition to Montiel's signature, the statement contains a signature designated as that of Luis Soto, dated June 22, 2010, above the affirmation "I agree with the facts set forth above." Thus, Soto admitted the facts that plaintiff relies upon in alleging LDM's negligence.
In fact, both parties' statements of undisputed material facts pursuant to Rule 4:46-2 include Soto's admission about his actions shortly before the fire started. In other words, it is undisputed on the summary judgment record that Soto untangled and disengaged the electrical wires and drove the truck into the GMJ garage. It is also undisputed that the fire started under the truck.
The expert reports of both parties accept Soto's admissions as a factual predicate. While LDM's expert concluded that the source of the fire "was the open flame from a cutter's torch being used by the tenant mechanic," plaintiff's fire expert placed blame for the fire on Soto and the condition of the truck, specifically, the loose electrical wires.
In his report, plaintiff's engineering and fire expert wrote that he examined the fire-damaged building and truck several months after the fire. He observed that "[t]he Electrical Cable leading from the underside of the Tractor to the Trailer Connector . . . [had] been dislodged as well as mechanically damaged due to apparent physical contact and entanglement rotating driveline components, i.e., the Main Propeller Shaft." In his detailed report, the expert reached the following conclusions among others:
[T]he Fire originated on the Incident Tractor in the area of the Operator's Cab, i.e., in an area that is otherwise fraught with electrical wiring and components. . . .Thus, plaintiff had both Soto's admissions and the expert's confirmation of the condition of the fire-damaged truck to support its claim that the fire started as a result of the truck's electrical wires becoming entangled with the drive shaft and Soto's actions in disentangling the wires and leaving the truck in the enclosed garage in that condition. There was sufficient evidence in the summary judgment record to support the factual basis for plaintiff's expert evidence regarding how the fire started. Viewing the facts most favorably to plaintiff, the evidence could lead a jury to conclude that Soto was at least partially responsible for causing the fire. Contrary to the trial court's ruling, plaintiff presented evidence to establish LDM's conduct and the proximate cause of the fire.
[T]he Trailer Connector Electrical Cable, which ran below the Operator's Cab, had indeed been damaged in a manner consistent with eyewitness accounts, i.e., entanglement of the air hose, cables and electric wire[s] in the drive shaft, which caused physical contact of energized conductors with a grounded portion of the Tractor.
The most likely cause of the Fire was the result of damage to the Trailer Connector Electrical Cable, which was dislodged from the Trailer Connector due to entanglement with the Main Propeller Shaft . . . .
The resulting legal issue is whether the trial court was correct in concluding as a matter of law that LDM had no duty to plaintiff because it left the truck with GMJ for repairs.
"A duty is an obligation imposed by law requiring one party 'to conform to a particular standard of conduct toward another.'" Acuna v. Turkish, 192 N.J. 399, 413 (2007) (quoting Prosser & Keeton on Torts: Lawyer's Edition § 53, at 356 (W. Page Keeton ed., 5th ed. 1984)), cert. denied, 555 U.S. 813, 129 S. Ct. 44, 172 L. Ed. 2d 22 (2008); see also Restatement (Second) of Torts § 4 (1965) ("The word 'duty' . . . denote[s] the fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor's conduct is a legal cause.").
The law recognizes that more than one defendant can be the proximate cause of and therefore liable for causing injury. See, e.g., Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 106-08 (2004); Rappaport v. Nichols, 31 N.J. 188, 203-04 (1959), superseded by statute on other grounds at stated in Renz v. Penn Cent. Corp., 87 N.J. 437 (1981). Thus, more than one party can have a duty of care to prevent injury or damage to a plaintiff. Whether a duty exists to prevent harm is not controlled by whether another person also has a duty, even a greater duty, to prevent the same harm. If more than one defendant breached its duty and proximately caused damages, the jury at a trial may determine relative fault and assign a percentage of responsibility to each under our comparative negligence statutes, N.J.S.A. 2A:15-5.1 to -5.4. See Brodsky, supra, 181 N.J. at 108.
Whether a duty of care exists "is generally a matter for a court to decide," not a jury. Acuna, supra, 192 N.J. at 413. The "fundamental question [is] whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." J.S. v. R.T.H., 155 N.J. 330, 338 (1998) (quoting Weinberg v. Dinger, 106 N.J. 469, 481 (1987)).
The New Jersey Supreme Court recently analyzed the common law process by which a court decides whether a legal duty of care exists to prevent injury to another. Estiverne v. Vertus (ex rel. Estate of Desir), 214 N.J. 303 (2013). The Court reviewed precedents developed over the years in our courts and restated the "most cogent explanation of the principles that guide [the courts] in determining whether to recognize the existence of a duty of care":
"[w]hether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors — the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct."The Court emphasized that the law must take into account "generally applicable rules to govern societal behaviors," not just an "outcome that reaches only the particular circumstances and parties before the Court today." Id. at 323. The Court described all of these considerations as "a full duty analysis" to determine whether the law recognizes a duty of care in the particular circumstances of a negligence case. Id. at 317 (quoting Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44 (2012)).
[Id. at 322 (alteration in original) (citations omitted) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).]
In this case, the relationship of the parties was that LDM brought its truck to plaintiff's property and made use of the property for the purpose of having GMJ do repair work. The attendant risk was that plaintiff's property could be damaged if the truck was a fire hazard as a result of its damaged electrical wires. Soto, as the agent of LDM, personally engaged in temporary repair of the entangled and damaged electrical wires when they became caught in the drive shaft as he was backing the truck into the yard. According to plaintiff's expert, the electrical wires were left in a dangerous condition after Soto disentangled and disengaged them. There is strong public interest in not allowing exposed and live electrical wires to come into contact with flammable materials, especially in an enclosed location. The owner of the truck had a duty not to cause the electrical wires to be damaged by its agent's conduct and thus to become dangerous. It also had a duty not leave the truck in that dangerous condition in an enclosed area, or alternatively, to warn the mechanic of the dangerous condition.
Whether or not Soto was aware of the specific danger is not determinative of whether he and LDM had a duty. His knowledge or lack of knowledge of what might occur may affect a jury's assessment of whether he breached LDM's duty of care when he left the damaged truck on plaintiff's property, but the jury should have the opportunity to determine whether Soto and LDM were at fault for the fire.
The trial court erred in concluding that LDM had no duty of care to plaintiff because GMJ had such a duty, and it also erred when it concluded that plaintiff did not have sufficient evidence of proximate cause of the fire.
Reversed and remanded for trial. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION