September 14, 2009
MERLE FLORIUS, PLAINTIFF-APPELLANT,
NEW JERSEY TRANSIT, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. L-6377-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2009
Before Judges Messano and Alvarez.
Plaintiff Merle Florius appeals from the grant of summary judgment to defendant New Jersey Transit. The salient facts of the litigation are not in dispute.
On August 30, 2004, at approximately 9:30 a.m., plaintiff was a passenger on defendant's bus operated by Gloria Thomas.*fn1
Plaintiff alighted from the bus at a designated bus stop on the corner of Amboy and Wattros Avenues in Perth Amboy. She claimed that when she stepped onto the curb, she twisted her ankle and fell.
In her answers to interrogatories and deposition testimony, plaintiff contended the condition of the curb caused her to fall on the otherwise clear and dry day. She acknowledged that Thomas had completely stopped the bus before she exited. Plaintiff's engineering expert opined that spalling on the curb surface was a dangerous condition that caused plaintiff's fall. Pictures of the condition were part of the motion record, and are contained in the appellate record.
In her deposition, Thomas testified that although she was required to drop passengers off at the designated bus stop, "[i]f [she saw] that it's unsafe [she] w[ould] not stop there, bus stop or not." Thomas was familiar with the particular area around this bus stop because it was her regular route, and she believed the area was safe. Thomas was unaware of any other accidents involving passengers alighting from buses having occurred at the bus stop.
Thomas testified that she pulled the bus up adjacent to the curb and that plaintiff stepped off unto the "rocks and dirt" between the curb and the sidewalk. Thomas believed that plaintiff fell, in part, because "[s]he wasn't looking down" and was talking to someone who was about to board the bus. Thomas claimed that it was plaintiff's inattention, as well as the "surface" of "rocks" and "gravel," that caused her fall.
In her complaint seeking damages for her personal injuries, plaintiff alleged defendant was negligent in "creat[ing] and/or maintain[ing] the dangerous condition" at the bus stop. In the second count, plaintiff alleged that defendant was "negligent and reckless in the manner in which [it] owned, operated and/or drove" the bus.
Defendant moved for summary judgment claiming it was immune from liability under the Tort Claims Act, N.J.S.A. 59:1-1 through 12-3 (the TCA). It argued that it did not own or maintain the bus stop or the curb adjacent to it, claiming that the City of Perth Amboy (the City), or the Housing Authority of the City of Perth Amboy (the Housing Authority), did.*fn2 Plaintiff conceded these facts, causing the judge to grant summary judgment as to the first count of plaintiff's complaint. See N.J.S.A. 59:4-2 (imposing liability on a public entity in certain circumstances "for injury caused by a condition of its property") (emphasis added). Plaintiff does not appeal from this portion of the judge's order.
In opposing defendant's motion, plaintiff asserted that the second count of her complaint, alleging negligence in Thomas' operation of the bus, was still viable. The City also opposed defendant's motion on these grounds, contending there were material disputed facts regarding Thomas' knowledge of the condition of the curbing, and her operation of the bus, that foreclosed summary judgment. At oral argument on the motion, defendant countered, claiming that summary judgment was still appropriate because Thornton had stopped the bus at a "designated bus stop" selected by the City, that it was "a safe... reasonable place to let the plaintiff off[,]" and that it owed plaintiff no duty after she alighted from the bus.
The motion judge included a statement of reasons for granting summary judgment in his order. As to the second count of the complaint, the judge concluded that defendant was entitled to summary judgment "because the bus driver's duty... ended when [plaintiff] alighted [from] the bus and it was not unreasonable for the bus driver to stop her bus at this location." The judge reasoned that the extension of a further duty "would expose [defendant] to liability for an allegedly dangerous condition [on property] which it did not own or control."
Before us, plaintiff raises the following single point:
THE MOTION JUDGE ERRED IN DISMISSING THE SECOND COUNT OF THE COMPLAINT AS THE FACTS SUPPORT A CLAIM [OF] ORDINARY NEGLIGENCE AGINST NEW JERSEY TRANSIT.
We have considered this argument in light of the record and applicable legal standards. We affirm.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Id. at 230-31. As the Supreme Court articulated in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995):
[A] determination whether there exists a genuine issue of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Id. at 540 (internal quotation marks omitted).]
We accord no deference, however, to the motion judge's conclusions on issues of law. Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Plaintiff contends that viewing the evidence and all reasonable inferences in a light most favorable to her, a fact finder could conclude that Thomas was negligent because she knew there was a dangerous physical condition at the bus stop and nevertheless stopped there to discharge plaintiff. She argues that defendant is responsible for its employee's negligence pursuant to N.J.S.A. 59:2-2, and, therefore, summary judgment was improvidently granted.
N.J.S.A. 59:2-2 provides
a. A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.
b. A public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.
We have said that in this regard, "The [TCA]  does not afford a public entity any specialized immunity when determining whether it is vicariously liable for the acts of its employees." Rogers v. Jordan, 339 N.J. Super. 581, 586 (App. Div. 2001).
We need not determine whether defendant is a "common carrier" for purposes of examining the duty it owed plaintiff, or whether, as it argues before us, it owes a lesser duty of care because it is a public entity. Whether judged under either standard, we are convinced that the motion record fails to establish that Thomas was negligent.
When discharging her passengers, a bus driver "is under a duty... to use reasonable care so that they may alight with safety." Bistany v. Bennett, 126 N.J.L. 107, 109 (Sup. Ct. 1941). We have said, however, that "[a] common carrier is not an insurer of the safety of its passengers." Snell v. Coast Cities Coaches, 15 N.J. Super. 595, 598 (App. Div. 1951). Thus,
[t]here is no positive duty resting upon the operator... to anticipate every uneven surface or defect in the highway or along its side and stop his vehicle so as to avoid the remote possibility of a passenger stepping on some uneven surface or in a depression which, notwithstanding the exercise of reasonable watchfulness, did not appear to be and was not a place having the manifest characteristics of potential harm. [Snell, supra, 15 N.J. Super. at 599.]
It is undisputed that Thomas stopped her bus at a location designated by the City as a bus stop, and that the property was owned or maintained by the City or the Housing Authority. She had routinely stopped at that bus stop over the many years during which she drove that route, and was unaware of any accident caused by its physical condition. Plaintiff's expert opined that the condition of the curb presented a dangerous condition. The condition was the spalling of the concrete curb top, which, at some point, resulted in a three-inch depression. The length of this area of spalling, though not described in the report, appears in the photographs to be quite small. Thus, within the entirety of the designated bus stop, the alleged dangerous condition was quite limited.
Although Thomas testified that defendant stepped onto the area between the curb and the sidewalk and fell, we accept for summary judgment purposes plaintiff's claim that her fall was caused by the defective curbing. Contrary to plaintiff's assertion, however, the record fails to reveal that Thomas was aware of the condition of the curbing, though she admittedly was aware of the rocks and gravel in the area between the sidewalk and curb. Nor can we conclude, having viewed the photographs of the scene, that the condition of the curbing was such that a reasonable bus driver would have concluded the area possessed "the manifest characteristics of potential harm[.]" There is nothing to indicate that the general condition of the bus stop itself was such a hazard that "in the exercise of reasonable watchfulness," Thomas should have avoided stopping her bus in its general location.