                        NOT FOR PUBLICATION WITHOUT THE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-1878-15T1

SANDRA RIOTTO,

              Plaintiff-Appellant,

v.

FAIRFIELD GARDEN CENTER and
FERNICOLA PROPERTIES, LLC,

          Defendants-Respondents.
___________________________________

              Argued September 14, 2017 – Decided September 27, 2017

              Before Judges Simonelli, Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-0306-
              13.

              Christopher T. DiGirolamo argued the cause for
              appellant (Maggiano, DiGirolamo & Lizzi, PC,
              attorneys; Mr. DiGirolamo and Daniel LaTerra,
              on the brief).

              Michael A. Cassata argued the cause for
              respondent Fairfield Garden Center (Barrett
              Lazar, LLC, attorneys; Virginia M. Barrett,
              of counsel; Marc B. Schuley, on the brief).

              Robert G. Devine argued the cause for
              respondent Fernicola Properties, LLC (White
              and Williams, LLP, attorneys; Mr. Devine, of
              counsel and on the brief; Christopher P.
              Morgan, on the brief).
PER CURIAM

     Plaintiff Sandra Riotto appeals from the summary judgment

dismissal of her personal injury negligence complaint against

defendants    Fairfield      Garden     Center    (Fairfield)    and    Fernicola

Properties,    LLC    (Fernicola)       (collectively        defendants).        We

reverse.

     The evidence submitted by the parties in support of, and in

opposition to, defendants' summary judgment motions is in sharp

conflict,    especially      on   the    issues    of   proximate      cause   and

foreseeability.      We view this evidence in the light most favorable

to plaintiff, the non-moving party.              Polzo v. Cty. of Essex, 209

N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995)).

     Fernicola owns property along Route 46, a busy four-lane,

two-way    highway.     It    leased     a   portion    of   this   property     to

Fairfield, which used it to operate a garden center.                   Members of

the Fernicola family are involved in the ownership and operation

of both businesses.1 However, the extent of the connection between

the defendants is not fully fleshed out in the record.



1
 Fernicola leased the remainder of the property to another company
also owned, at least in part, by members of the Fernicola family.
That company operated a store on its section of the land and is
not involved in this litigation.

                                         2                                A-1878-15T1
     Sometime in 2006, defendants built a large island at the

entrance of the garden center to draw attention to the business.

The island housed a permanent, decorative Koi pond structure that

featured a 900-pound cement fish statue and a seven-foot-tall rock

waterfall.   The perimeter of the island was surrounded by two or

three layers of four-inch-tall brick pavers.   An entrance gate and

an exit gate were located adjacent to the island.

     The two westbound travel lanes of Route 46 at the site of the

island each measured twelve feet in width, and the shoulder along

the right side of the roadway was approximately ten feet wide.

Defendants constructed the island approximately one foot away from

the fog line of Route 46.

     According to plaintiff's accident reconstruction expert's

report, "nearly all of the island [was] outside [defendants']

property line and within the right-of-way of Route 46.    In fact,

less than 20% of the island [was] within the property line of the"

garden center.    The pavers were also within the right-of-way.

Plaintiff's expert opined that "the placement of these structures

within the right-of-way was in violation of the Fairfield Township

Zoning Code[,]" as well as "state and federal codes which govern

the encroachment of structures into the public right-of-way."

     In the early afternoon of March 3, 2011, plaintiff was driving

in the westbound right lane of Route 46.       A drunk driver was

                                3                           A-1878-15T1
driving in the left lane.    That driver drove his vehicle into the

right lane and stuck the driver's side door of plaintiff's car.

     According to plaintiff's expert, when the drunk driver hit

plaintiff's car, both vehicles began to spin clockwise toward

defendants' island.     The drunk driver's car struck a utility pole

near the edge of the shoulder of the road.        The expert opined that

the left tires of plaintiff's car "came in contact with the layers

of pavers which made up the perimeter of [defendants'] island,"

and "and began a driver-side leading rollover. During the rollover

sequence,    [plaintiff's   car]    came    in    contact   with     several

structural   elements   located    within   the   island[.]"       Plaintiff

sustained serious injuries as a result of the crash.

     Plaintiff's theory of the case against defendants was that

she would have been able to recover control of her vehicle after

being struck by the drunk driver's car if defendants had not placed

the island within the right-of-way of Route 46 at the scene of the

accident.    Her expert noted that the garden center's property line

was approximately forty feet "from the edge of the traveled way

on Route 46 West."       Therefore, the expert found that "had no

obstructions, such as the island/decorative display been placed

within the right-of-way in front of the Fairfield Garden Center,

this portion of Route 46 West would have had a clear zone width

of [forty] feet." However, because of the placement of defendants'

                                    4                                A-1878-15T1
island and the surrounding pavers outside their property line and

in the right-of-way of Route 46, plaintiff only had "a clear zone

of approximately [ten] feet" to attempt to regain control of her

car.    As a result, plaintiff struck the pavers, which caused her

car to become airborne and roll over multiple times.

       On the question of foreseeability, plaintiff presented proofs

indicating that it was essentially only a question of time before

defendants' improper placement of the island within the right-of-

way caused an accident like she sustained.            In addition to the

report of her accident reconstruction expert, plaintiff produced

several studies showing that obstructions placed in mandatory

"clear zones" of highways are a major cause of accidents, and

result in one highway death every twenty-one minutes.                Thus,

plaintiff asserted that any driver who had to leave the road

suddenly at the site of the island would not have been able to

safely do so because of the island's location within the right-

of-way.

       As   noted   above,   defendants   disputed   plaintiff's   factual

allegations and presented expert reports of their own supporting

their view. Defendants argued that plaintiff's car became airborne

as soon as she was struck by the drunk driver and, therefore, the

island did not exacerbate the situation.             On the question of

foreseeability, defendants asserted that there had been no prior

                                     5                             A-1878-15T1
accidents specifically involving the island2 and, therefore, they

had no way of knowing that placing the island within the right-

of-way would place drivers in danger.3

     Based     upon      the     parties'         widely   divergent     factual

presentations, the trial judge concluded, after oral argument,

that summary judgment was inappropriate on the issue of whether

defendants'     island     was       the   proximate    cause   of    plaintiff's

injuries.     In the face of these same contested proofs, however,

the judge found that defendants owed plaintiff no duty of care.

The judge reasoned that even assuming that defendants placed the

island in the right-of-way in violation of federal, state, and

municipal law, the laws defendants violated did not specifically

impose   a   duty   upon   them       to   keep   the   right-of-way    clear    of

obstructions.       Therefore, the judge issued an order granting

defendants'     motions        for     summary     judgment     and    dismissing

plaintiff's complaint.



2
  There had been at least one other accident directly in front of
the garden center. In that incident, a driver had a heart attack,
left the highway, and struck a "changeable sign" in front of one
of the buildings.   In addition, there had been other accidents
near the garden center.
3
   Fernicola separately alleged that Fairfield was solely
responsible for the construction of the island and that it had no
ownership interest in Fairfield. However, because discovery had
not been completed, the trial judge did not address this issue and
the record is insufficient to enable us to consider it on appeal.

                                           6                              A-1878-15T1
     Plaintiff filed a motion for reconsideration and asserted she

was not required to establish a statutory cause of action because

defendants had a common law duty to avoid harm to another, and

that they breached this duty when they placed the island in the

right-of-way.   In his oral decision, the judge found the common

law duty of care would apply, but he determined that the accident

was not foreseeable because there had been no prior accidents

involving the island.   Therefore, the judge denied the motion and

this appeal followed.

     On appeal, plaintiff argues that the trial judge mistakenly

concluded that the accident was not foreseeable based solely upon

his consideration of the lack of prior accidents involving the

island.   We agree.

     In the context of determining the existence of a duty of care

to avoid harm to another, foreseeability is

          "the knowledge of the risk of injury to be
          apprehended.    The risk reasonably to be
          perceived defines the duty to be obeyed; it
          is the risk reasonably within the range of
          apprehension, of injury to another person,
          that is taken into account in determining the
          existence of the duty to exercise care."

          [Clohesy v. Food Circus Supermarkets, 149 N.J.
          496, 503 (1997) (quoting Hill v. Yaskin, 75
          N.J. 139, 144 (1977)).]

In other words, the probability of injury to another is the basis

for the creation of a duty to avoid such injury, and therefore the

                                 7                         A-1878-15T1
test of negligence is whether "a reasonably prudent and careful

person    should   have    anticipated,     under   the     same       or   similar

circumstances, that injury to the plaintiff or to those in a like

situation would probably result."         Kuzmicz v. Ivy Park Apartments,

Inc., 147 N.J. 510, 533 (1997) (quoting Hill, supra, 75 N.J. at

144).     Questions of foreseeability are ordinarily left for the

jury to decide.       Hill, supra, 75 N.J. at 144.

     In Clohesy, the Court specifically rejected the argument that

the foreseeability determination is made by resort solely to the

existence of prior incidents at the scene, adopting instead a

"totality of the circumstances" test.             Supra, 149 N.J. at 514.

The Court stated:

            The mere fact that a particular kind of
            incident had not happened before is not a
            sound reason to conclude that such an incident
            might not reasonably have been anticipated.
            Generally, our tort law, including products
            liability, does not require the first victim
            to lose while subsequent victims are permitted
            to at least submit their cases to a jury.

            [Id. at 516.]

     To    be   sure,   prior   accidents   at    the    scene    of    a   highway

obstruction are relevant in determining foreseeability.                          Ibid.

However, the Court has recognized that even in the absence of a

prior     accident,     foreseeability    may    still    be     found      if    the

circumstances      demonstrate    that    the    defendant       has   placed      an


                                      8                                     A-1878-15T1
"unreasonable    and    unnecessary   danger     to   travelers    upon   the

highway."     Seals v. Cty. of Morris, 210 N.J. 157, 175 (2012)

(holding under the totality of the circumstances that the question

of whether it was foreseeable that a motorist would strike a

utility pole near the shoulder of a road was inappropriate for

resolution on a motion for summary judgment) (quoting Stern v.

Int'l Ry. Co., 115 N.E. 759, 761 (N.Y. Ct. App. 1917)).              Indeed,

in Seals, the Court noted that not "[e]very potential hazard

abutting our roads and highways can[] 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."    Ibid.

     We review a trial court's order granting summary judgment de

novo, applying the same standard as the trial court.               Conley v.

Guerrero, 228 N.J. 339, 346 (2017). Thus, we examine the competent

evidential materials submitted by the parties to identify whether

there are genuine issues of material fact and, if not, whether the

moving party is entitled to summary judgment as a matter of law.

Ibid.   Summary judgment should be denied unless the moving party's

right   to   judgment   is   so   clear   that   there   is   no   room   for

controversy.    Akhtar v. JDN Props. at Florham Park, LLC, 439 N.J.

Super. 391, 399 (App. Div.), certif. denied, 221 N.J. 566 (2015).



                                      9                              A-1878-15T1
     Applying    that    standard,   and   in   light   of   the   principles

discussed above, we conclude that plaintiff presented sufficient

evidence to warrant the submission of the issue of foreseeability

to the jury.     Plaintiff's expert was prepared to opine that the

large island, surrounded by layers of brick pavers, and located

just a foot from the fog line in the right-of-way of busy Route

46, was the proverbial "accident waiting to happen."               Any driver

leaving the road at that location, whether from being struck by

another vehicle, having a flat tire, or suffering a heart attack

was going to strike a solid structure, likely become airborne, and

sustain serious injuries.

     Plaintiff    also     presented      various   studies    and    reports

demonstrating that obstructions placed within a highway's right-

of-way are a leading cause of traffic fatalities.              In addition,

the scene in front of the garden center had not been accident-

free.   At least one other driver had left the road and hit a sign

in front of the property.      There had also been a number of other

accidents near the garden center.           In light of this evidence, a

jury could certainly find it was foreseeable that the large

structure defendants placed in the right-of-way posed a known and

unacceptable risk that posed a great danger to the motoring public.

Seals, supra, 210 N.J. at 175.



                                     10                               A-1878-15T1
     As noted above, defendants strongly challenge the conclusions

of plaintiff's expert and the other evidence of foreseeability

plaintiff provided to the trial court.   On this highly contested

record, however, that challenge is one that must be determined by

a jury.   Hill, supra, 75 N.J. at 144.

     Accordingly, we reverse the order granting summary judgment

to defendants and remand for further proceedings. We do not retain

jurisdiction.




                               11                          A-1878-15T1
