NOT FOR PUBLICATION WITHOUT THE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