Opinion
DOCKET NO. A-1537-14T2 DOCKET NO. A-1540-14T2
04-16-2015
ANTHONY FACCAS, Plaintiff-Appellant, v. ALYSSA R. YOUNG, ASHLEY FIGARO, and JERSEY CENTRAL POWER & LIGHT COMPANY, Defendants-Respondents, and MICHAEL A. YOUNG, ALI ASFAR KHAN, and MISSAR JAN, Defendants. FELICIA FACCAS, Plaintiff-Respondent, v. ALYSSA R. YOUNG, ASHLEY FIGARO, and JERSEY CENTRAL POWER & LIGHT COMPANY, Defendants-Respondents, and MICHAEL A. YOUNG, ALI ASFAR KHAN, and MISAR JAN, Defendants.
Jacqueline DeCarlo argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Ms. DeCarlo, on the briefs). Lomurro, Munson, Comer, Brown & Schottland, L.L.C., attorneys for respondent Felicia Faccas, join in the briefs of appellant. Stephen A. Rudolph argued the cause for respondent Jersey Central Power & Light Company (Rudolph & Kayal, P.A., attorneys; Mr. Rudolph, on the brief). David J. Leone argued the cause for respondent Ashley Figaro (Carton Law Firm, attorneys; Mr. Leone, on the brief). Cipriano & Werner, P.C., attorneys for respondent Alyssa R. Young (Matthew K. Mitchell and John N. Kaelin, III, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-696-12 and L-224-13. Jacqueline DeCarlo argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Ms. DeCarlo, on the briefs). Lomurro, Munson, Comer, Brown & Schottland, L.L.C., attorneys for respondent Felicia Faccas, join in the briefs of appellant. Stephen A. Rudolph argued the cause for respondent Jersey Central Power & Light Company (Rudolph & Kayal, P.A., attorneys; Mr. Rudolph, on the brief). David J. Leone argued the cause for respondent Ashley Figaro (Carton Law Firm, attorneys; Mr. Leone, on the brief). Cipriano & Werner, P.C., attorneys for respondent Alyssa R. Young (Matthew K. Mitchell and John N. Kaelin, III, on the brief). PER CURIAM
Plaintiff Anthony M. Faccas ("Faccas") appeals on leave granted from orders entered by the trial court on October 3, 2014, granting summary judgment in favor of defendant Jersey Central Power & Light Company ("JCP&L") and defendant Ashley Figaro ("Figaro"). We address both appeals in this opinion. For the reasons that follow, we affirm the grant of summary judgment as to JCP&L but reverse the order granting summary judgment to Figaro.
The appeal involving the claims against JCP&L is docketed as A-1537-14, and the appeal involving the claims against Figaro is docketed as A-1540-14.
I.
On February 10, 2012, Faccas filed a complaint in the Law Division against Alyssa Young ("Young"), JCP&L, Figaro and other parties (collectively, "defendants") seeking damages for the personal injuries he sustained in an automobile accident that occurred on April 14, 2010 in Keansburg. On June 10, 2013, Faccas's sister, Felicia Faccas ("Ms. Faccas"), filed a complaint in the trial court against defendants, alleging that she sustained severe emotional distress as a result of having witnessed her brother's accident. The trial court consolidated the actions.
We briefly summarize the salient facts, drawn from the record before the trial court. On the date of the accident, Young was driving down Willis Place and approached the point where Willis Place and East Church Street converge. Traffic control signs indicate that the traffic on Willis Place should yield to the traffic on East Church Street, although there is some indication that the signs also required the East Church Street traffic to yield at that spot.
Young and Figaro apparently reached the point where East Church and Willis converge at about the same time. Figaro did not yield but proceeded to the next intersection, where East Church Street intersects with Harding Avenue. Figaro stopped at the stop sign, and then turned right on Harding. Young followed Figaro. She stopped briefly at the sign, then drove into the intersection and struck Faccas's vehicle, which was proceeding northbound on Harding Avenue.
On April 15, 2010, Young provided a statement to the police. Young was a seventeen-year old high school senior at the time of the accident. Concerning the accident, Young stated,
I was driving down Willis and a car pulled out of a driveway in front of me and stopped at the stop sign. I don't remember which way [the driver] turned but that other car was coming from Church Street and as I was rolling up to the stop sign, that car cut me off in front of me and turned right. As she turned right I continued to go straight and then that's when I hit the car. . . .
Young stated that her friend, Megan Pigott ("Pigott"), was sitting in the front passenger seat with her at the time. Young said she had stopped at a stop sign and "then started to roll into Harding [Avenue]." Young was asked whether anything was obstructing her view. She replied, "The sun was extremely bright and there is a telephone pole on the corner of Harding and Willis right near the stop sign." Young said she did not see Faccas's car until the collision occurred. She stated that Figaro was driving the car that cut her off.
Young was deposed. She testified that on the day of the accident, the weather was "clear, dry and sunny[.]" She said Figaro "cut in front of [her] and beat [her] to the stop sign[.]" Young was asked, "So you were driving towards the stop sign, she came from your left, cut in front of you, and stopped at the stop sign, yes?" She responded, "Yes." She testified that Figaro was in the same grade as she was in school, and Figaro was a friend.
Regarding Young's sightline as she approached the intersection and stopped at the stop sign at the intersection of East Church and Harding, the following exchange took place:
Q. You [checked] to the left and you checked to your right, because you wanted to make sure it's safe before you're proceeding?
A. Yes.
Q. On this day, when you checked to your right, you state in your answer you were partially obstructed because of sun glare, yes?
A. Yes.
Q. You were partially obstructed because of the utility pole?
A. Yes.
Q. And you were partially obstructed by vegetation on the fence adjacent to Willis Place?
A. Yes.
Q. It's your testimony from your [a]nswers to [i]nterrogatories that indicate that you believe you looked to the right, you didn't see . . . any cars, so that's why you went?
A. Yes.
Young indicated that she was familiar with the intersection and knew Faccas did not have a stop sign. Young said she intended to proceed straight through the intersection when the collision occurred. She stated that she thought Figaro "was fooling around" by cutting her off. She was not angry at Figaro at the time, and she did not feel that she "wanted to beat [Figaro] to school[.]"
Young was again asked whether being cut off made her upset:
Q. The reason you had to avoid going into the back of [Figaro's] car is because she cut you off?
A. Yes.
Q. When she cut you off, you were a little upset by that, [were] you not?
A. Yes.
Q. Someone cuts you off on the road and almost causes a crash, you're upset about that?
A. Yes.
Young testified that she observed Figaro smile at her as she was cutting her off. Later in the deposition, Young stated, in response to a question about being cut off, "It didn't really bother me, because me and [Pigott] already knew we were going to be late. We stopped and got bagels before."
Young indicated that she had already passed the yield signs that applied to her when she first saw Figaro's vehicle. She described Figaro's car as being "a little bit in front of" her own. Young acknowledged, however, that Figaro "had the right-of-way[.]" Regarding the utility pole, Young was asked whether it was possible to see oncoming traffic from the right at the intersection where the collision occurred. She stated that "as traffic approaches the intersection, the utility pole obstructs the view."
Pigott also was deposed. She testified that Young picked her up on the morning of April 14, 2010 and she and Young intended to go to school. Pigott also knew Figaro well. She indicated that, after being cut off, Young said "something along the lines of, 'Are you kidding me?'" According to Pigott, Young was not angry when she made this remark. It was more an indication of disbelief that she had been cut off. Pigott said her view was obstructed by the bushes and vines on the fence, as well as by the utility pole. Pigott stated that Young stopped "at least two seconds[]" at the stop sign. When asked who Young "blamed" the crash on, Pigott stated, "Mainly the bushes and the . . . pole."
Figaro provided a statement to the police. She stated,
I was coming down East Church Street and [Young] was coming down Willis [Place]. We were both coming down the street at the same time, parallel to each other. I noticed [Young] had the yield sign so I proceeded ahead to the stop sign on the [corner] of Harding. I stopped, made a right towards Port Monmouth Road, I heard the crash, looked up and saw the front of [Young's] car all over the street and [plaintiff's] truck rolling.
JCP&L filed a motion for summary judgment and an order barring the report and testimony of plaintiff's liability expert, Dr. Wayne Nolte ("Dr. Nolte"). Figaro also filed a motion for summary judgment. Plaintiffs opposed the motions. Thereafter, the court heard oral argument on the motions and placed a decision on the record. The court determined that Dr. Nolte was not qualified to testify as to the issues addressed in his report, and that his report constituted a net opinion. The court concluded that JCP&L was entitled to summary judgment. The court also determined that summary judgment should be granted to Figaro.
The court entered orders dated October 3, 2014, dismissing with prejudice all of plaintiffs' claims and any cross-claims against JCP&L and Figaro. Faccas filed motions for leave to appeal from the trial court's October 3, 2014 orders. We entered orders on December 1, 2014, granting leave to appeal. Ms. Faccas did not file a motion for leave to appeal, however, in January 2015, Ms. Faccas advised the court that she "joined" in Faccas's appeals, as set forth in his briefs.
II.
We turn first to Faccas's appeal from the court's order granting summary judgment to JCP&L. Faccas contends that the court erred by finding that Dr. Nolte was not qualified to provide the report and concluding that the report constituted a net opinion. He also argues that the court erred by granting summary judgment in favor of JCP&L.
A. Dr. Nolte's expert report.
Nolte opined that if a utility pole had been moved back twelve inches, the accident may not have occurred. He based this opinion on his belief that moving the pole in this way would improve the sightline from a certain angle. Dr. Nolte wrote a report setting forth his findings. He concluded that "[t]he first line of obstruction encountered by [Young] was the homeowner's fence with the cover of vegetation. This condition caused her to move forward to a position on the roadway where [JCP&L's utility pole] became a visual obstruction."
According to Dr. Nolte, the "visual restriction" caused by the utility pole "was a significant contributing factor to the happening of the subject crash." He opined that "[i]t is evident given the intersection and the foreseeable position of a driver with respect to the front of their vehicle at the intersection that [JCP&L's utility pole] was in the most hazardous location." He concluded that "[g]iven the variation in the setbacks of the utility poles, [the pole] could have been placed to the west one foot or back and [this] would have eliminated the visual obstruction[.]"
At his deposition, Dr. Nolte testified that he had no experience in planning where utility poles should be placed. He had never conducted a "cost analysis" regarding the place where a utility pole would best be located. He noted that the utility pole in question is a "class four" pole, twelve inches in diameter and forty feet in height. Dr. Nolte also provided a DVD showing an automobile proceeding through the subject intersection.
A trial court's order barring expert testimony is reviewed for abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011) (citing Kuehn v. Pub Zone, 364 N.J. Super. 301, 319-21 (App. Div. 2003)). The court's order should be overturned only "when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
Pursuant to N.J.R.E. 703, an expert opinion must be based on "'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'" Townsend v. Pierre, ___ N.J. ___, ___ (2015) (slip op. at 18-19) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).
The net opinion rule, which is a corollary of N.J.R.E. 703, "forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Id. at 19 (quoting Polzo, supra, 196 N.J. at 583). Under the net opinion rule, an expert is required to "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Ibid. (quoting Borough of Saddle River v. 66 E. Allendale, L.L.C., 216 N.J. 115, 144 (2013)). Furthermore, "[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 21.
Here, the court determined that "Dr. Nolte's expert opinion that the pole should be moved [twelve] inches [was] not persuasive." The court found that this opinion was a net opinion because it is not based on any industry regulations or customs. The court stated:
Dr. Nolte fail[ed] to make a causal connection between the act or incident in question and the alleged injury. He failed to demonstrate how the location of the pole moving [twelve] inches backward would eliminate the obstruction. In fact, the testimony is that at the location where he stood and took his photographs, there was a maximum obstruction of some [ninety] feet down the road. The problem is Dr. Nolte did not replicate the situation that [Young] faced on the day in question.The court also stated, "if one were to put the pole [twelve] inches back and [Dr. Nolte] cites no standards whatsoever for that particular measurement, you would still have an obstruction."
We are convinced that the court did not abuse its discretion by determining that Dr. Nolte's report constitutes an inadmissible net opinion. Although the doctor analyzes various possible placements for the pole based on allowable distances from the curb, he does not offer the "why and wherefore" to establish that moving the pole twelve inches would eliminate the visual obstruction. Although Dr. Nolte may have shown that the pole could be moved, he cited no industry practices or government regulations to show that JCP&L was required to move the pole, as he suggested. We therefore conclude that the court did not err in determining that Dr. Nolte's expert opinion is a net opinion.
We note that, while the October 3, 2014 order indicated that Dr. Nolte was unqualified to offer the opinions in his report, the court did not explain the basis for this conclusion. We need not address this point because the court properly barred Dr. Nolte's report as a net opinion.
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B. Summary Judgment in favor of JCP&L.
Faccas argues that JCP&L had a duty to exercise reasonable care in the placement of its utility poles, and breached that duty in the placement of the pole at the intersection where the accident occurred. Faccas contends that he presented sufficient evidence to raise a genuine issue of material fact as to whether JCP&L breached its duty, and the trial court improperly invaded the province of the jury by concluding that the pole did not pose an unreasonable and unnecessary danger to motorists.
A trial court may grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "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, would require submission of the issue to the trier of fact." R. 4:46-2(c). We apply these same standards when reviewing a trial court's summary judgment order. Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (citing Coyne v. State Dep't of Transp., 182 N.J. 481, 491 (2005)).
At his deposition, Robert Timpanaro ("Timpanaro"), JCP&L's "Supervisor Regional Engineering New Business in Engineering Services," was asked about the placement of the subject utility pole, which is pole number JC350KG. He said he was not aware of the "repair and maintenance records" for that particular pole. Timpanaro had, however, visited the site of the pole after the accident occurred. Timpanaro stated the pole is on the corner of Harding and Willis. He did not know when the pole was first installed. It had been replaced twice — in 1934 and in 1974.
Timpanaro stated that there is an "engineering practice guideline" which informs the proper placement of JCP&L's utility poles. He stated, however, that "[t]here is no precise placement of a pole[, as there are] many mitigating factors that need to be taken into account." Concerning the effect the utility pole would have on a driver's ability to see traffic, Timpanaro stated,
It's been my experience that line of sight issues [are] not typically a major concern due to the diameter of the pole being approximately [twelve] inches and with any amount of distance and perspective away from that pole. It [does not] normally constitute an obstruction of vehicular traffic.
Timpanaro estimated that the approximate distance between the pole and the curb was three feet. He noted that there are "[t]housands of poles placed in similar locations[]" throughout JCP&L's service area. According to Timpanaro, the guidelines pertaining to pole placement refer to vehicle safety "[o]nly to the generic extent that it would say try to place the pole a reasonable distance away from vehicular traffic."
"'[A] negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013)). Plaintiffs bear "'the burden of establishing those elements by some competent proof.'" Townsend, supra, slip op. at 15-16 (quoting Davis, supra, 219 N.J. at 406).
"Although the existence of a duty is a question of law, whether the duty was breached is a question of fact." Jerkins v. Anderson, 191 N.J. 285, 305 (2007) (citing Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994), certif. denied, 139 N.J. 441 (1995)). Summary judgment may, however, be appropriate, where "the strength of the record supporting reasonableness of [the defendant's] efforts, when viewed in the light most favorable to plaintiffs, forecloses liability." See ibid.
In Seals v. County of Morris, 210 N.J. 157, 160 (2012), the plaintiff driver struck one of JCP&L's electric utility poles with his car. The pole was located on private property "a few feet" from the roadway. Ibid. There was no guardrail separating the pole from the road, the area was not illuminated by lights, and no sign warned of the curve in the road located near the pole. Id. at 163. Plaintiff "suffered serious and permanent injuries in the crash." Ibid. In the ensuing lawsuit, the plaintiff named JCP&L as a defendant, claiming that JCP&L "negligently placed and maintained the utility pole at the crash site." Ibid.
The pole in Seals had been installed by JCP&L's predecessor in 1937, and was replaced in 1976, 1998, and 2003. Ibid. The replacements in 1998 and 2003 were due to automobile collisions with the pole. Ibid. In 1989, another collision with the pole occurred. Ibid. JCP&L "determined exactly where to install its utility poles[,]" without having first conducted a safety study. Id. at 164. JCP&L also had no written guidelines pertaining to the safe placement of utility poles, instead "approach[ing] the task with practical considerations in mind[.]" Ibid.
The trial court in Seals denied JCP&L's motion for summary judgment on the basis that it was not entitled to immunity pursuant to Contey v. N.J. Bell Telephone Co., 136 N.J. 582 (1994). Id. at 160-61. We reversed the trial court's order concluding that JCP&L "could not be found liable because the County and Township gave implicit approval for the pole's location by their silence." Id. at 161 (citing Seals v. Cnty. of Morris, 417 N.J. Super. 74, 88 (App. Div. 2010)).
The Supreme Court then reversed our judgment, holding that JCP&L was not immune from suit and is "therefore accountable for any negligence on its part." Id. at 175. The Court noted that, "[w]ithout any compulsion or direction from any governmental authority, [JCP&L] chose freely the location of its utility pole." Id. at 174.
The Seals Court described the duty JCP&L owes to the public with regard to the placement of its electric utility poles. See id. at 175-77. The Court said that "[a] utility company is only required to exercise ordinary — not extraordinary — care to prevent injuries, and is permitted to presume that in the typical manner of operation, vehicles are expected to remain on the roadway." Id. at 175 (citing Oram v. N.J. Bell Tel. Co., 132 N.J. Super. 491, 494 (App. Div. 1975)).
The Court added that "a utility is under no obligation to guard against 'extraordinary exigencies.'" Ibid. (citing Oram, supra, 132 N.J. Super. at 494). The Court continued:
Utility poles, like trees, dot the edges of our roadways across this [s]tate. In the ordinary course, tragedies occur when cars veer off a road, striking a tree or utility pole. Every potential hazard abutting our roads and highways cannot be eliminated; our roadways cannot be made perfectly safe. But that does not mean that certain known and unacceptable risks that pose great danger should not be minimized.The Court noted that, "[i]f vehicles repeatedly strike the same pole, it may suggest that the pole poses an unreasonable risk of causing serious bodily injury or death." Id. at 177. When this is the case, "the utility company that placed that pole, in exercising due care, may have a duty to act." Ibid.
[Ibid.]
Here, the trial court observed that, unlike the situation presented in Seals, "JCP&L was not on notice that the pole was in a dangerous spot nor had there ever been complaints about the pole's position." The court noted that, since 1934, no other incidents occurred with regard to the particular pole. This indicated that the pole's "mere existence does not create a dangerous condition in and of itself."
We are convinced that the trial court correctly determined that plaintiff had not presented sufficient evidence to support its claim against JCP&L. As we have noted, under Seals, JCP&L has a duty to exercise ordinary, not extraordinary, care with regard to the placement and maintenance of its electric utility poles. Id. at 175. The company is required to consider "known and unacceptable risks that pose great danger," not every conceivable harmful occurrence. Ibid.
The record before the trial court established that JCP&L's pole JC350KG had no history of vehicular accidents. There was no evidence that, in the past, the pole posed an unreasonable risk of danger to the motoring public. Faccas failed to present sufficient evidence to establish that JCP&L acted unreasonably in its placement or maintenance of the utility pole.
Faccas argues, however, that N.J.S.A. 48:7-1 imposes a separate duty upon JCP&L to ensure that the placement of its pole did not create a safety risk. The statute provides in part that electric utility poles of the sort at issue here "shall be so located as in no way to interfere with the safety or convenience of persons traveling on the highways." Ibid.
However, in Seals, the Court noted that the statute was relevant to determining whether an electric utility company had a duty of care regarding the placement of its utility poles. Seals, supra, 210 N.J. at 174-75. The Court concluded that ordinary negligence principles apply, and "[s]o long as a utility company — acting without governmental direction — does not place or maintain an electric pole in a spot where there is an 'unreasonable and unnecessary danger to travelers upon the highway,' no liability with follow." Ibid. (quoting Stern v. Int'l Rwy. Co., 115 N.E. 759, 761 (N.Y. 1917)).
Therefore, the statute does not impose a separate duty upon electric utility companies with regard to the placement or maintenance of its utility poles. The companies have a duty to exercise reasonable care, as defined by the Court in Seals.
We conclude that the trial court did not err by granting JCP&L's motion for summary judgment.
III.
We next consider Faccas's appeal from the order granting summary judgment in favor of Figaro. Faccas first argues that he presented sufficient evidence to raise jury questions as to whether Figaro was negligent in the operation of her vehicle as she approached in the intersection where the accident occurred, and whether such negligence was a proximate cause of the accident.
A. Negligence.
At his deposition, Sergeant David Gogan ("Sergeant Gogan") of the Keansburg Police Department (the "KPD") testified that he was familiar with the intersection where Figaro allegedly cut off Young. He stated that he had taken a statement from Ashley Figaro, whom he asked, "Were you aware that you had a yield sign on East Church Street also?" Figaro told him that she was not aware that she had to yield. Sergeant Gogan testified about the traffic control signs on East Church Street and Willis Place:
Q. There are two yield signs?
A. There are.
Q. What traffic is that supposed to control?
. . . .
Q. Is it intended for the traffic on Willis only or Willis and East Church?
A. This intersection funnels into a stop sign, which is right here.
Q. Yes.
A. Both of them have a yield sign.
. . . .
Q. Traffic on East Church has to yield to traffic on Willis. And the Willis traffic has to yield to the traffic on East Church?
A. Yes.
It should be noted, however, that Captain Kevin White ("Captain White") of the KPD testified that he understood the yield signs to apply only to traffic coming from Willis Place. He indicated that "there is no traffic control device on East Church Street until [a driver] reach[es] the stop sign at the intersection of Harding Avenue[.]"
The trial court determined "that Figaro had a right of way when she was operating her vehicle on East Church Street on April 14, 2010, by Young's own admission that Figaro was ahead of her." The court also stated that Young's "failure to recognize that she had a duty to yield to Figaro should not hold Figaro liable to the plaintiff."
We are convinced that, based on the conflicting testimony of Sergeant Gogan and Captain White regarding the yield signs where East Church Street and Willis Place converge, there are genuine issues of material fact as to whether Figaro had the right of way and Young had a duty to yield. The court erred by resolving this factual issue based on Young's admission that Figaro was ahead of her, because Young also had insisted that Figaro cut her off, which suggests that they arrived at the place where the streets converge at or about the same time.
Moreover, in her statement to the police, Figaro indicated that she saw Young's vehicle "parallel" to her own, and proceeded to the stop sign because she believed only Young had a yield sign. Thus, when viewing all of the evidence on this issue in the light most favorable to plaintiff, as we must, there is a genuine issue of fact as to whether Figaro negligently cut off Young prior to arriving at the stop sign at the corner of East Church and Harding.
B. Proximate Cause.
Faccas further argues that the court erred by determining that a reasonable jury could not find that Figaro's alleged negligence was a proximate cause of Young's collision with his car. Faccas asserts that "it was Figaro's aggressive, distracting, taunting and dangerous driving which started the chain of events[.]"
We note that, in addition to the evidence discussed above, Faccas presented an accident reconstruction report prepared by John Desche, P.E. ("Desche"), and Kevin Wehrle ("Wehrle"). They concluded that, at the time of the accident, Faccas was operating his vehicle "in a safe and reasonable manner[.]" He was driving within the posted twenty-five mile-per-hour speed limit. Desche and Wehrle opined that Young had been operating her vehicle in a careless manner because she failed to observe Faccas's car traveling northbound on Harding Avenue.
Desche and Wehrle opined that, as a result of getting cut off by Figaro, Young became "somewhat agitated, distracted and less cautious as she entered the intersection." This "inattentive, careless, distracted and provoked operation of her vehicle by Alyssa Young was a proximate cause of this collision." They concluded that
[t]he aggressive and taunting manner in which [Figaro] operated her vehicle was a proximate cause of the collision. Moments prior to the collision, [Figaro] stared at [Young], then smiled, cut her off in an apparent attempt to provoke [Young] and challenge her to race to the [stop] sign and then, to race to the school. These actions, in turn, provoked the unsafe, careless and reckless conduct of [Young].
In its decision granting Figaro's motion for summary judgment, the court stated that
Young's belief that she was cut off and her ensuing alleged anger as a result of that belief, may have caused her to enter the intersection at Harding distracted and agitated. But her reaction is not relevant since Figaro's driving was reasonable, that is[,] she had the right of way.
[Furthermore], since [Figaro] had the right of way, it [does not] matter that she smiled at Young and that they, and that Young and Piggot presumed the smile to be a taunt. Since Figaro had the right of way and
stopped at the stop sign at the intersection of Harding, this [c]ourt cannot find her to be in breach of any duty owed to either, to the plaintiff or to Young for that matter.
Young may have been agitated and distracted when she entered the intersection. But her failure to recognize that she had a duty to yield to Figaro should not hold Figaro liable to the plaintiff. It was Young['s] and not Figaro's driving that was a proximate cause of the collision.
It is well-settled that "more than one defendant can be the proximate cause of and therefore liable for causing injury." Kubert v. Best, 432 N.J. Super. 495, 508 (App. Div. 2013) (citing Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 106-08 (2004)). See also Rappaport v. Nichols, 31 N.J. 188, 203-04 (1959). Similarly, "[w]hether a duty exists to prevent harm is not controlled by whether another person also has a duty, even a greater duty, to prevent the same harm." Kubert, supra, 432 N.J. Super. at 508-09. Where "more than one defendant breached his or her duty and proximately caused the injuries, the jury at a trial may determine relative fault and assign a percentage of responsibility to each under our comparative negligence statutes." Id. at 509 (citing N.J.S.A. 2A:15-5.1 to -5.4).
In Kubert, the court recognized that "[a]n act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other." Id. at 515 (quoting Restatement (Second) of Torts § 303). A "form of interference with a driver might be obstructing his view or otherwise diverting his attention from the tasks of driving." Id. at 515.
We conclude that the trial court erroneously granted summary judgment in favor of Figaro. As the court recognized, when viewing the facts in the light most favorable to plaintiff, a jury could find that Figaro's actions caused Young to be "agitated and distracted" as she approached the intersection of East Church Street and Harding Avenue. As a motorist, Figaro had a duty not to drive in a manner that might unreasonably divert another driver's attention away from the tasks involved in driving.
The court also stated that Young's "reaction is not relevant since Figaro's driving was reasonable, that is[,] she had the right of way." There is, however, a genuine issue of material fact as to whether Figaro or Young had a duty to yield where East Church Street and Willis Place converge.
We are convinced that, viewing these facts in the light most favorable to Faccas, a reasonable jury could conclude that if Figaro had been driving negligently, her alleged negligence was a substantial factor in causing the accident. Accordingly, summary judgment should not have been granted to Figaro.
Affirmed in A-1537-14, reversed in A-1540-14 and remanded to the trial court for further proceedings in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION