MCFADDEN v. UNITED STATES OF AMERICA
Filing
35
OPINION filed. Signed by Judge Freda L. Wolfson on 2/11/2016. (mmh)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
PATRICIA E. MCFADDEN,
:
:
Plaintiff,
:
:
Civ. Action No. 13-5756 (FLW)
v.
:
:
UNITED STATES OF AMERICA and,
:
OPINION
BASKING RIDGE GLASS & MIRROR, :
:
Defendant.
:
____________________________________:
WOLFSON, District Judge:
Plaintiff Patricia McFadden (“Plaintiff”) filed this negligence suit against the Basking
Ridge Post Office (“the Post Office”) and Basking Ridge Glass and Mirror (“BRG”)
(collectively “Defendants”) for negligently maintaining the outside premises of a post office
where she fell. Now, Defendants separately move for summary judgment on Plaintiff’s claim. In
their motions, the Post Office argues that Plaintiff has failed to establish causation and that
Plaintiff was not an invitee at the time of her fall, while BRG contends that Plaintiff’s claim is
time barred under N.J.S.A. 2A: 12-2, because this suit was not filed within two years after
Plaintiff’s accident. Additionally, the Post Office asserts cross-claims against BRG for
indemnification and contribution; BRG also moves for summary judgment on those claims. For
the reasons set forth below, the Post Office’s motion for summary judgment is DENIED and
BRG’s motion is GRANTED in its entirety.
Factual and Procedural Overview
Patricia McFadden is a 79-year-old woman who sustained a neck and shoulder injury as a
result of an alleged slip and fall on ice while on the premises of the Basking Ridge Post Office
1
on February 5, 2011. United States’ Statement of Material Facts ¶ 1, 7. (“Def’s Statement of
Facts”). The Post Office’s premises includes two parking lots: a customer lot that reserves a
space for handicapped persons located in front of the building, and an employee lot located to the
right side of the building. Def’s Statement of Facts ¶ 35; Counter Statement of Material Facts
By Patricia McFadden ¶¶ 6-7 (“Pl’s Counter Statement of Facts”). An L-shaped sidewalk used
by the Post Office’s customers runs from the main entrance of the Post Office to the customer
lot; the same sidewalk sits between the customer lot and the employee lot, such that both
employees and customers use the same sidewalk to gain entrance to the building. Pl’s Counter
Statement of Facts ¶ 7.
The employee lot has an ungated access driveway from Brownlee Place, and, although a
“DO NOT ENTER” sign is posted at the entrance, an “in-arrow” is also painted on the
driveway’s entrance pavement. Pl’s Counter Statement of Facts ¶¶ 2-3. Moreover, within the
employee lot are two signs that restrict its use, reading: “RESERVED FOR EMPLOYEES” and
“UNAUTHORIZED VEHICLES WILL BE TOWED AT OWNER’S EXPENSE.” Pl’s Counter
Statement of Facts ¶ 4. However, these signs are only visible once inside the parking lot, and not
from its entrance or Brownlee Place. Pl’s Counter Statement of Facts ¶ 4.
On the date of her accident, late afternoon on a Saturday, Plaintiff’s husband, now
deceased, drove Plaintiff to the Post Office. Pl’s Counter Statement of Facts ¶ 8; Def’s Statement
of Facts ¶ 7. Despite having a valid handicapped placard for her vehicle, for reasons unknown,
Plaintiff’s husband entered the Post Office’s premises through the entrance driveway of the
employee lot. Def’s Statement of Facts ¶ 35. Subsequently, Plaintiff exited the vehicle and
walked on the sidewalk—shared by the customer lot—to the Post Office’s main entrance, which
remained open after the Post Office’s retail hours had ended, in order for customers, like
2
Plaintiff, to access its lobby and mail letters. Pl’s Counter Statement of Facts ¶ 9. Her husband
waited in the car until Plaintiff finished her affairs, which took approximately six to eight
minutes. Pl’s Counter Statement of Facts ¶¶ 8, 10. Upon her return to the vehicle, Plaintiff once
again walked on the same sidewalk towards the employee lot and, after taking “maybe one or
two” steps from the curb into the employee lot, Plaintiff slipped and fell. Def’s Statement of
Facts ¶ 33; Deposition transcript of Patricia McFadden at P. 26:6 (“Pl’s Deposition”). Although
Plaintiff could not identify the exact source of her fall, during her deposition, she indicated that,
after stepping onto the surface of the parking lot, “I went—my feet went right out from under me
and I fell flat on my back.” Pl’s Deposition at 13:18-19. Upon further questioning, she stated:
“…I slipped. I skid…I didn’t feel anything other than just skidding…I had no stability at all.”
Pl’s Deposition at 28:3, 13-14; 29:1-2. And, after falling to the ground, Plaintiff recalled feeling
“pretty wet.” Pl’s Deposition at 28:21. Furthermore, Carol Ewing, an employee of the Post
Office, described the weather conditions as having snowed earlier in the week, and snow was on
the ground around the time of Plaintiff’s accident. Deposition transcript of Carol Ewing at P.
28:20-29:11 (“Ewing’s Deposition”).
After her accident, Plaintiff submitted two separate Claims for Damage, Injury, or Death
to the United States Postal Service describing her alleged slip and fall and the injuries she
sustained. Def’s Statement of Facts ¶¶ 4-7. Subsequently, on September 19, 2013, Plaintiff filed
a complaint against the United States 1 for negligence under the Federal Tort Claims Act
(“FTCA”). Def’s Statement of Facts ¶ 10. Approximately seven months later, Plaintiff amended
her complaint and alleged that the United States “negligently and carelessly [maintained] the
[Basking Ridge Post Office] so as to cause a dangerous condition to exist thereon.” Def’s
1
The United States has given its consent to be sued in certain negligence actions pursuant to the FTCA. See 28
U.S.C. 2674 (assigning liability for the United States).
3
Statement of Facts ¶ 11. On October 15, 2014, after learning that the Post Office used an
independent contractor for snow and ice removal, Plaintiff filed a second amended complaint,
wherein BRG was named as a defendant. Def’s Statement of Facts ¶ 12; Plaintiff’s Counter
Statement of Facts Pursuant to Rule 4:46-2(b) ¶¶ 9, 11. Subsequently, in its answer to Plaintiff’s
second amended complaint, the Post Office asserted cross-claims for indemnification and
contribution against BRG.
In the present matter, both Defendants move for summary judgment. The Post Office
primarily argues that Plaintiff is unable to establish the cause-in-fact of her injuries, since she
could not identify the condition that caused her to fall, and that Plaintiff exceeded the scope of
her invitation by utilizing the Post Office’s employee parking lot without authorization. Brief of
the United States in Support of its Motion for Summary Judgment at 1. (Def’s Brief for
Summary Judgment). Moreover, BRG contends that Plaintiff’s claim against it is time barred,
and that the Post Office has no contractual basis for indemnification. Brief of Basking Ridge
Glass in Support of its Motion for Summary Judgment at 1. Plaintiff opposes both motions and
the Post Office opposes the motion of BRG.
Legal Standard
A court may grant a motion for summary judgment when the record “show[s] that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). In making this determination, “the Court must view the
evidence in favor of the non-moving party by extending any reasonable favorable inference to
that party.” Roth v. Marina Assocs., 2009 U.S. Dist. LEXIS 70952, at *9 (D.N.J. Aug. 11, 2009).
In other words, “the nonmoving party's evidence is to be believed, and all justifiable inferences
are to be drawn in [that party’s] favor.” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting
4
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The inquiry, therefore, is whether
there are “any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 259
(internal citations and quotations omitted).
Nevertheless, “the nonmoving party may not, in the face of a showing of a lack of a
genuine issue, withstand summary judgment by resting on mere allegations or denials in the
pleadings; rather, that party must set forth ‘specific facts showing that there is a genuine issue for
trial,’ else summary judgment, ‘if appropriate,’ will be entered.” United States v. Premises
Known as 717 South Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993) (quoting
Fed. R. Civ. P. 56(e)) (citations omitted).
Discussion
A.
Plaintiff’s Negligence Claim Against the Post Office
Plaintiff asserts her negligence claim against the Post Office under the FTCA, which
provides individuals with a remedy for injuries that arise from “the negligent or wrongful act or
omission of” federal employees. See 28 U.S.C. §§ 1346(b), 2401(b), 2671-80, 2679. A plaintiff
is entitled to recover only “under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. §§ 1346(b). In that regard, New Jersey law governs Plaintiff’s negligence
claim against the Post Office. See, e.g., Starkey v. United States, 2011 U.S. Dist. LEXIS 4801
(D.N.J. Jan. 18, 2011) (in analyzing the plaintiff’s negligence claim against the United States, the
court treated the Post Office as a regular business operation, and applied the traditional common
law premise liability classifications in determining the extent of the Post Office’s duty owed to
the plaintiff).
5
A plaintiff, under New Jersey law, is required to establish the following to prove a
negligence claim: (1) that the defendant owed that plaintiff a duty; (2) that the defendant
breached that duty; and (3) that the defendant’s breach of duty was the proximate cause of the
plaintiff’s harm. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984). In premise
liability cases, like the one here, the extent of the duty owed is typically governed by the
classification of the plaintiff. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993).
Generally, these classifications include invitees, licensees, and trespassers. Atakora v. McAuley,
2010 N.J. Super. Unpub. LEXIS 2680, at *5 (App. Div. Oct. 1, 2010).
In this case, the parties’ dispute centers on whether Plaintiff exceeded the scope of her
invitation as an invitee. Invitees are invited onto an owner’s premises, “often in a commercial or
business related matter.” Roth v. Marina Assocs., 2009 U.S. Dist. LEXIS 70952, at *11 (internal
citation omitted). Since invitees are typically invited onto the premises for the benefit of the
owner, they are owed a duty of reasonable care. Bauer v. Nesbitt, 198 N.J. 601, 615 (2009). This
includes the duty “to discover and eliminate dangerous conditions, to maintain the premises in
safe condition, and to avoid creating conditions that would render the premises unsafe.” Id
(internal citations and quotations omitted).
Nonetheless, it “has been consistently held that an owner’s liability for the condition of
his premises is co-extensive with his invitation.” Tomsky v. Kaczka, 17 N.J. Super. 211, 216
(App. Div. 1952); see also Nolan v. Bridgeton & Millville Traction Co., 74 N.J.L. 559 (1907);
Ryerson v. Bathgate, 67 N.J.L. 337 (1902). In other words, the “liability of an inviter is
circumscribed by the invitation and does not extend to [those] injuries [which are] incurred on a
part of the premises [that is] not within the limits of the invitation.” Monheit v. Rottenberg, 295
N.J. Super. 320, 324 (App. Div. 1996) (internal citations and quotations removed). That
6
invitation, however, “includes those parts of the premises to which the invitee reasonably [might]
be expected to go.” Starkey v. United States, 2011 U.S. Dist. LEXIS 4801, *15 (internal citation
and quotations omitted); see also Williams v. Morristown Mem’l Hosp., 59 N.J. Super. 384, 390
(App. Div. 1960); Monheit v. Rottenberg, 295 N.J. Super. at 325; Nary v. Parking Auth. of
Dover, 58 N.J. Super. 222, 229 (App. Div. 1959). Therefore, a determination of whether Plaintiff
exceeded the scope of her invitation “depends on the surrounding circumstances.” Giangrasso v.
Dean Floor Covering Co., 51 N.J. 80, 83 (1968) (citing Williams v. Morristown Memorial Hosp.,
59 N.J. Super. at 389-90.)
i.
Proximate Cause
In support of its motion for summary judgment, the Post Office maintains that Plaintiff
cannot establish the cause-in-fact of her injuries because “Plaintiff never saw any ice on the
ground” prior to or after her alleged slip and fall. Def’s Brief for Summary Judgment at 3, 11.
However, this argument is unconvincing because Plaintiff may satisfy the element of causation
without specifically identifying the alleged hazardous condition that allegedly caused her fall.
This is so because, in “the absence of direct evidence,” the plaintiff may prove “the existence of
such circumstances as would justify the inference that the injury was caused by the wrongful act
of the defendant and would exclude the idea that it was due to a cause with which the defendant
was unconnected.” Callahan v. Nat’l Lead Co., 4 N.J. 150, 154-55 (1950). In other words, proof
of certainty is not required since causation can be established with circumstantial evidence.
Irizarry v. Pathmark Stores, Inc., 2007 N.J. Super. Unpub. LEXIS 2779, at *9 (App. Div. Jan.
31, 2007) (holding that plaintiff satisfied the element of causation “even [though] plaintiff could
not precisely pinpoint the specific cause of her slip,” since “there were sufficient facts from
7
which it [could have been] reasonably inferred that the hazardous condition identified…was a
proximate cause of plaintiff’s injury”).
A review of the record indicates that Plaintiff has raised a genuine issue of material fact
on this motion with regard to causation, even if she cannot identify the hazardous condition, i.e.
ice or snow, that caused her injury. 2 During her deposition, for example, Plaintiff identified the
hazard that caused her fall:
Q:
A:
Do you know why you fell?
Obviously ice.
Tr. dated May 28, 2015, T27:1-2. Furthermore, while Plaintiff admitted that “[i]t’s possible” for
her fall to be attributed to a different defect, and that she did not see the ice that allegedly caused
her to slip, her description of the accident is consistent with a fall due to an icy surface:
Q:
A:
Q:
A:
….
Q:
A:
Q:
A:
….
Q:
A:
Q:
A:
Well, do you know for sure that you slipped on ice?
I went right out from under me.
But do you know if that’s because of ice or snow?
Yes. I slipped. I skid.
Do you know if it was as a result of any foreign object that
may have been dropped on the ground that you may have
slipped on?
No.
How do you know that?
I didn’t feel anything other than just skidding.
So as you sit here today, are you able to tell us under oath
that it was ice as opposed to something else that made you
skid or slide?
Well, when I fell I was pretty wet, so obviously it was water.
So other than it being -And ice.
2
In an attempt to prove causation, Plaintiff asserts that her husband saw the ice on which she slipped, and various
medical records indicate that Plaintiff reported that the cause of the fall was ice. However, Mr. McFadden’s
statement is inadmissible hearsay as it is an out-of-court statement that is being offered for the truth of the matter
asserted. Fed. Rule. Evid. 801(c). Similarly, Plaintiff’s medical records are inadmissible because Plaintiff has not
laid a proper foundation. Williams v. W. Chester, 891 F.2d 458, 471 (3d Cir. 1989) (“Only evidence admissible at
trial may be used to test a summary judgment motion. Thus evidence whose foundation is deficient must be
excluded from consideration.”). Nevertheless, the Court finds that, on this motion, Plaintiff has met her evidentiary
burden on causation, even without Mr. McFadden’s statements and Plaintiff’s medical records. See infra.
8
Q:
A:
Well, how do you know it was ice?
Because I slipped. I had no stability at all. I went right out
from under me.
Tr. dated May 28, 2015, T27:1-2-T28:1-3; T28:8-14; T28:18-25-T29:1-2
Importantly, Plaintiff’s deposition testimony is corroborated by Ms. Ewing, who had
worked at the Post Office on February 4, 2011, the day before Plaintiff’s fall. During her
deposition, she confirmed the weather conditions around the time of Plaintiff’s accident:
Q:
A:
Q:
A:
Do you have any independent recollection of the snow
conditions or snow and ice conditions at or near the time of
this accident back in February or on February 5th of 2011?
I know it snowed -Okay.
-- because I know that there was snow on the ground. I don’t
know how much it snowed or how many times it snowed,
but I know there was snow on the ground at the time.
Tr. dated July 14, 2015, T28:20-25-T29:1-4 Accordingly, when considering Plaintiff’s testimony
of her fall, in addition to Ms. Ewing’s description of the weather, it may be reasonably inferred
from the circumstantial evidence that the hazardous condition of ice identified by Plaintiff was
the proximate cause of her injury; such an issue is reserved for the finder of fact at trial.
ii.
Breach of Duty
Generally, questions relating to the scope of a business owner’s invitation are reserved
for trial. Monheit v. Rottenberg, 295 N.J. Super. 320, 325 (App. Div. 1996) (“As a general
proposition, questions pertaining to the scope of invitation and whether the entrant has exceeded
that which is authorized are within the jury’s domain.”); Williams v. Morristown Mem’l Hosp.,
59 N.J. Super. at 390 (“Under the circumstances here, where the plaintiff admittedly was invited
upon defendant's premises and it is alleged he exceeded his invitation, the question whether the
invitation was extended to that part of the premises where the accident occurred is one for the
9
jury.”); Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 219 (1954) (“Whether or not the
invitee stayed within the confines of the invitation is usually an issue for the jury.”)
Here, Defendant argues that, even if causation is established, the Post Office did not
breach the duty owed to Plaintiff, because she acted beyond the scope of her invitation by
parking in the employee lot. Def’s Brief for Summary Judgment at 14. In support of this
contention, Defendant cites to Sattelberg v. United States, 2013 U.S. Dist. LEXIS 163559 (W.D.
Wis. Nov. 18, 2013), a non-binding case applying Wisconsin state law. Although the court,
there, found that the plaintiff trespassed by attempting to retrieve her car that was parked in the
defendant hospital’s employee parking lot, the facts of Sattelberg are distinguishable. For
example, while driving through the defendant’s premises, the plaintiff “failed to follow various
signs directing her to the [hospital’s] visitor and patient parking,” and also ignored
“signs…indicating that she was parking in ‘Employee Parking Only.’” Sattelberg, 2013 U.S.
Dist. LEXIS 163559, at *3, 6. Moreover, the entrance to the hospital’s employee lot was gated,
and its “yellow bollard gate box notified [the plaintiff] that she would be trespassing” by parking
in the employee lot. Id. at *3. Accordingly, the parking lot’s restrictive use was made clear since
the lot was gated, with multiple signs throughout the hospital’s premises, including the entrance
of the parking lot, that notified drivers that the lot was reserved for employees only. Therefore,
the surrounding circumstances in Sattelberg supported the court’s finding that the plaintiff
injured herself in an area where she could not have been expected to park.
In the instant case, however, Defendant could have reasonably anticipated Plaintiff’s
usage of the employee parking lot based on the surrounding circumstances, and, as such, a
reasonable fact finder could find that Plaintiff had not exceeded the scope of her invitation. 3
3
The Post Office argues that, under a totality of the circumstances analysis, it owed Plaintiff a minimal duty of care
because she visited the Post Office after it was closed. However, this argument is unavailing because the record
10
First, the employee parking lot is located next to the customer parking lot, and the two lots are
separated by a sidewalk that leads to the main entrance of the building; both customers and
employees use that sidewalk to access the Post Office. Second, the employee parking lot is not
cordoned off by a fence or any other barriers to prevent customers from using it. Third, while
there are “DO NOT ENTER” signs posted by the entrance and exit of the lot, the parking lot’s
entrance has an “in-arrow” painted on the pavement signaling drivers to proceed into the lot.
And, those signs do not indicate that the lot was only reserved for employees. Finally, and more
importantly, the signs indicating that the parking lot was reserved for employees were only
visible from within the parking lot, not at the entrance or any other location along Brownlee
Place. It is, therefore, fairly debatable whether customers could have seen these signs at all.
Accordingly, in light of the surrounding circumstances, a trier of fact could reasonably find that
the Post Office failed to adequately notify its customers about the employee lot’s restrictive use;
therefore, the issue of whether Plaintiff exceeded the scope of her invitation will ultimately have
to be decided by the trier of fact. 4 Williams v. Morristown Mem’l Hosp., 59 N.J. Super. at 391-92
(noting that plaintiff could have reasonably been expected to cross over a grass plot in reaching
defendant hospital’s main entrance because of the surrounding circumstances); Nary v. Parking
Auth. of Dover, 58 N.J. Super. at 228 (holding that, in considering the surrounding
circumstances, plaintiff passenger could have reasonably been expected to walk through parking
lot owned by defendant parking authority).
reveals that the Post Office’s lobby was accessible to the public during the time of Plaintiff’s visit, even after the
Post Office’s retail hours had ended. Indeed, during her deposition, Plaintiff testified that, on the day of her accident,
she entered through the Post Office’s main entrance and mailed letters. Pl’s Counter Statement of Facts ¶ 9.
4 The Court notes further that there is no evidence, and therefore, unclear whether Plaintiff or her husband knew that
the lot in which they parked was restricted to employees of the Post Office.
11
B.
Plaintiff’s Negligence Claim Against Basking Ridge Glass
Plaintiff’s negligence claim against BRG is governed by a two-year statute of limitations.
N.J.S.A. 2A: 14-2. However, courts may “avoid [the] harsh results that otherwise would flow
from [a] mechanical application of a statute of limitations” by lengthening the applicable statute
of limitations period pursuant to the discovery rule. Caravaggio v. D'Agostini, 166 N.J. 237, 245
(2001) (quoting Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 426 (1987)). Typically, the
discovery rule will be applied when “the victim either is unaware that he has been injured, or
although aware of an injury, does not know that a third party is responsible.” Beauchamp v.
Amedio, 164 N.J. 111, 117 (2000); see Ayers v. Jackson, 106 N.J. 557, 582 (1987) (explaining
that the discovery rule “tolls the statute until the victim discovers both the injury and the facts
suggesting that a third party may be responsible”) (internal citation omitted).
Although Plaintiff’s Second Amended Complaint, naming BRG as a defendant, was filed
on October 15, 2014, or more than 3 years after the Plaintiff’s accident, Plaintiff contends that
the Court should toll the statute of limitations because she was unaware of BRG’s potential
liability. However, the Court is not convinced by this argument. As explained by the Supreme
Court of New Jersey, “knowledge of fault for purposes of the discovery rule has a circumscribed
meaning: it requires . . . the awareness of facts that would alert a reasonable person exercising
ordinary diligence that a third party’s conduct may have caused or contributed to the cause of the
injury and that conduct itself might possibly have been unreasonable or lacking in due care.”
Savage v. Old Bridge-Sayreville Med. Grp., P.A., 134 N.J. 241, (1993). Therefore, since plaintiff
must be “reasonably unaware that a third party may also be responsible” for her injuries,
“[p]laintiff must explain why [she] reasonably could not have discovered [her] cause of action in
time to comply with the limitation period in order to justify the tolling of the statute of
12
limitations.” Betteridge v. Genuardi's Family Mkts., L.P., 2011 U.S. Dist. LEXIS 125486, at
*10-11 (D.N.J. Oct. 31, 2011).
Here, Plaintiff did not provide an adequate basis for her untimely filing with respect to
BRG; Plaintiff merely maintains that she relied on the Post Office to inform her about BRG’s
potential for liability. Rather, the record indicates that when Plaintiff fell, she was immediately
aware as to the cause of her injury because, on several occasions, she attributed her fall to an icy
surface. In fact, during her deposition, Plaintiff testified that the defect which caused her to fall
was “obviously ice,” and in describing her accident, she stated: “I went right out from under.”
Pl’s Deposition at 27:2, 25. She continued: “…I slipped. I skid…I didn’t feel anything other than
just skidding…I had no stability.” Pl’s Deposition at 28:3, 13; 29:1, 2. Moreover, in her Claim
for Damage, Injury, or Death, which Plaintiff submitted to the Post Office, Plaintiff stated that
she “slipped and fell on ice.” Def’s Statement of Facts ¶ 4. Therefore, the record shows that
Plaintiff had the requisite knowledge that would have alerted a reasonable person exercising
ordinary diligence that a third-party entity, other than the Post Office, might be responsible for
the removal of snow and ice on the premises. It is certainly not uncommon for commercial or
other entities to rely on third parties for snow removal. Yet, Plaintiff made no inquiries on, or
investigated into, that question. In her original complaint, Plaintiff only alleged that the Post
Office negligently maintained its premises without asserting any claims against a third party, and
she relied on, or waited for, the Post Office to inform her about BRG’s potential for liability.
This does not meet the diligent inquiry standard. Thus, Plaintiff’s failure to investigate precludes
the application of the discovery rule, and, therefore, Plaintiff’s negligence claim against BRG is
time barred. Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 537 (App. Div. 1989) (holding
the discovery rule inapplicable because a police report indicated that the defendant driver, whom
13
plaintiff collided with, lost control of his vehicle due to an icy roadway, thereby giving plaintiff
knowledge that pointed to the culpability of a party other than the driver he collided with).
C.
The Post Office’s Cross-Claims for Indemnification
Lastly, the Post Office contends that it should be indemnified from BRG if the Post
Office is found to be liable for Plaintiff’s alleged slip and fall. 5 Plaintiff’s Answer to Second
Amended Complaint ¶ 1. However, the Court is unconvinced by this argument because there is
no evidence of an indemnification agreement between the two parties.
New Jersey courts interpret indemnity agreements in accordance with the rules of
contracts, and have typically demanded that they clearly set forth the intentions of the parties.
Englert v. The Home Depot, 389 N.J. Super. 44, 51 (App. Div. 2006) (holding that, since the
indemnification “clause [was] ambiguous, […] the clause should be strictly construed against the
indemnitee.”); Huck v. Gabriel Realty, 136 N.J. Super. 468, 475 (1975) (clarifying that, when
determining the scope of an indemnification agreement, the court must apply “strict construction
rules.”); Longi v. Raymond-Commerce Corp., 34 N.J. Super. 593, 603 (App. Div. 1955)
(explaining that, in interpreting an indemnity agreement, “it is to be strictly construed and not
extended to things other than those therein expressed.”); George M. Brewster & Son, Inc. v.
Catalytic Constr. Co., 17 N.J. 20, 30 (1954) (indicating that, “contracts of indemnity, like all
other contractual arrangements, are to receive a reasonable construction to serve and not subvert
the general design of the stipulation”).
5
The Post Office also brought a claim for contribution against BRG. However, because BRG is being dismissed
from the case pursuant to the statute of limitations, the Post Office will not be required to reimburse Plaintiff for any
negligence attributable to BRG at trial. Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 307 (App. Div. 2001)
(holding that defendant hospital was only responsible for its own allocation of negligence where defendant
anesthesiologists were dismissed from the case on technical grounds).
14
Here, the record reflects that there was no written contract for snow removal between the
Post Office and BRG, let alone a written indemnification provision. However, despite the lack of
a written contract, the Post Office maintains that there “is sufficient evidence for this Court to
find that an enforceable oral contract did in fact exist between Basking Ridge Glass and the Post
Office.” 6 Brief of the Untied States in Opposition to BRG at 6. (Pl’s Opposition Brief).
According to Defendant, “it was automatic that Basking Ridge Glass would come to plow the
Post Office parking lot when it snowed.” Indeed, even if the Court finds that an oral contract for
snow removal existed, Defendant did not address whether the parties can enter into a verbal
indemnification agreement and, more importantly, it has failed to submit any evidence that an
oral indemnification agreement with BRG existed. Rather, Defendant’s limited evidence on this
issue only demonstrates that the oral agreement—if any—between the Post Office and BRG was
solely for snow and ice removal services. Therefore, since the record is devoid of a clear and
unambiguous written or oral indemnification agreement, the Court has no basis to find that BRG
was contractually required to indemnify the Post Office.
6
The Post Office also maintains that BRG’s motion should be denied because BRG’s undisputed statement of facts
is a mere recitation of the case’s procedural history, and was included within its legal brief, thereby violating L. Civ.
R. 56.1. Pl’s Opposition Brief at 3. Nonetheless, BRG has responded to the Post Office’s undisputed statement of
facts, albeit it was included in BRG’s briefing. In it, BRG includes numbered paragraphs that correspond with those
in the Post Office’s 56.1 statement, and BRG admits to each of the Post Office’s allegations, adding supplemental
explanations where necessary. Therefore, the Court finds BRG’s submission to be adequate under L. Civ. R. 56.1.
See Schecter v. Schecter, 2008 U.S. Dist. LEXIS 97518, at *18-20 (D.N.J. Nov. 26, 2008).
15
Conclusion
For the forgoing reasons, the Court will deny the Post Office’s motion for summary
judgment on Plaintiff’s complaint, and grant BRG’s motion for summary judgment against
Plaintiff and the Post Office.
DATE: February 11, 2015
/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. District Judge
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?