The Supreme Court of New Jersey recently addressed whether a premises liability claim under N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act should survive summary judgment after the plaintiffs belatedly altered their factual theory of liability. See Top of Form
Stewart v. N.J. Tpk. Auth., 2022 N.J. LEXIS 117 (Feb. 9, 2022). In Stewart, plaintiffs had been injured when they lost control of their motorcycle while riding over an overpass.
Plaintiffs alleged they lost control of the motorcycle “when they struck a piece of metal in the bridge's expansion joint that jutted out of the roadway (the joint theory).” Id. at *26. Bottom of FormPlaintiffs filed a complaint against defendants, the New Jersey Turnpike Authority and Earle Asphalt, one of the Authority's paving and roadwork contractors. The parties engaged in two years of discovery, including plaintiffs requesting extensions seven times. During oral argument before the trial court on defendants’ joint motion for summary judgment, plaintiffs changed their theory of liability. For the first time, plaintiffs argued that defendants failed to properly pave a portion of roadway on the overpass, leaving a height differential in the pavement which caused them to lose control of the motorcycle (the asphalt theory). The trial court declined to consider the new asphalt theory and granted summary judgment to defendants. The Appellate Division reversed, finding there existed a genuine issue of material fact based on a motorcyclist who had been riding alongside the plaintiffs and claims to have seen a piece of metal in the roadway.
The Supreme Court of New Jersey reversed the Appellate Division’s judgment and agreed with the trial court that plaintiffs’ new theory should not have been considered given how late it was presented. The Court found that the defendants could not reasonably anticipate that plaintiffs were going to change their theory of liability, since plaintiffs had not mentioned anything regarding the pavement in their complaint or throughout the 757 days of discovery. The Court found that, although parties could revise their theories throughout the litigation process, a change in theory as fundamental and as belated as the one in this case, would have been prejudicial to the defendants.
For the sake of completeness, the Court addressed whether there was a triable issue of material fact with respect to the asphalt theory, finding that there was not. The Court found that the motorcyclist’s testimony that he saw a piece of metal on the roadway may have supported the joint theory, but plaintiffs abandoned that theory and the testimony did not support the new asphalt theory. Furthermore, all of plaintiffs’ discovery disclosures refer “to some sort of metal protrusion rather than anything having to do with how the roadway was paved.” Id. at *23. The Court also found that plaintiffs failed to present any competent evidence showing the photographs show a height differential in the roadway. Accordingly, the Court found that plaintiffs failed to establish the first element of their Tort Claims Act premises liability claim, that the overpass was a dangerous condition.
Stewart teaches us that, although parties could revise their theories of liability, a change in the fundamental theory of the case is prejudicial to defendants. This is especially the case when discovery has been ongoing for a substantial amount of time and discovery has been geared towards a different theory.