Townsend v. Pierre, No. 072357, A-2-September Term 2013.

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: Justice PATTERSONdelivered the opinion of the Court.
• Citation: 110 A.3d 52,221 N.J. 36
• Parties: Deborah F. TOWNSEND, administratrix ad prosequendum of the Estate of Alvin J. Townsend, Jr.; Alvin J. Townsend, Sr., administrator ad prosequendum of the Estate of Alvin J. Townsend, Jr.; and Alvin J. Townsend, Jr., deceased, Plaintiffs–Respondents, v. Noah PIERRE an individual; Jean Hilairemont, an individual; The Precision Dental Specialist, LLC; Leonard H. Juros, an individual; Janet L. Juros, an individual; Township of Willingboro; and Board of Chosen Freeholders of the County of Burlington, Defendants, and Garland Property Management, LLC ; and Sunset Family Dental, LLC, Defendants–Appellants.
• Decision Date: 12 March 2015
• Docket Number: No. 072357, A-2-September Term 2013.

221 N.J. 36
110 A.3d 52

Deborah F. TOWNSEND, administratrix ad prosequendum of the Estate of Alvin J. Townsend, Jr.; Alvin J. Townsend, Sr., administrator ad prosequendum of the Estate of Alvin J. Townsend, Jr.; and Alvin J. Townsend, Jr., deceased, Plaintiffs–Respondents
v.
Noah PIERRE an individual; Jean Hilairemont, an individual; The Precision Dental Specialist, LLC; Leonard H. Juros, an individual; Janet L. Juros, an individual; Township of Willingboro; and Board of Chosen Freeholders of the County of Burlington, Defendants
and
Garland Property Management, LLC ; and Sunset Family Dental, LLC, Defendants–Appellants.

No. 072357, A-2-September Term 2013.

Supreme Court of New Jersey.

Argued Oct. 21, 2014.
Decided March 12, 2015.

110 A.3d 55

Michael Dolich, Marlton, argued the cause for appellants (Bennett, Bricklin & Saltzburg, attorneys; Mr. Dolich and Nicholas A. Cummins, on the briefs).

Donald M. Stanzione, Edison, argued the cause for respondents (Lombardi and Lombardi, attorneys).

Michael G. Donahue, III, Lawrenceville, argued the cause for amicus curiae New Jersey Association of Justice (Stark & Stark, attorneys).

Opinion

Justice PATTERSON delivered the opinion of the Court.

221 N.J. 42

In this appeal, we apply the net opinion rule and the standard for summary judgment to a negligence action arising from a fatal collision between an automobile

110 A.3d 56

and a motorcycle. The accident occurred as the driver of the automobile, Noah Pierre (Pierre), was turning left at an intersection controlled by a stop sign. Among the defendants named in plaintiffs' wrongful death and survival actions were the owner and lessee of a property located on a corner of the intersection where the accident occurred. Plaintiffs alleged that these defendants negligently maintained overgrown shrubbery on their property, blocking Pierre's view of oncoming traffic at the intersection.

The role of the defendants' shrubbery in the accident was the subject of discovery. Pierre testified that shrubbery on the property initially obscured her view when she was stopped at the stop sign at the intersection, but that she edged forward, starting and stopping four times until her view of oncoming traffic was unimpeded. A passenger in Pierre's vehicle corroborated Pierre's testimony that when she turned left, she had an unobstructed view of approaching traffic. The record contains no testimony to the

221 N.J. 43

contrary. However, an engineering expert retained by plaintiffs opined that the overgrown shrubbery on the property next to the intersection was a proximate cause of the fatal collision. He acknowledged Pierre's testimony that she stopped four times before proceeding and that the shrubbery on the adjoining property did not obstruct her view, but contended that Pierre's account of the accident was mistaken.

The trial court granted defendants' motion to strike the expert's testimony as a net opinion lacking support in the record. The court then granted defendants' motion for summary judgment dismissing plaintiffs' claims against the property owner and lessee. The Appellate Division vacated the trial court's order barring the expert's report and reversed the grant of summary judgment, holding that the expert's conclusion was sufficiently grounded in the record and that plaintiffs could elicit the expert's opinion disputing Pierre's testimony in the form of a hypothetical question at trial.

Given the uncontradicted testimony of Pierre and her passenger that Pierre's view of oncoming traffic was unimpeded by the shrubbery on defendants' property when she made her left turn, we hold that the trial court properly barred the causation opinion of plaintiffs' expert and granted summary judgment. The expert's opinion that the defendant property owner and defendant lessee both had a duty to maintain the landscaping on their property so that it did not obstruct the view of drivers was properly substantiated and was therefore admissible under N.J.R.E. 702 and 703. However, his opinion on the issue of causation was a net opinion that was not only unsupported by the factual evidence, but directly contradicted that evidence.

Accordingly, we reverse the judgment of the Appellate Division. We reinstate the trial court's order barring the expert testimony and its grant of summary judgment dismissing plaintiffs' claims against the owner and lessee of the property adjoining the intersection.

221 N.J. 44

I.

The tragic accident that gave rise to this litigation occurred during the evening of August 9, 2008, at the intersection of Garfield Drive and Levitt Parkway in the Township of Willingboro (Township).¹ Garfield Drive is a roadway that runs north to south and is maintained by the

110 A.3d 57

Township. Levitt Parkway is a roadway that runs east to west and is maintained by Burlington County (County). A stop sign on Garfield Drive regulated northbound traffic approaching the intersection on Garfield Drive, but no traffic signal or stop sign controlled eastbound and westbound traffic on Levitt Parkway.

The lot designated as 77 Garland Lane (the Property), situated at the southwest corner of the intersection, was owned by defendant Garland Property Management, LLC (Garland) and leased to a dental practice, defendant Sunset Family Dental, LLC (Sunset Family Dental). Plaintiffs allege that overgrown shrubbery located on the northern border of the Property obscured the lateral view of northbound drivers stopped at the stop sign at the intersection of Garfield Drive and Levitt Parkway.

According to Pierre's deposition testimony given when she was a defendant in this case, Pierre was traveling northbound on Garfield Drive shortly before the accident. Pierre stated that she approached the intersection and stopped at the stop sign, initially pausing behind another stopped vehicle. She testified that rather than turn left onto Levitt Parkway from the location of the stop sign, she “edged up” into the intersection, starting and stopping four times before attempting the left turn. Pierre acknowledged that when she initially stopped at the stop sign, the shrubbery on the Property obstructed her view of eastbound vehicles on Levitt Parkway approaching the intersection. However, Pierre repeatedly stated that when she made her fourth and final stop

221 N.J. 45

before turning left, the shrubbery no longer impeded her view of oncoming traffic. Pierre further recalled, “I looked to my right. I looked to my left. I didn't see anything. It was safe. So, I began to make my left turn onto Levitt.”

Pierre's testimony regarding her view of oncoming traffic when she turned left on Levitt Parkway was corroborated by her front-seat passenger, Danielle Kirby. Kirby's testimony diverged from that of Pierre with respect to how many times Pierre stopped the car before turning left; Kirby stated that Pierre stopped only once, not four times. However, Kirby testified that Pierre looked to her left before turning on to Levitt Parkway, and that when Pierre made her turn, her view of oncoming traffic was not impeded by the shrubbery on the Property.

The driver of another car, Anna Nelson (Nelson), testified that when she drove up to the intersection, she observed Pierre's car to her left, and that Pierre's car was already beyond the “stop line.” Nelson testified that Pierre's car was “at the stop sign with me and then proceeded to go ahead and make a left-hand turn.”²

It is undisputed that immediately after Pierre commenced her left turn, her vehicle collided with Townsend's motorcycle, which was traveling in the left eastbound lane of Levitt Parkway. Townsend died as a result of the collision.

110 A.3d 58

Plaintiffs, the Administratrix and Administrator of Townsend's Estate and Townsend in his individual capacity, filed this action in the Law Division. They asserted claims pursuant to the Wrongful Death Act, N.J.S.A. 2A:31–1 to –6, and the Survival Act,

221 N.J. 46

N.J.S.A. 2A:15–3, against several defendants. Plaintiffs claimed that Pierre operated her vehicle in a negligent manner, and that Pierre's employer was vicariously liable for Pierre's negligence. They alleged that Garland, Sunset Family Dental, and the previous owners of the Property “failed to properly cut the overgrown vegetation and/or bushes presenting a hazardous and dangerous condition” for drivers, and that at the time of the accident, Pierre's view “was obstructed by the presence of the aforementioned overgrown vegetation” on the Property. Plaintiffs also named the Township and County as defendants. They alleged that those entities negligently designed the intersection, causing the view of motorists to be obstructed by the “vegetation and/or bushes” on the Property.

Upon completing a substantial portion of discovery, Garland, Sunset Family Dental, the Township, and the County moved for...