NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendants Atlantic City Electric Company (ACE) and Waterford Township (Waterford) appeal from a judgement entered following a jury verdict in favor of plaintiff Mark Mazzone. Mazzone suffered injuries in a motor vehicle accident and was awarded $6.62 million by the jury against ACE, Waterford, and two other defendants. We scheduled the appeals of ACE and Waterford back-to-back and consolidated them for purposes of our opinion. For the reasons that follow, we affirm on Waterford's appeal, reverse on ACE's appeal, and remand for further proceedings.

I.

We glean the following facts from the record on appeal. At approximately 5:00 p.m. on August 29, 2008, defendant Sharon Czyzewski left her job in Waterford Township and began to drive home. Czyzewski proceeded northbound on Briarcliff Road until she reached the intersection of Briarcliff and White Horse Pike (Route 30).

At that intersection, Briarcliff is divided by a triangular traffic island, which has become the primary focus of this appeal. Intending to turn left onto Route 30, Czyzewski "edged up" and leaned over the steering wheel to get a better view of oncoming traffic. As Czyzewski entered the intersection, she collided with Mazzone who was driving a motorcycle eastbound on Route 30 in the right lane. Mazzone suffered serious injuries and was hospitalized.

The Briarcliff traffic island is owned by Waterford, and, at the time of the accident, contained shrubs, bushes, and other vegetation, which were planted and maintained by defendant Ivystone Farms Civic Association (Ivystone). Also located on the island were two utility poles owned by ACE, including a primary pole located near the roadway, and a supporting or "push pole" attached at an angle to the primary pole.

In 2009, Mazzone filed a complaint in the Law Division naming Czyzewski, Waterford, ACE, Ivystone, and others as defendants. An amended complaint was filed in 2010. Trial commenced on February 11, 2014, and, after eight days of testimony, the jury returned a verdict in favor of Mazzone in the amount of $6,620,803.87. Consistent with this verdict, the trial judge entered an order allocating liability against Waterford, 55%; Czyzewski, 14%; Ivystone, 16%; and ACE, 15%.

II.

ACE Appeal A-4165-13

On appeal, ACE raises the following points:

We first consider ACE's claim that the trial court erred in denying ACE's motion for summary judgment and finding that ACE owed a duty of care to motorists for vegetation management.

At trial, Czyzewski testified that she thought she had a clear view of oncoming traffic, but was unable to see plaintiff's motorcycle. She attributed this to "bushes . . . a pole and shrubbery" on the island. Several other witnesses testified that the shrubbery on the island obstructed their view of oncoming traffic.

Czyzewski's co-worker, Tara Magitz, testified that the foliage requires her to inch precariously close to Route 30 when turning left from Briarcliff. Magitz testified that there are still obstructions from the island that inhibit a view of traffic traveling eastbound on Route 30, even when a vehicle is properly stopped in front of the stop line.

Lawrence Ruocco, Waterford's Township Administrator, also testified that the view to the left was obstructed if stopped at the stop sign. Portions of deposition testimony from eyewitness Stephen Casamassima were read at trial due to his unavailability. Casamassima testified that it was difficult to see beyond the island because of the trees and utility poles, and that a left turn there "is virtually taking your life in your hand[s] because you cannot see."

Scott Pierson, a police officer and part time landscaper, did not appear for trial, but his deposition testimony was read into the record. Ivystone hired Pierson to do landscaping work on the island. Pierson testified that the bushes on the island never obstructed his view of the traffic going eastbound. Similarly, Sandra Anderson, a local resident and former president of Ivystone, testified that her view of Route 30 was not obstructed by the vegetation on the island.

ACE called two experts. James Sapio testified that he conducted a survey of the Briarcliff intersection. Sapio found that the push pole was located 11.03 feet from the Route 30 right-of-way, and over 17 feet from the curb line of Route 30. Sapio did not take any measurements of the vegetation growing on the push pole.

ACE also called William Martin, who was qualified as an expert in accident reconstruction. Martin testified that, in his opinion, neither the pole nor the vegetation could have obstructed Czyzewski's view of Route 30 near the stop sign.

ACE is a subsidiary of Pepco Holdings, Inc. (PHI). PHI published a manual containing individual vegetation management strategies for each subsidiary. For ACE, the strategy was designed to "ensure the vegetation will not conflict with our facilities and allow our maintenance and construction crews ready and safe access to structures, both transmission and those which carry distribution lines."

In an attached rider, there is a paragraph dedicated to the management of vines:

ACE argues that it does not owe a duty of care to motorists for vegetation management and relies on our decision in McGlynn v. State, 434 N.J.Super. 23 (App. Div.) certif. denied, 217 N.J. 589 (2014). In McGlynn, a dead tree fell onto a highway striking a vehicle and killing one occupant and injuring three others. Id. at 27. The tree was located on private property, but within a Jersey Central Power and Light Company's right-of-way. Ibid. JCP&L hired JAFLO, Inc., to perform "vegetation maintenance" on a four-year cycle along a ninety-mile stretch of roadway, which included the location of the dead tree. Ibid. JCP&L's purpose in hiring JAFLO was to "keep its power lines free of encroaching vegetation, such as trees" in order to "maintain consistent flow of electricity to its nearly one million customers in thirteen counties[.]" Ibid.

The motion judge in McGlynn granted summary judgment to JCP&L and JAFLO, and we affirmed. Id. at 27-28. We noted that JCP&L's purpose in controlling vegetation was to maintain its service:

We also noted that the private land owner bears the "principal responsibility to exercise due care over trees that might pose a hazard to travelers on an adjoining highway," and JCP&L's contractual obligation was limited to maintaining its line so as to provide uninterrupted service. Id. at 33. We also observed that "the obligation to monitor trees over hundreds of miles of roadway for a broad purpose such as the safety of passing motorists would be an overwhelming burden on a private entity." Id. at 33-34.

Plaintiff attempts to distinguish McGlynn and relies on Seals v. County of Morris, 210 N.J. 157 (2012). In Seals, the plaintiff was driving his car along a snow-covered road when he failed to negotiate a curve and crashed into an electric utility pole owned by JCP&L. Id. at 162-63. The pole was located on private property a few feet from the roadway. Id. at 163. There was no guardrail separating the pole from the road, the area was not illuminated by lights, and no sign warned of the curve in the road located near the pole. Ibid. Plaintiff suffered serious and permanent injuries in the crash. Ibid.

The plaintiff sued and claimed that JCP&L "negligently placed and maintained the utility pole at the crash site." Ibid. The pole in Seals had been installed by JCP&L's predecessor in 1937, and was replaced in 1976, 1998, and 2003. Ibid. Notably, the replacements in 1998 and 2003 were due to automobile collisions with the pole. Ibid. In 1989, another vehicle collided with the pole. Ibid. JCP&L determined exactly where to install its utility poles, without having first conducted a safety study. Id. at 164. JCP&L also had no written guidelines pertaining to the safe placement of utility poles, instead "approach[ing] the task with practical considerations in mind[.]" Ibid.

Relying on Contey v. New Jersey Bell Telephone Co., 136 N.J. 582 (1994), the trial court denied JCP&L's motion for summary judgment on the basis that it was not entitled to immunity. Id. at 161. We reversed, concluding that JCP&L could not be found liable because the County and Township gave implicit approval for the pole's location by their silence. Ibid.

The Supreme Court reversed, holding that JCP&L was not immune from suit and was "accountable for any negligence on its part." Id. at 175. The Court noted that JCP&L chose the location of its utility pole without any compulsion or direction from any governmental authority, and placed the pole in "an unreasonably dangerous location and knew or should have known of other accidents at the site." Id. at 174.

Here, plaintiff sought to impose liability based on ACE's failure to place the main and supporting poles on the Briarcliff island in a safe location. Alternatively, plaintiff claimed ACE failed to maintain the island so as not to constitute a sight obstruction to motorists.

The vegetation, which was present on the push pole but not the main pole, was not a wild-growing species, but was planted there for aesthetic purposes. Sandra Anderson testified at trial that in the late 1970s, her association lobbied Waterford for a traffic light at the Briarcliff intersection. Because of the proximity of another light at Atco Avenue, Ivystone's request was denied but the island was constructed.1 When the island became an "eyesore," Ivystone sought and received permission from Waterford to maintain it. Ivystone hired a landscaper, "Atco Al," who kept the island clean, installed decorative stones, and planted shrubs and bushes there. Anderson was shown a post-accident photograph and identified ivy growing on the push pole at the time of the accident as having been planted by Atco Al.

After Atco Al, Scott Pierson took over the maintenance of the Briarcliff island. In the early spring, Pierson would trim the bushes and ivy so that the decorative stone under the bushes could be seen.

ACE senior staff forester, Matthew Simons, testified that ACE inspects its poles for vegetation every four years as mandated by the Board of Public Utilities. The poles on the Briarcliff island were inspected by a subcontractor, Davey Tree Expert (Davey), for vegetation in May 2008, prior to the accident. The arborist for Davey, Bryce Bixby, determined that no work was necessary. Simons, who contributed to drafting the vegetation management protocol followed by ACE, explained that the purpose of the inspections was "to provide reliable and safe [electric] service as opposed to removing obstructions on poles[.]" Simons testified that even if Bixby had brought the ivy on the push pole to his attention, he would not have ordered it removed because "[i]t will not grow into our facilities so therefore it won't cause tree related outages. . . ."

In denying ACE's motion for summary judgment, the trial judge held that the 2008 inspection by Davey placed ACE in a "position to know . . . whether there was ivy growing in [sic] the brace pole and whether the ivy in [sic] the brace pole, combined with other things, created a sight line obstruction." The judge also found that it was an issue of fact for the jury to determine whether the brace pole was in existence at the time of the 2004 accident, and if ACE "could have known about the condition of the brace pole with the ivy all over it[.]"

Finally, the judge determined that ACE's vegetation maintenance policy was a "tenable basis for establishing a duty on the part of the utilities to remove ivy if the other pre-conditions for their duty are met." The judge identified those preconditions as both knowledge that the pole and vines "serve as an obstruction" and "the opportunity to remedy this situation."

In Seals, the Court described the duty JCP&L owes to the public with regard to the placement of its electric utility poles. Supra, 210 N.J. at 175-77. The Court held that "a utility company is only required to exercise ordinary — not extraordinary — care to prevent injuries[.]" Id. at 175 (citing Oram v. N.J. Bell Tel. Co., 132 N.J.Super. 491, 494 (App. Div. 1975)). The Court added that "a utility is under no obligation to guard against `extraordinary exigencies.'" Ibid. (citing Oram, supra, 132 N.J. Super. at 494). The Court observed:

The Court noted that, "[i]f vehicles repeatedly strike the same pole, it may suggest that the pole poses an unreasonable risk of causing serious bodily injury or death." Id. at 177. When this is the case, "the utility company that placed that pole, in exercising due care, may have a duty to act." Ibid.

The facts here are distinguishable from those in Seals, where JCP&L placed an electric pole in the same location where its poles had been struck repeatedly by motorists. Here, plaintiff was unable to show any prior accidents where the cause had been determined to be obstructed view as a result of ACE's poles or the vegetation on the brace pole.

The pole was not placed on the island by ACE. Rather Verizon installed it in 1978, apparently when the Briarcliff island was created. After a vehicle struck and damaged the pole in 2004, it was replaced pursuant to an agreement between Verizon and ACE, whereby ACE became the owner of the pole.

ACE played no role in planting the ivy or any of the other vegetation on the island. ACE's vegetation management plan, which was designed solely to prevent the growth of trees, plants, and bushes from interfering with its service, did not create a duty of care to motorists.

The trial judge's finding that, after the 2008 vegetation inspection, ACE personnel may have learned that ivy was growing on the brace pole and may have created a sight line obstruction, is speculative and ignores the fact that the Davey inspector was not tasked with remediating traffic sight obstructions. We rejected a similar argument in McGlynn, where we concluded that to expand a "commitment to include maintenance of vegetation for the benefit of passing motorists, where power lines are unaffected, would create an onerous burden . . . where the responsibility already exists" on other parties. McGlynn supra, 434 N.J. Super. at 32.

Similarly, the judge's conclusion that it was "possible" that, after the 2004 post-accident pole replacement, ACE personnel could have known about "the condition of the brace pole with the ivy all over it" is untethered to any record evidence. There was no proof that ivy was growing on the brace pole in 2004 or, for that matter, whether the brace pole had even been installed by that time.

Under Seals, ACE had a duty to exercise ordinary, not extraordinary, care with regard to the placement and maintenance of its electric utility poles. Id. at 175. ACE was required to consider "known and unacceptable risks that pose great danger," not every conceivable harmful occurrence. Ibid. Imposing a duty on ACE to monitor its utility poles to insure that vegetation does not impair traffic visibility is unreasonable where the vegetation is planted and maintained by third parties, and where there is no history of accidents caused by vegetation that obstructed visibility.

We conclude that the trial judge erred in denying ACE's motion for summary judgment.

III.

Waterford Appeal A-4285-13

Waterford Township raises the following points:

A.

Waterford first argues that the trial judge erred in admitting post-accident photographs depicting the island free from the vegetation overgrowth. Waterford claims that the photographs were inadmissible under N.J.R.E. 407, which declares in pertinent part that "[e]vidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct." The rule was "designed to encourage remedial measures to be taken in order to avoid the occurrence of similar accidents." Dixon v. Jacobsen Mfg. Co., 270 N.J.Super. 569, 587 (App. Div.) certif. denied, 136 N.J. 295 (1994).

Evidence of subsequent remedial measures, however, may be admitted for purposes other than proving culpable conduct or causation, as the final passage of N.J.R.E. 407 recognizes. The trial judge admitted the photographs to assist the jury in assessing Czyzewski's field of vision at the intersection. Czyzewski initially had difficulty answering questions on cross-examination as to the extent of the obstruction. On redirect, Czyzewski indicated that a "visual" depicting the island free from excessive vegetation would assist her in determining what her field of vision would have been in the absence of any obstructions. After being shown the photograph depicting a cleared island, Czyzewski was able to confirm that the excessive vegetation did impact her field of vision.

Our review of a trial court's ruling on the admissibility of evidence is limited. State v. Buckley, 216 N.J. 249, 260 (2013). These evidentiary rulings are reviewed for abuse of discretion and cannot be overturned on appeal unless there is a manifest denial of justice. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

We are satisfied that these photographs were not admitted to prove the existence of a subsequent remedial measure, rather they were admitted to ascertain Czyzewski's field of vision at the time of the accident.

Waterford next argues that the limiting instruction given by the trial judge was not sufficient. The judge instructed the jury that the photographs were not to be used to establish liability but were to be used narrowly "for purposes of understanding field of vision. . . ." The judge even noted that the photographs were edited using computer software to minimize any potential prejudice associated with subsequent remedial measures:

We presume that the jury adhered to the judge's thorough limiting instructions. State v. Muhammad, 145 N.J. 23, 52 (1996).

Even if evidence is admissible under N.J.R.E. 407, it must be excluded if its probative value is substantially outweighed by the risk of undue prejudice. N.J.R.E. 403. Waterford argues that the photographs have little probative value, but, as we have noted, the photographs were useful in determining the extent of the obstruction of Czyzewski's view. In light of the limiting instruction, we cannot conclude that the prejudicial effect of the photographs substantially outweighed their probative value to the point where the trial court abused its discretion in admitting them.

B.

Waterford next argues that the jury verdict was against the weight of the evidence, and that Czyzewski should have been liable for 100% of the damages because she did not exercise a reasonable degree of care when turning onto Route 30. Waterford relies primarily on a brief portion of Czyzewski's deposition testimony:

However, Czyzewski was also questioned at trial about another portion of her deposition testimony:

Waterford's argument that this inconsistency in Czyzewski's testimony should render her 100% liable for the damages lacks merit. Despite being presented with this inconsistency, the jury found that there was a sight obstruction on the island. Moreover, other witnesses testified as to the sight obstruction.

In reviewing a trial court's decision on a new trial motion, we apply "essentially" the same standard as the trial courts in determining whether to grant a new trial. Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Such a motion should not be granted unless "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Applying this indulgent standard, we agree with the trial judge that plaintiff presented a sufficient quantum of evidence on each of the elements of the causes of action tried to the jury. Waterford's motion for a new trial was appropriately denied.

C.

Finally, Waterford argues that the motion judge2 erred in denying its motion for summary judgment because there was no evidence establishing a dangerous condition on its property.

We review a ruling on summary judgment de novo, Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014), and apply the same standard as trial courts in determining whether summary judgment is proper. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).

Summary judgment is proper if, after drawing all inferences in favor of the non-moving party, "no genuine issue as to any material fact" exists. R. 4:46-2(c). "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, would require submission of the issue to the trier of fact." Ibid.

Waterford argues that it was entitled to immunity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Chapter four of the TCA sets forth the conditions under which a public entity may be held liable for an injury caused by a dangerous condition on its property:

Under the TCA, the following elements must be proven to establish a prima facie case: (1) the existence of a dangerous condition; (2) the dangerous condition created a foreseeable risk of, and actually caused, injury; (3) the public entity knew of the dangerous condition; and (4) the action taken to protect against the dangerous condition was "palpably unreasonable." Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003). The Supreme Court has defined palpably unreasonable as "behavior that is patently unacceptable under any given circumstance." Id. at 195 (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).

In arguing that there was no sight obstruction, thus no dangerous condition on the property, Waterford relies on the same snippet of deposition testimony from Czyzewski, which states that she had a clear view of the two eastbound lanes of Route 30. Waterford argues that this testimony was "clear and unequivocal," but ignores Czyzewski's testimony during that same deposition, where she claimed that she had difficulty seeing the road due to the vegetation on the island. As the motion judge noted:

Thus, Czyzewski's deposition is not as "clear and unequivocal" as Waterford alleges. In addition, as we have previously mentioned, other witnesses supported the contention that vegetation on the island constituted a sight obstruction.

We are satisfied that there was ample evidence in the record to demonstrate the existence of a sight obstruction and find no error in the motion judge's decision denying Waterford's motion for summary judgment.

IV.

The judgement against Waterford is affirmed. The judgement against ACE is reversed and the matter is remanded. As we are affirming the judgment against Waterford, and the other defendants have not appealed, we see no reason why the adjudicated liability of the three remaining defendants should be relitigated. We also see no reason why the original damages award should be disturbed. The jury was instructed to set damages at an amount that would fairly compensate plaintiff for the total losses he claimed. "Questions as to the number of other parties responsible for those losses and how those losses should be apportioned among them if ultimately more than one is liable are entirely distinct from the question of what constitutes a proper compensatory verdict. The jury must be assumed fairly to have answered that question." Weiss v. Goldfarb, 295 N.J.Super. 212, 228 (App. Div. 1996).

The damages verdict cannot reasonably be regarded as tainted by the judge's failure to grant summary judgment to ACE, and plaintiff should not be required to retry that issue before another jury. See Ogborne v. Mercer Cemetary Corp., 197 N.J. 448, 462 (2009) ("When the damages award is not tainted by the error in the liability portion of the case and is fairly separable, retrial need not include the issue of damages."); see also Lewis v. Am. Cyanamid Co., 155 N.J. 544, 563 (1998) (noting that remand on liability and comparative negligence "should not include the issue of damages").

The matter is remanded for a new trial on the issue of how the previously awarded 15% liability against ACE should be re-apportioned against the remaining defendants. No new trial will be necessary should defendants agree to accept a judgment in the original proportions, adjusted for the absence of ACE as follows: Waterford, 64.71%; Czyzewski, 16.47%; and Ivystone 18.82%.3 If these adjusted proportions are not accepted by defendants, they will be bound by the percentages awarded in the first trial (Waterford, 55%; Czyzewski, 14%; and Ivystone 16%), plus any additional percentages awarded by the jury in the second trial.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.