October 9, 2007
PEARL ANTHONY AND ROBERT ANTHONY, PLAINTIFFS-APPELLANTS,
TRI-COUNTY SECURITY, CITY OF CAMDEN, DEFENDANTS, AND COUNTY OF CAMDEN AND CAMDEN COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1649-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2007
Before Judges Skillman and Yannotti.
Plaintiffs Pearl Anthony and Robert Anthony appeal from an order entered by the Law Division on August 4, 2006, which granted summary judgment in favor of defendants County of Camden and Camden County Board of Chosen Freeholders (County). For the reasons that follow, we reverse.
Plaintiffs filed a complaint in this matter on February 28, 2005, claiming that Mrs. Anthony was injured on February 28, 2003 when she slipped and fell on the steps inside City Hall, in Camden, New Jersey.*fn1 Plaintiffs alleged that defendants had a duty to exercise reasonable care in the maintenance of the property; failed to make reasonable observations and discover any dangerous conditions that might develop; breached their duty of reasonable care "to fix or take necessary precautions" respecting the dangerous condition; and Mrs. Anthony's injuries were the foreseeable result of defendants' failure to properly maintain and/or repair the property. Mr. Anthony asserted a claim for the loss of his wife's services, society and companionship. Defendants filed an answer denying liability and alleging, among other things, that plaintiffs' claims were barred by the applicable provisions of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.
The record shows that Mrs. Anthony was in her mid-70's at the time of the accident. She testified at a deposition that the accident occurred around 11:30 a.m. on the main floor of City Hall. Mrs. Anthony said that it "was a very snowy day" after a "big snow[storm]" and people were walking in and out of the building "with mud on their shoes and stuff like that." She asserted that there was snow on the streets and some snow on the sidewalks. Mrs. Anthony entered the building at the Sixth Street entrance. She observed water on the floor in the lobby and on the steps going up from the lobby to the elevators.
Mrs. Anthony was employed at the time by Tri-County as a security guard and she came to City Hall to pick up her check at Tri-County's office in the basement of the building. Mrs. Anthony walked up the steps to the elevators, took an elevator downstairs to the basement, and went to Tri-County's office. She said that the floor in front of the elevators on the first floor was wet but there were no puddles of water in that area. Mrs. Anthony picked up her check, got on the elevator and returned to the first floor. She exited the elevator and walked down the steps to the exit.
Mrs. Anthony stated that she was in the building about fifteen or twenty minutes. She exited from the same steps that she came in. Mrs. Anthony testified that the steps were wet. She said that she held onto the railing but she slipped. Mrs. Anthony asserted that all of the steps were wet and there was water and "gritty stuff" on the third step. Mrs. Anthony said that she did not know how long the steps were wet before she fell but the steps were not "as wet [when she entered] as they were when [she] came down."
Michael P. Large (Large) also was deposed. In 2003, Large was the County's maintenance superintendent for the courthouse complex. Large said that he had ultimate responsibility to see that the property was cleared of hazards due to ice, snow or weather conditions. He stated that the floor inside the vestibule area has a marble border surrounding a "walk pad" with a fabric tread. The floor surface where the metal detectors are located is marble.
Large testified that "runners" are used in the entranceways when there is snow, icy conditions, or rain. He explained that the "runners" have carpet on top and a rubber base. According to Large, the "runners" are placed by the front door entrance and at the top of the stairs. He said, "the runners absorb the water from the people coming in off their shoes." Large added if there was an excessive amount of water on the walking surface in the vestibule area, the maintenance crew would "get a mop and mop it up."
Plaintiffs supported their claims with two reports written by Julian M. Toneatto (Toneatto), a civil engineer. In a report dated February 23, 2006, Toneatto described the main lobby area of the building. He said that there are three pairs of double-glass doors at the Sixth Street entrance and an enclosed foyer area immediately inside the doors. In addition, there is a landing and a "wide flight of eight marble steps" that ascend to the main lobby area. The steps are separated into three sections and iron handrails are located on each side of the three stair sections. The steps are made of marble and, according to Toneatto, "the treads of the steps are worn by nearly a century of foot traffic."
Toneatto asserted that the steps are about a foot wide, from the kick plate to the outer edge. He pointed out that hollow areas are worn into the marble treads about 12 to 30 inches from the handrails. The hollows are as deep as one-eighth inch below the surface of the original tread and can retain between one-sixteenth and one-eighth of an inch of water.
Toneatto wrote, "While this does not seem to be a lot of water, it is more than sufficient to lubricate the surface of the tread, and to cause a slip and fall."
Toneatto additionally stated that the condition of the steps was dangerous, particularly to elderly persons who may have slower reaction time and diminished strength. He observed:
It is reasonable to expect that the maintenance staff of the [County building] would have observed these conditions, and would have taken prudent actions to avoid injuries to the persons entering the building. These actions would typically include posting "sandwich signs" to alert people of wet or slippery surfaces; installing non-slip mats on the stair treads; or providing frequent mopping of the treads to remove the puddle water. Apparently, none of these actions were [taken] prior to Mrs. Anthony's accident.
In his supplemental report dated April 6, 2006, Toneatto discussed the "coefficient of friction" (COF) of stone floors. He noted that the "static" COF is measured from a resting position, and the higher the "static" COF, the less slippery the surface. Toneatto wrote that standards adopted by the Occupational Safety and Health Administration (OSHA) require the elimination of slippery conditions on stairways. According to Toneatto, OSHA standards require a COF of .4 on horizontal surfaces, and marble and stone surfaces generally meet that requirement when dry and well-maintained. However, in wet conditions, the COF of marble and stone floors can be reduced to .2 or in some cases .1 or less, thus creating a hazardous condition.
The County filed a motion for summary judgment, arguing that plaintiffs failed to establish that the County had actual or constructive notice of the pooling of water on the steps inside the Sixth Street entrance to the building and therefore plaintiffs could not establish liability under the TCA. The judge rendered his decision from the bench. The judge concluded that because plaintiffs had not established how long the puddles of water were on the steps, they failed to show that the County had actual or constructive notice of the alleged dangerous condition, or that the County's failure to protect against or take action in respect of the condition was palpably unreasonable. The judge entered an order granting summary judgment in favor of the County and this appeal followed.
Plaintiffs argue that summary judgment should not have been granted because they presented sufficient evidence to raise a genuine issue of material fact as to whether the County had actual or constructive notice of the dangerous condition on the steps in City Hall where Mrs. Anthony slipped and fell. We a`gree.
Summary judgment may be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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). When considering a summary judgment motion, the judge must determine whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party.... If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of R. 4:46-2. [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
Summary judgment is appropriate only when the evidence on a disputed fact issue is so "one-sided" that one party must prevail as a matter of law. Ibid. We apply this same standard when reviewing an order granting summary judgment. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).
The TCA provides that a public entity may be liable for an 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 [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. [N.J.S.A. 59:4-2.]
A public entity is deemed to have "actual notice of a dangerous condition" when it had "actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3a. In addition, a public entity is deemed to have "constructive notice" of a dangerous condition if the plaintiff establishes that the condition had either 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. 59:4-3b.]
However, a public entity will not be liable 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.
In his decision from the bench, the judge placed dispositive weight on the fact that there was no direct evidence of when the water had accumulated on the steps. However, there was sufficient evidence from which a fact-finder could rationally find that the County had constructive notice of the alleged dangerous condition. The jury could infer that the condition had "existed for a period of time" and was sufficiently obvious, so that the defendant's agents or employees, "in the exercise of due care, could have discovered the condition and its dangerous character." Ibid.
As stated previously, Mrs. Anthony testified that it snowed heavily on or before the day of the accident and it was still snowing when she entered the building at around 11:15 a.m. She stated that members of the public were tracking snow into the building when she arrived. Mrs. Anthony asserted that the steps were wet when she fell; therefore, a jury could reasonably infer that members of the public had been tracking snow and water into the building for several hours before she arrived.
In addition, Torneatto opined that the worn condition of the steps developed over a considerable period of time. A jury could infer that defendants were aware that, depending upon the weather conditions, water could accumulate in the depressions on the steps. A jury also could infer that the wet condition of the steps was obvious in nature, and defendant's agents and employees, who were in the entrance area, could have discovered the condition and its dangerous nature in the exercise of due care.
In urging that we affirm the order granting summary judgment in their favor, the County relies upon our decision in Carroll v. N.J. Transit, 366 N.J. Super. 380 (App. Div. 2004). There, the plaintiff slipped and fell on dog feces which was on a step of a stairway at a subway station in Newark. Id. at 384. Plaintiff claimed that a maintenance worker was in the area at the time of the accident "sweeping up garbage." Ibid.
In Carroll, we held that, even if defendant's employee was in the area as the plaintiff alleged, this evidence failed to establish constructive notice of an alleged dangerous condition under N.J.S.A. 59:4-3b because there was no evidence as to how long the dog feces had been on the step. Id. at 388. Moreover, we pointed out that there was no evidence of any complaints "from the public about the presence of dog feces or other slippery substances on the station steps, or a history of similar incidents. . . ." Id. at 389.
In our view, defendants' reliance upon Carroll is misplaced. The facts of this case are readily distinguishable. In Carroll, there was no evidence from which an inference could be drawn as to the time the foreign substance was on the steps of the train station. By contrast, in this case, there is sufficient evidence from which an inference can reasonably be drawn that water had accumulated on the steps near the Sixth Street entrance to City Hall over several hours in the morning of February 28, 2003.
The judge additionally found that plaintiffs failed to present sufficient evidence to show that the action defendants "took to protect against the condition" or their "failure to take such action" was "palpably unreasonable." N.J.S.A. 59:4-2. This finding also was premised on the absence of any direct evidence as to the amount of time the puddles of water were on the steps.
However, as stated previously, a fact-finder could reasonably infer that the steps had been wet for a sufficient period of time to place defendants on notice of the condition and its dangerous nature. A fact-finder could also reasonably infer that defendants' failure to take action to protect against the condition was palpably unreasonable.
Although the term "palpably unreasonable" is not defined in the TCA, it has been interpreted to mean conduct that is "patently unacceptable under any given circumstances." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (quoting Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd o.b. 79 N.J. 547 (1979)). The record provides an adequate factual foundation for a jury to find that any puddles of water on the steps could have been readily dealt with by the use of warning signs, runners or perhaps a mop.
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.