February 26, 2009
NANCY MARTINEZ AND ULRICO MARTINEZ, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
NEW JERSEY TRANSIT CORPORATION, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2665-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2009
Before Judges Winkelstein and Gilroy.
Plaintiffs Nancy Martinez and Ulrico Martinez,*fn1 her husband, appeal from the March 14, 2008 order of the Law Division that granted summary judgment to defendant New Jersey Transit Corporation (NJT). We affirm.
Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. NJT owns and operates a train station in Trenton, New Jersey. The train station contains a stairway that descends from street level to Tracks 1 and 2. The stairway consists of thirty-two steps with a six-foot-wide landing at midpoint. The landing and steps are constructed of embossed steel plates.
On October 19, 2003, plaintiff, while wearing thin high heels, two to four-inches in height, descended the left-hand side of the stairway, holding onto the left handrail, when her right foot caught the edge of a raised floor plate on the landing. Plaintiff fell down the remaining sixteen stairs and suffered serious injuries.
On October 5, 2005, plaintiff filed her complaint, alleging that as an invitee of NJT, NJT negligently failed to "maintain the premises in a safe and reasonable fashion, so as to provide a safe place upon which pedestrians might walk."
In November 2007, NJT moved for summary judgment, contending that plaintiff could not prove that it had received actual or constructive notice of the alleged dangerous condition as required by N.J.S.A. 59:4-2 and -3. In opposition to the motion, plaintiff submitted a copy of a March 20, 2007 report of Ervin Leshner, a professional engineer.
Leshner inspected the stairway on March 13, 2007, and noted the following condition in the area where plaintiff fell:
The stairway consists of approximately 32 steps with a landing about 6 ft wide at [halfway] down. The floor and steps were embossed steel plates. On the landing and approximately 18 inches in front of the second tier of descending steps there was a separation between the plates. The gap between the plates measured at 10 inches from the left edge was .41 inches wide. There was a vertical separation at adjoining floor plates where the edge of the plate toward the next step down was .52 inches high.
Leshner supported his report with several photographs depicting the area that had been taken two and one-half years after the accident.
At oral argument on March 14, 2008, when asked by the trial court whether it was fair for the court "to assume that there ha[ve] been no prior accidents or incidents" with respect to the condition complained of, plaintiff's counsel responded that "[t]here's nothing in the record to suggest that there [were] any prior incidents . . . before [plaintiff's] fall." After the court stated that it would be speculative to determine when the platform fell into disrepair, plaintiff's counsel stated "[p]ossibly that when [NJT] installed these plates they weren't installed properly." The court then inquired of counsel whether plaintiff had any proof that the stairs had been improperly constructed by NJT. Counsel candidly answered "[n]o." At the conclusion of oral argument, the court granted summary judgment supported by an oral decision.
In granting the motion, the court reasoned:
Plaintiff claims the physical defect may have come into existence when the stairwell was built. There's no evidence to suggest that. And it's different from things that can be more distinctly measured like the grow[th] of a tree or something that causes -- that is perhaps more inviting of a change over time.
Counsel is kind enough and all counsel agree that the real issue here is the notice and moreover it's constructive notice of what . . . the State should have been aware of  given the circumstances. And a public entity as I understand shall be deemed of constructive notice of a dangerous condition within the meaning of the statute only if the plaintiff established a condition that existed for such a period of time and was such an obvious nature to let the public entity exercise the due care. It should have discovered the condition and [its] dangerous character.
I think that's where . . . the plaintiff[']s complaint fails. And if I take into consideration to the extent of judging that which is in existence and compare that to the engineer's report which I reviewed and which relates to a type of pace individuals walk at, and how they take stairs, and how much clearance there is and things like that[,] .52 inches or two onehundredths of an inch more than a half an inch is, in my view, not that obvious that it brings into the issue the obviousness that a public entity in the exercise of due care should have discovered and declare[d] that condition as one of dangerous character.
The fact that, in this [c]court's view, that such a condition existed is not sufficient to prove constructive notice and in that declaration, in this [c]court's view, failed to satisfy the Tort Claims Act. As I said, I'm not deciding it on a palpably unreasonable basis. The single issue that the defendant prevails on is the issue of notice.
On appeal, plaintiff argues that the trial court erred in granting summary judgment because plaintiff is not required to present evidence that NJT had actual or constructive notice of the dangerous condition, as the condition was created by NJT's employees, N.J.S.A. 59:4-2a. Alternatively, plaintiff contends that she presented sufficient evidence, not only that the stairway platform contained a dangerous condition, but also that NJT had actual or constructive notice thereof prior to the date of the accident.
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, supra, 142 N.J. at 523. 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 (2009). "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).
We have considered each of plaintiff's arguments in light of the record and applicable law. We are satisfied that none of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Mathesius in his oral decision of March 14, 2008. Nevertheless, we add the following comments.
The controlling principle running through the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3, is that "immunity from tort liability is the general rule[,] and liability is the exception." Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998). "[P]ublic entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established" in the Act. N.J.S.A. 59:1-2.
Claims for personal injuries caused by a dangerous condition on public property are governed by N.J.S.A. 59:4-2. In addition to the other requirements of that statute, a claimant must prove:
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. [N.J.S.A. 59:4-2.]
Under the Act, a public entity is deemed to have 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." N.J.S.A. 59:4-3a. A plaintiff may prove constructive notice if he or she "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." N.J.S.A. 59:4-3b.
Plaintiff first argues that she was relieved of proving notice because the evidence established that the dangerous condition was created by an NJT employee. N.J.S.A. 59:4-2a. Plaintiff contends that the photographs attached to her liability expert's report show that the steel plates were welded in their elevated positions, and as such, a reasonable inference to be drawn is that the elevated position existed as a result of NJT's construction of the stairway. We disagree. The record is devoid of any evidence establishing how or when the steel plates of the stairway were installed; nor does plaintiff's expert opine that the stairway had been improperly constructed. To the contrary, plaintiff's expert only stated that the accident was caused by improper maintenance: "New Jersey Transit had failed to properly maintain the stairway in a safe manner. The stairway had a tripping hazard in the intermediate walkway of the subject stairway and was therefore defective."
Plaintiff argues next that she presented sufficient evidence to raise a genuine issue of material fact as to whether NJT had constructive notice of the dangerous condition, if not actual notice. Plaintiff contends that the dangerous condition is not a transitory condition and does not involve a situation "that could have occurred only hours, minutes, or seconds before the accident." We again disagree.
There is no proof in the record that NJT had actual notice of the condition. In fact, plaintiff's counsel conceded at oral argument that no evidence existed of any prior accidents or incidents at this location, which would have placed NJT on actual notice. We are also satisfied that there is an absence of evidence from which a jury could reasonably infer 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." N.J.S.A. 59:4-3b. Plaintiff's expert did not inspect the stairway until two and one-half years post-accident. His report is silent as to when the condition first arose; and to infer that it had existed for at least two and one-half years, as found by the trial judge, is "speculative."
Accordingly, we are satisfied that plaintiff failed to establish that NJT had improperly constructed the stairway, or had actual or constructive notice of the alleged dangerous condition in sufficient time to have taken measures to protect against the condition.