MARIA TROIANI-SCHWARTZ VS. ELIZABETH M. DICKER (L-2082-14, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-5176-16T1
MARIA TROIANI-SCHWARTZ and
MICHAEL SCHWARTZ,
Plaintiffs-Appellants,
v.
ELIZABETH M. DICKER, KEVIN
LISSENDEN, and PRINCETON CHILD
DEVELOPMENT INSTITUTE,
Defendants-Respondents.
___________________________________
Argued June 4, 2018 – Decided June 26, 2018
Before Judges Ostrer and Firko.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-2082-14.
Brandon C. Simmons argued the cause for
appellants (Szaferman, Lakind, Blumstein &
Blader, PC, attorneys; Craig J. Hubert, of
counsel; Brandon C. Simmons, on the briefs).
Thaddeus J. Hubert, IV argued the cause for
respondents Elizabeth M. Dicker and Kevin
Lissenden (Hoagland, Longo, Moran, Dunst &
Doukas, LLP, attorneys; Thaddeus J. Hubert,
IV, of counsel and on the brief).
Christopher J. O'Connell argued the cause for
respondent Princeton Child Development
Institute (Sweeney & Sheehan, PC, attorneys;
Christopher J. O'Connell, of counsel; Joseph
M. Hauschildt, Jr., on the brief).
PER CURIAM
In this personal injury case, plaintiffs Maria Troiani-
Schwartz ("plaintiff") and her husband Michael Schwartz asserting
a per quod claim, appeal from the June 9, 2017 trial court decision
granting summary judgment to defendants Elizabeth M. Dicker
("defendant"), Kevin Lissenden, and Princeton Child Development
Institute. Plaintiffs also appeal from the denial of their motion
for reconsideration. Judge Douglas H. Hurd determined that there
were no genuinely disputed issues of material fact from which a
reasonable jury could conclude defendant negligently operated her
vehicle at the time of the intersectional collision in which
plaintiff was injured. For the reasons that follow, we affirm.
The summary judgment motion record, construed in the light
most favorable to plaintiff as required by Rule 4:46 and Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), discloses
the following facts. The collision occurred at the intersection
of Route 31 and the exit ramp from I-95 toward Bull Run Road in
Hopewell. On the day of the collision, the traffic light
controlling the intersection was not working due to Hurricane
Sandy.
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According to plaintiff's deposition testimony, she first saw
defendant's vehicle on the ramp before the intersection "500 feet
away," and assumed defendant was going to stop. Defendant
testified that she came to a complete stop and looked both ways
before entering the intersection. Plaintiff sped up and crossed
the intersection because she thought she had the right of way.
She admitted that she was unaware of her duty to come to a complete
stop at the uncontrolled intersection.
Based on the foregoing facts, the trial court granted
defendant summary judgment. The court concluded that plaintiff
proffered no competent evidence that created a genuinely disputed
issue of fact to refute that defendant had the right-of-way and
made reasonable observations. Plaintiff appealed.
When a party appeals from an order granting summary judgment,
our review is de novo and we apply the same standard as the trial
court under Rule 4:46-2. Qian v. Toll Bros. Inc., 223 N.J. 124,
134-35 (2015). First, we determine whether the moving party
demonstrated there were no genuine disputes as to material facts,
and then we decide whether the motion judge's application of the
law was correct. Qian, 223 N.J. at 126. "An issue of fact is
genuine only if, considering the burden of persuasion at trial,
the evidence submitted by the parties on the motion, together with
all legitimate inferences therefrom favoring the non-moving party,
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would require submission of the issue to the trier of fact." R.
4:46-2(c). We review the legal conclusions of the trial court de
novo, without any special deference. Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also Qian,
223 N.J. at 135.
To prove a defendant was negligent, a plaintiff must establish
that: (1) the defendant owed her a duty of care; (2) the defendant
breached that duty; and (3) the plaintiff suffered an injury
proximately caused by defendant's breach. Endre v. Arnold, 300
N.J. Super. 136, 142 (App. Div. 1997). The mere happening of an
accident raises no presumption of negligence. Allendorf v.
Kaiserman Enters., 266 N.J. Super 662, 670 (1993). Negligence
will not be presumed; rather, it must proved. Rocco v. N.J.
Transit Rail Operations., 330 N.J. Super. 320, 338-39 (App. Div.
2000). There is a presumption against negligence, and the burden
of establishing such negligence is on plaintiff. Buckelew v.
Grossbard, 87 N.J. 512, 525 (1981).
The parties do not dispute the traffic light controlling the
intersection was not functioning at the time of the collision.
Hence, pursuant to our traffic laws, "the driver to the right at
an uncontrolled intersection . . . [has] the right of way, N.J.S.A.
39:4-90." Civalier v. Estate of Trancucci, 138 N.J. 52, 59 (1994).
Plaintiff was legally obliged to yield to defendant, to her right,
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pursuant to N.J.S.A. 39:4-90, and come to a full stop, because the
traffic light was not operating. N.J.S.A. 39:4-81(b).
N.J.S.A. 39:4-90 provides in pertinent part:
The driver of a vehicle approaching an
intersection shall yield the right of way to
a vehicle which has entered the intersection.
When 2 vehicles enter an intersection at the
same time the driver of the vehicle on the
left shall yield the right of way to the driver
of the vehicle on the right . . . .
Plaintiff presented no evidence in opposition to defendant's
summary judgment motion from which a reasonable juror could
conclude she violated N.J.S.A. 39:4-90. The evidence on the
summary judgment motion record established defendant's vehicle was
the first vehicle to enter the intersection and thus had the right
of way for that reason alone. But even if that were not so, the
evidence on the motion record undisputedly establishes that
plaintiff was the "driver of the vehicle on the left" and defendant
was the "driver of the vehicle on the right." Thus, under N.J.S.A.
39:4-90, plaintiff was required to "yield the right of way" to
defendant.
Plaintiff argues that her accident reconstruction expert
provided an opinion in support of her motion for reconsideration
as to causation, which created a genuine issue of material fact.
We disagree. As aptly noted by Judge Hurd, "nowhere in the
[expert's] report does he conclude that on the date of the
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underlying incident that [plaintiff's] vehicle entered the
intersection prior to the defendant . . . his conclusions are
essentially theoretical . . . ."
Indisputably, defendant had a duty to make proper
observations as she approached and entered the intersection. See
Beck v. Washington, 149 N.J. Super. 569, 572 (App. Div. 1977).
Plaintiff presented no evidence from which a jury could conclude
defendant breached the duty to make reasonable observations.
Nothing in the discovery plaintiff submitted established that
defendant failed to make reasonable observations. As previously
noted, the mere happening of an accident raises no presumption of
negligence. Allendorf, 266 N.J. Super at 670.
Further, plaintiff failed to abide by N.J.S.A. 39:4-81(b)
which provides:
When, by reason of a power failure or other
malfunction, a traffic control signal at an
intersection is not illuminated, the driver
of a vehicle or street car shall, with respect
to that intersection, observe the requirement
for a stop intersection, as provided in R.S.
39:4-144.
[(Emphasis added).]
In pertinent part, N.J.S.A. 39:4-144(b) requires a driver to
stop before entering an intersection and "yield the right of way
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to all vehicles or traffic on the intersecting street which is so
close as to constitute an immediate hazard."
We recognize that a violation of the statutory rules of the
road is evidential, but not conclusive, on the issue of negligence.
Eaton v. Eaton, 119 N.J. 628, 632 (1990). However, summary
judgment is appropriate "when the evidence 'is so one-sided that
one party must prevail as a matter of law.'" Brill, 142 N.J. at
540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986)). That is so here, in view of the substantial evidence of
plaintiff's negligence, and the dearth of evidence of defendant's
negligence.
In short, "there is no genuine issue as to any material fact
challenged and . . . the moving party is entitled to a judgment
or order as a matter of law." R. 4:46-2(c); Brill, 142 N.J. at
539-40. The motion for reconsideration was appropriately denied
because there was nothing presented as to what Judge Hurd
"overlooked or as to which [he] erred." R. 4:49-2.
We affirm.
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