October 10, 2008
NORMAN JONES, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
BOROUGH OF BOGOTA, DEFENDANT-APPELLANT/ CROSS-RESPONDENT, AND
COUNTY OF BERGEN AND MARY FREEMAN, DEFENDANTS.
On appeal from Superior Court, Law Division, Bergen County, L-8597-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Stern, Rodríguez and Waugh.
Defendant Borough of Bogota appeals from a judgment awarding damages to plaintiff Norman Jones. The damages compensate Jones for property damage caused when a blocked municipal sewer backed up into his basement. Bogota argues that, because Jones's proofs failed to meet the requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, specifically N.J.S.A. 59:4-2, the trial judge should have granted its motion to dismiss at the close of the evidence and should not have sent the case to the jury. Jones cross-appeals from the trial court's refusal to permit him to testify to the value of certain collectables damaged by the sewer backup in support of his claims for damages. We agree that the claim is barred by the Tort Claims Act and reverse the judgment in favor of Jones, which decision renders the cross-appeal moot.
The following facts were adduced at trial. In December 2003, Jones owned a two-family residential property located at 326 Larch Avenue in Bogota. Tenants occupied the first and second floors of the house. Jones stored personal belongings in the attic and in the finished basement, which he also used as an office.
On the morning of December 11, 2003, Jones's first-floor tenant contacted him regarding a terrible smell coming from the basement. Jones went to the house and, on entering the basement, saw raw sewage bubbling out of a vent in the main waste pipe. The floor was covered with water, feces, urine, grease, and food debris.
Jones immediately telephoned the municipal building and spoke to the borough clerk, who informed him that a signed expert opinion as to the cause of the problem would be required before someone would be dispatched to investigate. Jones also telephoned Bogota's Department of Public Works (DPW), but was unable to reach anyone. He left a message on the answering system.
Jones then attempted to contact private plumbing services, but had difficulty reaching one. Around 4:00 p.m., he made contact with a service known as Able Tex Emergency Service and Drain Cleaning, and was told that someone would come to the house as soon as possible. Jones also contacted the Bogota police and was informed that DPW crews were working on the problem.
James Sheridan, an Able Tex technician, arrived at approximately 7:00 p.m. He observed about a foot of sewage in the basement. Sheridan snaked out the sewer lateral from Jones's building for a distance of seventy-two feet. He ran the cable out into the Bogota sewer line, but was unable to clear the blockage. Sheridan concluded that the problem was in the main sewer line and not in the lateral running from Jones's house to the main sewer. Sheridan recalled that there was "stuff" stored in the basement and that some of the "stuff" was floating in the sewage water.
Robert Stauffer, Bogota's DPW Superintendent, came to the house around 12:30 a.m. on December 12, 2003. He told Jones that his crews were doing their best to correct the situation. Stauffer went downstairs and observed about two to three feet of raw sewage in the basement.
Around 2:00 a.m., another DPW employee informed Jones that the main sewer line had been cleared and that the water in the basement would begin to recede. Later that day, DPW crew members removed most of the standing sewer water in the basement, leaving a residue of sewage sludge. A private company, retained by Bogota, eventually performed a final cleanup.
This incident was the first time that the municipal sewer had backed up into Jones's house since his family bought it in 1963. However, there had been prior problems with sewer backups in the vicinity. The Cosmic Wheel Bicycle Shop, which was on Main Street around the corner from Jones's house, experienced at least five backups of sewage materials, similar to that experienced by Jones, in the period from 1990 to approximately 1995. A Chinese restaurant, located next to the Cosmic Wheel on Main Street, was closed at least twice in the 1990s due to sewer backups. The sewer backups on Main Street in the 1990s were caused by a build up of grease.
Stauffer, who started working for Bogato in 1989 and served as DPW Superintendent from 1997 to 2005, concluded that the backup on December 11, 2003, was caused by a build up of grease and soap in the main sewer line on Main Street. The blockage was so severe that the Bogota service truck was not capable of breaking it up, so it was necessary to have a larger sewer truck from a neighboring municipality clean out the main sewer line. The Larch Avenue sewer line, to which Jones's house was connected, runs down Larch Avenue to the Main Street sewer line, not far from the Cosmic Wheel.
Pursuant to the Bogota DPW's "sewer checklist," DPW personnel were required to check Main Street and other problem sewer lines every two weeks. DPW crews were expected to open manholes in problem areas and make sure that water was flowing and that there was no build up in the sewer. According to Stauffer, it was particularly important to do this in the winter, because the cold temperatures made it easier for grease to coagulate. He estimated that it would take about three or four weeks for sufficient grease to accumulate to cause a blockage such as the one involved in this case. Stauffer testified that, during the month prior to this incident, he had crews out checking the sewers. There was, however, no direct testimony, one way or another, as to whether the sewer line on Main Street was actually checked by DPW crews during that period.
Jones used the basement of the Larch Avenue house as an office from which to conduct a business, buying and selling "special interest" automobiles. He was unable to salvage anything kept in the basement that had been exposed to the sewage. At trial, he produced a list of the damaged personal property and the estimated the value of each item. Included on the list were: a washer and dryer, household furniture, tools, electronic equipment, a vinyl record collection, and various appliances. In addition to those personal items, Jones testified that there was considerable damage to the basement's shelves, wood paneling, sheetrock, acoustic ceiling tiles, and floor covering.
Kenneth Newton, owner of Newton Home Works, observed Jones's basement in February 2005. He recalled that the basement had "[a] sewage odor, and also mold and mildewy odor." Newton provided Jones with a written estimate for restoration work that included $2,895 for additional demolition and $24,950 for new construction. Newton never performed the work proposed in the estimate. Jones's house was damaged by fire on April 15, 2005. As a result, various photographs, receipts, and computer records documenting the losses caused by the sewage incursion were destroyed.
On December 12, 2005, Jones filed suit against Bogota and others, seeking damages arising from the sewer backup. The claims against the other defendants were eventually settled. Bogota filed an answer, generally denying the operative allegations of the complaint and setting forth thirty-four affirmative defenses, including immunity under the Tort Claims Act.
In August 2007, Bogota filed a motion in limine to bar Jones from personally providing testimony regarding the value of the comic books and automobile service manuals allegedly destroyed by the sewage. The merits of that motion were argued at a pretrial proceeding before the trial judge on September 5, 2007. The following day, he granted the motion, holding that expert testimony was necessary to establish the value of the collections.
The matter was then tried with a jury on September 6, 10, and 11, 2007. At the close of plaintiff's case, Bogota rested and then moved for judgment in its favor, arguing that it was entitled to judgment as a matter of law. The trial judge denied the motion. The jury ultimately returned a verdict in Jones's favor and assessed $48,000 in damages against Bogota. On September 20, 2007, the court entered judgment against Bogota for $48,000, together with pre-and post-judgment interest and costs of suit.
Because Bogota contends that the trial judge should have granted its motion to dismiss at the close of the evidence, we "must accept as true all evidence that supports [Jones's] position" and "accord [him] the benefit of all legitimate inferences that can be deduced therefrom." Dunlea v. Twp. of Belleville, 349 N.J. Super. 506, 508 (App. Div.), certif. denied, 174 N.J. 189 (2002).
As a public entity, Bogota's liability for damages in tort actions is governed by the Tort Claims Act, which was enacted following the Supreme Court's abrogation of the doctrine of sovereign immunity in Willis v. Department of Conservation & Economic Development, 55 N.J. 534 (1970). Under the Act, "the general rule [is] that public entities are immune from tort liability unless there is a specific statutory provision imposing liability." Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002).
In this case, the applicable provision is N.J.S.A. 59:4-2, which provides as follows:
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. [(Emphasis added).]*fn1
A "dangerous condition" is "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a). A "substantial risk" is "one that is not minor, trivial or insignificant." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (internal quotation marks omitted) (citation omitted).
Pursuant to N.J.S.A. 59:4-3, a public entity has "actual notice" of a "dangerous condition... if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." It has "constructive notice... only if the plaintiff establishes that the condition had 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." Ibid. "Protect against" is defined to include "repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition." N.J.S.A. 59:4-1(b).
If steps taken by a public entity to "protect against" a "dangerous condition" are at issue, the plaintiff must, pursuant to N.J.S.A. 59:4-2, prove that those steps, or the failure to take any, were "palpably unreasonable," a term that is not defined in the Act. In Kolitch, supra, the Supreme Court adopted the following definition:
For today's purposes we accept what was stated in Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979), in which the court differentiated the term "palpably unreasonable" from ordinary negligence:
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.
We conclude that the term implies behavior that is patently unacceptable under any given circumstance. As one trial court has suggested, for a public entity to have acted or failed to act in a manner that is palpably unreasonable, "it must be manifest and obvious that no prudent person would approve of its course of action or inaction." 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); see also H. Margolis and R. Novack, Tort Claims Against Public Entities 55 (1984) (discussing Williams and Polyard). Moreover, the burden of proof with regard to the palpable unreasonableness of the State's action or inaction is on the plaintiff in a case of this type. Fox v. Township of Parsippany-Troy Hills, 199 N.J. Super. 82 (App. Div.), certif. den.,  N.J.  (1985); H. Margolis & R. Novack, supra, at 54; Comment, "The N.J. Tort Claims Act: A Step Forward?", 5 Seton Hall L.Rev. 284, 294 (1974). [100 N.J. at 493.]
See also Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003) (applying the same standard).
The "palpably unreasonable" standard has its origins in the Legislature's concerns about the need for governmental entities to exercise discretion in allocating their financial resources.
The term "palpably unreasonable" appears in the Tort Claims Act three times, but is never defined. N.J.S.A. 59:2-3(d) (discretionary activities of a public entity); N.J.S.A. 59:3-2(d) (discretionary public employee), and N.J.S.A. 59:4-2. The legislative comment accompanying the latter section states:
This section recognizes the difficulties inherent in a public entity's responsibility for maintaining its vast amounts of public property. Thus it is specifically provided that when a public entity exercises or fails to exercise its discretion in determining what action should or should not be taken to protect against the dangerous condition that judgment should only be reversed where it is clear to the court that it was palpably unreasonable. Bergen v. Koppenal, 52 N.J. 478, 480 (1968). That decision was based on the thesis that a public entity's discretionary decisions to act or not to act in the face of competing demands should generally be free from the second guessing of a coordinate branch of Government. In addition, a public entity is not prohibited from asserting the traditional common law defense to liability.
Bergen v. Koppenal, 52 N.J. 478, 480 (1968), seems to have coined the usage of the term "palpably unreasonable" in the context of governmental immunity in this jurisdiction. In that case "an overhead traffic signal had broken loose and turned so that its signal was misdirected." Several motorists were misled by the deceptive signal, an accident resulted and a law suit against the township ensued. The defective traffic signal was on a state highway. The plaintiff contended that the local municipal police, once notified, should have acted to correct the condition. The Supreme Court stated: "We have never held that every police failure to act may be translated into dollar liability." Ibid. The court ruled that a municipality could show in defense that the police did not act because of competing demands upon the police force. In the face of such a defense "the jury may not disagree with the police deployment judgment unless it is palpably unreasonable." Ibid. The term was not further defined.
Both the Supreme Court in Bergen v. Koppenal and the Legislature in enacting the Tort Claims Act obviously desired to allow governmental officials substantial latitude when exercising judgment in the allocation of increasingly scarce societal resources. The philosophical distinction between a private person's duty and the duty of a public entity was stressed in N.J.S.A. 59:1-2, the "Legislative Declaration," where the Legislature "recognize[d] that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have a duty to do everything that might be done." A decision on discretionary allocation of resources may arise in myriad circumstances, e.g., Mitchell v. Trenton, 163 N.J. Super. 287 (App. Div. 1978) (repair of street curbing); McGowan v. Eatontown, 151 N.J. Super. 440, 449 (App. Div. 1977) (salting and sanding roadways).
We conclude that the legislative intention was to allow sufficient latitude for resourceful and imaginative management of public resources while affording relief to those injured because of capricious, arbitrary, whimsical or outrageous decisions of public servants. 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. [Williams v. Phillipsburg, 171 N.J. Super. 278, 284-86 (App. Div. 1979) (footnotes omitted).]
With the governing law in mind, we now turn to the case before us. The record supports a finding that the main sewer line on Main Street in Bogota had a propensity to clog, especially in cold weather. If not cleaned out, a completely clogged line would cause sewage backup into adjacent properties. For the purposes of this appeal, we will assume that such a propensity was a "dangerous condition" within the meaning of N.J.S.A. 59:4-1(a). A sewer clogged to the point of impassibility clearly "creates a substantial risk of injury" from sewer backups when users of the sewer system continue to use it "in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(b).
Stauffer's testimony established that Bogota had actual knowledge of the propensity of the Main Street sewer line to clog and back up in the 1990s. Rather than replace the sewer line on Main Street, it appears that Bogota instituted bi-weekly inspections to assess the sewer and remediate any incipient clogging.
On December 11, 2003, the clogged sewer line on Main Street backed up into the sewer line on Larch Avenue, to which it was connected. The Larch Avenue sewer then backed up into the basement of Jones's property, causing significant damage. That was a foreseeable event in light of the propensity of the Main Street sewer line to become clogged, the need for bi-weekly inspections, and the fact that the Larch Avenue sewer line connected to the Main Street sewer line adjacent to the area where the earlier clogging and backups had taken place.
Consequently, we are satisfied that liability pursuant to N.J.S.A. 59:4-1(b) could be premised on Bogota's actual knowledge that portions of its sewer system have a propensity to clog, back up, and cause damage to property owners. The question then becomes whether the preventative measures implemented by Bogota, the bi-weekly inspections, were "palpably unreasonable." Based upon our review of the record, we hold that they were not "palpably unreasonable" as a matter of law.
The standard for "palpably unreasonable" conduct articulated by the Supreme Court in Kolitch, supra, is "behavior that is patently unacceptable under any given circumstance." 100 N.J. at 493. Faced with a recurring backup of the Main Street sewer line, Bogota instituted bi-weekly inspections rather than replacement of the line. That preventive strategy was successful for eight years or more.
While the record clearly supports a finding that Bogota's preventative strategy failed on December 11, 2003, that fact alone does not support a determination that the preventative actions taken by Bogota were "patently unacceptable under any given circumstance." It can not said that it is "manifest and obvious that no prudent person would approve of [Bogota's] course of action." Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977) (quoted with approval in Kolitch, supra, 100 N.J. at 493), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979).
In adopting the "palpably unreasonable" standard, the Legislature was clearly not requiring preventive measures that were foolproof. As we observed in Williams, supra, "the legislative intention was to allow sufficient latitude for resourceful and imaginative management of public resources while affording relief to those injured because of capricious, arbitrary, whimsical or outrageous decisions of public servants." 171 N.J. Super. at 286.
Consequently, we find that the motion for judgment at the end of the evidence should have been granted. We reverse the judgment entered in favor of Jones. Our disposition of the appeal renders the cross-appeal moot.