CRUZ et al v. ATCO RACEWAY, INC. et al

Filing 103

OPINION. Signed by Judge Joseph E. Irenas on 7/1/2015. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EVELYN CRUZ, on her own behalf
and as Administratix of the
Estate of Jose Cruz,

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Plaintiff,
v.
ATCO RACEWAY, INC.,
Defendant.

Civil No. 12-5143 (JEI/AMD)

OPINION

APPEARANCES:
MORELLI RATNER PC
By: David T. Sirotkin, Esq.
950 Third Avenue
New York, New York 10022
Counsel for Plaintiff
SALMON, RICCHEZZA, SINGER & TURCHI, LLP
By: Timothy J. Schipske, Esq.
Tower Commons
123 Egg Harbor Road, Suite 406
Sewell, New Jersey 08080
Counsel for Defendant

IRENAS, Senior United States District Judge:
This wrongful death / negligence suit arises out of a fiery car
crash that occurred at the drag racing strip owned by Defendant Atco
Raceway, Inc.

The decedent, Jose Cruz, was severely burned after his

racecar crashed into a wall.

Although Cruz was able to escape the

car and walk away from the crash, he ultimately died.

1

Before the Court is Defendant Atco Raceway’s second Motion for
Summary Judgment.

For the reasons stated herein, the Motion for

Summary Judgment will be granted in part and denied in part.1

I.
The Scene and Situation at the Drag Strip
Jose Cruz was one of several drivers who were participating in
timed drag racing runs at Atco Raceway on September 15, 2010.
track was not open to the general public that day.

The

Juan Torres, who

goes by the name “John Hyper,” rented out the track for himself and
his acquaintances, which included Jose Cruz.
43, 77, 83, 99)

(Torres Dep. p. 16, 35,

Such private “rental days” are distinguished from

public “race days” insofar as 10-15 vehicles typically use the strip
on rental days, whereas on race days, 50 to 100 vehicles use the
strip.

(Torres Dep. p. 43-44; J. Swierczynski Dep. p. 59)

Because rental days involve many less vehicles, organizational
and safety concerns at the track are different.
Dep. p. 59)

(J. Swierczynski

Fewer Atco Raceway employees work on rental days, and

those who are working sometimes do more than one job.

(B. Gardner

Dep. p. 46-47, 54-55; B. Swierczynski Dep. p. 123-24)

Particularly

relevant to this case, on race days, two EMTs are stationed inside an
ambulance parked at the finish line.

(B. Gardner Dep. p. 46; Torres

The Court exercises diversity jurisdiction pursuant to 28 U.S.C. §
1332. The parties are completely diverse and the amount in
controversy exceeds the statutory minimum.
1

2

Dep. p. 48-49)

In contrast, however, on rental days, the ambulance

is stationed at the starting line, and the two EMTs do double-duty:
in addition to their EMT responsibilities, one EMT operates the time
clock in the timing tower, while the other operates the starting
light and hands out time slips.

(B. Gardner Dep. p. 46-49; J.

Swierczynski Dep. p. 102-03; Johannessen Dep. p. 16-17)

Both the

timing tower and the starting light are near the starting line.
This was, indeed, the situation on September 15, 2010.

EMTs

Bruce and Betty Anne Gardner, husband and wife, were operating the
starting light and time clock, respectively, while simultaneously
being responsible for any medical emergency that might arise.

(B.

Gardner Dep. p. 49, 66-67; J. Swierczynski Dep. p. 102-03; B.
Swierczynski Dep. p. 106-07, 145; R. Gardner Aff. ¶ 3-4)

The “Ford

heavy-duty diesel ambulance / EMT response Unit” was “stationed near
the start line.” (R. Gardner Aff. ¶¶ 3-4)
Brian Swierczynski (a.k.a. Brian Sway), the track manager on
duty that day, was responsible for: (1) inspecting the racecars prior
to racing, and (2) collecting the Technical Inspection Forms (which
include a broad release and waiver of liability) that are to be
completed by the drivers.

(Torres Dep. p. 83, 156-57; B.

Swierczynski Aff. ¶¶ 1-2)

New Jersey Regulations mandate that a

technical and safety inspection be performed prior to racing.
N.J.A.C. § 13:62-2.13.

See

If a vehicle does not pass inspection, it

“shall be barred by [Atco Raceway] from participation or practice.”
Id.
3

There is conflicting evidence in the record concerning whether
Brian Sway inspected Jose Cruz’s vehicle on the day of the crash.
Plaintiff Evelyn Cruz, and her son, Joseph Cruz, both state that
nobody from Atco Raceway inspected Jose’s car.
E. Cruz Dep. p. 86-88; J. Cruz Aff. ¶ 172)

(E. Cruz Aff. ¶ 18;

Moreover, Plaintiff

testified that Atco Raceway “never” inspects “any” vehicles on
private rental days, and she did not see anyone inspecting vehicles
on the day of the crash.

(E. Cruz Dep. p. 86-88)

But Brian Sway testified that he did inspect Jose’s car that
day. (B. Swierczynski Dep. p. 111-13)

Additionally, Sean Johannessen

testified that he saw Sway inspecting Jose Cruz’s vehicle.
(Johannessen Dep. p. 82-84)
The documentary evidence also raises questions as to whether
Jose’s car was inspected (or at the very least properly inspected) on
the relevant day.

As noted in the prior opinion, there are two

versions of the technical inspection form in the record (both of
which are undated)-- one bearing Brian Sway’s initials (indicating
that he performed an inspection) and one with no initials.
Cruz, 2013 WL 3283964 at *6 n.13.

Estate of

Moreover, even the initialed

version of the form is completely blank with respect to 25 out of 35
inspection checklist items.

(Pl’s Ex. 19)3

Lastly, Detective

Joseph Cruz’s deposition is not included in the summary judgment
record. It is not clear whether he was deposed. Apparently, he is
incarcerated.
2

It appears undisputed that the driver, not the person inspecting
the vehicle, completes the Technical Inspection Form. However, the
3

4

Kowalski who investigated the accident, stated in his Investigation
Report, “it was apparent immediately that Mr. Cruz’s vehicle did not
undergo a thorough technical inspection.”

(Pl’s Ex. 20)

It is also undisputed that on the day of the accident, Jose
Cruz’s National Hot Rod Association (NHRA) license was expired (E.
Cruz. Aff. ¶ 21), and that a valid license was required to
participate in the type of racing Jose Cruz was doing.
Dep. p. 47-49)

(Kowalski

Detective Kowalski testified that if a driver makes a

“sub-10 second” timed run without a valid NHRA license “it would be
the track’s responsibility to say slow down.
you’ll be told to leave.”

(Id. at p. 49)

If it happens again,

Jose Cruz’s time records

from that day indicate that all of his runs were under 10 seconds; he
made four runs at 8.483, 9.159, 8.603, and 8.561 seconds,
respectively, before his fifth run during which he crashed.

(Pl’s

Ex. 21)

The Accident
Sean Johannessen testified that just before Jose Cruz’s fifth
run, Jose Cruz had installed “long reach spark plugs” in his car.
(Johannessen Dep. p. 61-62)

Johannessen explained that he could tell

that these were “the wrong spark plugs” because he observed Jose’s
car “misfiring” so badly that “the car would barely stay running;”

regulations are clear that Atco Raceway must inspect the vehicle.
Thus, a reasonable juror could infer that, at the very least, Brian
Sway accepted an obviously incomplete form.
5

“it was missing like crazy.”

(Id. at p. 61, 62)4

Johannessen

testified that he “told [Jose] to put the car on the trailer and
don’t make another pass . . .

because the spark plugs were hitting

the pistons.”

Instead, Jose took out the long reach

(Id. at p. 62)

spark plugs and replaced the spark plugs he had been using up until
that point.

(Id.)

According to time records, Jose Cruz’s last run took place at
4:19 p.m.

(Def’s Ex. E)

His vehicle raced down the strip, reaching

a speed of 150 miles per hour.

(Id.)

Then, John Hyper testified, he

could “hear the RPMs of [Jose Cruz’s] motor just rev to, I mean
beyond what . . . you know, beyond what you know a motor should go,
and then a pa-boom, everything just blew up; smoke, black smoke,
white smoke, everything.”

(Torres Dep. p. 110-11)

Sean Johannessen similarly testified, Jose “got roughly to the
thousand foot mark, and I believe one of the rods in the engine let
go.

And all of a sudden, when the motor let go, he had the explosion

and a big ball of flame. . . . I believe it was on the left-hand side
of the motor a big ball of flame came out.”

(Johannessen Dep. p. 30)

Jose Cruz’s car came to rest approximately three-quarters of a
mile from the starting line.

(B. Swierczynski Dep. p. 147)

EMT Betty Anne Gardner testified that from her position at the
top of the time tower, she saw black smoke coming from Jose Cruz’s

Johannessen has been racing cars for 20 years. Over the last 18
years, he estimates he has raced at Atco Raceway 15 times a year.
(Johannessen Dep. p. 12-13)
4

6

car and immediately knew something was seriously wrong.
Dep. p. 68-69)

(B. Garner

She got up from her seated position to start down the

30 metal stairs of the tower.

(Id. p. 67, 69)

As she was “running”

down the stairs, she radioed Atco personnel to report that there had
been an accident, and then called 911 from her cell phone. (Id. p.
69)

When she got to the base of the tower, she traveled

approximately 100 feet to get into her car to drive to the crash
scene.

(Id. p. 72-73)

going down the track.”

When she entered her car, “the ambulance was
(Id. p. 73)

EMT Richard Gardner drove the ambulance.

He stated in his

affidavit that he saw smoke from Jose Cruz’s car, and received his
wife’s radio call, as he entered the ambulance.
5-6)

(R. Gardner Aff. ¶

He “turned the ignition over in the diesel ambulance, awaited

the glow plugs to heat up, started the ambulance, and then proceeded
down the Race Surface.”

(Id. ¶ 7)

Other witnesses also observed

that the ambulance did not immediately start.

(Joseph Cruz Aff. ¶ 6;

Fernandez Aff. ¶ 5; Anazagasty Aff. ¶ 4)
Brian Sway was the first person to reach the crash site.
(Torres Dep. p. 112; B. Swierczynski Aff. ¶ 14; B. Swierczynski Dep.
p. 148; R. Gardner Aff. ¶ 8)

Specifically, Brian Sway testified, “I

was the first one on the scene and down the track, because I was
already rolling [in my pick-up truck].

Whether coincidence or not, I

was already moving in my vehicle heading there.”
Dep. p. 150)

(B. Swierczynski

Sway navigated through debris on the track and arrived

“maybe 20 seconds” after he left the starting line.
7

(Id. p. 153)

Jose Cruz was out of the burning car and walking away when Sway
arrived.

(Id. p. 156-57)

John Hyper was next to arrive.

(E. Cruz Aff. ¶ 10; B.

Swierczynski Dep. p. 163; Torres Dep. p. 112, 121)

He began helping

Jose Cruz take off his racing suit, which was smoking, as well as the
rest of his clothes: “his fire jacket, shirt, pants, shoes,
everything” down to his underwear.
Dep. p. 54)

(Torres Dep. p. 121-22; E. Cruz

Then the ambulance arrived.

(Torres Dep. 123-24; B.

Swierczynski Dep. p. 161)5
Richard Gardner approached Jose Cruz and began to evaluate his
condition.
thereafter.

(Torres Dep. p. 124)

Betty Anne Gardner arrived shortly

Upon observing Jose Cruz’s hands, face and legs, she

called for “a helicopter to fly him up to trauma.”

(B. Gardner Dep.

p. 78)
The parties dispute what happened next.

Plaintiff testified

that the EMTs “just stood there” until the helicopter arrived.

(E.

Cruz Dep. p. 63-64) Ramon Fernandez also stated in his affidavit that
“the EMTs did not provide Mr. Cruz with oxygen and did not appear to

Defense counsel extensively relies on a video recording which
Defendant asserts captures the timing of the emergency response by
various Atco employees. Plaintiff disputes the authenticity and
accuracy of the recording. This issue was fully addressed in the
Court’s previous summary judgment opinion. See Estate of Cruz v.
Atco Raceway, 2013 WL 3283964 at *6 fn.12 (D.N.J. 2013) (“the video
does not resolve the material questions of fact concerning the
response time of the ambulance, and contrary to Defendant's
assertions, summary judgment is not warranted on the basis of the
video.”).
5

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give him attentive medical care.”

(Fernandez Aff. ¶ 11; J. Cruz Aff.

¶ 10)
But other record evidence indicates that the EMTs were trying to
care for Jose Cruz but he was “agitated” and “combative” and refused
an oxygen mask and burn sheets. (R. Gardner Aff. ¶¶ 9-10; B. Gardner
Dep. p. 82-85; Torres Dep. p. 129, 131; Johannessen Dep. p. 41)
Within minutes the trauma helicopter arrived and airlifted Jose
Cruz to Cooper Hospital in Camden, New Jersey.

(E. Cruz Aff. ¶ 12;

J. Cruz. Aff. ¶ 11; Johanessen Dep. p. 43; Torres Dep. p. 126)
At some later point, Jose Cruz was transferred to a New York
City hospital, as it was closer to his home in Brooklyn.

He never

left the hospital, and at some point during his stay had both legs
amputated.

He died on July 12, 2011.

Detective Kowalski investigated the accident and concluded that
the crash was caused by “a catastrophic engine failure.”
20)

(Pl’s Ex.

Specifically, he reported “as a result of the engine failure, a

nitrous line located on the left side of the engine compartment was
compromised and subsequently caused a fire.

The fire began in the

engine compartment and traveled to the cockpit as the vehicle
traveled down [the] track.”

(Id.)

The Amended Complaint asserts four claims: negligence,
negligence per se, wrongful death, and survivorship.
moves for summary judgment on all claims.

II.
9

Atco Raceway

The Court incorporates by reference the summary judgment
standard set forth in the previous opinion, see Estate of Cruz, 2013
WL 3283964 at *2.

III.
A. Release of Claims
The Court previously denied summary judgment on this issue
because the record evidence raised triable issues of disputed fact.
Specifically, Jose Cruz’s widow stated that Jose did not sign the
release and the signature purporting to be his was not actually his.
Estate of Cruz, 2013 WL 283964 at *6.

Moreover, the Court also

observed that the release asserted to be the document signed on the
day of the accident was not dated, which was material because Jose
Cruz undisputedly had raced at Atco Raceway on other occasions.
Obviously, these facts are still part of the record.

Id.

The jury

question-- namely, did Jose Cruz waive his rights and release his
claims?—- still remains.
The defense attempts to side-step this issue by relying on
Evelyn Cruz’s testimony that, on the relevant day, she signed the
release for her husband because he was illiterate.
32-36)

(E. Cruz Dep. p.

But this evidence does not resolve the issue.

As the Court explained at oral argument, even if Evelyn Cruz
signed on her husband’s behalf, there is no evidence that she read
the document to him or that he affirmatively indicated that he agreed
to the waiver’s terms.
10

Summary judgment as to the release issue will be denied.

B.

Negligence

Plaintiff posits three theories of negligence: (1) Atco Raceway
failed to provide an adequate emergency medical response; (2) Atco
Raceway failed to properly inspect Jose Cruz’s vehicle; and (3) Atco
Raceway allowed Cruz to race even though he did not have a valid
license to race.6
The Court holds that theories two and three fail for lack of
proximate cause,7 but one does not.
Assuming arguendo that a reasonable factfinder could conclude
that Atco Raceway was negligent in failing to check Jose Cruz’s
expired license and failing to properly inspect his vehicle, there is
no record evidence that these failures proximately caused the
accident.

Indeed, when specifically asked at oral argument,

Plaintiff refers to these theories as “negligence per se” claims.
This is somewhat of a misnomer insofar as under New Jersey law,
violations of administrative regulations are relevant evidence of
negligent conduct, not proof of negligence per se. Frugis v.
Bracigliano, 177 N.J. 250, 271 (2003).
6

“To sustain a cause of action for negligence, a plaintiff must
establish four elements: (1) a duty of care, (2) a breach of that
duty, (3) proximate cause, and (4) actual damages.” Townsend v.
Pierre, 221 N.J. 36, 52 (2015) (quoting Polzo v. Cnty. of Essex, 196
N.J. 569, 584 (2008)).
“Proximate cause consists of any cause which in the natural and
continuous sequence, unbroken by an efficient intervening cause,
produces the result complained of and without which the result would
not have occurred.” Id. (internal quotation and citation omitted).
7

11

Plaintiff’s counsel could not point to any record evidence supporting
this element of the claims.
It is undisputed that Jose Cruz’s engine suffered a catastrophic
failure, which the uncontradicted record evidence suggests was caused
by Jose Cruz’s own actions when he used the wrong spark plugs.
As to the failure to check Jose Cruz’s license, it is a rather
obvious point that Jose Cruz’s failure to have a current (i.e.,
unexpired) license, and Atco Raceway’s failure to inquire, could not
have caused the engine failure and crash.
The same conclusion obtains as to the asserted failure to
inspect Jose Cruz’s vehicle.

The record evidence demonstrates that

an inspection of the engine would not have revealed the spark plug
issue, nor the attendant damage to the engine.

John Hyper, who has

been racing cars for 30 years and makes his living building race cars
and muscle cars (Torres Dep. p. 28, 30), testified that “you can’t
check a motor.

You know, you can check the hood area.

Make sure

there’s no leaks of oil, antifreeze leaks, you know, things that are
visible, but internally in a motor nobody could check that, not even
a mechanic, no one.
impossible.”

You can’t check the internals of a motor, it’s

(Torres Dep. p. 111)

Therefore, neither theory two nor three can survive summary
judgment.
The first theory, however, is materially different because it
does not depend on a jury finding that Atco Raceway’s asserted
negligence caused the crash.

Rather, a reasonable juror could
12

conclude that failing to have an ambulance immediately available
caused Jose Cruz’s injuries to be more severe than they otherwise
would have been.

See generally Scafidi v. Seiler, 119 N.J. 93, 110

(1990) (“a defendant whose acts aggravate a plaintiff’s preexisting
condition is liable only for the amount of harm actually caused by
the defendant’s negligence.”).

As Plaintiff’s medical expert states

in his report,
[i]t is essential to treat burn victims immediately because
every second counts, and time equals tissue.
Delays of
even seconds increases degree and extent of burn area, and
denies patients their best possible outcome and even
survival.
Had the EMTs gotten to Mr. Cruz immediately,
they would have been earlier able to suppress the fire and
flames, and get him out of his burning hot clothes, and
initiate actions to reduce his burn area and degree. [If
this had been done] some of Jose Cruz’s burns that were
third degree burns would have been first or second degree
burns, and some burns could have been prevented. . . .
[H]is chance of survival would have been significantly
increased.
(Pl’s Ex. 23, Expert Report of Dr. Ira Mehlman, M.D.)
Moreover, a reasonable juror could find that Atco Raceway
breached its duty of care to Jose Cruz by (1) placing the ambulance
at the starting line rather than the finish line; (2) using the EMTs
to operate the time clock and starting lights; and (3) using an older
model ambulance which required the glow plugs to light up, the
combination of which added up to an unreasonable delay in the medical
treatment of Jose Cruz’s injuries.
Accordingly, summary judgment will be denied as to the first
theory of liability.

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C.

Wrongful death

New Jersey’s Wrongful Death statute provides in relevant part,
“the jury may give such damages as they shall deem fair and just with
reference to the pecuniary injuries resulting from such death,
together with the hospital, medical and funeral expenses incurred for
the deceased.” N.J.S.A. 2A:31-5 (emphasis added).
There are two basic categories of damages available under the
statute: (1) “economic losses, measured in accordance with
educational, occupational, demographic and other relevant factors,
[which] derive from the decedent’s expected contributions during his
or her continued lifetime, whether that lifetime would have been
measured in months, years, or decades”-- i.e., “financial support,”
and (2) “non-economic . . . damages [] premised on such services as
companionship, care, advice, guidance and counsel that the decedent
would have provided to his or her survivors”-- i.e., “services.”
Beim v. Hulfish, 216 N.J. 484, 505 (2014).8
Atco Raceway has moved for summary judgment on only the first
category of damages, asserting that “Plaintiffs have provided
absolutely no financial information in regard to the calculable

Of course, the statute also explicitly authorizes the recovery of
funeral expenses, as does New Jersey’s Survivor’s Act, N.J.S.A.
2A:15-3. As to this discrete issue, the Court holds that Plaintiff’s
interrogatory answer stating that Mrs. Cruz incurred funeral expenses
in the amount of $6,705.00, along with the receipt from the funeral
home indicating that $6,705.00 was “paid in full,” (Pl’s Ex. 24) is
sufficient to sustain Plaintiff’s summary judgment burden. Summary
judgment will be denied as to this aspect of Plaintiff’s wrongful
death / survivorship claim.
8

14

economic losses arising from the death of Mr. Cruz.”

(Moving Brief,

p. 41)
Plaintiff counters that her Answers to Interrogatories state
that Jose Cruz was employed as a custodian from 2001 to 2007, and
2008 through the date of his accident on September 15, 2010, earning
wages of “approximately $18.00 an hour.”

Plaintiff also provides a

2010 New York State TurboTax form which states that Jose’s federal
adjusted gross income was $28,095.00 and his total New York State
adjusted gross income was $27,978.00.

(Pl’s Ex. 24)

The issue is whether such evidence is sufficient to support a
jury finding as to the value of Jose Cruz’s expected future financial
contributions.

The Court concludes that it is.9

“The role of the fact finder is to determine the projected value
of the contribution that the decedent would have made to the support
of those claiming under the [wrongful death] statute.

All

probabilities and every reasonable expectation should be considered.”

Importantly, for the purposes of this Motion only, the Court
assumes the admissibility of the 2010 tax document, which appears to
be a copy of a TurboTax form. The admissibility of this document,
however, is far from apparent.
First, the document is not properly authenticated. Nothing
before the Court indicates where this document came from, nor who
created it, which is a significant issue in light of the record
evidence that Jose Cruz was illiterate.
Also, there is no evidence that the TurboTax form was actually
filed with the relevant taxing authority. See generally Fed. R.
Evid. 901(7) (public records are authenticated by evidence that a
document was recorded or filed in a public office as authorized by
law; or a purported public record or statement is from the office
where items of this kind are kept).
Second, even if the document can be authenticated, it may be
inadmissible hearsay.
9

15

Curtis v. Finneran, 83 N.J. 563, 569 (1980).

“Factors” the jury “may

weigh” include “the age and general state of health of the decedent
and survivors,” “the net earnings of the decedent after taxes as of
the time of the time of his/her death,” “the decedent’s potential
future net income during the balance of his/her working life
expectancy,” and “the decedent’s own personal expenses.”

New Jersey

Model Civil Jury Charges, 8.43 Wrongful Death.
As the Third Circuit has observed, “New Jersey case law provides
that proof of the amount of [wrongful death] damages need not be
shown with exactness, but the plaintiff must nevertheless provide the
factfinder some evidentiary and logical basis for calculating or, at
least, rationally estimating a compensatory award.
cannot be the basis of a jury finding.”

Sheer conjecture

Rodriquez v. United States,

823 F.2d 735, 747 (3d Cir. 1987)(internal citations an quotations
omitted).
Admittedly, Plaintiff’s evidence is thin.

But the Court

concludes that the interrogatory answer coupled with the TurboTax
form, is sufficient evidence from which a jury could “rationally
estimat[e] a compensatory award.” Rodriguez, 823 F.2d at 747.
Accordingly, summary judgment will be denied.

D.

Survivorship

Atco Raceway argues that it is entitled to summary judgment on
the survivorship claim because a reasonable jury could only conclude
that Jose Cruz caused the accident, and therefore could not conclude
16

that Atco Raceway was negligent.

See generally, N.J.S.A. 2A:15-3

(“Executors and administrators may have an action for any trespass
done to the person . . . of their testator or intestate against the
trespasser, and recover their damages as their testator or intestate
would have had if he was living.”)(emphasis added).
For the reasons articulated in III., B., supra, summary judgment
will be denied as to the survivorship claim insofar as it is
derivative of the first theory of liability.

E.

Punitive damages

With respect to punitive damages, the Court previously ruled
that even at the early stages of discovery, Plaintiff’s evidence
could support a finding that “Defendant deliberately ignored New
Jersey safety regulations governing drag strips, and knew that
failing to follow safety precautions could result in severe injury or
death, but allowed Jose Cruz to race anyway.”

Estate of Cruz, 2013

WL 3283964 at *7.
Record facts developed through subsequent discovery only lend
further support to the Court’s previous conclusion.

The combination

of (1) placing the ambulance at the starting line rather than the
finish line; (2) using the EMTs to operate the time clock and
starting lights; and (3) using an older model ambulance which
required the glow plugs to light up could reasonably support a jury
finding that Atco Raceway’s acts were “‘wanton and willful.’”

17

Estate

of Cruz, 2013 WL 3283964 at *6 (quoting N.J.S.A. 2A:15-5.12, Smith v
Whitaker, 160 N.J. 221, 242 (1999)).
Summary judgment as to punitive damages will be denied.

IV.
In light of the foregoing, Defendant’s Motion for Summary
Judgment will be granted as to Plaintiff’s second and third theories
of negligence (failure to inspect Jose Cruz’s vehicle and Jose Cruz’s
expired license).

The Motion will be denied in all other respects.

An appropriate Order accompanies this Opinion.

Date:

July 1, 2015

___s/ Joseph E. Irenas ______
JOSEPH E. IRENAS, S.U.S.D.J.

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