Opinion
DOCKET NO. A-3836-13T1
07-10-2015
RENE ALICEA, Plaintiff-Appellant, v. CITY OF PATERSON, Defendant-Respondent.
Massood and Bronsnick, LLC, attorneys for appellant (Michael T. Madaio, on the brief). Sciro & Marotta, PC, attorneys for respondent (Jonathan W. Marotta, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5064-12. Massood and Bronsnick, LLC, attorneys for appellant (Michael T. Madaio, on the brief). Sciro & Marotta, PC, attorneys for respondent (Jonathan W. Marotta, on the brief). PER CURIAM
Plaintiff, Rene Alicea, appeals from a March 28, 2014 summary judgment dismissal of his complaint alleging defendant City of Paterson was negligent in failing to repair a large pothole. Following its review, the Law Division concluded defendant was immune from liability under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We affirm.
These facts, found in the summary judgment record, are viewed in the light most favorable to plaintiff. Robinson v. Vivirito, 217 N.J. 199, 203 (2014).
At approximately 9:30 p.m. on September 30, 2011, plaintiff exited the passenger's side of a parked vehicle and walked around to the driver's door to bid his daughter goodbye, when he fell into a pothole located near the center of Richmond Avenue in Paterson. It had been raining earlier and the pothole filled with water, making it "look like glass," and appear "indistinguishable from the surrounding black asphalt." When plaintiff's right foot stepped into the hole, he lost his balance and twisted his right knee, which hit the pavement.
His daughter helped him cross the street and enter the back door of his building, and he was able to limp up the stairs to his apartment. Plaintiff, who had no prior injury to his knee, sought medical treatment, and ultimately was diagnosed with "impaction fractures of the femorotibial and patellofemoral compartments as well as [a] partial ACL tear of the right knee."
In his deposition testimony, plaintiff admitted he was aware of an approximately one hundred foot stretch of Richmond Avenue that had been "ripped up" with nearly fifteen potholes for a few months. He explained the road began "getting ruined" at the end of 2010. Potholes began to appear in the spring so that by early September, the holes were very large. Plaintiff estimated the pothole in which he fell was thirteen to fifteen inches deep, thirteen to fourteen inches wide, and thirty-six inches long. He testified that a few days following his fall, neighbors told him they had called the City and complained about the condition of the road.
Plaintiff initiated this action seeking damages. When discovery was completed, defendant moved for summary judgment, asserting it was immune from liability under the TCA. Following argument, the Law Division judge agreed.
On appeal, plaintiff argues the judge erred as materially disputed facts were presented regarding the dangerousness of the road's condition, whether defendant had prior notice of the dangerous condition, and whether defendant's inaction to correct the dangerous condition was palpably unreasonable. Plaintiff seeks reversal and reinstatement of his complaint.
We review a summary judgment order using the same standard as the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Therefore, we apply the standard articulated in Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995), requiring a court, when making
a determination whether there exists a "genuine issue" of material fact that precludes summary judgment . . . to consider whether the competent evidential materialsSee also Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); Davis v. Devereux Found., 209 N.J. 269, 286 (2012). This standard permits the court to consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 533 (citation and internal quotation marks omitted).
presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
"The very object of the summary judgment procedure . . . is to separate real issues from issues about which there is no serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002). While we must view the evidence in the light most favorable to non-movant, "it is evidence that must be relied upon to establish a genuine issue of fact. Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Cortez v. Gindhart, 4 35 N.J. Super. 589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009)) (internal quotation marks omitted), certif. denied, 220 N.J. 269 (2015). "'[B]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment.'" Id. at 606 (quoting Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)).
New Jersey's common-law doctrine of sovereign immunity has been replaced by the TCA, which governs negligence claims against public entities. See Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 404 (1988). "'[T]he public policy of this State is that public entities shall be liable for their negligence only as set forth in the [TCA].'" Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) (first alteration in original) (quoting Pico v. State, 116 N.J. 55, 59 (1989)), certif. denied, 196 N.J. 461 (2008). "[T]he Legislature carefully outlined a design of broad immunity and limited liability, and declared that it is 'the public policy of this State that public entities shall only be liable for their negligence within the limitations of [the TCA] . . . .'" Marcinczyk v. N.J. Police Training Comm'n, 203 N.J. 586, 595 (2010) (quoting N.J.S.A. 59:1-2). The TCA provides broad immunity to public entities because "'the area within which the government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done.'" Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (quoting N.J.S.A. 59:1-2).
The TCA provides "a public entity is 'immune from tort liability unless there is a specific statutory provision' that makes it answerable for a negligent act or omission." Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)). "When both liability and immunity exist, immunity prevails." Dickson, supra, 400 N.J. Super. at 195.
In examining whether a governmental entity is liable, "courts should employ an analysis that first asks whether an immunity applies and if not, should liability attach." Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 128 (1993) (emphasis removed) (citation and internal quotation marks omitted). The public entity "has the burden to plead and prove [its] immunity under the TCA." Leang v. Jersey City Bd. of Educ, 198 N.J. 557, 582 (2009) (citing Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985)). With these principles in mind, we examine plaintiff's allegations, as set forth in his complaint.
Plaintiff first asserts defendant's property contained a known dangerous condition, causing his injury. N.J.S.A. 59:4-2. A public entity is liable for injuries caused by an existing dangerous condition of public property,
if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous
condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
[Ibid.]
The Legislature did not intend to impose liability for a condition merely because danger may exist. See Levin v. Cnty. of Salem, 133 N.J. 35, 49 (1993). Importantly, a "[d]angerous condition" is a defined term and "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." N.J.S.A. 59:4-1(a). See also Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div. 2003). "[T]o be considered a 'substantial risk of injury' a condition of property . . . . must be considered together with the anticipated use of the property . . . ." Atalese, supra, 365 N.J. Super. at 5.
The Court in Polzo distinguished between the types of conditions resulting in public entity liability, namely
N.J.S.A. 59:4-2(a), which speaks of a public employee's negligent act or omission that affirmatively creates a dangerous condition, and N.J.S.A. 59:4-2(b), which speaks of a public entity that is on notice of a dangerous condition -- either actually or constructively -- and fails to protect against it. A dangerous condition of property may be "created" if, for example, a public entity's snow plow creates a pothole or the entity's paving of a roadway is negligently performed. See, e.g., Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 264 (App. Div. 2011) (alleging that defendant's negligent snow removal created icy condition of sidewalk that caused plaintiff to fall); Atalese[, supra,] 365 N.J. Super. [at 5] (alleging that County created depression in pedestrian-bicycle lane by negligently installing storm sewer extension).
But a public entity does not create a dangerous condition merely because it should have discovered and repaired it within a reasonable time before an accident.
[Polzo, supra, 209 N.J. at 66-67.]
Here, the pothole in which plaintiff fell was not shown to have been created by conduct by the public entity's employees. Rather, the condition resulted naturally because of the change of weather conditions from winter to spring.
However, even if the public entity did not create a dangerous condition, it may remain accountable under the TCA if the entity had actual or constructive notice of the dangerous condition and its failure to protect against the danger is determined to be palpably unreasonable. Id. at 67. For plaintiff to recover, he must prove the public entity had notice of a dangerous condition within "a sufficient time" before his accident such that it could have "taken measures to protect against [it]." N.J.S.A. 59:4-2(b). If shown, we also must analyze whether the entity's failure to protect against the dangerous condition falls within the definition of "palpably unreasonable." N.J.S.A. 59:4-2. See also Polzo, supra, 209 N.J. at 65-66.
The evidence regarding whether the pothole presented a dangerous condition presents a dispute subject to resolution by the factfinder. Nevertheless, we conclude plaintiff's claim is unsupported because the record contains no admissible evidence of actual or constructive notice.
"[W]hen a public entity actually knows of a roadway defect and 'should have known of its dangerous character,' it is on actual notice." Polzo, supra, 209 N.J. at 67 (quoting N.J.S.A. 59:4-3(a)). "A public entity shall be deemed to have constructive notice of a dangerous condition . . . only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3(b). See also Chatman v. Hall, 128 N.J. 394, 400, 418 (1992) (determining a genuine issue regarding constructive notice existed because "[t]he length of time during which the hole existed as well as its alleged size create a reasonable inference that the defendant employees had either actual or constructive notice of the hole, as does the affidavit of a neighbor who reported the hole" at least a year prior to the plaintiff's injury). "[T]he mere '[e]xistence of an alleged dangerous condition is not constructive notice of it.'" Polzo v. Cnty. of Essex, 196 N.J. 569, 581 (2008) (second alteration in original) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)).
Plaintiff provides no proof defendant received complaints about the pothole's dangerous condition, see, e.g., Norris v. Borough of Leonia, 160 N.J. 427, 447 (1999), or had records of prior accidents occurring at the site, see, e.g., Wymbs v. Twp. of Wayne, 163 N.J. 523, 536-37 (2000). Use of plaintiff's hearsay statement of neighbor complaints is insufficient to support the actual notice element of his claim.
In the absence of evidence to support actual notice, plaintiff alternatively maintains the size of the pothole and its estimated existence in the street for ten months makes the dangerous condition "so obvious," and provides defendant's constructive notice sufficient to impose liability. See N.J.S.A. 59:4-3(b). We are not persuaded. Even though the pothole was described as large, no proofs establish it existed for "such a period of time . . . [that defendant] should have discovered" it. Ibid.
The length of time a dangerous condition existed is a weighty factor in determining whether a public entity had constructive notice of the condition. See Lodato v. Evesham Twp., 388 N.J. Super. 501, 511-12 (App. Div. 2006) (finding a genuine issue as to constructive notice where sidewalk defect was "open and obvious," the defect existed for almost eighteen years, and city officials "were in the immediate vicinity on at least two occasions when they removed trees causing a similar condition"); Maslo v. City of Jersey City, 346 N.J. Super. 346, 349 (App. Div. 2002) (finding there was no factual issue as to constructive notice despite the plaintiff's expert's opinion that the "observable difference in the height of two sections of the sidewalk . . . would have been noticeable for a year or more" given no proof was submitted any city agency or even plaintiff was previously aware of defect); Polzo, supra, 196 N.J. at 581-84 (holding expert's unsupported net opinion a road defect "would have existed for a significant period of time" and "could or should have been noticed for a significant period of time" alone was insufficient to show constructive knowledge).
In this record, no specific evidence was presented regarding the time the pothole in which plaintiff fell existed. During his deposition, plaintiff testified that during the winter preceding his fall, "the roads started getting ruined," but there were "[n]o holes yet." Further, he admitted he did not see any potholes until the spring of 2011. Finally, he stated the holes became large in September 2011. Thus, the potholes appeared in the spring and grew larger in September, the month of plaintiff's fall.
Potholes are "a common feature of our roadways." Polzo, supra, 209 N.J. at 64. Plaintiff's testimony of the timing of their formation coincides with potholes generally forming throughout the City. Viewing the evidence, as we must, in the light most favorable to plaintiff, we cannot conclude defendant was on constructive notice of an alleged dangerous condition of this roadway.
We also add the City's failure to repair the potholes cannot be found to be "palpably unreasonable." Although the term is not defined in the TCA, it "means more than ordinary negligence, and imposes a steep burden on a plaintiff." Coyne v. State, Dep't of Transp., 182 N.J. 481, 493 (2005). A public entity's palpably unreasonable conduct implies behavior by a public entity that is "'patently unacceptable under any given circumstances.'" Wymbs, supra, 163 N.J. at 532 (quoting Kolitch, supra, 100 N.J. at 493). This high threshold for liability "'recognizes the difficulties inherent in a public entity's responsibility for maintaining its vast amounts of public property'" and reflects the judgment "'a public entity's discretionary decisions to act or not to act in the face of competing demands should generally be free from the second guessing of a coordinate branch of Government.'" Polzo, supra, 209 N.J. at 76 (quoting Harry A. Margolis & Robert Novack, Claims Against Public Entities, 1972 Attorney General's Task Force on Sovereign Immunity comment on N.J.S.A. 59:4-2 (Gann 2011)). See also Muhammad v. N.J. Transit, 176 N.J. 185, 196 (2003) ("Part of the equation in determining whether a public entity acted in a palpably unreasonable manner involves the exercise of its discretion in determining what action should or should not have been taken." (citation and internal quotation marks omitted)).
A public entity's decisions when marshalling the priority of its tasks must be afforded deference unless the act or omission is so "manifest and obvious that no prudent person would approve of its course of action or inaction." Coyne, supra, 182 N.J. at 493 (citation and internal quotation marks omitted). We find unsupported plaintiff's argument suggesting defendant's delay in conducting pothole repair meets this standard. See Polzo, supra, 209 N.J. at 77-78 ("[I]n view of the County's considerable responsibility for road maintenance in a world of limited public resources, the depression here . . . might not have been deemed a high priority, even if the County were on notice of its presence.").
Following our review, we determine the evidence does not support defendant's liability under the TCA. Accordingly, we need not examine the challenges presented regarding plaintiff's proof of damages.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION