NOT FOR PUBLICATION WITHOUT THE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-1541-15T4
MARIA M. FERREIRA,
Individually and as
Administratrix of the
ESTATE OF JOAO CARLOS
CHAGAS GOMES DA SILVA,
deceased,
Plaintiff-Appellant,
v.
WALTER QUEZADA, GLADIS E.
QUEZADA, CITY OF NEWARK,
COUNTY OF ESSEX, STATE OF
NEW JERSEY, NEW JERSEY
DEPARTMENT OF TRANSPORTATION,
SCHOLASTIC CULINARY SERVICES,
LLC, ST. PHILIP'S ACADEMY,
and ESSEX PLAZA,
Defendants,
and
PLANNED BUILDING SERVICES, LLC,
Defendant-Respondent.
________________________________________________________________
Argued March 28, 2017 – Decided August 7, 2017
Before Judges Rothstadt and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket
No. L-8045-12.
Richard Del Vacchio argued the cause for
appellant (Del Vacchio O'Hara, PC,
attorneys; Mr. Del Vacchio, of counsel; Jill
Barna Roth, on the brief).
Michael J. McCaffrey argued the cause for
respondent (Purcell, Mulcahy, Hawkins,
Flanagan & Lawless, LLC, attorneys; Mr.
McCaffrey, on the brief).
PER CURIAM
While driving to work in a vehicle owned by his wife,
defendant Walter Quezada tragically struck and killed a
pedestrian, Jose Carlos Chagas Gomes De Silva. The decedent's
mother, plaintiff Maria H. Ferreira, filed suit individually and
as administratrix of her late son's estate, seeking damages from,
among others, Quezada, his wife, defendant, Gladis E. Quezada, and
Quezada's employer, defendant Planned Building Services (PBS). 1
In her complaint, plaintiff alleged that PBS was liable for
Quezada's negligence under the doctrine of respondeat superior.
PBS filed a motion for summary judgment seeking the dismissal of
plaintiff's complaint. The Law Division granted the motion finding
1
Plaintiff initially sued Quezada and others in 2012. Two years
later, after deposing Quezada, she filed an amended complaint
joining PBS. This appeal relates only to plaintiff's claim against
PBS.
2 A-1541-15T4
that Quezada was not acting within the scope of his employment
when the accident occurred.
Plaintiff appeals, arguing that the court erred by not
recognizing that there remained genuine issues as to material
facts, by failing to allow for additional discovery prior to
deciding the motion, and by denying plaintiff's motion for
reconsideration. For the reasons expressed herein, we affirm.
The facts set forth in the record, viewed in the light most
favorable to plaintiff, see 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)), can be summarized as follows. The
accident occurred on November 3, 2010, in the early morning, while
Da Silva was crossing a street in Newark. Quezada struck Da Silva
while he was on his way to work for PBS as a maintenance man at
an apartment building.
The van driven by Quezada was owned by his wife and contained
tools that Quezada owned personally, and some materials – such as
paint buckets and knee protectors - owned by PBS, which he used
at his job site. When not working, Quezada parked the van in the
parking lot of his wife's current employer, where Quezada used to
work as well. On the morning of the accident, Quezada's wife
3 A-1541-15T4
dropped him off as she typically did each day so he could retrieve
the van and drive it to work.2
Quezada was not paid for the time he spent commuting, nor was
he reimbursed for mileage. PBS did not require him to maintain
or use the van for work purposes, nor did they direct Quezada to
take a specific route to work. PBS also did not specify the tools
he should use on the jobsite, nor did they require him to carry
any materials or tools from his home to the job site. In fact,
PBS provided a safe and secure area at the work site for him to
store his tools.
During the course of the ensuing litigation, on June 3, 2014,
the court entered an order requiring fact depositions be completed
by August 8, 2014, and setting a discovery end date of January 2,
2015. After the date set for completion of fact-depositions, but
before the discovery end date, PBS filed a motion for summary
judgment. The court denied the motion without prejudice on October
24, 2014, due to questions it had concerning Quezada's work hours
and the tools and materials transported inside his van. The court
concluded information about those items might establish an issue
of fact as to whether Quezada was in the course of employment at
2
According to Quezada, he and his wife left the van at this
location for "economic reasons and . . . not for the benefit of
[his] employer."
4 A-1541-15T4
the time of the accident. PBS re-filed its summary judgment motion
on November 5, 2014, and included certifications from Quezada and
PBS' operations manager, Edmund Whisnant, addressing the court's
questions.
On December 3, 2014, while PBS's second summary judgment
motion was pending, it filed a motion to extend the discovery end
date from January 2, 2015 to March 2, 2015, for the purpose of
deposing Quezada and plaintiff's expert witnesses and to obtain
additional documents. The court granted that motion on December
19, 2014.
Plaintiff filed a motion on December 4, 2014, seeking an
order to compel PBS to produce Whisnant for a deposition. The
court considered oral argument on January 9, 2015, as to PBS's
summary judgment motion and plaintiff's motion to compel
Whisnant's deposition, before it granted PBS's motion and denied
plaintiff's.
The court relied on Whisnant's certification in reaching its
decision to grant defendant's motion. Based on that certification,
the court found that PBS did not pay Quezada for his time
commuting, or provide him with a vehicle to drive, nor did it
control him or his means of transportation "at any time before he
is scheduled to begin work." Moreover, the court found it was in
Quezada's sole discretion as to whether he brought his own tools
5 A-1541-15T4
to work or stored them at PBS's sites or took them home each day.
It considered whether Quezada's arrangement with PBS gave rise to
a "dual purpose employment or benefit" as discussed in Carter v.
Reynolds, 175 N.J. 402 (2003), and concluded it did not. The
court determined there were "no . . . material issues in dispute
that would warrant this [c]ourt . . . denying summary judgment."
The court also denied plaintiff's motion to compel Whisnant's
deposition. It denied the motion because plaintiff failed to seek
or move to compel the deposition in accordance with the court's
earlier order establishing a deadline for fact-witnesses.
Plaintiff filed a motion for reconsideration on January 28,
2015, which the court denied following oral argument on February
20, 2015. This appeal followed.
We review a trial court's grant of summary judgment de novo
and apply the same standard as the trial court. Cypress Point
Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016).
Summary judgment must be granted if there is no genuine issue of
material fact challenged and the moving party is entitled to
judgment as a matter of law. R. 4:46-2. No special deference is
afforded to the legal determinations of the trial court when no
issue of fact exists. Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing
6 A-1541-15T4
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)).
We conclude from our de novo review that the trial court
correctly determined that PBS was entitled to summary judgment
because there was no evidence that PBS was liable under the
doctrine of respondeat superior. "Under respondeat superior, an
employer can be found liable for the negligence of an employee
causing injuries to third parties, if, at the time of the
occurrence, the employee was acting within the scope of his or her
employment." Carter, supra, 175 N.J. at 408-09. "Generally, an
employee who is 'going to' or 'coming from' his or her place of
employment is not considered to be acting within the scope of
employment." Id. at 412 (citing Mannes v. Healey, 306 N.J. Super.
351, 353-54 (App. Div. 1997)). "The fact that [the employee] was
on [his] way to the office to perform some work-related duty is
not sufficient in and of itself to constitute a mission undertaken
on [the employer's] behalf." Mannes, supra, 306 N.J. Super. at
355 (holding the going and coming rule applied to an employee
driving to the workplace to get work-related forms).
"Two rationales exist to support the 'going and coming' rule.
The first is that 'employment is suspended from the time the
employee leaves the workplace until he or she returns.' That
'suspension' occurs because the element of 'control' [by the
7 A-1541-15T4
employer] is deemed lacking." Carter, supra, 175 N.J. at 413
(quoting Mannes, supra, 306 N.J. Super. at 354). "The second is
that the employer derives no benefit from the commute." Ibid.
"In essence, when employees travel to or from work they are deemed
to be acting in their own interests without constraints by the
employer regarding the method or means of the commute." Ibid.
"There are, however, exceptions to the going and coming rule,"
which apply if "(1) the employee is engaged in a special errand
or mission on the employer's behalf; (2) the employer requires the
employee to drive his or her personal vehicle to work so that the
vehicle may be used for work-related tasks; and (3) the employee
is 'on-call.'" Id. at 413-14 (citing Mannes, supra, 306 N.J.
Super. at 354-55).
"The 'special' aspect of the [special mission] exception
requires, at the very least, that the employee perform an act
outside the ordinary confines of his or her job description at the
behest of the employer." Id. at 418. "The special mission
exception has fairly well-defined margins." Id. at 417. As the
Court explained in Carter,
[w]hen an employee, having identifiable time
and space limits on his employment, makes an
off-premises journey which would normally not
be covered under the usual going and coming
rule, the journey may be brought within the
course of employment by the fact that the
trouble and time of making the journey, or the
8 A-1541-15T4
special inconvenience, hazard, or urgency of
making it in particular circumstances, is
itself sufficiently substantial to be viewed
as an integral part of the service itself.
[Ibid. (quoting Carberry v. State, Div. of
State Police, 279 N.J. Super. 114, 120 (App.
Div.), certif. denied, 141 N.J. 94 (1995)).]
In opposing PBS's motion for summary judgment, plaintiff did
not come forward with any facts that called into question Quezada's
or Whisnant's statements that Quezada was not working under PBS's
control when the accident occurred so that any of the noted
exceptions would apply. It was undisputed that PBS did not require
Quezada to drive his "personal vehicle to work so that the vehicle
may be used for work-related tasks." Id. at 414; cf. id. at 405
(finding employer liability when an employee "was required by her
employer to use her personal car on mandatory client visits").
Also, there was no evidence that PBS prevented Quezada from using
"alternate means of transportation," such as a taxi, "walking,
public transportation, or just being dropped off" by someone else.
Id. at 416-17. Nor was there any evidence that Quezada was on
call or on any type of "special mission" for PBS. There was no
question that Quezada was on his way to work in the morning to
begin his standard workday that began when he arrived at the
jobsite.
9 A-1541-15T4
Significantly, and contrary to plaintiff's argument, PBS did
not require Quezada to transport tools or materials to work; in
fact, there was a safe, guarded area at the job site for him to
store his tools if he so desired. However, he chose to store his
tools in his personal vehicle. That storage did not place
Quezada's actions while driving to work under the control of PBS
so that it would liable be for Quezada's negligence.
We turn next to plaintiff's contention that the court should
have denied summary judgment and ordered that Whisnant appear for
a deposition before again considering PBS's motion. According to
plaintiff, the court abused its discretion by denying plaintiff's
motion to compel that deposition because Whisnant's identity was
not disclosed until after the date ordered for fact-witness
depositions to be completed and despite plaintiff's numerous
attempts to schedule the deposition before seeking relief from the
court. We disagree.
We discern no abuse of the court's discretion in denying
plaintiff's motion. See Pomerantz Paper Corp. v. New Cmty. Corp.,
207 N.J. 344, 371 (2011). At the outset, we note that it is
undisputed that plaintiff never sought the deposition by subpoena
or motion during the period for depositions of fact witness as
ordered by the court or through seeking an extension of discovery
for that purpose. In fact, at Quezada's deposition plaintiff's
10 A-1541-15T4
counsel specifically told Quezada that plaintiff did not "need to
know [the] name" of his "boss at PBS." Even if, as plaintiff
argues, neither PBS nor Quezada disclosed Whisnant's identity
until after the date for the completion of fact-witness
depositions, and plaintiff made numerous attempts to schedule the
deposition, there is no question that such discovery was never
sought – i.e. the deposition of PBS personnel – during the period
allowed for depositions or discovery in general by plaintiff.
Under these circumstances, the judge correctly determined that
withholding summary judgment and ordering the deposition was not
appropriate. See Pressler & Verniero, Current N.J. Court Rules,
comment 2.3.3 on R. 4:46-2 (2017) (citing Liberty Surplus Ins.
Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 450-51 (2007) ("[A]
claim of incomplete discovery will not defeat a summary judgment
motion when the party opposing the motion has not [timely] sought
discovery")).
In addition, even if plaintiff had timely sought Whisnant's
deposition, there was nothing in the record to indicate that his
testimony would vary from his certification filed in support of
PBS's motion. "A motion for summary judgment is not premature
merely because discovery has not been completed, unless plaintiff
is able to 'demonstrate with some degree of particularity the
likelihood that further discovery will supply the missing elements
11 A-1541-15T4
of the cause of action.'" Badiali v. N.J. Mfrs. Ins. Grp., 220
N.J. 544, 555 (2015) (quoting Wellington v. Estate of Wellington,
359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493
(2003)). Plaintiff made no such showing here.
Finally, in her motion for reconsideration, plaintiff argued
that the court failed to consider that it had allowed for extension
of discovery for PBS to depose Quezada and conduct other discovery,
while it refused to withhold summary judgment and order Whisnant's
deposition. We find no merit to this argument. First, unlike
plaintiff, PBS was not a party to the litigation when Quezada was
originally deposed. An order allowing for PBS to depose him was
clearly warranted. Second, because we agree that the court
properly denied plaintiff's motion to compel and granted PBS's
summary judgment, the denial of the reconsideration motion was
appropriate as plaintiff failed to establish that the court's
decisions were made upon a "palpably incorrect or irrational
basis." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div.
2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.
Div. 1990)).
Affirmed.
12 A-1541-15T4