                                NOT FOR PUBLICATION WITHOUT THE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-2716-17T2

LISA HATTRICH and JOHN
HATTRICH,

           Plaintiffs-Appellants,

v.

CLYDE NEIL and COUNTY OF
OCEAN,

           Defendants,

and

STATE OF NEW JERSEY,

     Defendant-Respondent.
____________________________________

                    Argued November 28, 2018 – Decided December 17, 2018

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-0462-15.

                    William D. Wright argued the cause for appellants (The
                    Wright Law Firm, attorneys; William D. Wright, on the
                    briefs.)
            Christopher J. Riggs, Deputy Attorney General, argued
            the cause for respondents (Gurbir S. Grewal, Attorney
            General, attorney; Melissa Dutton Schaffer, Assistant
            Attorney General, of counsel; Christopher J. Riggs, on
            the brief).

PER CURIAM

      This is an automobile negligence action. Plaintiffs, Lisa Hattrich and John

Hattrich, appeal the summary judgment dismissal of their complaint against the

State of New Jersey.     Their complaint alleged, among other things, that a

dangerous condition at a State-controlled intersection was a proximate cause of

the vehicular accident in which Lisa Hattrich was injured.           We conclude

plaintiffs failed to establish a triable issue as to whether the dangerous condition

alleged by them was a proximate cause of the accident. We thus affirm.

      Plaintiffs commenced this action by filing a three-count complaint. In the

first count, they alleged defendant, Clyde Neil, negligently disregarded a red

traffic light in Barnegat at the intersection of Route 72 West and Barnegat

Avenue, causing his vehicle to collide with Lisa Hattrich's vehicle. In the second

count, they alleged the negligence of fictitious persons and entities contributed

to the collision. In the third count, they alleged the State or the County of Ocean

maintained a dangerous condition at the intersection, namely, a traffic light

"designed in such a way that: a) The timing of the signals caused drivers to

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                                         2
proceed through a red signal; b) The signals themselves are difficult or

impossible for passing drivers to see."

      Plaintiffs amended the complaint to remove the County of Ocean as a

defendant and settled their claim against Clyde Neil. The State moved for

summary judgment three times. The court denied the first two motions without

prejudice so that the parties could further investigate matters affecting the State's

claim of plan or design immunity. The third time, the trial court granted the

motion.

      The motion record establishes that in the early afternoon of April 29,

2014, a Ford Fusion driven by plaintiff Lisa Hattrich and a Nissan Altima driven

by defendant Clyde Neil collided in the intersection of Barnegat Avenue and

State Highway Route 72 West in Ship Bottom. Barnegat Avenue is a north-

south four-lane highway, two lanes in each direction. The speed limit is twenty-

five miles per hour. Route 72 West has two westbound lanes. The speed limit

is forty miles per hour. Neither the weather nor the road conditions were

contributing factors to the accident.         Traffic lights controlled traffic flow

through the intersection. Before the cars collided in the intersection, Lisa

Hattrich had been driving north on Barnegat Avenue, and Clyde Neil had been

driving west on Route 72.


                                                                             A-2716-17T2
                                          3
      When deposed, Lisa Hattrich said she stopped her Ford Fusion in the right,

outside northbound lane of Barnegat Avenue because the traffic light for

northbound Barnegat Avenue was red. She was the first vehicle stopped in that

lane for the red light. After waiting for "[a] minute, two minutes maybe[,] [n]ot

very long[,]" the light turned green. As soon as the light turned green, she "went,

and before [she] knew it . . . [she] was in the oncoming lane across the

intersection and some woman was opening [her] door and helping [her] out of

the car." Clyde Neil's car had collided with Lisa Hattrich's Fusion and the force

of the impact had propelled the Fusion into the oncoming traffic lanes.

      Before the parties exchanged discovery, Clyde Neil died of causes

unrelated to the accident. His interrogatory answers included the following

written statement he made to his insurance company on May 2, 2014, three days

after the accident: "I drove through intersection w[hen the] light turned yellow

other car hit me, she was going N on Barnegat Avenue."             Based on that

statement, the State included the following paragraph in the statement of

undisputed material facts it submitted in support of its summary judgment

motion:

                 Clyde Neil passed away from conditions that
            were unrelated to the accident. He was not deposed,
            and there is absolutely no evidence that he had


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                                        4
            difficulty seeing the traffic signal at the intersection of
            Route 72 West and Barnegat Avenue.

Plaintiffs responded:

                  Denied. The fact that defendant Neil failed to
            obey the traffic signal as set forth in the police report is
            evidence that he did not see it. Likewise, plaintiff's
            expert provides a detailed analysis of why drivers in
            Neil's position frequently failed to observe the signal.
            ...

      Plaintiffs' liability expert, the Director of Transportation Research

Corporation, explained that "westbound 72W is controlled by two signal faces,

a near-side over the right lane and a far-side over the left lane." Embedding a

photograph in his report, the expert found "[i]t . . . evident from the photo . . .

that the near-side signal face over the right lane is positioned in extremely close

proximity (less than 10 feet) to the stop line." The expert concluded that as a

"consequence of this close proximity of the signal head to the stop line . . .

drivers lose sight of the overhead signal as they approach the intersection."

There is no indication in the expert's report that he considered Clyde Neil's

statement about how the accident occurred.

      Based on materials obtained from the New Jersey Department of

Transportation, plaintiffs' expert determined that with respect to "the

signalization at the subject intersection[,] . . . the yellow change interval was


                                                                           A-2716-17T2
                                         5
[four]-seconds and that there was a [two]-second all red interval." The expert

also reviewed a database of accident reports concerning the intersection. He

noted that since July 2007, there had been fourteen accidents involving vehicles

westbound on Route 72 and vehicles northbound on Barnegat Avenue, the

majority of which involved vehicles travelling in the right westbound lane of

Route 72 West. He concluded:

            As documented in the reviewed accident report
            database, the behaviors of right-lane westbound Route
            72W drivers are consistent with their losing sight of the
            overhead signal as they approach the intersection i.e.,
            failing to see the signal turn from yellow to red at a
            sufficient distance from the signal to come to a safe
            stop. An explanation of this behavior is that the
            improper placement of the right-hand lane traffic signal
            (insufficient distance beyond the stop line) reasonably
            causes drivers to lose sight of the signal face sooner
            than had the signal been properly positioned.

      The expert noted the Manual of Uniform Traffic Control Devices

(MUTCD), adopted by the State, contains "a mandatory requirement that no

signal face be positioned less than 40 feet beyond the stop line." The MUTCD

also includes "a guidance requirement that 'if a signal face controls a specific

lane or lanes of an approach, its position should make it readily visible to road

users making that movement.'"




                                                                         A-2716-17T2
                                       6
      The parties presented conflicting evidence as to whether the painted stop

line for westbound Route 72 West traffic was in the same location as depicted

in a 1967 New Jersey Department of Transportation (NJDOT) "as-built"

drawing. They also presented conflicting evidence as to whether the distance

from the stop line to the traffic signal face was the same in the as -built and at

the time of the accident.

      A DOT engineer certified in a conclusory statement his "measurements

revealed that distance between the painted stop line and near side traffic pole

structure on Route 72 west . . . is in the same location as depicted in the NJDOT

As-Built plan dated February 21, 1967." Based on aerial photographs, plaintiffs'

expert found it "clear that the placement of the stop bar and traffic light shown

in the aerial photographs do not match the dimensions shown on the As-Built

drawing." A Professional Land Surveyor retained by plaintiff reviewed the as-

built plan and then "personally took measurements of the intersection." The

surveyor found it "clear that the distance between the stop line and the signal

face do not match the dimensions and specifications shown on the As -Built

drawing." Specifically, the distance between the stop line and signal face

depicted on the NJDOT as-built plan is approximately four feet. The surveyor's

field measurements revealed the distance to be 13.3 feet.


                                                                          A-2716-17T2
                                        7
      Based on the parties' submissions and arguments, the trial court granted

summary judgment to the State. The court determined, among other findings,

the State was entitled to design immunity, N.J.S.A. 59:4-6. The court also

determined plaintiff had not established that the intersection was in a dangerous

condition or that the distance between the stop line and traffic signal for Route

72 West traffic was the proximate cause of the accident. This appeal followed.

      On appeal, plaintiffs argue that genuinely disputed issues of material fact

precluded summary judgment. They contend they made a prima facie case "of

dangerous condition liability under N.J.S.A. 59:4-2" and the State failed to meet

its burden of proving it was entitled to plan or design immunity. They also argue

that the grant of summary judgment to the State was premature because the State

had failed to provide certain discovery.

      Appellate courts "review[] an order granting summary judgment in

accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217

N.J. 22, 38 (2014) (citations omitted).      Our function is not "to weigh the

evidence and determine the truth of the matter but to determine whether there is

a genuine issue for trial." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986)); accord R. 4:46-2(c). A trial court's determination that a party is entitled


                                                                            A-2716-17T2
                                         8
to summary judgment as a matter of law is not entitled to any special deference

and is subject to de novo review. Cypress Point Condo. Ass'n v. Adria Towers,

LLC, 226 N.J. 403, 415 (2016). "Only when the evidence is so one-sided that

one party must prevail as a matter of law should a court enter summary

judgment." Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J 236, 257

(2018) (internal quotations omitted).

      Plaintiffs alleged Lisa Hattrich was injured as the result of a dangero us

condition of public property. The New Jersey Tort Claims Act (TCA), N.J.S.A.

59:1-1 to 12-3, establishes liability for a dangerous condition of public property

in N.J.S.A. 59:4-2, which provides:

            A public entity is liable for injury caused by a condition
            of its property if the plaintiff establishes that the
            property was in dangerous condition at the time of the
            injury, that the injury was proximately caused by the
            dangerous condition, that the dangerous condition
            created a reasonably foreseeable risk of the kind of
            injury which was incurred, and that either:

            a. a negligent or wrongful act or omission of an
            employee of the public entity within the scope of his
            employment created the dangerous condition; or

            b. a public entity had actual or constructive notice of
            the dangerous condition under section 59:4-3 a
            sufficient time prior to the injury to have taken
            measures to protect against the dangerous condition.



                                                                          A-2716-17T2
                                        9
            Nothing in this section shall be construed to impose
            liability upon a public entity for a dangerous condition
            of its public property if the action the entity took to
            protect against the condition or the failure to take such
            action was not palpably unreasonable.

Thus, two elements a plaintiff must prove to establish a public entity's liability

for a dangerous condition of its property are "the existence of a 'dangerous

condition'" and "the condition proximately caused the injury." Vincitore v. N.J.

Sports & Exposition Auth., 169 N.J. 119, 125 (2001).

      Here, to satisfy their burden of demonstrating a triable issue existed as to

proximate cause, plaintiffs proffered the opinion of their expert. He opined that

the insufficient distance between the Route 72 West stop line and the traffic

signal — which would cause drivers to lose sight of the traffic signal and fail to

see the signal turn from yellow to red at a sufficient distance from the signal to

come to a safe stop — was a "significant contributory and causal factor of the

accident." However, "[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." Townsend v. Pierre, 221

N.J. 36, 55 (2015). Plaintiffs' expert opinion on causation was unsupported by

the record and based on nothing more than speculation.




                                                                          A-2716-17T2
                                       10
      Townsend, too, involved an intersectional collision. The tortfeasor, who

was northbound, intended to make a left turn to proceed west on the intersecting

street. Id. at 44. When she stopped at a stop sign for northbound traffic, her

view was obstructed by overgrown shrubbery on the property on the

intersection's southwest corner. Ibid. She testified at her deposition she edged

up far enough to see approaching traffic in the eastbound lane of the intersecting

street. Id. at 44-45. Her passenger corroborated her testimony. Id. at 45. As

she began her left turn, she collided with an eastbound motorcycle, whose driver

died as the result of injuries sustained in the accident. Ibid.

      In opposing the property owner's summary judgment motion, the

motorcyclist's estate presented the testimony of an expert. Id. at 46. The expert

opined that "'[t]he restricted substandard and unsafe intersection sight distance

was a significant contributing cause' of the accident." Id. at 48 [alteration in

original]. The expert considered and rejected the tortfeasor's testimony that her

view was not blocked by the shrubbery. Ibid. The expert believed that "given

[the tortfeasor's] testimony that the bushes obstructed her view of eastbound

traffic . . . , and given that she never saw the approaching motorcycle, I

reasonably conclude that she did not have an unobstructed view of [eastbound

traffic] when she proceeded into the roadway." Ibid.


                                                                          A-2716-17T2
                                       11
        The Supreme Court found the expert's opinion that the shrubbery

obstructed the tortfeasor's view of approaching traffic to be not only

unsupported, but contradicted by the facts in the record, and thus a net opinion

on the element of proximate cause. Id. at 57. The Court noted the expert's

opinion on causation "diverged from the evidence." Ibid. The Court explained

that the expert "did not apply his engineering expertise to present empirical

evidence undermining [the tortfeasor's] undisputed and corroborated testimony

that when she turned left, her view of [eastbound] traffic . . . was unimpeded."

Ibid.

        The Supreme Court found significant the expert "took no measurements

to demonstrate the line of vision of a driver located at the point at which [the

tortfeasor] recalled making her left turn." Ibid. The Court emphasized the

expert's opinion did "not suggest that at the location identified by [the tortfeasor]

as the point at which she turned, the shrubbery was capable of blocking a driver's

view of oncoming traffic." Ibid.

        We find Townsend controlling. Here, plaintiffs' expert did not appear to

consider Clyde Neil's statement that he observed the traffic signal turn to yellow.

The expert took no measurements to determine at what point a driver on Route

72 West would lose sight of the traffic signal. And though he knew the speed


                                                                             A-2716-17T2
                                        12
limit was forty miles per hour, the expert made no effort to calculate how far

through the intersection a car would have traveled during the seconds that

elapsed between the driver losing sight of the yellow traffic signal and the signal

turning green for Barnegat Avenue traffic. In short, the expert's opinion was

based on nothing more than speculation. The net opinion was insufficient to

create a triable issue as to proximate cause. Townsend, 221 N.J. at 55. For that

reason, the trial court correctly determined the State was entitled to summary

judgment.

      Although the motion record contained genuinely disputed issues of

material fact that precluded summary judgment on the State's plan or design

immunity defense, the issue is moot in light of our conclusion concerning

plaintiffs' failure to establish a triable issue on the element of proximate cause.

Plaintiffs' argument concerning discovery is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                       13
