FR. BABU T. PARAMEL VS. MERCA MARTINEZVS. DJM TRANSPORT, LLC(L-0296-13, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2746-15T2

FR. BABU T. PARAMEL,

Plaintiff-Appellant,

v.

MERCA MARTINEZ and JOSE A.
MARTINEZ,

Defendants/Third-Party
Plaintiffs-Respondents,

v.

DJM TRANSPORT, LLC, SPECTRASERV
INC., AND ORELVY GONZALEZ,

Third-Party Defendants.
_______________________________

Argued June 7, 2017 – Decided July 11, 2017

Before Judges Simonelli, Carroll and Gooden
Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-0296-13.

Kathleen M. Cehelzky argued the cause for
appellant (Law Offices of James C. DeZao,
P.A., attorneys; James C. DeZao, on the
brief).
 Ryan J. Gaffney argued the cause for
respondent (Chasan, Lamparello, Mallon &
Cappuzzo, P.C., attorneys; John V. Mallon, of
counsel and on the brief; Richard W. Fogarty,
on the brief).

PER CURIAM

In this personal injury matter, Plaintiff Fr. Babu T. Paramel

appeals from the February 9, 2016 order, which granted summary

judgment to defendants Merca Martinez (Merca)1 and Jose A. Martinez

(Jose), and dismissed the complaint with prejudice. For the

following reasons, we affirm.

We derive the following facts from evidence submitted by the

parties in support of, and in opposition to, the summary judgment

motion, viewed in the light most favorable to plaintiff. Angland

v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing

Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).

At approximately 7:11 a.m. on January 15, 2011, plaintiff was

travelling eastbound on Route 7 in Jersey City, and Merca was

travelling westbound in a vehicle owned by Jose. As plaintiff was

driving over a bridge, Merca's vehicle came into his lane and

struck his vehicle. A second accident occurred immediately

thereafter when a driver travelling westbound attempted to stop,

1
To avoid confusion, we refer to defendants by their first names,
intending no disrespect. We shall sometimes refer to Merca and
Jose collectively as defendants.

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but was unable to do so due to the slippery substance on the

roadway, and struck a vehicle in front of him.

Police Officer Anthony Silver of the Jersey City Police

Department responded to the accident scene and saw that slippery

material had spilled onto both sides of the roadway, but it was

thicker on the westbound side. The slippery sludge-like substance

caused a dangerous condition on the roadway that was so bad the

roadway was shut down. The substance had caused Merca to lose

control of her vehicle and strike plaintiff's vehicle. An

investigation revealed that a truck owned by third-party defendant

DJM Transport, LLC and driven by third-party defendant Orelvy

Gonzalez had discharged hazardous sewage onto the roadway.

Defendants were not deposed and plaintiff did not serve an

expert report on liability. Following the completion of discovery,

defendants filed a motion for summary judgment. The motion judge

granted the motion, finding there was no evidence that Merca was

negligent and the mere happening of an accident does not bespeak

negligence.

On appeal, plaintiff contends, in part, because there was a

disputed issue of fact as to Merca's negligence, summary judgment

was inappropriate. We disagree.

We review a ruling on a motion for summary judgment de novo,

applying the same standard governing the trial court. Templo

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Fuente De Vida Corp. v. National Union Fire Ins. Co., 224 N.J.

189, 199 (2016) (citation omitted) Thus, we consider, as the

motion judge did, "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." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406

(2014) (citation omitted). Summary judgment must be granted "if

the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged

and that the moving party is entitled to a judgment or order as a

matter of law." Templo Fuente, supra, 224 N.J. at 179 (quoting

R. 4:46-2(c))

If there is no genuine issue of material fact, we must then

"decide whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430

N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We

review issues of law de novo and accord no deference to the trial

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478

(2013). For mixed questions of law and fact, we give "deference

. . . to the supported factual findings of the trial court, but

review de novo the lower court's application of any legal rules

4 A-2746-15T2
to such factual findings." State v. Pierre, 223 N.J. 560, 577

(2015) (citations omitted). Applying the above standards, we

discern no reason to reverse the grant of summary judgment.

"It is well-settled law that a recovery for damages cannot

be had merely upon proof of the happening of an accident."

Universal Underwriters Grp. v. Heibel, 386 N.J. Super. 307, 321

(App. Div. 2006). "Negligence is never presumed; it, or the

circumstantial basis for the inference of it, must be established

by competent proof presented by plaintiff." Ibid. (citation

omitted).

We have held that the loss of control over a motor vehicle

on a slippery roadway does not definitively establish negligence,

nor does it justify an inference of negligence on the part of an

operator of a motor vehicle. Mockler v. Russman, 102 N.J. Super.

582, 587-88 (App. Div. 1968), certif. denied, 53 N.J. 270 (1969).

We stated,

[s]hould the rule be otherwise every
automobile driver would be compelled to stay
off the public roads when such roads happen
to be slippery. It is common knowledge that
the sudden and unexpected skidding of an
automobile is one of the natural hazards of
driving on icy roads and that it may befall
even the most cautious of drivers. If such a
driver is operating his car as would a
reasonably prudent person under the
circumstances, he is not to be held negligent
merely because his car skidded, resulting in
damage or injury to another. However,

5 A-2746-15T2
 skidding may be evidence of negligence if it
appears that it was caused by the failure of
the driver to take reasonable precautions to
avoid it, when conditions of which he knew or
should have known made such a result probable
in the absence of such precautions.

[Ibid. (emphasis added).]

Accordingly, the loss of control over a motor vehicle does

not definitively establish negligence, nor does it justify an

inference of negligence on the part of the operator of a motor

vehicle. More is required in order to warrant an inference of

negligence. A plaintiff must prove that a defendant could have

taken reasonable precautions to avoid the accident. In this case,

the record is entirely devoid of any evidence that Merca knew or

should have known of the presence of the slippery substance on the

roadway, or could have engaged in evasive maneuvers had she known

about the dangerous road conditions. The absence of proof of

negligence warranted the grant of summary judgment to defendants.

There were no genuine issues of material fact and defendants were

entitled to summary judgment as a matter of law. See Brill, supra,

142 N.J. at 540.

Affirmed.

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