Superior Court of New Jersey,
Appellate Division.
The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Plaintiff–Appellant,
v.
BEAR METAL TRANSPORT, INC., Defendant–Respondent,
and
John Costello, Defendant.
Bear Metal Transport, Inc., Third–Party Plaintiff,
v.
Park Insurance Company and the Dorfman Organization, Third–Party Defendants.
Submitted Oct. 13, 2015. | Decided Nov. 17, 2015.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L–1292–12.
Attorneys and Law Firms
Margaret Taylor Finucane, New Jersey Solicitor (The Port Authority of New York and New Jersey), attorney for appellant (Mary C. Brennan, on the brief).
Shapiro Croland Reiser Apfel & DiIorio, L.L.P., attorneys for respondent (Manuel Arroyo, on the brief).
Before Judges SABATINO and O’CONNOR.
Opinion
PER CURIAM.
*1 In this property damage action arising out of a single-vehicle accident that occurred on December 7, 2009, plaintiff appeals the Law Division’s order granting defendant Bear Metal Transport, Inc.1 summary judgment and dismissing plaintiff’s complaint. Plaintiff also appeals the order denying its motion for reconsideration of the order granting defendant summary judgment.2 For the reasons that follow, we reverse the denial of reconsideration, thereby requiring summary judgment to be vacated and the complaint reinstated.
I
The facts in the record relevant to our consideration of the issues on appeal are as follows. At the time of the accident, defendant was a trucking company that hauled bulk materials, including scrap metal. Located on Staten Island, defendant used the two tractor trailers it owned to travel within New York or to New Jersey to make deliveries. At the time of the accident, defendant had only three employees: its president, Nicholas Dontis; a truck driver, Costello; and a part-time mechanic, Fabian Edwards. Dontis also drove the trucks to make deliveries.
On the day of the accident, Costello drove one of defendant’s tractor trailers to Long Island and picked up an eighty-thousand pound load of scrap metal to deliver to Sayreville. Just after Costello emerged from the Lincoln Tunnel on the New Jersey side and was going around the 495 Helix, the trailer began to list to the right and ultimately fell against the guardrail. Some of the scrap metal in the trailer spilled out onto the Helix and over the guardrail onto a roadway below. Plaintiff, which owns the Helix and the property below, claims it sustained $143,526.92 in property damage as a result of the trailer hitting the guardrail and the scrap metal falling out onto the Helix and the road beneath it.
Defendant filed a motion for summary judgment, contending there was not any evidence Costello negligently operated the tractor trailer. Because in its brief in response plaintiff failed to identify any evidence in the record that Costello or defendant had been negligent, the court granted summary judgment. However, after it filed its brief and four days before oral argument, plaintiff took Dontis’s deposition. Dontis testified that the scrap metal loaded onto defendant’s trailer was not put into any container or tied-down. It is undisputed Dontis was not present when the scrap metal was loaded onto the trailer. Dontis also asserted that, as the driver of the truck, Costello’s role was to make sure the scrap metal was correctly loaded and safe to haul.3
During oral argument plaintiff advised the court that Dontis’s deposition had been taken and that Dontis had indicated the scrap metal had not then been tied-down in the trailer. Because the evidence was not raised in plaintiff’s brief and thus not properly before it, the court declined to consider Dontis’s deposition testimony. The court then granted defendant summary judgment on the ground there was no evidence defendant’s employee negligently operated the tractor trailer.
*2 Plaintiff moved for reconsideration and urged the court to consider Dontis’s deposition testimony that indicated Costello—for whom defendant was vicariously liable-failed to ensure the tractor trailer was properly loaded and secured, evidence plaintiff was precluded from presenting at the time the original motion was heard. Plaintiff also cited various federal regulations in support of its argument that both defendant and Costello had a duty to ensure that the cargo in the trailer had been loaded and secured in such a manner to prevent the scrap metal from falling out of the trailer.
In response, Dontis submitted a certification asserting that scrap metal is a material that lacks any fixed structure or shape and is impossible to tie down. Dontis further claimed that carrying bulk materials “with a tarp” in the kind of trailer defendant was using at the time of the accident was the “industry standard method for hauling material such as scrap metal.”
The trial court denied plaintiff’s motion for reconsideration for the following reasons. First, the court ruled that plaintiff should have ordered an expedited copy of Dontis’s deposition transcript and presented it to the court for its consideration during oral argument on defendant’s motion for summary judgment. Second, the court noted at the time plaintiff filed its brief in response to defendant’s motion, plaintiff knew or should have known of the subject regulations and that the cargo may not have been properly secured and, thus, should have raised such issue in its brief. Third, the court reasoned that because Dontis was not present when the scrap metal was loaded onto the trailer, he was not “really a fact witness.” We interpret this latter statement to mean the trial court found that Dontis lacked personal knowledge about how the scrap metal was loaded into and secured on the trailer; therefore, his claim the scrap metal was not tied-down was not competent evidence.
II
Our review of a trial court’s summary judgment order is de novo; an appellate court applies the same legal standard as the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W .J.A. v. D.A., 210 N.J. 229, 237–38 (2012)). We must determine whether the moving party has demonstrated there were no genuine disputes as to material facts. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539–40 (1995). In so doing, we view the evidence in the light most favorable to the non-moving party. Id. at 523. If there were no genuine disputes as to any material fact, we must then determine whether the trial court’s application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230–31 (App.Div.), certif. denied, 189 N.J. 104 (2006). “A trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.” Manalapan Realty L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
*3 Reconsideration of an order should be used “ ‘only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence….’ “ Cummings v. Bahr, 295 N.J. Super . 374, 384 (App.Div.1996) (quoting D’Atria v. D’Atria, 242 N.J.Super. 392, 401 (Ch. Div.1990)). However, motions for reconsideration should also be considered in cases where new evidence, which could not have been presented at the time of initial application, is discovered. Id. at 384 (quoting D’Atria, supra, 242 N.J.Super. at 401). The decision to reconsider an order rests within the sound discretion of the motion court and reviewed under the abuse of discretion standard. See Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J.Super. 299, 310 (App.Div.) (citing Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 257 (App.Div.1987), certif. denied, 110 N .J. 196 (1988)), certif. denied, 195 N.J. 521 (2008).
The Federal Motor Carrier Safety Regulations (“FMCSR”), 49 C.F.R. §§ 350–399 (2015), apply to “all employers, employees, and commercial motor vehicles, which transport property or passengers in interstate commerce.” 49 C.F.R. § 390.3(a). A driver is prohibited from operating and a motor carrier is prohibited from allowing a driver to operate a commercial motor vehicle unless the cargo in the vehicle is properly distributed and adequately secured in the manner specified in 49 C.F.R. § 393.100. 49 C.F.R. § 392.9(a)(1).
To prevent cargo from falling out of a trailer or shifting within a trailer to the point of impairing a driver’s ability to maneuver such vehicle, cargo must be contained, immobilized or secured in accordance with the regulations set forth in 49 C.F.R. § 393.100 to 393.136. See 49 C.F.R. § 393.100(b) and (c). With the exception of “commodities in bulk that lack structure or fixed shape (e.g., liquids, gases, grain, liquid concrete, sand, gravel, aggregates) and are transported in a tank, hopper, box, or similar device that forms part of the structure of a commercial motor vehicle,” all cargo must be contained, immobilized or secured in accordance with these regulations. 49 C.F.R. § 393.106(a).
Here, just after Costello drove out of the Lincoln Tunnel, the trailer listed to the right and then fell against the guardrail, spilling scrap metal onto Helix and the roadway below, suggesting the contents were not properly secured. Moreover, Dontis testified that the scrap metal was not tied-down. While the trial court indicated and defendant argues Dontis’s testimony was not competent because he lacked personal knowledge, his testimony is admissible as a statement made by a party’s agent concerning a matter within the scope of his employment, see N.J.R.E. 803(b)(4), and admissible despite the fact Dontis’s statement was not based upon personal knowledge. See Parker v. Poole, 440 N.J.Super. 7, 18–21 (App.Div.), certif. denied, 223 N.J. 163 (2015).
*4 As we recently recognized in Parker, a statement made under N.J.R.E. 803(b)(1) is admissible even if the declarant lacks the requisite personal knowledge. Ibid. The reasoning employed in Parker to arrive at that conclusion is similarly applicable to a statement made by party’s agent under N.J.R.E. 803(b)(4). Thus, Dontis’s statement that the scrap metal was not tied-down in the trailer is admissible despite the fact Dontis’s statement lacked personal knowledge. See also Mahlandt v. Wild Canid Survival & Research Ctr., Inc., 588 F.2d 626, 630–31 (8th Cir.1978) (holding that the personal knowledge requirement does not apply to F.R.E. 801(d)(2), the parallel provision to our N.J.R.E. 803(b)(4)).
We are satisfied Dontis’s testimony that the scrap metal was not tied-down, compounded by his subsequent certification asserting it cannot be, created a genuine issue of material fact. The regulations indicate that the metal could have and should have been tied-down, because scrap metal has structure and a fixed shape. See 49 C.F.R. § 393.106(a) and (b). Although scrap metal may come in irregular shapes and sizes, each piece is a solid structure with its own shape.
Because “[t]he violation of a legislated standard of conduct may be regarded as evidence of negligence if the plaintiff was a member of the class for whose benefit the standard was established[,]” Alloway v. Bradlees, 157 N.J. 221, 236 (1999), there is a question of fact whether defendant and Costello were negligent in failing to ensure the scrap metal was properly immobilized and anchored. Therefore, we reverse the order denying plaintiff’s motion for reconsideration, vacate the order granting defendant summary judgment, and reinstate the complaint.
We recognize that the regulations setting forth how cargo is to be secured are technical. See 49 C.F.R. § 393.100 to 393.136. Defendant argues plaintiff requires but does not have an expert witness to testify about whether defendant complied with the regulations setting forth how cargo is to be restrained, and further points out the discovery period is over. However, Dontis claims the scrap metal was not tied-down at all; if that is so, then there is no need to consider whether the cargo was tied-down in accordance with regulatory standards.
Finally, while the trial court understandably did not consider Dontis’s deposition testimony during oral argument on defendant’s summary judgment motion because such evidence was not then properly before it, see Palombi v. Palombi, 414 N.J.Super. 274, 288 (App.Div.2010), the trial court mistakenly exercised its discretion when it failed to consider Dontis’s deposition testimony on plaintiff’s motion for reconsideration.
Dontis’s testimony was new evidence that emerged after plaintiff filed its brief in response to defendant’s motion for summary judgment. Plaintiff had obtained a court order to compel Dontis’s deposition and took the deposition well within the time allotted by that order. The deposition testimony qualifies as evidence that did not yet exist and could not have been properly presented at the time of initial application, see Cummings, supra, 295 N.J.Super. at 384, but should have been considered on a motion for reconsideration.
*5 Although the FMCSR existed and plaintiff could have alleged in its response brief to defendant’s motion that the cargo was not properly loaded and secured, such argument, unsupported by any facts, would have been purely theoretical. It was Dontis’s deposition testimony that converted this allegation from ungrounded supposition to one for which some support in the record existed.
After carefully considering the record and the briefs, we conclude both plaintiff’s and defendant’s remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).
The order denying reconsideration is reversed. The order granting summary judgment in favor of defendant is vacated and the complaint is reinstated.
All Citations
Not Reported in A.3d, 2015 WL 7199677
Footnotes
1
We shall refer to Bear Metal Transport, Inc., as defendant, even though John Costello, who we refer to as Costello, is also named as a defendant. As of the time of the motion practice, Costello had not yet been served with the complaint.
2
Third-party defendants, Park Insurance Company and the Dorfman Organization, did not participate in this appeal.
3
Neither plaintiff nor defendant obtained discovery from Costello, who quit his job with defendant the day of the accident, and had not been located.
