Opinion
DOCKET NO. A-3622-14T4
05-17-2016
VIRGINIA L. MCGRATH, Plaintiff-Appellant, v. UNION AVENUE ELEMENTARY SCHOOL and MARGATE CITY, Defendants, and MARGATE CITY BOARD OF EDUCATION, Defendant-Respondent.
Marmero & Mammano, P.C., attorneys for appellant (David J. Schrager, on the brief). Madden & Madden, P.A., attorneys for respondent (Regina M. Philipps, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5208-13. Marmero & Mammano, P.C., attorneys for appellant (David J. Schrager, on the brief). Madden & Madden, P.A., attorneys for respondent (Regina M. Philipps, on the brief). PER CURIAM
Plaintiff Virginia L. McGrath appeals from the trial court's grant of summary judgment to defendant, the Margate City Board of Education, dismissing with prejudice her complaint seeking damages arising out of physical injuries she suffered at an elementary school playground. Plaintiff tripped on a metal rod that had become partly detached from a chain link fence. Plaintiff argues she presented sufficient evidence for a jury to find that the Board caused the rod to detach, or the Board was on constructive notice of the dangerous condition the rod caused. Having considered plaintiff's arguments in light of the facts and applicable law, we affirm.
The piece of metal was variously called a wire, cable, and rod. However, as it was described as rigid, as opposed to flexible, and it appeared so in photographs in the record, "rod" seems to be the most apt description.
I.
We discern the following facts from the record, viewing them in the light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On September 5, 2011, Labor Day, plaintiff, her fiancé, and their dog were standing in an isolated area of the Union Avenue Elementary School playground. A group of children were playing wiffle ball in another part of the playground. Their ball rolled near plaintiff, and she retrieved it. While attempting to throw it back, her shin came in contact with a metal rod, about half-an-inch in diameter, that was partly detached from a fence. Plaintiff fell forward, hit her face on the pavement, and suffered various injuries.
Kurtiz Woodrow, the Board's director of facilities, testified that although the Board had closed the Union Avenue School to students the previous school year, the playground remained open to the public. During the summer, Woodrow or another facilities employee inspected the playground about two to three times a month. Woodrow only became aware of the detached rod after plaintiff filed her tort claims notice. Plaintiff herself visited the playground often, including earlier that holiday weekend, and never noticed the rod.
Woodrow explained that the rod was designed to stabilize the fence during installation, and then left in place. It ran diagonally between two posts. A photograph of the rod depicted it attached near the top of a fence post on one end, extending downward at an angle, with about half the length of the rod lying flat on the pavement.
Woodrow stated that it was very unusual for a rod of that kind to become detached from the bracket that held the lower end in place. He stated that someone could have caused the rod to detach by standing on it. However, plaintiff presented no expert to opine as to how long the rod had been detached from the bracket at the time of plaintiff's injury.
After a period of discovery that included depositions of plaintiff, Woodrow, and the Board's business administrator, the Board moved for summary judgment. Among other grounds, the Board contended that plaintiff failed to present sufficient evidence that a Board employee created the dangerous condition, or that the Board had actual or constructive notice of the dangerous condition. N.J.S.A. 59:4-2.
The late Judge Allen J. Littlefield agreed. He stated:
The Board also argued it was entitled to summary judgment because the rod was not a dangerous condition, N.J.S.A. 59:4-1(a); the Board's action or failure to act was not palpably unreasonable, N.J.S.A. 59:4-2; and plaintiff failed to suffer the requisite injury to entitle her to damages for pain and suffering under N.J.S.A. 59:9-2(d). Judge Littlefield concluded genuine issues of material fact precluded summary judgment on those grounds.
[I]n order for the board to be liable for a dangerous condition of its property, plaintiff must be able to prove the board had actual or . . . constructive notice of said condition. It is not disputed that the board did not have . . . actual notice, nor are there any substantiated allegations that the board was responsible for creating the condition, the condition being not the fence being put up . . . but the . . . wire . . . coming off and being on the ground. . . . Plaintiff has not provided a single piece of evidence to satisfy its burden of proving constructive notice under N.J.S.A. 39:4-3(b), which requires that the plaintiff establish that the condition 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.The judge noted there was no evidence as to how long the rod was detached. Furthermore, plaintiff's arguments regarding the frequency or thoroughness of inspections did not establish notice.
On appeal, plaintiff presents the following points for our consideration:
POINT I. A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER DEFENDANT-RESPONDENT, MARGATE CITY BOARD OF EDUCATION, HAD CONSTRUCTIVE NOTICE WITH REFERENCE TO THE DANGEROUS CONDITION, i.e. THE PROTRUDING WIRE ON THE SCHOOL PLAYGROUND AREA, WHICH CAUSED THE INJURIES TO PLAINTIFF-APPELLANT, VIRGINIA MC GRATH.
POINT II. A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER NOTICE OF ANY KIN[D] WAS REQUIRED UNDER THE FACTS OF THIS CASE.
POINT III. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO EVIDENCE BEFORE THE COURT THAT THE JURY COULD INFER A LENGTH OF TIME SUFFICIENT TO SATISFY THE REQUIREMENTS FOR CONSTRUCTIVE NOTICE IN THIS CASE.
II.
We review de novo the trial court's grant of summary judgment. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We "consider whether the competent evidential materials 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." Brill, supra, 142 N.J. at 540. Judgment shall be granted if the motion record shows "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." R. 4:46-2(c).
N.J.S.A. 59:4-2 prescribes when a public entity may be liable for a dangerous condition on public property. In particular, a plaintiff must show that the public entity caused the dangerous condition, or had actual or constructive notice with sufficient time to take protective action:
A public entity is liable for injury caused by a condition of its 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 section 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.
[N. J.S.A. 59:4-2.]
The Act also defines actual and constructive notice:
a. A public entity shall be deemed to have actual notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
b. A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 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.]
Plaintiff argues she presented sufficient evidence for a jury to determine that the Board caused or had constructive notice of the dangerous condition. We disagree.
We first address the issue of how the dangerous condition was created. Plaintiff provides no direct, circumstantial, or expert evidence that a Board employee's act or omission caused the rod to detach from its bracket. The existence of a dangerous condition alone is not a sufficient basis to infer that the Board's employee was the cause. Nor does a public entity create a dangerous condition "merely because it should have discovered and repaired it within a reasonable time before an accident." Polzo v. Cty of Essex, 209 N.J. 51, 67 (2012) (Polzo II).
Plaintiff misplaces reliance on Tymczyskzyn v. Columbus Gardens, 422 N.J. Super. 253 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012), and Atalese v. Long Beach Twp., 365 N.J. Super. 1 (App. Div. 2003). In Tymczyskzyn, supra, 422 N.J. Super. at 256-58, the plaintiff presented competent evidence that by piling snow on the sides of pathway, the defendant created a dangerous icy condition. In Atalese, supra, 365 N.J. Super. at 6, there was sufficient evidence that the public entity's negligent installation of a storm sewer extension caused a dangerous depression in a pedestrian-bicycle lane. No similar evidence has been presented here to tie the dangerous condition to an act of a Board employee. Although we have recognized that "[w]hether a public employee created a dangerous condition through negligent acts or omissions may be an issue of fact that must be decided by a jury," Tymczyskzyn, supra, 422 N.J. Super. at 264, a plaintiff must still present competent record evidence to create such a jury question.
Turning to the issue of notice, the Supreme Court has observed that "[t]he mere [e]xistence of an alleged dangerous condition is not constructive notice of it." Polzo v. Cty. of Essex, 196 N.J. 569, 581 (2008) (internal quotation marks and citation omitted) (Polzo I). A plaintiff must establish "the fundamental requirement of constructive notice under N.J.S.A. 59:4-3(b), namely that the condition could have existed for such a period of time that the public entity should have discovered it." Id. at 586 (internal quotation marks and citation omitted).
The statute expressly predicates a finding of constructive notice on the plaintiff establishing that the condition existed "for such a period of time and was of such an obvious nature" that the public entity should have discovered it in the exercise of due care. N.J.S.A. 59:4-3(b). We agree with plaintiff that the law imposes no specific minimum period of time in which a condition must persist. Nevertheless, a plaintiff still bears the burden to establish "such a period of time" that, under the circumstances, the condition should have been discovered. Polzo I, supra, 196 N.J. at 585-86. As Judge Littlefield noted, plaintiff put forward no evidence of the length of time the rod was detached.
No one testified that he or she saw the detached rod before the plaintiff's accident, including plaintiff herself, who visited the playground earlier that weekend. Nor was there circumstantial evidence that the rod had been detached for an extended period of time. For example, no one testified that the broken end of the rod had already accumulated rust. Nor did an expert opine, based on the metallurgical or other features of the rod, that it had been detached for an extended period of time.
Absent such evidence, there is nothing about the detached rod that bespeaks the passage of time. The rod is unlike a large pothole, see Chatman v. Hall, 128 N.J. 394, 418 (1992), or an accumulation of sand and dirt, Milacci v. Mato Realty Co., 217 N.J. Super. 297, 302 (App. Div. 1987), which a jury might infer took an extended period of time to form. Nor was there evidence of prior accidents on the playground, which may have placed the Board on constructive notice of the dangerous condition. Cf. Wymbs v. Twp of Wayne, 163 N.J. 523, 535-36 (2000).
Superseded by statute on other grounds, as recognized in Botis v. Estate of Kudrick, 421 N.J. Super. 107, 117 (App. Div. 2011). --------
In sum, we agree with the trial court that, even extending plaintiff all favorable inferences, she failed to present sufficient evidence to enable a jury to conclude that the Board was on constructive notice of the detached rod and the dangerous condition it created.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION