JOSE CONTRERAS MORALES, ETC. VS. SUSSEX COUNTYCOMMUNITY COLLEGE AND SOPHIE DUTKOWSKI(L-0320-13, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-0305-15T4

JOSE CONTRERAS MORALES, BY AND
THROUGH HIS GUARDIAN AD LITEM,
LILIANA MORALES FERNANDEZ,

Plaintiff-Appellant/
Cross-Respondent,

v.

SUSSEX COUNTY COMMUNITY
COLLEGE AND SOPHIE DUTKOWSKI,

Defendants-Respondents/
Cross-Appellants,

and

CARROLL SERVICES, INC.,

Defendant-Respondent/
Cross-Respondent,

and

FIDEL RODRIGUEZ AND CAMPBELL'S
SMALL ENGINE SALES AND SERVICE,
INC.,

Defendants.
_______________________________

Argued May 17, 2017 – Decided August 30, 2017

Before Judges Fuentes, Simonelli and Carroll.
 On appeal from the Superior Court of New
Jersey, Law Division, Sussex County, Docket
No. L-0320-13.

Edward P. Capozzi argued the cause for
appellant/cross-repondent (Brach Eichler,
LLC, attorneys; Mr. Capozzi and Kristofer C.
Petrie, on the briefs).

Jeffrey L. Shanaberger argued the cause for
respondents/cross-appellants Sussex County
Community College and Sophie Dutkowski (Hill
Wallack LLP, attorneys; Mr. Shanaberger, on
the briefs).

Allen Hantman argued the cause for respondent/
cross-respondent Carroll Services, Inc.
(Morris & Hantman, attorneys; Mr. Hantman, on
the brief).

PER CURIAM

Plaintiff Jose Contreras Morales, a landscaping employee of

defendant Carroll Services, Inc. (Carroll), sustained serious

injuries during his second season performing landscaping services

at the campus of defendant Sussex County Community College (SCCC).

At the time of the accident, plaintiff was driving a SCCC-owned

John Deere X300 residential riding tractor/lawnmower (the mower)

down a descending grade of a paved roadway on the campus when the

left rear axle suddenly and unexpectedly broke, causing the left

rear wheel to come off. Plaintiff was ejected forward onto the

roadway and the mower landed on top of him.

2 A-0305-15T4
 Plaintiff advanced two theories of liability against SCCC:

(1) negligent training on how to use the mower; and (2) creation

of a dangerous condition on SCCC's premises by providing him with

improper equipment (a residential mower instead of a

commercial/industrial mower) that was unsuitable for the campus

terrain. The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-

3, governs plaintiff's claims against SCCC.

Plaintiff appeals from the August 12, 2015 Law Division order,

which granted summary judgment to SCCC and dismissed the amended

complaint and all cross-claims against it with prejudice.1 SCCC

cross-appeals from the October 28, 2015 order, which denied its

motion to vacate dismissal of its cross-claim against Carroll. We

affirm the August 12, 2015 order, reverse the October 28, 2015

order, and remand for further proceedings regarding the dismissal

of SCCC's cross-claim.

I.

We derive the following facts from evidence submitted by the

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

1
Plaintiff also appealed from the grant of summary judgment to
defendant Sophia Dutkowski, SCCC's head custodian, but does not
address that dismissal in his merit brief. Accordingly, all issues
relating to Dutkowski are deemed waived. N.J. Dep't of Envtl.
Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.),
certif. denied, 222 N.J. 17 (2015); Pressler & Verniero, Current
N.J. Court Rules, comment 5 on R. 2:6-2 (2017).

3 A-0305-15T4
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)).

On April 1, 2011, SCCC contracted with Carroll to provide

janitorial services to its campus buildings. The contract

specified that Carroll was an independent contractor exercising

complete control over its employees. The contract required Carroll

to maintain all forms of insurance required by New Jersey law and

name SCCC as an additional insured. The contract also required

Carroll to indemnify and hold SCCC harmless for all damages,

losses, claims, suits, actions, and judgments that arose as a

result, in whole or in part, of the breach of the contract,

professional negligence, intentional acts, omissions, or other

failures of Carroll to perform.

SCCC also contracted with Carroll to provide experienced

temporary personnel to perform outside landscaping services at the

campus, whom SCCC direct and supervise. This was the first time

Carroll provided landscaping services. It did not provide any

landscaping equipment for its employees to use at SCCC.

Carroll required persons hired to work at SCCC to have

experience in performing landscaping services. Carroll's manager,

Fidel Rodriguez, interviewed and hired plaintiff, who represented

he had prior landscaping experience. In 2011, Carroll assigned

4 A-0305-15T4
plaintiff and another employee, Victor Lugo, to perform

landscaping services at SCCC. Plaintiff's job was to mow lawns

on campus, using SCCC's mower. SCCC had purchased the mower new

in 2008 from Campbell's Small Engine Sales & Service, Inc.

(Campbell's). Campbell's also proactively serviced and maintained

the mower on a regular basis. Campbell's last serviced and road-

tested the mower on April 24, 2012, found no problem with the left

rear axle, and did not bring any problem with the axle to SCCC's

attention.2

Thomas Taylor, a SCCC building and grounds maintenance

employee, instructed plaintiff and Lugo on how to use the mower.

Although plaintiff spoke Spanish, Taylor was able to communicate

with him relying on Lugo to act as an interpreter. After giving

Lugo the operator's manual, which was written in English, Taylor

instructed the men how to check the oil, fluids, and belts, and

start the mower. The three men then went out into the parking lot

by the garage, where plaintiff and Lugo drove the mower under

Taylor's supervision. Taylor also showed them how to use the

mower deck, and had them mow grassy areas by the garage to confirm

they were able to perform their duties correctly. Thereafter,

2
Plaintiff originally named Campbell's as a defendant in this
matter, but voluntarily dismissed all claims against it with
prejudice.

5 A-0305-15T4
plaintiff used the mower to mow around trees and areas closer to

the buildings, while Taylor used a commercial tractor to mow bigger

lawn sections of the campus. Taylor also directed plaintiff to

mow the grass sideways on the hill, rather than up and down, which

was contrary to the instructions in the operator's manual. Prior

to June 12, 2012, plaintiff used the mower numerous times without

incident; there was no evidence he operated the mower improperly

at any time.

Carroll again assigned plaintiff to perform landscaping

services at SCCC's campus in 2012. On June 21, 2012, plaintiff

was driving the mower down a paved roadway on the campus when he

was ejected onto the roadway and the mower landed on top of him.

There were no witnesses to the accident. An SCCC custodian was

the first person to come upon the scene. He lifted the mower from

plaintiff's chest and head and then ran to have someone call

9-1-1. Plaintiff suffered numerous skull fractures and a traumatic

brain injury. He never regained consciousness and has remained

in a coma since the accident.

In a written report, plaintiff's landscaping expert, Chris

James, opined that two factors directly contributed to the

accident: (1) little to no training on the proper use of the mower;

and (2) the lack of an ongoing training program to reinforce proper

equipment use and safe operation. He stated that "[a] short,

6 A-0305-15T4
onetime training does not address the questions and concerns of

an untrained operator, nor proves the operator has reached a level

of safe operation or proficiency with a piece of equipment." He

also noted that Taylor showed a high level of incompetence to

train anyone in safe lawnmower operation when he incorrectly

instructed plaintiff to mow grassy hills from side-to-side when

they should be mowed up and down.

Significantly, James did not opine as to how the lack of

training or an ongoing training program actually caused or

contributed to the accident, which occurred while plaintiff was

riding the mower down a paved road, not mowing grassy hills side-

to-side. He did not issue a supplemental report or certification

expanding his opinion.3

Plaintiff's accident reconstruction expert, Steven M. Schorr,

P.E., found the mower deck was replaced at three years when

normally it would last for ten years, and the mower was used well

in excess of seventy-five-hours-per-year, which was normal usage.

While he opined these two factors showed the mower was being used

3
SCCC did not depose James. Plaintiff argues on appeal that had
SCCC done so, James would have expanded his opinion to include
that the mower had no brake pedals and SCCC's failure to instruct
him not to drive the mower down the steep roadway contributed to
the accident. However, SCCC was not required to depose James, and
there was evidence that contradicts plaintiff's claim the mower
lacked brake pedals.

7 A-0305-15T4
in ways other than its intended purpose and design, he did not

opine how they caused or contributed to the accident.

Schorr noted that at the time of the accident, plaintiff was

driving the mower on a roadway with an extremely steep grade. He

saw scrapes/gouges in the roadway that appeared to be fresh and

were located approximately thirty-five feet from where the mower

came to rest at the bottom of the roadway. He noted that the

scrapes/gouges were physical evidence consistent with a failure

of the mower's axle. He concluded that the mower's left rear axle

failed, which caused the left rear wheel assembly to separate and

the mower to rotate in a counterclockwise direction while

continuing onward, ejecting plaintiff forward onto the roadway.

Schorr opined in his written report that the accident occurred

as the result of a combination of the severity of the downgrade

of the roadway and failure of the left rear axle. However, he

testified at deposition that the roadway's slope varied from a

higher grade of 21.6% at the top to a lower grade of 0.8% at the

bottom, and admitted he could not determine the slope at the point

where the axle failed or whether it failed at the top of the

roadway or closer to the bottom. He also admitted the

scrapes/gouges were located at a grade of plus or minus three

percent; he was not opining that the slope of the downgrade caused

the axle to fail; and he did not know if the grade of the roadway

8 A-0305-15T4
was a factor in the happening of the accident. He also admitted

that while slope would have an effect on plaintiff's ability to

maintain control of the mower once the axle failed, he could not

identify where on the roadway plaintiff lost control of the mower.

He also could not determine the speed plaintiff was traveling when

the axle failed, and did not know what actions plaintiff took when

it failed.

Unlike James and Schorr, SCCC's accident reconstruction

expert, Stephen N. Emolo, P.E., inspected the preserved mower and

examined the operator's manual. He found the mower had a braking

system that included a brake pedal, and the mower was in proper

working order prior to the accident. He noted that once the left

rear axle failed, the left rear wheel separated from the mower and

rendered the brakes inoperable. He opined that the axle's failure

was unexpected and could not have been anticipated or prevented

by any type of service or maintenance procedures. He also opined

that because plaintiff was not mowing grass at the time of the

accident, the alleged lack of training had no bearing on the type

of failure that occurred to the axle.

Unlike James and Schorr, Emolo also reviewed the operator's

manual. He noted that the mower was sold to both commercial and

residential users and the operator's manual did not prescribe any

special training. Based on his review of the operator's manual,

9 A-0305-15T4
he opined there was no evidence that SCCC or plaintiff improperly

used the mower for anything other than mowing grass; the mower was

being properly used for that purpose; and the fact that the mower

was being driven on hilly terrain did not render its use improper.

He also found there was no evidence that prohibited the mower from

being driven straight down a steep incline, and there were no

special operating instructions to drive the mower in that manner.

Emolo found no evidence that the alleged severity of the

slope or downgrade played a causal role or was a contributing

factor in the axle's failure or plaintiff's accident. He noted

that based on the location of the scrapes/gouges, the axle failed

at the bottom of the descending grade of the roadway where the

grade was only approximately three percent. It is undisputed that

the cause of the axle failure is unknown.

Following the completion of discovery, SCCC filed a motion

for summary judgment, arguing that plaintiff could not prove his

causation under either of his theories of liability. In a written

statement of reasons, citing Cassano v. Aschoff, 226 N.J. Super.

110 (App. Div.), certif. denied, 113 N.J. 371 (1988), the motion

judge found SCCC had no duty to train plaintiff because a

landowner's liability does not extend to employees of an

independent contractor whose injuries arose from the risks

inherent in the work they were hired to perform. The judge found

10 A-0305-15T4
SCCC properly assumed that plaintiff was appropriately trained and

possessed sufficient knowledge and skill to safely perform the

work of a landscaper.

Because the cause of the axle failure was unknown, the judge

rejected plaintiff's theory that overuse of the mower was the

cause. The judge also held that plaintiff could not sustain a

claim under N.J.S.A. 59:4-2 based on a dangerous condition of

SCCC's property. The judge found there was no evidence the roadway

was in a dangerous condition or played a causal role in the

accident; no expert opined that SCCC's property amounted to a

dangerous condition; and there was no evidence that any alleged

dangerous condition of the roadway was a proximate cause of the

accident. The judge emphasized that the location where the axle

failed was unknown.

Lastly, the judge found it was undisputed that equipment

failure was the cause of the accident. The judge concluded that

plaintiff failed to establish a nexus between speculation as to

what may have contributed to the accident and the actual cause of

equipment failure.

On appeal, plaintiff contends that SCCC assumed a duty to

train him and he produced sufficient evidence to prove negligent

training. Plaintiff also argues he produced sufficient evidence

to prove that SCCC created a dangerous condition on its premises

11 A-0305-15T4
by providing improper equipment that was unsuitable for the

terrain.4

Our review of a ruling on summary judgment is de novo,

applying the same legal standard as the trial court. Templo Fuente

De Vida Corp. v. National Union Fire Ins. Co., 224 N.J. 189, 199

(2016) (citation omitted). Thus, we consider, as the trial judge

did, "whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law." Liberty Surplus Ins.

Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting

Brill, supra, 142 N.J. at 536). 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

4
We decline to address plaintiff's additional argument that
landowner liability does not extend to employees of independent
contractors when the landowner retains control over the means and
methods of the work. Plaintiff did not raise this argument before
the motion judge and it is not jurisdictional in nature nor does
it substantially implicate the public interest. Zaman v. Felton,
219 N.J. 199, 226-27 (2014) (citation omitted). For the same
reason, and because plaintiff never pled it as a cause of action,
we decline to address his argument that he presented sufficient
evidence to prove negligent misrepresentation.

12 A-0305-15T4
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). Applying these standards, we discern no

reason to reverse the grant of summary judgment.

II.

The issue of causation is ordinarily left to the factfinder.

Townsend v. Pierre, 221 N.J. 36, 60 (2015) (citation omitted).

That rule, however, is not absolute, and the issue of proximate

cause "may be removed from the factfinder in the highly

extraordinary case in which reasonable minds could not differ on

whether that issue has been established." Ibid. (citation

omitted). "Thus, in the unusual setting in which no reasonable

factfinder could find that the plaintiff has proven causation by

a preponderance of the evidence, summary judgment may be granted

dismissing the plaintiff's claim." Ibid. To prove causation,

plaintiff bears the burden to:

introduce evidence which affords a reasonable
basis for the conclusion that it is more
likely than not that the conduct of the
defendant was a cause in fact of the result.
A mere possibility of such causation is not
enough; and when the matter remains one of
pure speculation or conjecture, or the

13 A-0305-15T4
 probabilities are at best evenly balanced, it
becomes the duty of the court to direct a
verdict for the defendant.

[Id. at 60-61 (citation omitted).]

Plaintiff cannot prove his negligent training claim. Even

assuming SCCC had a duty to train or voluntarily assumed that

duty, there is no evidence that negligent training was a proximate

cause of the accident. The operator's manual did not prescribe

any special training and there is no evidence of any training that

would have prevented the accident. Plaintiff was not mowing grass

at the time of the accident, and there was no evidence of operator

error that led to the axle failure or caused the accident.

More importantly, it was undisputed that the unexpected

mechanical failure of the left rear axle was the cause of the

accident, and its cause was unknown. The mower was last serviced

less than two months before the accident, and there were no

reported problems with the axle. In light of this, plaintiff

cannot demonstrate how any alleged overuse or misuse due to

negligent training played a role in the axle's failure or the

accident itself.

Plaintiff also cannot prove that SCCC created a dangerous

condition on its premises. This claim is governed by N.J.S.A.

59:4-2, which provides as follows:

14 A-0305-15T4
 A public entity is liable for injury caused
by a condition of its property if the
plaintiff establishes that the property was
in dangerous condition at the time of the
injury, that the injury was proximately caused
by the dangerous condition, that the dangerous
condition created a reasonably foreseeable
risk of the kind of injury which was incurred,
and that either:

a. a negligent or wrongful act or omission
of an employee of the public entity within the
scope of his employment created the dangerous
condition; or

b. a public entity had actual or
constructive notice of the dangerous condition
under [N.J.S.A.] 59:4-3 a sufficient time
prior to the injury to have taken measures to
protect against the dangerous condition.

Nothing in this section shall be construed to
impose liability upon a public entity for a
dangerous condition of its public property if
the action the entity took to protect against
the condition or the failure to take such
action was not palpably unreasonable.

A "dangerous condition" is a "condition of property that

creates a substantial risk of injury when such property is used

with due care in a manner in which it is reasonably foreseeable

that it will be used." N.J.S.A. 59:4-1(a). A substantial risk

of injury is a risk that is not minor, trivial, or insignificant.

Polyard v. Terry, 160 N.J. Super. 497, 509 (App. Div. 1978), aff'd,

79 N.J. 547 (1979). The dangerous condition "must be inherent in

the property[,]" Weiser v. County of Ocean, 326 N.J. Super. 194,

200 (App. Div. 1999), which will not be considered dangerous if

15 A-0305-15T4
the condition only exists when the property is used without due

care. Garrison v. Twp. of Middletown, 154 N.J. 282, 287 (1998).

"Used with due care" refers to an objectively reasonable standard

of the general public, not to the injured party. Id. at 291.

Whether a dangerous condition exists "depends on whether the

property creates a substantial risk of injury to persons generally

who would use the property with due care in a foreseeable manner."

Ibid. (citation omitted).

Plaintiff now concedes that the roadway itself was not an

inherently dangerous condition. Although Schorr initially opined

that a combination of the severity of the downgrade and failure

of the left rear axle caused the accident, he could not conclude

where on the roadway the axle failed, or whether the grade of the

roadway caused the axle failure or was a factor in the happening

of the accident. Thus, the gradient of the roadway is irrelevant.

Nevertheless, plaintiff now argues that the dangerous

condition was the roadway and the improper and overused equipment

that rendered the roadway a dangerous condition. However, there

was no evidence that the mower was improperly used or overused,

or that improper use or overuse caused or contributed in any way

to the sudden and unexpected axle failure or the accident. In

sum, there was no proof whatsoever that SCCC created a dangerous

condition; had actual or constructive notice of the dangerous

16 A-0305-15T4
condition; or that its action was palpably unreasonable. We

therefore conclude that the grant of summary judgment was proper.

III.

SCCC asserted a cross-claim against Carroll for contractual

indemnification and breach of contract in failing to procure

insurance that would defend SCCC against and indemnify SCCC for

plaintiff's claims. Carroll never sought dismissal of the cross-

claim. Nevertheless, the motion judge believed the August 12,

2015 order was final and administratively dismissed it. The judge

determined he lacked jurisdiction to consider SCCC's motion for

reconsideration to reinstate the cross-claim because plaintiff had

already filed a notice of appeal.

The minimum requirements of due process of law are notice and

an opportunity to be heard. Doe v. Poritz, 142 N.J. 1, 106 (1995).

The opportunity to be heard contemplated by the concept of due

process means an opportunity to be heard at a meaningful time and

in a meaningful manner. Ibid. Our rules of court mandate that

motions be made in writing. R. 1:6-2(a). Moreover, a motion for

summary judgment must be filed no later than twenty-eight days

before the return date, R. 4:46-1, and the party seeking summary

judgment must file a brief and a statement of material facts in

support of the motion. R. 4:46-2(a). The purpose of these rules

is obvious, that is, to afford the non-moving party notice of the

17 A-0305-15T4
application and a meaningful opportunity to respond. "We cannot

condone a procedure whereby a judge sua sponte, without notice to

a party, resorts to a shortcut for the purposes of good

administration and circumvents the basic requirements of notice

and opportunity to be heard." Klier v. Sordoni Skanska Const.

Co., 337 N.J. Super. 76, 84-85 (App. Div. 2001).

In view of the lack of necessary due process here, we reverse

the October 28, 2015 order, vacate the dismissal of SCCC's cross-

claim against Carroll, and remand for further proceedings

regarding the dismissal of the cross-claim. We express no view

as to the merits of the cross-claim.

Affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion. We do not retain

jurisdiction.

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