                        NOT FOR PUBLICATION WITHOUT THE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.



                                         2                                A-5176-16T1
     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,

                                        3                               A-5176-16T1
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,

                                   4                            A-5176-16T1
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

                                        5                                 A-5176-16T1
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




                                       6                              A-5176-16T1
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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