MARIA M. FERREIRA, ETC. VS. WALTER QUEZADA(L-8045-12, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 7, 2017
• Docket: A-1541-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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