On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-12672-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and Gilroy.
Plaintiff Michael Souhlakis appeals from the March 17, 2006, order of the Law Division granting summary judgment to defendant New Jersey Sports and Exposition Authority. We affirm.
Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. On August 11, 2002, plaintiff attended a pre-season professional football game at Giant Stadium, owned, operated, and maintained by defendant. At approximately midnight, while walking between parked cars in the parking lot returning to his motor vehicle, plaintiff encountered a bag of trash, which was positioned away from the travel area of the parking lot in between motor vehicles, where four parking spaces meet. Plaintiff slipped on a discarded bottle, causing him to fall and suffer severe injuries.
On August 5, 2004, plaintiff filed his complaint alleging that defendant negligently maintained the parking lot in a dangerous and hazardous condition. On February 16, 2006, defendant filed a motion for summary judgment, asserting that plaintiff could not establish a prima facie case of premises liability under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3. Defendant contended that plaintiff was not able to establish "that the property was in a dangerous condition at time of the injury," that defendant "had actual or constructive notice of the dangerous condition . . . [in] a sufficient time prior to the injury to have taken measures to protect against the dangerous condition," and that defendant's action or inaction to prevent the injury was "palpably unreasonable." N.J.S.A. 59:4-2. In opposing the motion, plaintiff conceded that he was unable to establish actual notice of the condition but argued that defendant should have known that patrons would litter in the parking lot area while tailgating with defendant's permission prior to and during football games. As to whether defendant acted in a palpably unreasonable manner, plaintiff contended that the issue was for the trier of fact.
On March 17, 2006, Judge Toskos issued a written opinion granting summary judgment, determining that plaintiff had "not presented any evidence tending to show that the [d]efendant had actual or constructive notice of the condition complained of." The motion judge concluded that plaintiff's argument on constructive notice was akin to a "mode of operation" theory of liability, which is not applicable against a public entity. Carroll v. New Jersey Transit, 366 N.J. Super. 380, 389-90 (App. Div. 2004). The judge also determined that plaintiff had failed to establish that defendant's actions were palpably unreasonable, and that ordinary negligence was not sufficient to impose liability under the Act.
On appeal plaintiff argues:
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT NEW JERSEY SPORTS AND EXPOSITION AUTHORITY['S] MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT THE PLAINTIFF MICHAEL SOUHLAKIS DID NOT SATISFY THE REQUIREMENTS OF THE TORT CLAIMS ACT, N.J.S.A. 59:9-1 ET SEQ.
THE TRIAL COURT ERRED IN DETERMINING THAT NO GENUINE ISSUES OF MATERIAL FACT EXISTED IN THIS MATTER.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that 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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "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." R. 4:46-2(c). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 ...