In Occhifinto v. Olivo Construction Co., decided by the New Jersey Supreme Court on May 7, 2015, the Court was asked to decide whether a third party beneficiary to an insurance policy could be considered a “prevailing party” entitled to recover attorneys fees under Rule 4:42-9(a)(6), when it prevailed against the carrier in the declaratory judgment action but did not prevail in the liability action. Robert Occhifinto sued Robert S. Keppler Mason Contractors LLC (“Keppler”) and others, seeking damages for the alleged defective construction of an addition to his warehouse. Keppler was defended by its insurance carrier, Mercer Mutual Insurance Company (“Mercer”). However, before the trial of the liability matter, Mercer filed a declaratory judgment action, challenging its obligation to provide coverage and defend Keppler in the liability action.

Occhifinto, on behalf of Keppler, contested the claims raised by Mercer and filed a counterclaim, asserting that Mercer had a duty to defend and indemnify Keppler under the policy and that Mercer was obligated for the counsel fees he incurred in defending the declaratory judgment action. The trial court found that Mercer was required to defend and indemnify Keppler under the policy but reserved judgment as to Occhifinto’s claim for attorneys fees until the conclusion of the liability action.

The liability action proceeded and Occhifinto did not prevail against Keppler. The jury found that Keppler did not proximately cause the failure of the warehouse floor and awarded no damages. After trial, Occhifinto tried to recover counsel fees from Mercer pursuant to Rule 4:42-9(a)(6), which permits an award of attoneys fees in “an action upon a liability or indemnity policy of insurance in favor of a successful claimant.” The trial court denied Occhifinto’s motion, holding that he was not a successful claimant in the liabilty action because he was not entitled to indemnity coverage in the liability action – due to his failure to obtain an award against Keppler.

The Appellate Division affirmed. The Supreme Court granted certification on the limited issue of Occhifinto’s right to counsel fees.

The Supreme Court held that Occhifinto was a successful claimant entitled to counsel fees under this court rule. The trial court had determined that Mercer would have been required to indemnify Keppler in the event Keppler was found liable. By forcing Mercer to defend the liability action, Occhifinto obtained a favorable adjudication on the merits of a coverage question, rendering Occhifinto a successful claimant under Rule 4:42-9(a)(6).

The Court found that the term “successful claimant” is broadly defined as a party that succeeds on any significant issue in litigation which achieves some benefit to the parties bringing the suit. This term also includes a third party beneficiary of a liability insurance policy who litigates a coverage question against a defendant’s insurance carrier.

Here, a coverage question includes the duty to defend question. Even though, there was ultimately no indemnification because Keppler was found not liable to Occhifinto, regardless, Occhifinto had been successful in persuading the trial court that indemnification would have been owed, had there been an adjudication against Keppler in the underlying liability action. Hence, the Supreme Court held that Occhifinto was a successful claimant and was entitled to an award of attorneys fees under this court rule.

Babysitter Carol Collins was pushing three-year old Kirsten Jennings in a shopping cart at a jogging pace when she fell, pulling the cart down and causing injuries to Kirsten. In Jennings v. Collins, No. A-0750-13 (N.J. App. Div. Mar. 30, 2015), Kirsten’s father, plaintiff Kevin Jennings, filed suit as his daughter’s guardian ad litem against Collins. Collins submitted the matter to her homeowner’s insurance company, Bay State, for defense and indemnification. On the theory that the policy did not apply to Collins’ coverage due to her employment as a babysitter, Bay State filed a separate action seeking declaratory judgment that it had no obligation to defend or indemnify Collins.

The parties entered into a $75,000/$225,000 high-low settlement agreement that was triggered by the result of Bay State’s declaratory judgment action, in which it had reserved its right to appeal. Thus, if Bay State did not succeed on appeal and it had to protect Collins’ interests, the parties would settle for $225,000. On the other hand, if Bay State was successful on appeal, Collins would settle for $75,000. Bay State was not successful on appeal and thus settled for $225,000.

Thereafter, the plaintiffs filed a motion seeking an award of counsel fees. A filing permitted by a court rule which allowed the award of counsel fees in declaratory judgment actions that resulted in the claimant’s favor. The trial court denied the plaintiffs’ motion; the plaintiffs appealed.

The plaintiffs’ theory on appeal was that the high-low settlement agreement only applied to the Jennings’ negligence lawsuit and the settlement did not prevent them from seeking counsel fees for their successful prosecution of the declaratory judgment action under the rule.

The Appellate Division disagreed, finding that the court rule permitting counsel fees to successful claimants was intended to discourage insurance companies from making groundless disclaimers of coverage and to allow the insured the benefits of the insurance contract without the burden of a judicial determination that the insured was entitled to such protection. The award of counsel fees, however, is not mandatory and relies on the trial judge to use his “broad discretion” regarding the circumstances in which counsel fees are appropriate.

Here, the Appellate Division held that the high-low settlement agreement, drafted by plaintiff, established a hard cap on the amount Bay State would be required to pay at the conclusion of both actions and the settlement agreement properly established that the plaintiff’s counsel fees would come out of the gross settlement. Moreover, the court found, that if plaintiff’s counsel wanted to reserve the right to present a claim for counsel fees as to the coverage issue, that element should have been expressly included in the agreement.

This week’s article was written by my associate attorney, Voris M. Tejada, Jr., Esq.

The plaintiff, David Johnson, was injured when he slipped and fell on an icy patch underneath some newly fallen snow on the sidewalk abutting the defendants homeowners’ property.  In Johnson v. Dymowski, 2015 N.J. Super. Unpub. LEXIS 895 (App. Div. Apr. 21, 2015), the plaintiff argued that the defendants negligently failed to take action to correct the condition on their sidewalk.

The record revealed that, for many years, the defendants knew that their neighbors’ sump pump discharged water that flowed across the defendants’ yard and then pooled on the sidewalk where plaintiff fell.  The defendants were aware this pooled water froze in cold weather, and had adopted a practice of applying a de-icing agent to the affected area. The defendants had salted the sidewalk both the night before and the morning of the incident.

The sidewalk where plaintiff fell abutted a residential property.  Citing the Supreme Court of New Jersey’s decision in Luchejko v. City of Hoboken, 207 N.J. 191 (2011), the Court noted an “unbroken series” of New Jersey Supreme Court decisions establishing the difference in the duties imposed on residential versus commercial property owners.

Under the common law rule, property owners were not liable for dangerous sidewalk conditions absent active misconduct.  The Supreme Court of New Jersey, in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), later departed from that rule with its decision to impose a duty to maintain abutting sidewalks upon owners of commercial property.  However, in cases since Stewart, the Supreme Court of New Jersey had repeatedly emphasized that the common law rule survives as to residential property owners.  Under those decisions, while a duty is imposed upon owners of commercial property to maintain abutting sidewalks, residential homeowners are not liable unless they created or exacerbated a dangerous sidewalk condition.

The plaintiff attempted to distinguish Luchejko by arguing that Luchejko only protected residential property owners from liability for injuries caused by naturally occurring sidewalk conditions.  Here, the plaintiff argued, the icy patch did not occur naturally, but was rather an artificial hazard created by the neighbors’ sump pump.  The Appellate Division rejected plaintiff’s argument, noting that the distinction between naturally occurring and man-made hazards is nowhere found in Luchejko.  No mention of the cause of the defect as having any impact on a residential property owner’s duty and consequent liability was made in the relevant case law.  Rather, the central inquiry remained whether the property is commercial or residential.

Here, the Appellate Division found that the sidewalk abutted residential property and that the defendants did nothing to cause or exacerbate the defective condition caused by their neighbors’ sump pump.  As a result, the defendants had no duty to correct the problem with the sidewalk caused by the sump pump and had no liability for plaintiff’s injury.

The plaintiff also argued that the defendants had a duty, established by a municipal ordinance, to keep their sidewalk in good repair.  However, the appeals court noted that the existence of this ordinance did not give rise to a private cause of action for its alleged breach, and that the ordinance therefore could not provide a basis for a claim against the defendants.  The Appellate Division thus concluded that there was no genuine issue as to any material fact, and affirmed the trial court’s grant of summary judgment in the defendants’ favor.

The 87 year old plaintiff, Anna Mae Bolge, was injured when she was struck by a wind-blown shopping cart in the parking lot of a Walmart. In Bolge v. Wal-mart Stores, Inc., 2015 U.S. Dist. LEXIS 10056 (D.N.J. Jan. 29, 2015), the plaintiff claimed that Walmart was negligent in the setup of its parking lot, which led to the creation of a dangerous condition that proximately caused the incident.

The entire incident was caught on video. A customer with a shopping cart arrived at a mini-van, which was parked in a handicapped spot. The customer then leaves the cart unattended and drives away. After the customer enters the vehicle, a Walmart cart-pusher enters the video on the right hand side. About 19 seconds after the mini-van pulls out of the parking spot, and 45 seconds from when the cart had been left unattended, the shopping cart began to move. Seconds later, it strikes the Plaintiff, knocking her to the ground. Thus, a total of 53 seconds elapsed from when the cart was left unattended until it struck the Plaintiff.

Plaintiff tried to allege a violation of the ADA, claiming that Walmart violated the ADA by not having a cart corral near the handicapped parking space. The court found that plaintiff cannot use the ADA as evidence of Walmart’s negligence. The ADA was enacted for the benefit of qualified disabled persons. The Plaintiff cannot obtain the ADA’s benefit in her negligence action, when the ADA did not apply to her in the first place.

The plaintiff also claimed that Walmart was negligent and breached its duty of care by allegedly failing to follow its inclement weather plan and only having one cart pusher outside on the day. Specifically, the Plaintiff contended that the setup of the lot led to the creation of a dangerous condition because, by not have a cart corral near the handicapped parking space, the disabled parkers are required to leave the carts in an area surrounding the parking space, which permits carts to be blown by the wind and injure patrons such as Plaintiff.

The Court rejected both of these arguments. It found both of them to be speculative. It was pure speculation that if Walmart followed the inclement weather plan, that a cart pusher would have been there at the exact second of Plaintiff’s injury. Further, it was also speculative that the Plaintiff would not have been injured if there was a cart corral near the handicapped spot. The Plaintiff assumed that a disabled person would be more likely to leave their cart next to their parking spot, rather than the nearest cart coral.

Moreover, the District Court pointed out that the Plaintiff must show that Walmart knew of the unsafe condition for a period of time prior to the Plaintiff’s injury sufficient to permit correction of it, or the condition had existed for a sufficient length of time prior to Plaintiff’s injury that, in the exercise of reasonable care, Walmart should have known of its existence and corrected it. The Court found that the 53 seconds that elapsed from the time the cart was left unattended until it struck the plaintiff cannot be deemed sufficient time to give Walmart notice of the alleged dangerous condition. Hence, the Court found that the Plaintiff failed to show that a genuine issue existed as to whether Walmart breached its duty of care and granted summary judgment as to Walmart, which dismissed the complaint.

In Zheng v. Santos, 2015 N.J. Super. Unpub. LEXIS 331 (App. Div. Feb.23, 2015), the issue was whether the defendant homeowners Abelardo and Prescilla Santos had tort liability for the personal injury of the plaintiff Pin Lan Zheng resulting from her slip and fall due to snow and ice on the public sidewalk in front of their home. The law in New Jersey is well settled that residential property owners are generally immune from liability for accidents resulting from snow and ice on public sidewalks abutting their property. However, less settled is whether an owner-occupied property with a small number of dwelling units should be considered a residential or commercial property.

A commercial property owner has a duty to maintain a public sidewalk adjacent to its property. That duty includes snow and ice removal. A residential property owner does not have this legal duty to maintain the adjacent public sidewalk to their home. Thus, while a residential property owner would generally be immune for an injury caused by the condition of an abutting public sidewalk, a commercial property has no such immunity.

Residential rental properties are considered commercial properties if not owner occupied. While it is clear that a two family owner occupied home remains a residential property for purposes of sidewalk liability, a three unit property falls into a grey area in determining if it is residential or commercial.

In Santos, the defendant homeowners bought their 3 story home in 1975 and lived in the first floor apartment as their only residence for more than 35 years. They and their adult daughter lived on the first floor and the ground and second floor apartments were rented to non-relatives.

The defendants paid off their mortgage on the property 20 years before the plaintiff’s accident. Thus, their expenses for the property were for property taxes, insurance, utilities, repairs and periodic expenses to maintain the property. Their annual expense for the property was about $26,000 and the income received for rental ranged from $22,800 to about $30,000 per year, not counting improvements. The trial court judge viewed the rental income and the expenses no better than equal or a loss. Accordingly, he found that the primary purpose of the property was residential and was not owned by defendants for investment or income-generating purposes.

On appeal, the plaintiff argued that it is the capacity of the property to generate income that is the most relevant consideration. The plaintiff argued that a mortgage free property utilized to generate substantial rental income should be considered a commercial property.

However, the Appellate Division ruled that the relevant question is the primary use of the property. Because the defendants used the property as their long-time residence, the court upheld the trial court’s determination that the nature and purpose of the ownership was primarily residential, not commercial. Thus, it affirmed the dismissal of the plaintiff’s case.

Plaintiff Hiram Jimenez ordered a steak fajita at Applebee’s. His food was brought to him in a sizzling skillet. After the waitress walked away, he bowed his head close to the table over his food to pray and grease from the food popped up and burned his face, neck, and arms. In  Jimenez v. Applebee’s Neighborhood Grill & Bar, 2015 N.J. Super. Unpub. LEXIS 430 (App. Div. March 4, 2015), the plaintiff sued Applebee’s, claiming that he was injured as a result of the defendant ‘s negligence when he came into contact with a dangerous and hazardous condition, specifically “a plate of hot food.”

The defendant Applebee’s filed a motion for summary judgment, arguing that even if the plaintiff established the existence of a dangerous or hazardous condition, it was entitled to a dismissal because the condition was open and obvious. The trial court judge ruled that while the defendant did have a duty to provide its patron with a reasonably safe premises, it had no duty to warn against a danger that is open and obvious. Hence, the court found that the defendant breached no duty to plaintiff and dismissed the case.

The plaintiff appealed and argued that the trial judge was wrong in deciding that the defendant had no duty to warn the defendant of the danger posed by the sizzling plate of food that had been served to him. Here, the Appellate Division noted that the plaintiff was not arguing that there was any dangerous condition of the premises. Plaintiff only argued a duty to warn.

The appeals court stated that once the platter was served to the plaintiff, Applebee’s lost control over it and the plaintiff had the opportunity to protect himself from any danger that it posed, since the danger was open and obvious. The Appellate Division found that the imposition of a duty to warn plaintiff of this obvious danger was not required as a matter of fairness and sound policy. Thus, it affirmed the dismissal of the lawsuit.

In James v. Ruiz (App. Div. March 25, 2015), the plaintiff was injured in an automobile accident and sued the other driver. The key issue was whether he suffered a permanent injury so as to meet the verbal threshold. Both sides presented competing expert testimony on that question.

The plaintiff had a CT scan of his lumbar spine. Both the plaintiff’s treating orthopedist and radiologist interpreted the scan as showing a small diffuse disc bulge at the L4-L5 level. However, the defendant’s orthopedist who examined the plaintiff, and then reviewed the CT scan, found no disc pathology or disc herniation at any level. At trial, he expanded that testimony to state that he found no disc bulge as well.

The matter was tried as a damages only case with the critical issue being whether the plaintiff established a permanent injury to overcome the AICRA verbal threshold. At trial, the plaintiff’s doctor was asked about the report of the radiologist – who was not called to testify – and the defense counsel objected. The judge sustained the objection as hearsay.

In closing arguments, the plaintiff’s attorney argued to the jury that the opinion of the plaintiff’s orthopedist was consistent with what the radiologist saw and the defense counsel objected. The judge sustained the objection and directed the jury to disregard what the radiologist might have determined because he did not testify.

The jury returned a unanimous verdict, concluding that the plaintiff had not proved a permanent injury caused by the accident. The plaintiff appealed and argued that the trial judge should have permitted testimony and argument in his closing concerning the consistency of the  radiologist’s opinion in his report with that of the plaintiff’s orthopedist.

The Appellate Division found that the radiologist report was clearly hearsay and then examined whether it would meet one of the exceptions to the hearsay rule. A testifying expert who has reasonably relied upon the non-testifying expert’s opinions, may then referto that absent expert’s opinion in the course of explaining his or her own opinions in court. However, it cannot be used as a subterfuge to allow an expert to bolster his testimony by reference to other opinions of experts not testifying.

The appeals court agreed with the trial court judge’s rulings concerning the use of the radiologist’s opinions. The court found that it would have been improper for the plaintiff’s counsel to attempt to use the testimony of the plaintiff’s orthopedist as a conduit for the substantive admission of the hearsay opinion of the radiologist of a finding of a disc bulge. This prohibition cannot be circumvented in the guise of asking about the consistency or inconsistency of a testifying expert’s own opinions with the hearsay opinions of an expert who does not testify at trial.

Effectively, the plaintiff’s attorney was attempting to use the radiologist opinion as a tie breaker. However, this opinion was not subject to cross-examination and the jury was not afforded the opportunity to observe his demeanor. The plaintiff’s attorney was attempting to “back door” this opinion.

For the same reason the plaintiff’s attorney was also not allowed to comment on the consistency of the radiologist opinion in his summation. The Appellate Division found that the trial court acted properly in instructing the jury to disregard the radiologist’s opinion.

Thus, the appeals court found that the trial court judge acted within his discretion in his sound application of the laws of evidence, as well as the cautionary instructions given to the jury and it affirmed the judgment.

Our court rules permit a municipal court judge to accept a guilty plea of a traffic offense with a “civil reservation.” If the judge accepts this form of plea, that guilty plea  cannot be introduced into evidence in any related civil proceeding. In other words, if a personal injury lawsuit is filed in the future, the plaintiff cannot use that guilty plea as an admission of wrongdoing that caused the accident. In  Maida v. Kuskin, a NJ Supreme Court case decided on March 19, 2015, the Court addressed this municipal court practice in the context of a defendant who did not request the civil reservation until later in the day, after his guilty plea had been accepted.

The plaintiff Bruce Maida was hit by an SUV while walking across a crosswalk. The plaintiff and his parents walked home and called the police to report the accident. The police identified the defendant as the driver and issued him a summons for leaving the scene of the accident and the failure to report the accident. Thereafter, the defendant appeared in municipal court and pled guilty to the latter offense. Later that day, the defendant’s attorney wrote a letter to the court asking to confirm that the plea was with a civil reservation. The judge then entered an order, permitting the civil reservation to be used at the trial.

Subsequently, the plaintiff filed a personal injury suit and the defendant denied that there was an accident. The plaintiff filed a motion to strike the civil reservation. The trial court struck the civil reservation because it was not made in open court at the time the plea was accepted. The Appellate Division, however, reversed. Surmising that the civil reservation was a material aspect of the guilty plea, the appeals court suggested that the trial judge should have permitted the defendant to withdraw his plea.

The Supreme Court reviewed the whole process and found that a request for a civil reservation must be made in open court and contemporaneously with the court’s acceptance of defendant’s guilty plea. If the prosecutor or the victim demonstrate good cause or the charge to which a defendant pleads guilty does not arise out of the same occurrence that is the subject of the civil proceeding, a civil reservation order may not be entered.

The Court held that the municipal court judge must not accept a guilty plea until he has first addressed the defendant personally, determined that the plea is made voluntarily and that there is a factual basis for the plea.

While the Supreme Court disapproved of the Appellate Division’s ruling that a civil reservation may be requested after the plea is entered, it ended up affirming the decision on another basis. In this case, the defendant pled guilty to failure to report a motor vehicle accident. The Court pointed out that, whether or not a motor vehicle accident is timely reported, has no bearing on the issue of negligent operation of a motor vehicle. Thus, the guilty plea to this particular offense should not have been admitted in the trial of the matter.

Plaintiff Carolyn Arroyave sued her landlord, defendant Quaker Village Apartments due to a fall on a pathway on a grassy hill. In Arroyave v. Quaker Village Apartments, 2015 N.J. Super. Unpub. LEXIS 276 (App. Div 2015), the plaintiff contended that her landlord breached its duty of care owed to her by failing to warn of the danger of walking over the grassy hill. In this appeal, the plaintiff claimed that the trial court should not have dismissed her complaint by summary judgment.

Arroyave left her apartment at 4:00 am to deliver newspapers, walked up a grassy hill to the upper parking lot, and parked her car in the upper parking lot for her return. She was injured when she slipped and fell walking from the lot to the apartment on the grassy hill. She broke her ankle in three places.

Plaintiff often parked in the upper lot because that was closest to her apartment. There was a sidewalk to the lot but she chose to walk on the grassy hill because the sidewalk was a longer walk. The sidewalk had a lot of steps that were uneven and had no railings and would often fill up with water. Also at least six of the steps were extremely uneven, or broken. Water would accumulated on the sidewalk after a rainfall.

As for the grassy pathway, there was a path worn into the grass as a result of residents walking over the route she took on the day of the accident. In fact, the landlord encouraged residents to use that route by shoveling snow there in the winter.

Plaintiff claimed that the landlord breached a duty to her to maintain the premises in a reasonably safe condition and that duty extended to the route she took over the grassy hill. However, the only aspect of the hill she identified as dangerous was that the grass was wet and long. She contended that the landlord should have warned her of the danger. As for the sidewalk, because plaintiff conceded that she did not walk on the sidewalk, its condition was irrelevant to her claim.

The Appellate Division agreed with the trial court and found that the landlord owed no duty to the plaintiff to warn her not to walk on the grass. The court found  “[t]hat grass is slippery when wet is a matter of common knowledge.” Thus, it would not be fair to impose a duty upon the landlord to require it to warn residents about the condition of the grass.

As for the grass being long, it was cut weekly and was cut two days after the accident. Thus, the court also found that the length of the grass did not constitute a dangerous condition or evidence that the landlord breached a duty to maintain the area in a reasonably safe condition. Hence, the Appellate Division affirmed the trial court’s dismissal of her claim.

In Townsend v. Pierre, decided March 12, 2015, the New Jersey Supreme Court addressed the net opinion rule in the context of an automobile accident negligence case. This case involved a tragic accident in which Alvin Townsend, a motorcyclist, was killed. He was travelling on Levitt Parkway and reached the intersection of Garfield Drive and Levitt Parkway, Willingboro, NJ, when the motorist, Noah Pierre, after proceeding from a stop sign into the intersection and turning left, struck his motorcycle. The plaintiff claimed that the corner property owner (Garland Property Management LLC) was negligent due to shrubbery that obstructed the view of Pierre. The issue on appeal was whether the trial court properly ruled that the plaintiff’s expert report against the property owner was barred and, hence, the plaintiff was unable to prove negligence against it.

In uncontradicted testimony, the driver Pierre testified that she stopped 4 times at that intersection and, before proceeding out into the intersection onto Levitt Parkway, she had an unobstructed view of the oncoming traffic. Her passenger also confirmed that her view of approaching traffic was unobstructed.

Despite this testimony, plaintiff’s expert opined that the shrubbery on the corner of the intersection was a proximate cause of the collision, blocking Pierre’s view of the motorcycle, who was approaching from her left. While acknowledging Pierre’s testimony, he contended that her account of the accident was mistaken.

The trial court struck the plaintiff’s expert report as a net opinion and barred the report. Summary judgment was granted to this defendant, dismissing the suit. However, the Appellate Division reversed, finding that the expert’s conclusion was sufficiently grounded in the record and that the plaintiff could elicit the expert’s opinion disputing Pierre’s testimony in the form of a hypothetical question at trial.

The Supreme Court reversed. The Court found that the trial court properly barred the causation opinion of plaintiff’s expert. The expert report qualified as an inadmissible net opinion because it speculated on the issue of causation. The expert did not apply his engineering expertise to present empirical evidence undermining Pierre’s undisputed and corroborated testimony. He took no measurements to demonstrate the line of vision of a driver located at a point at which Pierre recalled making her left turn. He did not even suggest that at the location identified by Pierre at the point where she turned, the shrubbery was capable of blocking a driver’s view of oncoming traffic.

Instead, the expert reconstituted the facts and assumed that Pierre’s testimony was wrong. Accordingly, the Court found that this proposed expert testimony was an inadmissible net opinion.

The Supreme Court also disagreed with the Appellate Division’s ruling that the opinion’s shortcomings could be remedied by the use of a hypothetical question. The Appellate Division assumed that a hypothetical question could be asked of the expert “to assume hypothetically that Pierre was unable to clearly see to her left as she made the turn.” The Supreme Court ruled that such a hypothetical question could not convert the expert’s net opinion on the issue of causation into admissible expert testimony. Hypothetical questions have to be based upon facts in the record. Here, this question not only lacked the requisite foundation in the facts, but was premised on a rejection of uncontroverted testimony. Thus, the use of this hypothetical question cannot salvage the causation opinion proffered by the expert.

Accordingly, the Supreme Court found that the trial court properly struck the plaintiff’s expert report as a net opinion. Without this report, there were no other facts in the record that would support a determination that the shrubbery impeded Pierre’s view of oncoming traffic. Thus, the Court found that the trial court properly granted summary judgment to the property owner.

This is a good decision for defendants because it reiterates that expert reports must have an actual factual foundation to avoid being a net opinion. Also, it supports the grant of summary judgment when there are no facts to support the plaintiff’s claim. Mere speculation will not be sufficient to defeat a motion for summary judgment as to causation of an accident.