Townsend v. Pierre

60 A.3d 800, 429 N.J. Super. 522, 2013 WL 656219, 2013 N.J. Super. LEXIS 31
CourtNew Jersey Superior Court Appellate Division
DecidedFebruary 25, 2013
StatusPublished
Cited by2 cases

This text of 60 A.3d 800 (Townsend v. Pierre) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Townsend v. Pierre, 60 A.3d 800, 429 N.J. Super. 522, 2013 WL 656219, 2013 N.J. Super. LEXIS 31 (N.J. Ct. App. 2013).

Opinion

The opinion of the court was delivered by

FASCIALE, J.A.D.

Plaintiffs appeal from an order barring their liability expert’s report and testimony as net opinion; separate orders granting summary judgment dismissing the complaint against defendants Township of Willingboro (Township), County of Burlington (County), Garland Property Management, LLC (Garland Property), and Sunset Family Dental, LLC (Sunset Dental) (collectively “defendants”); and an order denying plaintiffs’ motion for reconsideration. We vacate the judge’s ruling that the expert’s opinions were categorically inadmissible under the net opinion doctrine, reverse the orders granting summary judgment to Garland Property and Sunset Dental, and affirm in all other aspects.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564, 39 A.3d 177 (2012). We must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).

[526]*526This case involves a tragic accident between a motorcycle and a vehicle at the intersection of Garfield Drive and Levitt Parkway. The motorcycle driver, plaintiffs’ decedent, died as a result of the collision. The intersection is controlled by a stop sign situated on Garfield Drive twenty-seven feet from Levitt Parkway. Defendant Noah Pierre1 was traveling on Garfield Drive towards the stop sign and intended to turn left when she reached the intersection. The decedent was traveling on Levitt Parkway from Pierre’s left towards the intersection. Garland Property leased to Sunset Dental a commercial building (the property) located at the intersection. The property is on the left as one approaches the stop sign on Garfield Drive and is lined with overgrown bushes on Levitt Parkway. These bushes obstruct the vision of a driver stopped at the stop sign intending to turn left onto Levitt Parkway, as Pierre planned to do that night.

Pierre testified at her deposition that as she approached the intersection she stopped four times. Pierre admitted that the bushes obstructed her view to the left as she stopped at the sign. Pierre explained that she kept edging up towards the intersection, and then she “looked to [her] left ... didn’t see anything” and then “began to make [a] left turn onto Levitt [Parkway].” The accident occurred immediately thereafter.

Pierre’s front-seat passenger testified at her deposition that she observed Pierre look to her left before making the left turn onto Levitt Parkway. In so doing, the passenger also looked to her left and stated that the bushes did not obstruct their view.

Plaintiffs’ engineering liability expert, Nicholas Bellizzi, issued two reports and opined that the bushes were negligently maintained and violated various standards and ordinances by exceeding height restrictions and violating minimum intersection distance requirements. He concluded that the stop sign’s location, and the [527]*527location and overgrowth of the bushes, proximately caused the accident.

In the fall of 2010, the Township, Garland Property, and Sunset Dental moved for summary judgment. In December 2010, the judge denied without prejudice the motions, but she noted that the Township, Garland Property, and Sunset Dental had not moved to strike Bellizzi’s reports. Thereafter, defendants moved to bar his reports and testimony, contending that he issued net opinions. The judge agreed, concluded that his opinions “lack[ed] factual support,” and barred Bellizzi from testifying.

Plaintiffs moved for reconsideration, and defendants moved for summary judgment. In May 2011, the judge conducted oral argument, denied plaintiffs’ motion, and granted summary judgment dismissing the complaint. The judge stated:

And the bottom line here is ... even if you were to say ... you just discount or disbelieve [Pierre], what is left with respect to the bushes? Where are the facts that there was an obstruction? ... [T]hey”re just not here.
I’m going to grant the defendants’ motions. I do not believe there’s proximate cause----[W]ith respect to the Township, there’s no proximate cause, no notice. The immunities do apply and ... I don’t think that the Township had a duty with respect to this plaintiff____
With respect to the County, I’m satisfied that there’s not a dangerous condition. They don’t have ownership. There’s no evidence of palpably unreasonable con-duct____
The placement of the stop sign and stop line is just a red [herring] ... because the testimony is that [Pierre] was way past there when she made her observations and pulled out.
I’m satisfied the plan and design immunity applies to the County. By the way, I’m satisfied that the immunities of failure to enforce, failure to inspect!,J apply to the Township, as well as their lacking duty.
With respect to ... Garland [Property], the owner of the common areas and the bushes, .. I just simply don’t find that the bushes are a factor in this ease, given the testimony of Pierre____[0]nee the expert was struck, there are no facts left that would support a theory about the bushes, the stop sign[J or the stop line.

This appeal followed.

On appeal, plaintiffs argue that the judge erred by striking Bellizzi’s opinion and not finding that the allegedly overgrown bushes on the property in question proximately caused the accident. Plaintiffs maintain that whether Pierre had an unobstructed [528]*528view is a credibility-based question of fact for the jury. We focus primarily on the net opinion ruling and the grant of summary judgment to Garland Property and Sunset Dental because plaintiffs’ counsel conceded at oral argument that the public entities are immunized pursuant to the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3.

We review a judge’s decision to admit testimony from an expert “against an abuse of discretion standard.” Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371, 25 A.3d 221 (2011). “An abuse of discretion ‘arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’” Milne v. Goldenberg, 428 N.J.Super. 184, 197, 51 A.3d 161 (App.Div.2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571, 796 A.2d 182 (2002)). Using this standard, we conclude that the judge erred.

“[A]n expert’s bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered.” Pomerantz, supra,

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Related

Deborah Townsend v. Noah Pierre (072357)
110 A.3d 52 (Supreme Court of New Jersey, 2015)
Henebema v. South Jersey Transportation Authority
65 A.3d 846 (New Jersey Superior Court App Division, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
60 A.3d 800, 429 N.J. Super. 522, 2013 WL 656219, 2013 N.J. Super. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-v-pierre-njsuperctappdiv-2013.