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Georgine Olsen, Executrix of the Estate of Florence Carlin v. Classic Cruisers

January 7, 2013

GEORGINE OLSEN, EXECUTRIX OF THE ESTATE OF FLORENCE CARLIN, PLAINTIFF-APPELLANT,
v.
CLASSIC CRUISERS, INC., D/B/A CLASSIC TOURS A/K/A CLASSIC TOURS INC., HOWARD KUNTZ, JESSIE-ANN BARRY, MARY J. BARRY A/K/A MARY BARRY, SUNRISE TRAVEL CENTER, INC., AND/OR CRESTWOOD VILLAGE SHOPPING CENTER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2096-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 3, 2011 -

Before Judges A. A. Rodriguez, Sabatino and Fasciale.

Plaintiffs appeal from a December 3, 2010 order granting summary judgment in favor of defendants Classic Cruisers, Inc. (Classic) and Howard Kuntz -- Classic's bus driver.*fn1 Plaintiff argues the trial court erred by concluding that its expert provided a net opinion and that no genuine issues of material fact exist. We reverse.

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 (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 (1995). Viewed most favorably to plaintiff, the summary judgment record established the following facts.

On December 17, 2006, seventy-nine-year-old Florence Carlin (decedent) exited Classic's bus at a mid-block stop in front of the Crestwood Village Shopping Center (Shopping Center) on Route 530 in Whiting. The stop was approximately 332 feet beyond a lighted intersection at Schoolhouse Road, where crosswalks were designated. A CVS store and decedent's residential complex are located across the street from the bus stop.

Upon stopping, Kuntz activated the bus's four-way flashing lights. Decedent walked towards the rear of the bus, turned right to pass behind it, then stepped off the sidewalk into the street. A motorist approached the rear of the bus and witnessed decedent enter the roadway. Decedent crossed into the westbound lane where motorist defendant Jessie-Ann Barry struck her.*fn2 On December 27, 2006, decedent died from her injuries.

In June 2008, plaintiff filed a complaint against multiple defendants alleging negligence resulting in decedent's death.*fn3

During Kuntz's deposition, he testified that he stops mid-block because he was "trained to stop there." He also testified that during "inclement weather," such as when "there is snow piled up," he stops the bus in the Shopping Center's parking lot. When asked whether he had ever seen anyone cross the street by the mid-block stop, Kuntz responded, "[o]n occasion." He further testified that "if someone were to get off the bus and say they were crossing the street, I would watch the traffic and help them cross the street safe[ly]." Moreover, he testified that "it's very rare that anybody on our bus would cross the street." (Emphasis added). Last, Kuntz testified that the majority of their bus passengers were "older people," in "the range of [sixty] on up."

Mark Waterhouse, Classic's owner, testified at his deposition that the New Jersey Department of Transportation (NJDOT) authorized the mid-block stop, there is no bus stop sign at the mid-block location or waiting structure of any kind, and that no other bus companies use the mid-block stop. He further testified that the Shopping Center owner did not permit Classic to pick up or drop off passengers in the Shopping Center.

On October 7, 2010, the parties attended a mandatory, non-binding arbitration. The arbitrator awarded $1,200,000 to plaintiffs and apportioned liability equally and solely between decedent and Jessie-Ann Barry. On October 15, 2010, defendants Classic and Kuntz moved for summary judgment. On December 3, 2010, the judge conducted oral argument, granted defendants' motion, and issued an oral decision in two parts: one immediately following the hearing, and a second when counsel was not present.

The judge excluded two reports issued by plaintiff's bus stop selection and design expert, Ned Einstein, as net opinion. In refuting the expert's opinion that the elderly should be treated as children under the law, the judge stated that "[t]here are no standards cited at all, medical standards or otherwise, as to the expert's suggestion that seniors lack cognitive ability; that seniors, for example, deserve this higher standard of duty, standard of care . . . ." The judge found Einstein's suggestion "condescending and insulting." The judge also found that Einstein's opinion that the mid-block stop induced decedent to cross lacked adequate support. Ultimately, the judge held that Einstein's opinion was "reduced to speculation without any factual basis, or . . . any similar expert studies, treatises[,] or standards." The judge relied on Snell v. Coast Cities Coaches, 15 N.J. Super. 595 (App. Div. 1951), in holding that it could not "find that there exists a duty under these facts that was breached by . . . [Classic]." In particular, the judge noted that "the sidewalk itself was safe," and "[a]s such, it's an independent act of a capable adult who voluntarily walked down the sidewalk . . . and then . . . jaywalk[ed]."

On appeal, plaintiff argues that (1) Einstein's expert's opinions were based on fact, reliable methodology, and reasonable scientific certainty or probability; and (2) Classic ...


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