March 4, 2008
VIVIAN ANDREWS, PLAINTIFF-APPELLANT,
CITY OF TRENTON, DEFENDANT-RESPONDENT, AND EARL FREEMAN, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1005-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2008
Before Judges Parrillo and Gilroy.
Plaintiff Vivian Andrews appeals from the February 2, 2007, order, which granted summary judgment in favor of defendant City of Trenton (the City). Plaintiff also appeals from the order of April 4, 2007, which denied her motion for reconsideration. We affirm.
On January 19, 2004, plaintiff fell into a hole approximately eighteen to twenty-four inches wide and two to three feet deep, located in the grassy strip between the sidewalk and curb abutting residential property owned by defendant Earl Freeman at 46-48 Prospect Street, in Trenton. On April 11, 2005, plaintiff filed a complaint for personal injuries, alleging that the City and Freeman negligently "owned, controlled, supervised, operated, managed, inspected, repaired, and maintained" the grassy strip. On June 27, 2005, the City filed its answer, asserting that plaintiff's complaint was barred by the New Jersey Tort Claims Act*fn1 (the Act), N.J.S.A. 59:4-2. Although plaintiff attempted service on Freeman, the summons and complaint were returned by the Mercer County Sheriff's Office with the return of service indicating that Freeman was deceased.*fn2
After discovery, the City filed a motion for summary judgment contending that plaintiff was not able to prove a prima facie claim under N.J.S.A. 59:4-2. On February 2, 2007, the trial court rendered an oral opinion and entered an order granting summary judgment, determining that plaintiff had not presented any evidence that the City owned or controlled the grassy strip. On April 4, 2007, plaintiff's motion for reconsideration was denied.
On appeal, plaintiff argues that "the decision of the court below should be reversed because where plaintiff fell was public property as defined by the New Jersey Tort Claims Act and relevant case law." We disagree.
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 (2008). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Plaintiff argues, as she did in the Law Division, that because the sidewalk and curb are considered "public" under the Act, Norris v. Borough of Leonia, 160 N.J. 427, 442-43 (1999), the grassy strip must also be considered public property as a matter of law. We disagree.
Prior to 1981, absent negligent construction, repair, or improper use, landowners were not liable for personal injuries caused by defective sidewalks abutting their properties. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 153 (1981). However, in 1981, the Court revisited the law of sidewalk negligence as it pertained to abutting commercial landowners and determined that "commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their propert[ies] and are liable to pedestrians injured as a result of their negligent failure to do so." Id. at 157. In reaching its decision, the Court determined that imposing liability on an abutting commercial owner would "provide a remedy to many innocent plaintiffs for injuries caused by improper maintenance of sidewalks. As a corollary, it will give owners of abutting commercial property an incentive to keep their sidewalks in proper repair . . . ." Ibid. Simply stated, the Court "concluded that the benefits of sidewalks to abutting commercial owners warranted the imposition on them of a rule of liability, which would serve the dual purpose of providing recourse to innocent pedestrians and an incentive to abutting commercial owners to keep their sidewalks in good repair." Nielsen v. Lee, 355 N.J. Super. 373, 376 (App. Div. 2002), certif. denied, 176 N.J. 73 (2003). However, the Court continued the principle of no liability for abutting residential owners. Stewart, supra, 87 N.J. at 159.
We recently extended the principle of liability to abutting commercial property owners where an injury results from a condition in the grassy strip between the sidewalk and curb, determining that the strip was "an extension of the sidewalk and 'structurally an integral part' of it." Beddell v. Saint Joseph's Carpenter Soc'y, 367 N.J. Super. 515, 524 (App. Div. 2004). Our decision was not based on the abutting property owner's ownership or control of the grassy strip. Rather, our decision was based on the principle of fairness, imposing a duty of care on abutting commercial property owners to maintain sidewalks. Id. at 521-23 (citing Monaco v. Hartz Mountain Corp., 178 N.J. 401, 418 (2004); Gaskill v. Active Envtl., 360 N.J. Super. 530, 536 (App. Div. 2003)). "Having been provided the substantial benefit of easy access to its property, it is only fair that [an abutting commercial property owner] be burdened with the duty to maintain the grassy strip in a reasonably safe condition so as not to present an unreasonable risk of harm." Id. at 525-26.
However, the precepts underpinning Beddell are not applicable where the abutting property is residential. Moreover, the mere fact that an abutting residential property owner is not generally liable for injuries caused by defective sidewalks or conditions in the grassy strip, does not impose liability on the public entity for such injuries. Such a dramatic change in the law rests with the Legislature.
The Act re-establishes sovereign immunity after common law immunity was abrogated by the Court in Willis v. Dep't of Conservation and Econ. Dev., 55 N.J. 534, 540-41 (1970). Under the Act, public immunity is the rule; liability is the exception. Coyne v. State of N.J. Dep't of Transp., 182 N.J. 481, 488 (2005). "Except as provided by this Act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of a public entity or a public employee or any other person." N.J.S.A. 59:2-1(a).
Although public entities are generally immune from suit, a public entity may be held liable under the Act for its failure to protect against a dangerous condition on public property.
A public entity is liable for 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 section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity 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.]
N.J.S.A. 59:4-2 only applies to "public property," which is defined under the Act as "real or personal property owned or controlled by the public entity." N.J.S.A. 59:4-1c. As stated by the Court, "that finding is crucial to any imposition of municipal liability" under N.J.S.A. 59:4-2. Norris, supra, 160 N.J. at 443. Without this finding, liability does not attach. Ibid.
Here, plaintiff did not present any evidence by way of a property survey map, an official city street map, or an affidavit from the City Engineer showing where the street right-of-way ends and the adjoining property line begins. Because presumptively an abutting property owner's title goes to the middle of the street, subject to the easement of public passage on the street and the sidewalk, Haven Homes v. Raritan Twp., 19 N.J. 239, 244-45 (1955); Levin v Devoe, 221 N.J. Super. 61, 63 (App. Div. 1987), it was incumbent on plaintiff to come forward with sufficient proofs to rebut that presumption of ownership and show that the City either owned the grassy strip or exercised control over it. Plaintiff failed to present such proofs. Accordingly, we affirm.