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

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).

NOT FOR PUBLICATION WITHOUT THE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.

July 11, 2017
2 A-2746-15T2

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.
3 A-2746-15T2

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 
4 A-2746-15T2

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 nonmoving 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 
5 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, 
6 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.