The New Jersey Supreme Court decided Townsend v. Pierre on March 12, 2015. It was not a condemnation case but is relevant to any civil litigation involving expert witnesses. The case arose out of a terrible accident involving a motorcycle and an automobile. The motorcycle t-boned the car and the motorcyclist died. The decedent’s estate brought a negligence and wrongful suit against numerous defendants, including the owner of the property adjacent to the intersection where the accident occurred. All defendants were granted summary judgment by the trial court, but the Appellate Division reversed as to the property owner. The property owner’s negligent maintenance of its landscape trees at the intersection (i.e. failure to trim) allegedly made it impossible for vehicles operating along the right of way to see oncoming traffic from the stop sign and such was the “proximate cause” of the motorcyclist’s death.
Here’s a link to the google map showing the location of the accident at the intersection of Garland Lane and Levitt Parkway. The motorcyclist was traveling east on Levitt Parkway, and the car was making a left hand turn from Garland onto west-bound Levitt Parkway. It is easy to see how a car would not be able to see oncoming traffic from the stop sign on Garland (even without the untrimmed shrubbery) because it’s too far back. However, the uncontested evidence was that the driver of the car stopped at the stop sign line, and then inched forward while stopping intermittently (at least 4 times) until she was in a position to see oncoming traffic. It was only then that she proceeded to make the left turn onto Levitt Parkway with the unintended consequence of the fatal accident. There was no evidence contradicting these facts.
Plaintiff’s expert noted the following with respect to these uncontested facts:
“I am mindful of the testimony of Noah Pierre regarding her allegedly stopping four (4) times before proceeding. However, given her testimony that the bushes obstructed her view of eastbound traffic on Levitt Parkway, and given that she never saw the approaching motorcycle, I reasonably conclude that she did not have an unobstructed view of Levitt Parkway when she proceeded into the roadway.” [Slip op. at 11].
So, plaintiff’s expert’s opinion was based on a fact that was contradicted by the evidence. In other words, the fact – unobstructed view before making the turn – was undisputed. The expert’s opinion that the property owner’s negligence was a proximate cause of the accident turned on the fact that the driver’s view was obstructed by the shrubbery. Untrue.
The Supreme Court therefore affirmed the trial court’s grant of summary judgment, reasoning, in part, 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.” [Slip op. at 21]. Further, the Court found it improper for the expert to invent the facts needed to support his opinion. Essentially, the expert opined that the driver of the car must have been mistaken when she testified that her view of oncoming traffic was unimpeded. Absent fact support for such a statement, the expert’s opinion was rejected as a ‘net opinion’, i.e. one without factual support.
While not so novel a holding, property owners are cautioned to keep their hedges trimmed….