On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8322-01.
Before Judges Havey, Fall and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2003
In this slip-and-fall Tort Claims action, plaintiff Stanley Carroll appeals from an order entered in the Law Division on January 10, 2003, granting summary judgment in favor of defendant New Jersey Transit Corp. We affirm.
Because this appeal arises from the grant of a motion for summary judgment,"we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff." Strawn v. Canuso, 140 N.J. 43, 48 (1995). So viewed, they are as follows.
On September 14, 1999, plaintiff was walking down the steps of the Newark City Subway at the Davenport Avenue Station in Newark when he slipped on a foreign substance identified as dog feces and fell down the steps, fracturing his ankle. Defendant leases and operates the Newark City Subway, including the steps where the accident occurred. At the time, plaintiff was walking down the steps with, and talking to, his brother-in-law, Edward O'Connor, as they were returning home after having lunch together. Plaintiff did not see anything on the steps, however, before he fell. Because no one was in the area at the time of the fall, the two men waited for about twenty minutes in the park near the subway station until plaintiff's pain subsided, at which time O'Connor helped plaintiff walk to a fire house around the corner where plaintiff was then transported by ambulance to a hospital.
In answers to interrogatories on March 12, 2002, plaintiff certified that defendant's employee, a maintenance worker, was in the area sweeping up garbage at the time of the accident.
This employee, however, was never identified, and O'Connor, since deceased, never mentioned any such person in his written statement of November 24, 1999. Moreover, three months after he certified his interrogatory answers, plaintiff testified on deposition on June 19, 2002, that he did not know of anyone other than his brother-in-law who saw him fall; that he did not know of anyone else who was in the area at the time of his fall; and that he did not report the accident to New Jersey Transit when it happened because"[t]here wasn't anyone there."
O'Connor essentially confirmed this account when he stated that they had to walk to the fire station to get help even though plaintiff had a painfully fractured ankle. There was also evidence that a New Jersey Transit serviceman routinely inspects the subway station once a day, between 7:00 a.m. and 9:00 a.m.
Plaintiff filed timely notice of the injury and his claim in accordance with the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and filed a complaint in the Law Division against New Jersey Transit, the City of Newark and fictitiously-named defendants on September 12, 2001.*fn1 After the completion of discovery, defendant moved for summary judgment, arguing that the evidence did not establish dangerous condition liability under the Tort Claims Act because: (1) there was no substantial risk of harm to a user with due care, who would have used the handrail and paid attention to where he was walking; (2) defendant did not have actual or constructive notice of the dog feces on the step; and (3) its actions or inaction to prevent the possibility of that condition were not palpably unreasonable. Plaintiff countered that: (1) the feces presented a substantial risk of injury to a person using the steps with due care; (2) his interrogatory answer supported an inference of notice; and (3) defendant's failure to clean up the feces was palpably unreasonable. The motion judge found that the"dog droppings could be construed as a dangerous condition," but granted summary judgment dismissal of plaintiff's complaint because there was neither actual nor constructive notice of the claimed defect. He reasoned:
I think the real focus has to come on the question of notice. There's no question there's no actual notice. The question is whether there is constructive [notice] assuming that there was... some type of a maintenance worker cleaning or sweeping up in the area. Certainly, there's no indication that the worker had been in the area where the dog dropping was before the accident happened because, obviously, the stairway is not the only portion of the subway station. It certainly has a platform area which undoubtedly would have more area to it than the stairway. The real problem I have from the plaintiff's perspective is that there's just absolutely no evidence to indicate how long the substance was on the stairway. I mean, for all we know, something may have happened something like five minutes or two minutes before the accident itself occurred. But I think because there's just no indication of how long it was there, there's no basis for which a reasonable fact-finder could find constructive notice. And I think with that, the plaintiff's cause of action must fail. So I will grant the motion for summary judgment.
On appeal, plaintiff argues, as he did before the motion judge, that there was sufficient evidence of notice of the dangerous condition to withstand a summary judgment dismissal of his action. He also argues alternatively, and for the first time on appeal, that he was relieved of the burden of proving notice because defendant's mode of operation, as a matter of probability, created a substantial risk of injury and that both defendant's maintenance policy and manner of inspection on this occasion were"palpably unreasonable." We disagree.
N.J.S.A. 59:4-2 circumscribes the liability of a public entity for an injury caused by a dangerous condition on its ...