The opinion
NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1189-23
MARCUS SANCHEZ, by his
guardians ad litem, MIGUEL
SANCHEZ and MARGEE
SANCHEZ,
Plaintiff-Appellant,
v.
PUBLIC SERVICE ENTERPRISE
GROUP INC., PUBLIC SERVICE
ELECTRICITY AND GAS
COMPANY, a/k/a PSE&G, and
BOROUGH OF LODI,
Defendants-Respondents,
and
MICHAEL MARINO, DOLORES
MARINO, COUNTY OF BERGEN,
and STATE OF NEW JERSEY,
Defendants.
______________________________
Argued March 12, 2025 – Decided June 19, 2025
Before Judges Currier, Paganelli and Torregrossa-
O'Connor.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-6232-19.
Jean-Claude Labady argued the cause for appellant
(Law Offices of Jeffrey S. Hasson, PC, attorneys; Jean-
Claude Labady, of counsel and on the briefs).
Gregg A. Ilardi (Law Offices of Gregg A. Ilardi, LLC)
argued the cause for respondent Borough of Lodi.
Anthony J. Corino argued the cause for respondent
PSE&G (PSE&G Services Corporation, attorneys;
Paige Nestel and Anthony J. Corino, on the brief).
PER CURIAM
Plaintiff Marcus Sanchez, by his Guardians Ad Litem, Miguel Sanchez
and Margee Sanchez, appeals from the trial court orders of: October 13, 2023,
granting defendant Public Service Electric and Gas Company (PSE&G)
summary judgment; November 17, 2023, denying plaintiff's motion for
reconsideration of the October order; and December 14, 2023, granting
defendant Borough of Lodi (Lodi) summary judgment. Because the trial court's
factual findings were adequately supported in the record, it did not misuse its
discretion in making evidential decisions, and it correctly applied well-
established law under the summary judgment standard, we affirm.
A-1189-23
2
I.
We derive the facts and procedural history from the motion records. On
the night of May 31, 2017, plaintiff was struck by a vehicle operated by
defendant Michael Marino (Marino).1 Marino was traveling along Prospect
Street in Lodi and the accident occurred at the intersection of Central Avenue
and Prospect Street. The parties dispute where—in the intersection's crosswalk
or on the roadway—and what—skateboarding or walking—plaintiff was doing
when he was struck. For purposes of our opinion, we accept plaintiff's
contention that he was walking in the crosswalk.
Marino gave a recorded statement. He said that at the time of the accident,
he was "not too sure" how fast he was traveling, but stated he "actually slow[ed]
down [and] kep[t] it slow because of the stop sign."
Marino was deposed on April 1, 2021. Marino testified he "lived in Lodi
for 63 years" and was "very familiar with Prospect Street before the accident."
During his deposition the following exchange occurred:
Q. . . . My question was, however, before, whether you
were aware if there is a stop sign on Prospect Street at
its intersection with Central Avenue?
A. Yes.
1
The State of New Jersey, Bergen County, Dolores Marino and Michael Marino
are no longer in the case and did not participate in the appeal.
A-1189-23
3
Further, Marino provided the following testimony:
Q. I take it, sir, you had your headlights on, the
headlights on your car?
A. Yes.
Q. And how was the visibility on Prospect Street before
the accident from your headlights?
A. Fine.
....
Q. Could you see well on Prospect Street before the
accident?
A. Yes.
Q. Do you know why you did not see [plaintiff] before
the accident?
A. No.
Peter Bavagnoli (Bavagnoli) lived in an apartment at the "corner of
Prospect Street and Central Avenue" since 1988. On January 28, 2021, he gave
a statement to plaintiff's investigator. The investigator's report stated:
Bavagnoli recalled he had called PSE&G several times
to report the overhead light is never on. Under
questioning he offered that he called before the May 31,
2017 accident. He advised the light kept going out.
The light had been a continuing problem and he had
called several times. The light was repaired about a
year ago and has been working properly since.
A-1189-23
4
On March 8, 2021, Bavagnoli gave a recorded statement to the same
investigator. The investigator's report recites the following exchange:
Q. We are standing here in front of your house. There
is another traffic light. There is a utility light in front
of the house.
A. Right.
Q. Has there been an issue with that light going on or
off?
A. Not since I made a service call a few years back. I
cannot confirm the date of that call but it was a
necessary call. I felt the situation out here presented a
lot of danger, mostly to my cars and also for people
walking. Anybody could have got mugged right on the
street. It was pitch black.
Q. This was when, though? Do you know anything
about the dates?
A. I would say this must have happened, the call had
to be placed right around the time of this accident. Was
it prior to or after the date of the accident, I cannot
confirm that. I don't know. I don't know what date I
made that call.
Q. You're not certain then, okay.
A. I'm not certain of the date but the call was made.
Q. Who did you call?
A. P[SE&G].
Q. How about . . . Lodi?
A-1189-23
5
A. I didn't call Lodi, no. I saw a utility worker here.
Q. When?
A. When this was a problem. I'm going to say, if I had
to guess how many years ago I made this call, I'm going
to have to say at least three years ago. Three to four
years ago. I'm guessing.
Q. When did you first notice it was out or when did
you first see it out?
A. Oh, probably three to four years ago. It became a
problem, it was never on. But I'm guessing three to four
years.
Q. Was it a problem in 2017?
A. I would have to say yes.
Q. How about the winter or the spring? Are you able
to recall?
A. I know when I did call it was warm weather. It
wasn't winter when I . . . made the call. It's a very good
possibility. It may have been right in the window [of]
three to four years, yeah.
Q. I[] know I'm reaching into your memory, and I
appreciate it.
A. I have a great memory, but this is a tough one even
for me. I'm trying to get it just right. Three to four
years is the best I can say. I'm guesstimating.
Q. Do you think you called before the accident date?
A-1189-23
6
A. I wish I could say one way or the other in perfect
candor, but I can't. I really can't confirm if it was before
that date of '17, was it the 31st?
Q. 31st.
A. I don't know if it was before that date or after. . . .
....
Q. . . . Do you remember it being out before the
accident?
A. The light being out before the accident?
Q. Yeah, this overhead light that we are standing, right
here.
A. I'm going to say four years ago that light was out.
That's about as accurate as I can say. Four years ago
there was a problem with that light.
Q. Do you remember, how many calls . . . you ma[d]e?
A. One call. It was rectified the next day.
....
Q. Do you know of anybody else, any neighbors, who
may have called about the light being out? Anybody
else [in] the neighborhood?
A. My motivation was I feared for my cars.
....
Q. This was when? You don't remember when this
was?
A-1189-23
7
A. I'm going to say it had to be about four years ago.
Four, four and a half years ago? In that neighborhood,
four years, yeah.
....
Q. It's been working now. As far back as you
remember, in 2017 it had been a problem? It had been
out, is that what you think?
A. Yeah. It would go on occasionally, but those
occasions were few and far between.
On May 20, 2021, Bavagnoli was deposed. He testified regarding a
streetlight located "about 20 yards [from] the intersection." He stated that he
called PSE&G once "within the last four years," regarding the streetlight being
"off more than it was on."
During the deposition, Bavagnoli was presented with a PSE&G job report
from October 4, 2018. The report stated he had called PSE&G regarding the
streetlight because the "light [wa]s out some nights and on others." Bavagnoli
testified that he could not "dispute that" the October call was the one call he
made to PSE&G. Bavagnoli explained the situation was corrected the next day.
He also testified he "never spoke to anyone from . . . Lodi relative to the light."
A-1189-23
8
PSE&G's and Lodi's responsibilities regarding the selection of streetlights
in the Borough are governed by the Tariff.2 In part, the Tariff provides:
Selection of Lighting Options: P[SE&G] will assist in
the selection of lighting options by making
recommendations for the most appropriate option based
on . . . [Lodi]'s defined illumination needs. However,
responsibility for the final selection shall, at all times,
rest with . . . [Lodi]. Any advice given by P[SE&G]
will be based on . . . [Lodi]'s statements and by giving
such advice, P[SE&G] assumes no responsibility, nor
shall it incur liability.
Plaintiff contended the intersection was insufficiently lit, either from the
wrong lights being installed and/or tree limbs obstructing light to the
intersection. Plaintiff asserted those conditions prevented Marino from seeing
the stop sign and plaintiff, and caused Marino to strike plaintiff. Also, plaintiff
contended tree limbs obstructed Marino's view of the stop sign causing him to
strike plaintiff. To support his theories, plaintiff produced expert opinions from
Bryan Smith, P.E. (Smith) and Jeffrey Balan, P.E. (Balan).
Smith authored two reports, August 9, 2019, and December 23, 2021. In
the August report, Smith relied on the "International Property Maintenance Code
2
"A tariff is a published schedule of rates, filed by a public utility and,
thereafter, 'applicable equally to all customers.'" N.J. Bell Tel. Co. v. W.
Orange, 188 N.J. Super. 455, 458 (App. Div. 1982) (quoting In re Saddle River
Application, 71 N.J. 14, 29 (1976)).
A-1189-23
9
(IPMC) 2012," which is published by the International Code Council (ICC).
According to Smith's report the IPMC is
a model code that regulates the minimum maintenance
requirements for existing buildings. It is a maintenance
document intended to establish minimum maintenance
standards for basic equipment . . . sanitation and fire
safety. Responsibility is fixed among owners,
operators and occupants for code compliance. The
IPMC provides for the regulation and safe use of
existing structures in the interest of the social and
economic welfare of the community. This code is
founded on principles intended to establish provisions
consistent with the scope of a property maintenance
code that adequately protects public health, safety and
welfare.
Smith cited the following provision of the IPMC:
§ 101.2 Scope. The provisions of this code shall apply
to all existing residential and nonresidential structures
and all existing premises and constitute minimum
requirements and standards for premises, structures,
equipment and facilities for light, ventilation, space,
heating, sanitation, protection from the elements, life
safety, safety from fire and other hazards, and for safe
and sanitary maintenance; the responsibility of owners,
operators and occupants; the occupancy of existing
structures and premises, and for administration,
enforcement and penalties.
In addition, Smith's opinion relied on an "excerpt from [the Illuminating
Engineering Society of North America] IESNA 2000." Using the IESNA, Smith
A-1189-23
10
opined that the "level of illumination recommended for the subject incident
location was 9 lux (0.9 foot[-]candles)." He stated
the illuminance levels measured during the site
inspection fairly replicated or were higher than that
expected on the night of the subject incident.
The illuminance level was measured and found to be
0.0 foot-candles at 8:45 [p.m.] on 5/23/18 at the
incident location, even with the defective street[]light
working in concert with the other streetlights.
According to Smith's analysis, "the illuminance level was measured to be
0.0 foot-candles at the incident location - even with all streetlights operational.
This level was not sufficient for this location as recommended by the" IESNA.
The "IESNA recommended an illuminance of 0.9 foot-candles."
Smith opined that "this was not the sole problem involved in the subject
incident." He stated
it was clear that with the non-operational streetlight, the
only available non-vehicular lighting caused [plaintiff]
to be illuminated only from behind - or "backlit" - from
the driver's point of view. Therefore[,] the most likely
reason that the driver did not see and thereby avoid
striking [plaintiff] was the condition caused by the non-
operational streetlight. This condition resulted in
[plaintiff] being "backlit" by the only other streetlight
present at the intersection. That being the case, the
darkened appearance of [plaintiff] would have readily
blended in with the other dark background items
present in the area. It would have been easier for a
driver to see and avoid a pedestrian with no streetlights
A-1189-23
11
at all, when compared to those which resulted in backlit
pedestrians. The vehicle's driver stated multiple times
to the police that he didn't see what his vehicle ran over
- he thought it had been a traffic cone. The police did
not issue a citation to the driver, therefore the police did
not believe that he had been at fault. However[,] with
the knowledge that [plaintiff] had been legally within
the crosswalk in front of a stop sign, the only plausible
explanation for the incident was that the driver could
not visually see [plaintiff] due to the lighting
conditions. It was also likely that the backlighting
condition worked to negate the illuminance afforded by
the motor vehicle's own headlights.
Smith asserted that "PSE&G had been advised by local residents of the
malfunctioning streetlight," and opined that "therefore [PSE&G] had adequate
advance notice to rectify the situation." Further, Smith stated that Lodi "should
have been on the watch for non-operational streetlights and then taken
appropriate action to have them repaired." Smith opined that Lodi "should be
on the watch for all potentially hazardous situations and conditions present
within their jurisdiction. . . . Lodi failed to ensure the non-operational streetlight
was repaired within a reasonable timeframe. Therefore . . . Lodi shared in the
responsibility for the subject incident."
In addition, Smith opined that
Lodi was also responsible for the maintenance and
trimming of all trees planted between the curb and the
sidewalk. It was most likely that . . . Lodi chose the
tree species and locations for all the trees around the
A-1189-23
12
incident intersection. The tree closest to the stop sign
facing the motor vehicle involved in the subject
incident was essentially hiding the stop sign from the
driver's view until the vehicle was approximately 10
feet away from it. While the speed limit was only 25
MPH on the [i]ncident street, the stopping distance at
that speed and a normal reaction time would take a
driver 85 feet to stop (see attached Brake/Stopping
Distances table). Even if we assumed a zero reaction
time for the driver, it would still take 30 feet to stop a
car travel[]ing at 25 MPH. Therefore . . . Lodi shared
responsibility for this incident due to their failure to
locate the trees so that they would not obliterate drivers'
view of important traffic signs ("stop" sign in this
instance) and/or trim the trees so that their branches
would not block the view of these signs.
In Smith's December 23, 2021, report he "offer[ed] the supplemental
review comments" after reviewing various depositions and exhibits. Not
included in the list of review items were the statements or deposition of
Bavagnoli. Further, Smith stated "Marino admitted [in his deposition] that he
was not aware of the stop sign at the incident intersection."
Smith stated:
I further believe that both . . . Lodi and PSE&G were
negligent in that both parties likely had either actual or
constructive knowledge of the streetlight . . . as being
non-functional on the incident date. This was due to
the mutual failure of both parties to take any measures
whatsoever to routinely check on the functionality of
the streetlights anywhere in Lodi. I believe that . . .
Lodi's failures were palpably unreasonable because: 1)
they were fully aware that the incident intersection was
A-1189-23
13
dangerous (due to the signage they posted there before
the incident occurred); 2) they failed to consult a
qualified electrical engineer to determine necessary and
proper illumination levels and equipment at the incident
location; 3) they failed to trim the tree adjacent to the
incident stop sign such that vehicle operators were
aware of the need to stop there; 4) they failed to conduct
any type of regular evaluations of streetlight
functionality within their municipality whatsoever; and
5) they had no knowledge of their agreement with
PSE&G with regard to their own responsibilities in
selecting appropriate lamps, etc. and coverage. Even a
simple twice a year lighting survey could be considered
a minimal and necessary safety measure to ensure the
safety of their residents. Lodi alleged that they did not
know why the intersection was originally identified as
being dangerous nor who removed the "dangerous"
signs. Lodi's actions/inactions were palpably
unreasonable. All of the opinions contained in my
8/9/19 report, as potentially modified above, remain
unchanged. All of these conclusions were made to a
reasonable degree of professional engineering
certainty.
During Smith's deposition, when asked if "the [IPMC] applie[d] to
municipalities," he responded "[n]o, not directly." Further, when asked whether
"the [IPMC] applie[d] to lighting conditions on public roads," he responded "not
directly, as far as the lighting provided." He acknowledged that he was "not an
expert in illumination," but asserted he was qualified to offer opinions on
backlighting because he was "an engineer trained in analyzing situations and
A-1189-23
14
conditions." Nonetheless, he acknowledged, as to backlighting, he never:
authored a report, was qualified as an expert, nor testified in court.
Moreover, Smith acknowledged that he could not "say PSE&G in any way
violated that Tariff." Indeed, he acknowledged that he had "not reviewed the
[T]ariffs in forming [his] opinion in this case." Nonetheless, Smith testified the
Tariff was not the "single governing principle," instead, he thought "there [we]re
other governing principles."
Balan issued three reports: August 9, 2019, December 22, 2021, and
January 14, 2022. In preparing the August report, Balan reviewed Smith's
report. Balan made the following findings:
The IESNA 2000 illumination level is recommended to
be 9 lux (approximately 0.9 foot[-]candles) for local
roadways with an R2 or R3 classification. The
measured illumination at the intersection on 5/23/18 at
8:45 [p.m.] was 0.0 foot[-]candles on the pavement
surface with all light fixtures operational.
The light fixture on Prospect Street located south of the
intersection was not operational at the time of the
incident causing loss of illumination in the general area
of the intersection as well as the approach to the
intersection in the direction the vehicle was traveling.
Un-trimmed tree branches obscured the stop sign at the
intersection from the traveling vehicles vantage point.
A vehicle would need to be approximately 10 feet from
the painted stop line in order to visibly see the stop sign.
A-1189-23
15
The streetlight is owned and operated by PSE&G and
was reported out several times months prior to the
incident.
According to Balan's analysis:
Based on the illumination measurements taken a year
after the incident, the intersection did not have
sufficient lighting to meet the recommended
illumination levels noted in [the] IESNA handbook.
Although this does not mean an absence of light at the
intersection, the levels were well below that of
normally accepted practices.
The un-trimmed tree at the intersection obscured the
visibility of the stop sign until it was too late to stop.
The posted speed limit at the intersection is 25[ ]MPH.
Based on this speed, it would take approximately 85
feet to stop allowing for human reaction time. Taking
the human reaction time out, it would still take 30 feet
to stop a vehicle at that speed. Based on [Smith]'s
[r]eport, the stop sign was only visible within 10 feet of
the intersection, shorter than the stopping distance of
the vehicle. Based on the New Jersey DOT [3] Design
Guide Manual:
6.3.1 There must be unobstructed sight
along both roads at an intersection and
across their included corner for distances
sufficient to allow operators of vehicles
approaching the intersection or stopped at
the intersection to observe pedestrians and
cyclists and carry out whatever maneuvers
may be required to negotiate the
intersection. It is of equal importance that
3
New Jersey Department of Transportation.
A-1189-23
16
pedestrians be able to view and react to
potential conflicts with vehicles.
The only streetlight at the intersection in operation was
located behind [plaintiff] as he walked across the
crosswalk. This would create a back-lighting effect
which would be observed as a shadow from the
vehicle's perspective.
Balan reached the following conclusions:
Conclusion No. 1: The amount of lighting at the
intersection was significantly below the required levels.
With one of the street[]lights not in operation, this
condition was exasperated. This lack of lighting at the
intersection caused a significant decrease in the ability
to observe obstacles, hazards or objects such as
pedestrians within the intersection.
Conclusion No. 2: The overgrown and unmaintained
tree branches did not allow the vehicle operator to see
the stop sign in the amount of time required to stop the
vehicle. The tree interfered with the required sight
distances required [by the] New Jersey DOT.
Conclusion No. 3: The only light available at the
intersection would back light the pedestrian causing the
pedestrian to become a shadow from the perspective of
the vehicle operator.
Conclusion No. 4: PSE&G is responsible for the
maintenance of the street[]lights along the roadways
and intersection. They were not maintained properly
after multiple requests to be placed back in operation.
In preparation of the December report, Balan reviewed various
depositions and exhibits. He stated:
A-1189-23
17
Based on the review of above-mentioned additional
documents, they confirm the area of incident being
quite dark, streetlight closest to the location of incident
not being functional, and tree branches being
overgrown and obstructing the stop sign. Especially
since the area was designated as "Dangerous
Intersection", [Lodi] should have been more proactive
in doing a better job with their maintenance obligations
regarding street lighting and tree trimming to provide a
safer environment for the residents.
Since [Lodi] was familiar with their agreement with
PSE&G and the limitations in getting full engineering
support on lighting related tasks, L[odi] should have
involved a qualified engineering firm, to act as the
Borough Engineer, for their lighting design to ensure
calculations, layout, specifications for type of lighting
system, and any other specific requirements are getting
designed in accordance with local, state, and federal
codes and common approaches.
After reciting from the PSE&G Tariff, Balan stated:
Knowing that PSE&G has never been provided with
engineered set of plans that would show locations,
spacing, pole height, type of luminaire, wattage,
voltage, and other related engineering data for
anywhere within . . . [Lodi], PSE&G could have [been]
more proactive in making recommendations to . . .
[Lodi] to make improvement to the existing lighting
systems present along Prospect Street. Although
PSE&G did not have adequate staffing to drive at night
to determine any potential inadequacies in light levels
and other maintenance relate[d] issues, knowing the
performance of their own lighting systems, seeing
"Dangerous Intersection" signs, and tall trees that
would obscure and block light levels on car driven
A-1189-23
18
surfaces, they should have at least made
recommendations to . . . [Lodi].
In Balan's January report, he referenced plaintiff's investigator's report
and noted "Bavagnoli recall[ed] reporting issues regarding the nearby light to
PSE&G several times as the light kept going out." He also noted Bavagnoli
"further state[d] that the light was a problem for years and not being functional
for [a] majority of times and having on-going issues for several years."
However, Bavagnoli's deposition was not included in the additional materials
reviewed.
Balan stated:
[I]t is uncertain if the light was truly operational at the
time of the accident or not.
The video [4] also shows the area of incident being quite
dark. Aside from the uncertainty with the operation of
the streetlight, and lack of adequate lighting to begin
with, overgrown tree branches are also evident from
this video. This issue contributes to the obstruction of
the stop sign. Even if the streetlight was functioning at
the time of the accident, the overgrown tree branches
clearly show reduced illumination levels at the street
level where the accident occurred and within the
intersection.
Another contributing fact is that even if the streetlight
was working at the time of the accident, the trees were
blocking the light levels so much that only light
4
Dashcam video from the police cruiser on the night of the accident.
A-1189-23
19
available at the intersection on the northwest corner
would back light the pedestrian causing the pedestrian
to become a shadow from the perspective of the vehicle
operator, adding more darkness to an already dark area.
In Balan's deposition he testified that he "serve[d] on the IESNA board."
Further, he had "been a member since . . . 2000." In addition, he was "on the
board of managers . . . [and was] the treasurer for the local chapter . . . for many
. . . years."
The following exchange occurred during Balan's deposition:
Q. . . . Let's talk about [the] IESNA for a moment. You
are a member of that, sir?
A. Yes, I am.
Q. Do you know what IESNA 2000 is, sir?
A. Yeah, it is the handbook guideline
recommendations that was published by IESNA in
2000.
Q. Okay. Is it your understanding . . . that IESNA 2000
applies to lighting that is in place or lighting that is to
be put in place or constructed.
A. Yeah, this would be for lighting that is going to be
either designed as new or if you are to modify and
upgrade lighting then you would follow those
guidelines.
Q. Right. So [the] IESNA 2000 standard that you cite
do[es] not apply to existing lighting systems, correct.
A-1189-23
20
A. That particular version of the handbook does not.
Q. Okay. So what you've cited in your expert report
does not apply to the Lodi lights at issue because they
are already existing, correct?
A. Right, not that particular version, yes.
Q. Well, you haven't cited any other version, correct?
A. Correct, correct.
Q. So your citing of IESNA 2000 in your expert report
is inapplicable to the Lodi system at issue, correct?
A. Yeah, that was basically just a reference from the
lighting illumination standpoint and reference to a
guideline that again was applicable at the time that the
report was written.
Q. But it was inapplicable to . . . Lodi's existing system,
correct?
A. That's correct, unless I find out –
Q. If the town wanted to put a new system in, then
those guidelines could be applicable, correct?
A. Correct.
Q. Okay. And that is not what happened in this case,
right?
A. No, unless I know like what year that was built and
. . . that is what I do, I track down the guidelines that
would be applicable at the time of install.
Q. Were these lights installed in 2000, sir?
A-1189-23
21
A. I don't think so but I don't know.
Q. So if it can be proven that these lights went up
before the year 2000, then your reference to IESNA in
your report is inapplicable, correct?
A. That is correct.
Further, as to the trees being overgrown, Balan acknowledged he had no
standard for what "overgrown" meant, and testified it was just his "opinion when
[he] s[aw the] trees."
As to PSE&G, Balan acknowledged that he only relied on the Tariff to
establish a standard of care for PSE&G. Moreover, he acknowledged PSE&G's
responsibilities under the Tariff and testified that "the [T]ariff d[id]n't require
[PSE&G] to be proactive."
On October 13, 2023, the trial court heard plaintiff's and PSE&G's
arguments on PSE&G's motion for summary judgment. PSE&G contended: (1)
"there [wa]s no statute or regulation that impose[d] a duty upon [it to] provide[]
lighting for the streets of" Lodi; (2) if "notice" to PSE&G created a duty,
"plaintiff failed to demonstrate any competent evidence that the light had been
reported as out or non-functional prior to the accident"; and (3) "there[ wa]s no
competent evidence to demonstrate the light was out at the time of the event ."
A-1189-23
22
In an oral opinion, the trial court found PSE&G had no duty to "provide[]
lighting for the streets of the Borough." The court noted PSE&G's reliance on
Sinclair v. Dunnigan, 905 F. Supp. 208, 214 (D.N.J. 1995), for the proposition
that "there is no statute or regulation that imposes a duty upon [PSE&G to]
provide[] lighting for" Lodi.
As to notice and operability, the trial court found: (1) "multiple members
of the Sanchez family lived in close proximity to the location [of the
intersection] but . . . testified that they never reported the subject streetlight
being out" and (2) plaintiff's "heav[]y and exclusive[]" reliance on Bavagnoli
was unavailing because "[b]y [plaintiff's] own admission, [Bavagnoli] d[id] not
know when he made the call. [Bavagnoli wa]s certain he made one call. That
call is corroborated by the records of P[SE&G] being made after the accident."
As to plaintiff's alternative theory, that PSE&G was "required to advise
[Lodi] with regard to light design and placement" or "provide streetlights with
sufficient illumination for crosswalks," the trial court found no "statute, rule, or
case law that require[d] a public utility . . . to undertake" those responsibilities,
relying on the Tariff. Based on the Tariff, the trial court concluded PSE&G did
not set the requirements for illumination at intersections. The court noted
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23
plaintiff's experts agreed with this conclusion. The court granted PSE&G
summary judgment.
Next, the trial court considered Lodi's motion for summary judgment.
Lodi argued: (1) there was no evidence the incident even took place in the
crosswalk; and (2) plaintiff could not satisfy the New Jersey Tort Claims Act
(TCA)5 because: (i) there was no dangerous condition, (ii) it had no notice of
"a potentially dangerous lighting condition," (iii) its actions were not palpably
unreasonable, and (iv) there was no causation. Lodi also filed a motion to bar
plaintiff's experts. The court requested additional briefs regarding whether the
experts offered "net opinions."
Plaintiff filed a motion for reconsideration regarding the grant of summary
judgment to PSE&G. On November 16, 2023, the trial court heard the parties'
arguments concerning plaintiff's motion for reconsideration. In an oral opinion,
the court denied reconsideration, finding the motion did not "raise anything
different or new or anything [the court] did[ no]t consider." For clarity, the court
stated PSE&G had "neither [actual] notice nor constructive notice." In addition,
the court stated PSE&G did not set the requirements for illumination at the
intersection.
5
N.J.S.A. 59:1-1 to – 12-3.
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24
The trial court also considered plaintiff's and Lodi's arguments regarding
the "net opinion rule." Lodi argued plaintiff's experts' opinions must be barred
under the rule. As to plaintiff's expert, Smith, Lodi argued he was "not an
accident reconstructionist" and therefore could not offer an opinion "as to where
the accident happened, because he did no[t conduct] an investigation." Instead,
Smith "base[d his opinion] upon . . . his conversations with . . . plaintiff," who
"had no recollection of the night."
Further, Lodi objected to Smith's report because it was "based upon the"
IPMC which was "completely inapplicable . . . to public roadways, within . . .
Lodi."
In addition, Lodi argued Balan's opinion must be barred because he was
also "not an accident reconstruction expert," "never actually spoke with . . .
plaintiff to see how the accident happened," "never visited the scene," and
"never conducted any kind of investigation."
Further, Lodi contended Balan relied upon the IESNA "standard, which
. . . ha[d] absolutely no bearing . . . or no authority over roadways within" Lodi.
On December 14, 2023, the trial court issued an oral opinion. The court
explained that "plaintiff present[ed] an argument that . . . multiple series of
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25
negligent acts combined to cause an impermissible back lighting condition,
which . . . obscured . . . Marino's view of . . . plaintiff[,] causing a collision."
As to Smith, the trial court considered Smith's admission that the IPMC
"d[id] not address nor consider street lighting, and/or the adequacy of same."
Further, the court considered that Smith was not "an accident reconstruction[ist]
. . . nor . . . an expert in lighting." "As to his expertise on the issue of back
lighting, . . . Smith ha[d] never rendered an opinion o[n] back lighting, and ha[d]
only read up on the issue."
In addition, the trial court noted Smith's opinion "relie[d] upon a
conclusion that . . . [Lodi] had notice of both inoperability [and] the
street[]light's insufficient illumination." However, the court found Lodi had
neither "actual notice" nor "constructive notice of [the] inoperability of the
street[]light." Further, the court found Smith's opinion that Lodi "had a
responsibility to . . . check on the functionality of the street[]lights" lacked a
basis in a "standard code of customary practice."
Further, the trial court noted Smith "determined the stop sign was hidden"
however, the court—while accepting the determination as true—also noted
Marino "was . . . aware of the physical characteristics of the intersection, and
. . . the presence of the stop sign."
A-1189-23
26
As to Balan, the trial court considered his admission that the IESNA was
"not intended to be applied to existing lighting systems, until such systems
[we]re completely redesigned." Further, the court considered Balan "never
visited the accident scene before rendering his opinion. Never talked to . . .
plaintiff. And relied on photos in forming his opinions, that . . . did not
demonstrate the issue of back lighting."
The trial court found that "[a]lthough both . . . plaintiff's experts [went] to
great lengths to find the actions of . . . Lodi palpably unreasonable for failure to
provide adequate illumination, neither expert provides any standard [,] . . .
statutes or regulations, placing such a duty upon" Lodi. The court found
"plaintiff's experts reports f[e]ll short" and granted Lodi summary judgment.
On appeal, plaintiff asserts the trial court erred in granting PSE&G
summary judgment because PSE&G had a duty: (1) "not to install ineffective
lighting"; (2) "to provide adequate lighting"; (3) to provide "pedestrians . . .
streetlights with sufficient illumination for a crosswalk"; (4) of "proper
inspection" and "reasonable inspection"; and (5) under the Tariff "to recommend
'appropriate [lighting] option[s] based on the customer's needs.'"
Further, plaintiff argues PSE&G "is not immune from liability to plaintiff
for contributing to the installation of defective lighting" and "cannot escape
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27
liability [by] hiding behind the Tariff," because, under the common law, the
Supreme Court abrogated a water company's immunity in Weinberg v. Dinger,
106 N.J. 469 (1987), and we should similarly do so here.
Plaintiff states "a property owner will be liable for a dangerous condition
that caused injury when it had actual or constructive notice of said condition ,"
citing Jeter v. Sam's Club, 250 N.J. 240, 251. Plaintiff contends "PSE&G had
actual notice of the hazard existing in the intersection . . . [because] it installed
the . . . lamp which gave rise to the backlight condition." Moreover, PSE&G
had constructive notice of the "hazard" because "its employees worked all the
time all over Lodi and on Prospect Street [and had] to have noticed the . . . feeble
. . . lighting . . . and the streetlight being more off than on over the years." Lastly,
plaintiff argues Bavagnoli's "confused" testimony "about the timing of [his]
call" should be a jury question.
Plaintiff also contends the trial court erred in granting Lodi summary
judgment. Plaintiff argues that summary judgment was improper because: (1)
Lodi's conduct was "palpably unreasonable" under N.J.S.A. 59:4-2; and (2) he
was not required to prove Lodi had "notice" of the hazard because Lodi created
the condition, N.J.S.A. 59:4-3.
A-1189-23
28
Plaintiff argues that Lodi's "streetlight purchase process" was palpably
unreasonable because:
Key Lodi officials, who worked for . . . [Lodi] for
decades, had no knowledge about the . . . process.
Moreover, these officials failed to retain proper
engineering expertise to ensure that competent
guidance was obtained from PSE&G about the
suitability of street lighting near an intersection that
Lodi deemed a dangerous intersection. The engineer
retained by Lodi for various services in the Borough
testified that he was never called upon to provide any
lighting service to Lodi.
Further, although plaintiff argues he need not prove notice, he adds Lodi
"had constructive notice of the hazard since it had existed for a very long time."
Indeed, plaintiff contends "[b]oth the [Lodi a]dministrator and the [p]ublic
[w]orks [d]irector had decades to uncover that street lighting was not adequate
in the intersection . . . [Lodi] itself designated a dangerous intersection."
Finally, plaintiff and Lodi disagree as to the import of the trial court's
opinion regarding plaintiff's experts. Plaintiff argues "[t]he trial court erred in
barring the testimony of [his] liability experts" because "[t]he opinions offered
by . . . Smith . . . and . . . Balan . . . do not constitute 'net opinions.'" Instead,
plaintiff contends the experts are qualified under N.J.R.E. 702 and could "assist
the trier of fact," and the opinions have the proper foundation under N.J.R.E.
703.
A-1189-23
29
In response, Lodi asserts "the [m]otion to [b]ar [plaintiff's experts] was
rendered moot by [the trial court]'s careful and considered analysis of the
evidence in the case and the [m]otion to [b]ar was, in fact, withdrawn." Lodi
states the trial court "found that [p]laintiff's experts' opinion contained
insufficient proofs to support the necessary analysis of whether a dangerous
condition existed and whether . . . Lodi's conduct was palpably unreasonable."
Because we conclude the trial court's opinion barred plaintiff's experts'
opinions and that analysis provided additional support to grant summary
judgment, we consider whether the experts authored inadmissible "net
opinions."
II.
We review the grant of summary judgment de novo, applying the same
legal standards as the trial court. Green v. Monmouth Univ., 237 N.J. 516, 529
(2019).
The judgment or order sought shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact challenged and that the moving
party is entitled to a judgment or order as a matter of
law. 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,
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30
would require submission of the issue to the trier of
fact.
[R. 4:46-2(c).]
"The factual findings of a trial court are reviewed with substantial deference on
appeal, and are not overturned if they are supported by 'adequate, substantial
and credible evidence.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115
(2014) (quoting Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293
(2001)).
"If there is no genuine issue of material fact, we must then 'decide whether
the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007),
overruled on other grounds by Wilson ex rel. Manzano v. City of Jersey City,
209 N.J. 558, 563 (2012)). We review issues of law de novo and accord no
deference to the trial judge's conclusions of law. See Nicholas v. Mynster, 213
N.J. 463, 478 (2013). "A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any spec ial
deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995).
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31
A.
Plaintiff's claims against PSE&G are grounded in negligence. "To prevail
on a claim of negligence, a plaintiff must establish four elements: (1) that the
defendant owed a duty of care; (2) that the defendant breached that duty; (3)
actual and proximate causation; and (4) damages." 6 Fernandes v. DAR Dev.
Corp., 222 N.J. 390, 403-04 (2015).
Plaintiff argues PSE&G had a duty to: (1) "install" and "provide"
"adequate" and "effective" lighting; (2) "recommend appropriate" lighting based
on Lodi's needs under the Tariff; and (3) provide "proper" and "reasonable
inspection[s]."
"In most negligence cases, the plaintiff is not required to establish the
applicable standard of care." Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 406 (2014). Ordinarily, "[i]t is sufficient for [the] plaintiff to show what
the defendant did and what the circumstances were. The applicable standard of
conduct is then supplied by the jury[,] which is competent to determine what
precautions a reasonably prudent [person] in the position of the defendant would
have taken." Id. at 406-07 (alterations in original) (quoting Sanzari v.
6
For purposes of the motion, Sanchez's allegation that he was damaged was not
contested.
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32
Rosenfeld, 34 N.J. 128, 134 (1961)). "Such cases involve facts about which 'a
layperson's common knowledge is sufficient to permit a jury to find that the duty
of care has been breached without the aid of an expert's opinion.'" Id. at 407
(quoting Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)).
However, there are cases when "the 'jury is not competent to supply the
standard by which to measure the defendant's conduct,'" "and the plaintiff must
instead 'establish the requisite standard of care and [the defendant's] deviation
from that standard' by 'present[ing] reliable expert testimony on the subject,'"
ibid. (alterations in original) (first quoting Sanzari, 34 N.J. at 134-35; and then
quoting Giantonnio, 291 N.J. Super. at 42). Otherwise, the jury is left to
speculate. See ibid.
There is no dispute that here, plaintiff is required to proffer an expert's
opinion regarding proper lighting. The fields of illumination and lighting of
streets and roadways "concern[] . . . subject matter[s] that [are] . . . beyond the
ken of the average juror." Jacobs v. Jersey Cent. Power & Light Co., 452 N.J.
Super. 494, 504 (App. Div. 2017) (quoting Landrigan v. Celotex Corp., 127 N.J.
404, 413 (1992)).
A-1189-23
33
A "deferential approach [is given] to a trial court's decision to admit expert
testimony, reviewing it against an abuse of discretion standard." Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).
N.J.R.E. 702 provides "[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise."
Also, Rule 703 states "[t]he facts or data in the particular case upon which
an expert bases an opinion or inference may be those perceived by or made
known to the expert at or before the proceeding."
"Qualified expert testimony is admissible to assist the jury, N.J.R.E. 702,
but there must be a factual and scientific basis for an expert's opinion." Jimenez
v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div. 1996). Thus, "[a]n
opinion lacking in foundation is worthless." Ibid. Therefore, "[w]hen an
expert's opinion is merely a bare conclusion . . . i.e., a 'net opinion,' it is
inadmissible." Ibid. "In essence, the net opinion rule requires the expert witness
to give the why and wherefore of his expert opinion, not just a mere conclusion."
Ibid. "Where, . . . an expert offers an opinion without providing specific
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34
underlying reasons . . . he [or she] ceases to be an aid to the trier of fact and
becomes nothing more than an additional juror." Ibid.
Smith's opinion relies on the IPMC, which, by its very terms, does not
apply to illumination and lighting of streets and roadways. Indeed, during his
deposition, Smith acknowledged the IPMC had "no direct" application to Lodi
or "lighting conditions on public roads."
Further, Smith's and Balan's opinions relied on the IESNA 2000.
However, Balan admitted the IESNA 2000 applied to "lighting that is going to
be either designed as new or if you are to modify and upgrade lighting systems."
Balan acknowledged that the IESNA 2000 version was inapplicable to Lodi's
existing system.
Moreover, Smith testified that he could not say PSE&G violated the
Tariff. While he thought there were other "governing principles," he failed to
state them. Moreover, Balan stated he used PSE&G's Tariff to establish
PSE&G's duty to be more "proactive," but testified that "the [T]ariff d[id]n't
require [PSE&G] to be proactive."
In addition, Smith stated "PSE&G had been advised by local residents of
the malfunctioning streetlight." Balan stated "multiple requests" were made to
PSE&G to put the streetlights "back in operation," and he noted "Bavagnoli
A-1189-23
35
recall[ed] reporting issues . . . several times." However, these facts are not
supported in the record. The only witness, regarding notice to PSE&G, was
Bavagnoli and he confirmed he called once after the accident.
Also, Smith stated "Marino admitted [in his deposition] that he was not
aware of the stop sign at the incident intersection." However, Marino
consistently said he was familiar with the intersection and the stop sign.
Therefore, we conclude Smith's and Balan's expert opinions are "net
opinions" as to duty and breach because the opinions lack foundation and rely
on facts that were not supported in the record. We conclude the trial court's
decision to bar plaintiff's experts' opinions was not an abuse of discretion.
Therefore, plaintiff's claims fail because he cannot establish duty or breach.
Nonetheless, we address causation for completeness. "[W]hile causation
is generally a question of fact, 'the question becomes an issue of law when there
is no evidence from which a jury could reasonably find the required proximate,
causal nexus between the careless act and the resulting injuries.'" Arthur
Anderson LLP v. Federal Ins. Co., 416 N.J. Super. 334, 348 (App. Div. 2010)
(quoting Port Auth. v. Arcadian Corp., 189 F.3d 305, 318-19 (3d. Cir. 1999)).
A-1189-23
36
The underlying premise of plaintiff's theory of liability is that PSE&G's
failures concerning the lighting of the intersection resulted in Marino's inability
to see Sanchez causing Marino to strike him in the crosswalk.
However, Marino, a sixty-three-year resident of Lodi, consistently stated
he was familiar with the roadway and the stop sign. In fact, in Marino's
statement, he indicated he was slowing down as he approached the intersection
because of the stop sign. Under these circumstances, and even assuming below
standard lighting of the intersection, the lighting was of no moment because
Marino was aware of his obligation to stop and was complying.7 Based on these
uncontested facts, plaintiff cannot establish causation as a matter of law. See
Arthur Anderson LLP, 416 N.J. Super. at 348.
Therefore, we conclude plaintiff's proffered experts' opinions are barred
as "net opinions," and thus he cannot establish duty or breach. Further, because
lighting was immaterial to Marino's knowledge of his obligation to stop—he was
familiar with the roadway, the stop sign, and was stopping before the
crosswalk—plaintiff cannot establish causation. Thus, summary judgment was
properly granted to PSE&G.
7
See N.J.S.A. 39:4-144(a).
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37
B.
For plaintiff to maintain a claim against Lodi, a "public entity,"8 he
must establish the existence of a "dangerous condition,"
that the condition proximately caused the injury, that it
"created a reasonably foreseeable risk of the kind of
injury which was incurred," that either the dangerous
condition was caused by a negligent employee or the
entity knew about the condition, and that the entity's
conduct was "palpably unreasonable."
[Stewart v. N.J. Tpk. Auth./Garden State Parkway, 249
N.J. 642, 656 (2022) (quoting Vincitore v. N.J. Sports
& Exposition Auth., 169 N.J. 119, 125 (2001) (quoting
N.J.S.A. 59:4-2)).]
The statutory "elements are 'accretive; if one or more of the elements is not
satisfied, a plaintiff's claim against a public entity alleging that such entity is
liable due to the condition of public property must fail.'" Ibid. (quoting Polzo
v. Cnty. of Essex, 196 N.J. 569, 585 (2008)).
Under N.J.S.A. 59:4-1(a), a "'[d]angerous condition' means a condition of
property that creates a substantial risk of injury when such property is used with
due care in a manner in which it is reasonably foreseeable that it will be used."
As we explained above, plaintiff is required to proffer an expert opinion that the
8
N.J.S.A. 59:1-3.
A-1189-23
38
lighting created a "dangerous condition" in the intersection. Plaintiff failed in
this respect because his experts' opinions were inadmissible "net opinions."
Moreover, plaintiff's contention that Lodi was responsible for tree limbs,
that obstructed the lighting of the stop sign or the stop sign itself, is unavailing
because Marino testified he was aware of the stop sign and was slowing down
as he approached the intersection. Therefore, any obstruction caused by the tree
limbs was of no moment considering Marino was aware of the sign and was
adhering to it. Based on these unrefuted facts, plaintiff cannot establish
causation as a matter of law. See Arthur Anderson LLP, 416 N.J. Super. at 348.
The court properly granted Lodi summary judgment.
Affirmed.
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39