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Deborah F. Townsend, Administratrix Ad Prosequendum of the Estate of v. Noah Pierre

February 25, 2013

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-APPELLANTS,
v.
NOAH PIERRE, AN INDIVIDUAL; JEAN HILAIREMONT, AN INDIVIDUAL; THE PRECISION DENTAL SPECIALIST, LLC; LEONARD H. JUROS, AN INDIVIDUAL; AND JANET L. JUROS, AN INDIVIDUAL, DEFENDANTS, AND TOWNSHIP OF WILLINGBORO; BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON; GARLAND PROPERTY MANAGEMENT, LLC; AND SUNSET FAMILY DENTAL, LLC, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0647-09.

The opinion of the court was delivered by: Fasciale, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 11, 2013 -

Before Judges Sabatino, Fasciale and Maven.

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 (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).

This 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 Pierre*fn1 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 location 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 ...


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