On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4075-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
This is an appeal from a summary judgment dismissing plaintiff's personal injury action against the defendant Borough of Manasquan. Plaintiff's action is based on his slip and fall on a stairway in the Manasquan Borough Hall on September 7, 2001.
Because the Borough is a public entity, plaintiff's claim is governed by the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, specifically the sections of the Act dealing with liability for dangerous conditions of public property, N.J.S.A. 59:4-1 to -3. N.J.S.A. 59:4-2 provides:
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.
Plaintiff submitted an expert report in support of his claim prepared by Michael G. Natoli, a consulting engineer, which concluded that a "wax film present on the stairway surfaces at the time of the incident yielded unsafe conditions for pedestrians[,]" and that Manasquan was negligent in failing to property maintain the stairway, which "resulted in the film of wax present atop the stair tread region."
In granting summary judgment, the trial court held that plaintiff failed to present evidence that could support the imposition of liability under N.J.S.A. 59:4-2. The court concluded that plaintiff failed to present evidence that Manasquan had actual or constructive notice of the alleged waxy film on the stairway or that could support a jury finding that Manasquan's actions regarding the stairway were palpably unreasonable.
On appeal, plaintiff has not pursued his claim that the alleged waxy film on the stairway could support imposition of liability upon Manasquan. Instead, plaintiff's current claim is that the anti-slip stripping embedded in the stairs was not placed close enough to the outer edge of the stairs. This theory of liability does not appear to have been presented to the trial court. Plaintiff alleged that the anti-slip stripping did not extend the full width of the stairs to the area where he fell on the alleged waxy film, but he did not assert as an independent theory of liability that the stripping was not placed close enough to the edge of the stairs. Therefore, we question whether this claim is properly before us. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In any event, plaintiff did not present evidence that could support imposition of liability on this basis even if his claim had been based on common law principles of liability for simple negligence rather than the stricter standards of liability provided under the Tort Claims Act. Plaintiff's expert did not conduct an inspection of the stairway where plaintiff fell, and the expert's report did not indicate the distance from the anti-slip strips to the outer edge of the stairs.*fn1 Moreover, plaintiff's expert did not provide any safety standard as to how close to the outer edge of a stair such an anti-slip ...