June 29, 2007
RITA MELCER AND CHAIM MELCER, HER HUSBAND, PLAINTIFFS-APPELLANTS,
TOWNSHIP OF LAKEWOOD, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2007
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 caused plaintiff to trip and prevented her from catching herself during the fall, ultimately causing plaintiff to fall into the street and seriously injure her shoulder.
The court denied the motion, concluding that "there's no expert that says that that distance between the top of the curb to the bottom -- to the top of the street is a safety hazard."
The present appeal followed. Plaintiff contends that the evidence, when viewed in a light most favorable to her, established a prima facie case that the Township's conduct was palpably unreasonable.
Our task is to determine whether there is a genuine issue of material fact that bars summary judgment. R. 4:46-2(c); Brill, supra, 142 N.J. at 540. Appellate review of a summary judgment order is "akin to that of the trial court, that is, we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to [plaintiff]." Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005) (internal quotation marks omitted). Summary judgment is appropriate if "the evidence is so one-sided that one party must prevail as a matter of law. . . ." Brill, supra, 142 N.J. at 540 (internal quotation marks omitted).
The polestar of the Act is that public entity immunity is the general rule and liability is the exception. Coyne, supra, 182 N.J. at 488; Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998). In light of that guiding principle, courts construe the Act to permit a finding of liability against a public entity only where specifically permitted by the Act. Frugis v. Bracigliano, 177 N.J. 250, 275 (2003).
To withstand a motion for summary judgment asserting liability under N.J.S.A. 59:4-2, a dangerous condition of public property, a plaintiff must demonstrate that a reasonable jury could find the following five elements: (1) a dangerous condition existed at the time of plaintiff's injury, (2) plaintiff's injuries were proximately caused by the dangerous condition, (3) the dangerous condition created a reasonably foreseeable risk of the kinds of injuries that plaintiff sustained, (4) the public entity created the dangerous condition or had notice of it a sufficient time prior to plaintiff's injury to have taken measures to protect against it, and (5) the public entity's failure to take action to protect against the dangerous condition was palpably unreasonable. Saldana v. DiMedio, 275 N.J. Super. 488, 502 (App. Div. 1994). Here, only notice of the condition and the "palpably unreasonable" element are relevant to our discussion.
Although the Act does not define the phrase "palpably unreasonable," it "means more than ordinary negligence, and imposes a steep burden on a plaintiff." Coyne, supra, 182 N.J. at 493; see also Gaskill, supra, 360 N.J. Super. at 536-37 ("Palpable unreasonableness connotes a more obvious and manifest breach of duty than mere negligence[.]" (Internal quotation marks omitted)). In discussing the phrase palpably unreasonable, the Court has stated that it "implies behavior that is patently unacceptable under any given circumstance. . . . [I]t must be manifest and obvious that no prudent person would approve of [the public entity's] course of action or inaction." Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003) (internal quotation marks omitted); see also Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979) ("We have no doubt that the duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.").
The plaintiff bears the burden of proving that the public entity acted in a palpably unreasonable manner. Muhammad, supra, 176 N.J. at 195. Whether the conduct of a public entity was palpably unreasonable is ordinarily for the jury to decide. Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 451 (App. Div. 1993). The determination of palpable unreasonableness "presents a jury question in the sense that it is no longer specifically assigned to the judge." Id. at 452. "However, the finding, like any other fact question before a jury, is subject to the court's assessment whether it can reasonably be made under the evidence presented." Ibid.; see also Maslo, supra, 346 N.J. Super. at 350 ("[T]he question of palpable unreasonableness may be decided by the court as a matter of law in appropriate cases.").
In Gaskill, supra, the Township of Mount Holly had planted trees in the outer edges of a sidewalk and installed grates around the trees. 360 N.J. Super. at 533. Over a period of nine years, the roots of one tree "had grown up and pushed the grate, causing the bolt to give out and raise the grate" one inch above the level of the abutting sidewalk. Ibid. Plaintiff fractured her elbow when she tripped and fell over the raised grate while walking on the sidewalk. Ibid. The court affirmed summary judgment in favor of Mount Holly, concluding that the plaintiff had failed to establish a prima facie case that Mount Holly's failure "to rectify the allegedly dangerous condition prior to the incident was palpably unreasonable." Id. at 537.
We recognize, of course, that plaintiff is entitled to the benefit of all favorable inferences, and there appears to be no dispute that the curb was constructed, albeit years earlier, by the Township, and the underground piping probably accounts for the raised curb. Nevertheless, we conclude that plaintiff has failed to establish a prima facie case that the conduct of the defendant in creating the condition was "patently unacceptable under any given circumstance," Muhammad, supra, 176 N.J. at 195, and a reasonable jury could not conclude that the Township's failure to correct the condition was palpably unreasonable. See Norris, supra, 160 N.J. at 452 (O'Hern, J., concurring); Sims v. City of Newark, 244 N.J. Super. 32, 42-43 (Law Div. 1990).
Moreover, it is undisputed that prior to plaintiff's fall, there had been no complaints or injuries about which the Township was aware concerning the condition of this particular path. Nor is there any evidence that the condition was of such an obvious nature and had existed for such a length of time that through the exercise of due care, the Township would have discovered the condition and its dangerous character.