THE ESTATE OF WILLIAM MANOTOA, ETC. VS. ROBERT RUGGERIO VS. RICKS WINES AND LIQUORS (L-3265-17, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0703-18T3
THE ESTATE OF WILLIAM
MANOTOA, DECEASED, by
BLANCA RIOS, as Administrator
Ad Prosequendum, and BLANCA
RIOS, individually,
Plaintiff-Appellant,
v.
ROBERT RUGGERIO,
Defendant-Respondent,
and
THE WESTWOOD, and GEICO
INSURANCE COMPANY,
Defendants,
and
ROBERT RUGGERIO,
Defendant/Third Party
Plaintiff-Respondent,
v.
RICKS WINES AND LIQUORS,
Third-Party Defendant.
_____________________________
Argued October 22, 2019 – Decided November 21, 2019
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3265-17.
Hector I. Rodriguez argued the cause for appellant
(Law Offices of Hector I. Rodriguez, attorneys; Hector
I. Rodriguez, on the brief).
Robert D. Kretzer argued the cause for respondent
(Lamb Kretzer, LLC, attorneys; Robert D. Kretzer, on
the brief).
PER CURIAM
On the evening of December 11, 2015, William Manotoa (decedent)
sustained fatal injuries when he was struck by a vehicle driven by defendant
Robert Ruggiero, as he attempted to cross a roadway on foot. In this appeal,
plaintiff Blanca Rios, decedent's wife, challenges Law Division orders that
dismissed her complaint asserting wrongful death and survival claims against
defendant and denied reconsideration. Having considered the parties' arguments
in light of the record and applicable legal standards, we affirm the summary
judgment dismissal of plaintiff's complaint.
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I.
On December 11, 2015, decedent attended a party hosted by his employer
at a restaurant in Garwood. Each attendee to the party received two tickets to
exchange for one drink each. Prior to attending the party, decedent stopped at a
liquor store and purchased nearly seventy dollars worth of alcohol.
The decedent left the work party at an unknown time, and was involved
in a two-vehicle car accident in Westfield; according to the police report, the
accident occurred at 4:56 p.m. The decedent was the driver of his vehicle and
received a summons for improper passing. The police report contains no
indication that defendant was impaired or smelled of alcohol. Decedent's
actions for the following three hours remain unknown.
At approximately 8:00 p.m. that night, defendant was driving south on
Springfield Avenue in Cranford. As defendant approached the intersection with
Pawnee Road, his vehicle struck decedent as he attempted to cross Springfield
Avenue on foot. The resulting impact launched decedent forty-five feet. The
speed limit for the street was thirty-five miles per hour.
According to the police report of the accident, the impact occurred at the
front passenger side of defendant's vehicle, denting the vehicle's hood and A-
pillar, cracking the windshield, breaking the front parking lamp, and removing
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the side mirror. A bystander attempted CPR until emergency personnel arrived.
Emergency responders noted a strong odor of alcohol emanating from decedent.
The police located decedent's vehicle on Pawnee Road, "a short distance
away with open containers of alcohol inside." They observed fresh damage to
the vehicle, consistent with decedent's accident three hours earlier; in addition,
they observed "fresh urine on the exterior of the vehicle."
Decedent was transported to a nearby hospital, where he was pronounced
dead at 9:04 p.m. His injuries included multiple skull fractures, disconnection
of the brain stem, lacerated kidney and liver, multiple rib fractures, and a
compound fracture to the right leg. Decedent's blood alcohol content (BAC)
was .258.
When questioned by police as to how fast he was traveling at the time of
the crash, defendant responded, "Maybe 30 or 40 MPH. I was keeping up with
traffic on the roadway at the time." Defendant stated he did not see the decedent
prior to the accident, explaining, "He walked right into the front of my car." The
police investigation did not indicate any fault on the part of defendant; instead,
the report concluded that decedent was "accidentally . . . struck by a motor
vehicle . . . while under the influence of alcohol."
II.
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A.
Plaintiff argues that the trial court abused its discretion in rejecting the
report of George H. Meinschein, P.E., her liability expert, as a "net opinion."
She contends that Meinschein "had a vast amount of information [on] which to
base his conclusions," including his "education, training, experience in addition
to the discovery documents and technical papers reviewed." Defendant in turn
posits that Meinschein's report constitutes an inadmissible net opinion because
it "reflects opinions unsubstantiated by any evidence." In addition, the report
does not acknowledge or address the statement defendant gave to the police two
hours after the accident nor the evidence of decedent's intoxication. The report
also conflicts with the opinions reached by Detective William Pietrucha, 1 who
investigated the accident for the Cranford Police Department.
We review a ruling on summary judgment de novo, applying the same
standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219
1
In addition to twenty-two years of experience, Detective Pietrucha has
received special training in crash investigation and accident reconstruction.
According to Detective Pietrucha, defendant told him "that the pedestrian
walked into the side of his vehicle. Based on the damage and the injuries, that
was what I concluded as well." In support of this conclusion, Detective
Pietrucha identified a "photo indicat[ing] . . . scrapes that run across the
passenger[-]side mirror, which are also consistent and in line with scrapes that
run along the passenger front quarter panel."
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N.J. 395, 405 (2014) (citations and internal quotation marks omitted). Thus, we
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." Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995)). "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) (citations omitted). We review issues of law de novo and
accord no deference to the trial judge's conclusions on issues of law. Nicholas
v. Mynster, 213 N.J. 463, 478 (2013).
"[A] trial court confronted with an evidence determination precedent to
ruling on a summary judgment motion squarely must address the evidence
decision first[.]" Konop v. Rosen, 425 N.J. Super. 391, 402 (App. Div. 2012)
(quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-
85 (2010)). "Appellate review of the trial court's decisions proceeds in the same
sequence, with the evidentiary issue resolved first, followed by the summa ry
judgment determination of the trial court." Townsend v. Pierre, 221 N.J. 36, 53
(2015) (citing Hanges, 202 N.J. at 385).
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"The admission or exclusion of expert testimony is committed to the
sound discretion of the trial court." Townsend, 221 N.J. at 52 (citations
omitted). As such, we accord deference to the trial court's grant of a motion to
strike expert testimony, "reviewing it against an abuse of discretion standard."
Id. at 52-53 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,
371-72 (2011)).
Expert testimony is admissible in the following circumstances:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)
the field testified to must be at a state of the art that
such an expert's testimony could be sufficiently
reliable; and (3) the witness must have sufficient
expertise to offer the intended testimony.
[DeHanes v. Rothman, 158 N.J. 90, 100 (1999)
(quoting State v. Kelly, 97 N.J. 178, 208 (1984)); see
also Agha v. Feiner, 198 N.J. 50, 53 (2009).]
Our analysis is also framed by N.J.R.E. 702 and N.J.R.E. 703. The former
establishes when expert testimony is permissible and requires the expert be
qualified in his or her respective field. The latter mandates that any expert
opinion "be grounded in 'facts or data derived from (1) the expert's personal
observations, [] (2) evidence admitted at the trial, or (3) data relied upon by the
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expert which is not necessarily admissible . . . but which is the type of data
normally relied upon by experts.'" Townsend, 221 N.J. at 53 (quoting Polzo v.
Cty. of Essex, 196 N.J. 569, 583 (2008)).
"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids
the admission into evidence of an expert's conclusions that are not supported by
factual evidence or other data.'" Id. at 53-54 (quoting Polzo, 196 N.J. at 583);
accord Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300
(App. Div. 1990) (barring expert testimony "based merely on unfounded
speculation and unquantified possibilities."). Therefore, an expert is required to
"give the why and wherefore' that supports the opinion, 'rather th an a mere
conclusion." Townsend, 221 N.J. at 54 (quoting Borough of Saddle River v. 66
E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The net opinion rule directs
experts must "be able to identify the factual bases for their conclusions, explain
their methodology, and demonstrate that both . . . are reliable." Id. at 55 (citation
omitted). In short, the rule invokes "a prohibition against speculative
testimony." Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting
Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997). This results
because a speculating expert "ceases to be an aid to the trier of fact and becomes
nothing more than an additional juror[,]" Jimenez v. GNOC, Corp., 286 N.J.
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Super. 533, 540 (App. Div. 1996), affording no benefit to the fact finder. See
N.J.R.E. 702.
In his June 29, 2019 report, Meinschein concluded, based on his review
of the photographs taken by the Cranford Police, that the decedent "was struck
by the front of [defendant's vehicle]." Meinschein further opined that defendant:
• [S]hould have been able to avoid striking
[decedent] if he had been driving at the speed of
35 [m]iles per hour or less and doing so in a safe
manner;
• [W]as either driving in an unsafe manner and/or
driving a vehicle with deficient headlamps; and
• If the . . . headlamps (on defendant's vehicle)
were operating properly and [defendant] was not
distracted as he approached [the decedent],
[defendant's vehicle] struck [the decedent]
because [defendant] was traveling to the right of
the vehicles that he was following, his view
ahead was obstructed by the leading vehicles, and
he was following the lead vehicles too closely for
the speed of his vehicle.
Meinschein's opinion that defendant "was either driving in an unsafe
manner and/or driving a vehicle with deficient headlamps" is speculative and
lacks competent support in the record. Meinschein's report does not identify any
of the 132 photographs as supporting his opinion, nor does he explain how any of
the photos led to his conclusion.
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Meinschein's report then states that the "available lighting [on the roadway]
should have been sufficient to illuminate [decedent] in the roadway and allow
[defendant] to avoid striking him if he had been driving at a speed of 35 mph or less
and doing so in a safe manner." It appears Meinschein came to this conclusion
simply based on the fact that the police report stated the street light at the intersection
was on and defendant's statement that the roadway lighting was "pretty good." There
was no independent evaluation or assessment of the brightness of the street lamp or
the headlights of vehicles similar to that driven by defendant. Meinschein provides
no explanation as to how he determined the lighting was "sufficient." Nor does he
discuss reaction time or stopping time by a driver under the circumstances. He does
not address the testimony by the defendant that he was driving as slow as thirty miles
per hour. The essence of Meinschein's opinion is that the area was lit so defendant
should have seen the decedent in time to stop.
Meinschein's report also contains a wholly unsupported opinion that
"distracted driving" potentially played a role in the accident. It also contains an
unsupported assertion that defendant followed the vehicles in front of him too
closely. However, the record lacks any evidence to support these assertions.
Meinschein's opinion that defendant must have been distracted is
speculative and similarly lacks competent support in the record. Defendant
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exhibited no signs of impairment and was not on his cell phone or otherwise
distracted.
We acknowledge that an expert's proposed testimony should not be
excluded merely "because it fails to account for some particular condition or
fact which the adversary considers relevant." Townsend, 221 N.J. at 54 (quoting
Creanga v. Jardal, 185 N.J. 345, 360 (2005)). Nonetheless, "[a] party's burden
of proof on an element of a claim may not be satisfied by an expert opinion that
is unsupported by the factual record or by an expert's speculation that contradicts
that record." Id. at 55. As in Townsend, "[t]his case presents such a setting."
Id. at 60.
We conclude the trial court properly rejected Meinschein's expert report
as it was highly speculative and omitted or ignored critical, undisputed facts.
We share the trial court's conclusion that Meinschein rendered a net opinion and
that plaintiff failed to establish a prima facie case of negligence against
defendant. The mere happening of the accident did not establish defendant's
negligence, see Long v. Landy, 35 N.J. 44, 54 (1961), and Meinschein's opinion
that defendant must have been distracted is pure speculation.
B.
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Even without reference to Meinschein's report, plaintiff argues that
several material issues of fact existed to preclude summary judgment. We
disagree.
First, plaintiff relies on defendant's statement to police that he was
traveling "Maybe 30 or 40 MPH. I was keeping up with the traffic on the
roadway at that time." According to plaintiff, because the speed limit was only
thirty-five miles per hour, defendant could have been speeding. Plaintiff then
argues that if a jury determines plaintiff was traveling above the speed limit, that
fact would establish negligence per se. Plaintiff's brief fails to cite any
supporting authority for this negligence per se argument.
Rather than negligence per se, at most, the evidence in that case suggests
that defendant may have been speeding, given his uncertainty of his speed when
the accident occurred. "The motor vehicle statutes establish standards of
conduct for motorists on our highways and, under usual circumstances, the
violation of motor vehicle statutes is evidence of negligence." Paiva v. Pfeiffer,
229 N.J. Super. 276, 280 (App. Div. 1988).
However, plaintiff presented no evidence of defendant's rate of travel
other than defendant's uncertain statement to police. Notwithstanding the
abundant evidence that resulted from the extensive police investigation of this
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fatal accident, which would have given a competent expert a basis for providing
an opinion as to defendant's speed, if in fact he had been speeding, plaintiff
submitted no expert opinion to support her speeding claim. Because plaintiff
retains the burden of persuasion in a negligence action, there are not sufficient
facts for a rational factfinder to determine, by a preponderance of the evidence,
that defendant exceeded the speed limit. As our Supreme Court has stated,
"While proof of certainty is not required, the evidence must be such as to justify
an inference of probability as distinguished from the mere possibility of
negligence on the part of the defendant." Hansen v. Eagle-Picher Lead Co., 8
N.J. 133, 141 (1951) (quoting Callahan v. National Lead Co., 4 N.J. 150, 154
(1950); Woschenko v. C. Schmidt & Sons, 2 N.J. 269, 277 (1949); McCombe v.
Public Service Railway Co., 95 N.J.L. 187, 189 (E. & A. 1920)).
Plaintiff next suggests the point of impact represents a material fact.
Defendant stated to police that decedent "came into the passenger side of my
car." Conversely, plaintiff cites Meinschein's report to argue the impact
occurred with decedent in front of the vehicle. Thus, plaintiff argues a material
issue of fact exists as to where the impact occurred. However, plaintiff cannot
rely upon the properly rejected net opinion of her expert to create this dispute.
In addition, plaintiff fails to demonstrate how the point of impact relates to the
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issue of negligence. Thus, the issue cannot be considered material, and therefore
cannot preclude summary judgment.
We conclude plaintiff's complaint against defendant was properly
dismissed. Any arguments not specifically addressed lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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