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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...