On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-2246-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sapp-Peterson.
In this appeal, we consider a claim brought by plaintiff*fn1 Rita Melcer against defendant Township of Lakewood (Township) under the Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3.
Plaintiff appeals from an order granting summary judgment to the Township. After considering the evidentiary materials in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we are satisfied that a rational fact-finder could not conclude that the Township's actions or inactions were palpably unreasonable. We therefore affirm the order granting summary judgment to the Township.
On the evening of July 26, 2003, plaintiff, who was seventy years old at the time, along with her daughter and grandchildren decided to walk to a park. Her grandchildren knew of a path to the park. Plaintiff was unfamiliar with the path or its condition. The path ran off Tanglewood Street. Once the group arrived at the park, they remained at the park for approximately ninety minutes. They left the park sometime between 7:30 p.m. and 8:00 p.m. It was twilight at the time. Plaintiff's daughter and grandchildren walked ahead of her. As she attempted to step off the path onto Tanglewood Street, her foot got caught on a cement curbing which extended two or three inches above the gravel pathway. She fell into the street and sustained injuries.
Upon the completion of discovery, the Township filed a summary judgment motion. The Township argued the Act, specifically N.J.S.A. 59:4-2(b), barred plaintiff's recovery because she was unable to show that the Township had actual or constructive notice of any dangerous condition, and that the Township's actions or inactions were palpably unreasonable.
Following oral argument, the trial judge entered summary judgment in favor of the Township, reasoning as follows:
[T]he problem here is this is a curb, but the plaintiff didn't trip as she was walking in the street and approached the curb. She fell on top of the curb. That's the best way I can describe it. She's walking on a path. She then comes to a curb and then the curb, on the other side of the curb is the street. When it was first created I don't know whether or not the soil on her side of the curb was level with the curb top. The presumption is that it would be, but I don't know. If it were not, the municipality created that condition obviously because they put the curb in and they had the path. So notice is really -- well, I think it's an issue. But the real question is palpably unreasonable response by the municipality in light of the condition.
The one case that exists out there is a case called [Gaskill v. Active Envtl. Techs., Inc., 360 N.J. Super. 530 (App. Div. 2003)]. . . . Now, in that particular case the plaintiff was injured when she tripped and fell on a one-inch raised metal tree grate in front of a property owner on a commercial property while she was walking on the sidewalk. The property owner was sued as well as the Borough of Mount Holly. The . . . Appellate Division granted a motion in favor of the Borough of Mount Holly, indicating that, "Palpably unreasonable connotes a more obvious and manifest breach of duty than mere negligence and implies behavior that is so patently unacceptable under any given circumstances."
In that particular case, despite the fact that the Town put the grate in and was aware of it, the Court held that their failure to correct it was not palpably unreasonable.
And I think the same analysis applies to this particular case, assuming for the benefit of the plaintiff that the Town did not level the ground before the curb but over the years the condition existed and it's not so obvious that their actions are so palpably unreasonable that would permit . . . liability to be imposed upon them. So I'll grant the Municipality their motion.
Plaintiff moved for reconsideration on the issue of the Township's conduct being palpably unreasonable and as to the condition of the property. At oral argument on the motion, plaintiff's counsel pointed out that there was an underground pipe approximately one foot in diameter that ran the whole length of the pathway in the center of the path. Counsel described for the court that "on either side [of the pipe] when you go to the street the curb comes up over the pipe. So the curb is in some portions fifteen inches high." Counsel argued that this condition, combined with the two-and-one-half to three-inch lip on the inside of the curb ...