On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4546-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Espinosa.
Plaintiff Rosanne Baleczny appeals from orders denying her request to vacate summary judgment dismissal of her personal injury complaint against the Borough of East Rutherford (the Borough) and United Water, New Jersey Inc. (United Water) and dismissing her complaint against PSE&G on the trial date. Plaintiff sought damages from defendants*fn1 after she fractured her leg when she tripped over a three to four inch depression in the roadway adjacent to the curb, as she stepped off the sidewalk in front of 138 Park Avenue in the Borough after leaving work on September 23, 2004. We affirm.
Plaintiff alleged in her complaint that defendants created a dangerous condition in the roadway and negligently maintained or repaired the roadway or pipe underneath it, causing the depression to form. Viewed in a light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), the motion record reveals the following. A trench had been dug from the middle of Park Avenue to the curb in front of l38 Park Avenue. The trench had been filled in and repaved but where it met the curb a depression formed that caused plaintiff's fall. A photograph of the condition of the street at the time of the incident depicted that the depression was located near a water utility cover. Plaintiff's engineering expert, who examined the site two years after the accident, observed utility trenching within the roadway nearest to the curb and "[s]ettlement . . . within the utility trench cover." The engineer opined in his report that the settlement of the trench creating the depression was caused by the negligent compacting of the subgrade strata by the entity that excavated and refilled the trench, which he identified as "the municipality/utility company/contractor/ responsible entity."
In October and November 2007, the Borough and United Water, respectively, moved for summary judgment. The Borough relied, in part, on the certification of its municipal clerk who stated that the records revealed the Borough did not own, control or maintain the utility lines serving its residents, and had not been notified by any method as "to any alleged condition of the street, curb or sidewalk on or abutting Park Avenue and most specifically in the area of plaintiff's alleged fall prior to the receipt of plaintiff's Tort Claims Notice in the subject matter." The Borough also referenced deposition testimony supporting its claim of lack of notice of the condition. Plaintiff had stated in depositions that she saw a "sunken hole" in the street before her accident but she was not concerned about it and did not report it to anyone. An eyewitness also testified in depositions that sometime prior to the accident, she had fallen after stepping into the same hole but was not injured and had not reported it to anyone.
In support of its motion for summary judgment, United Water argued that in the approximate one and a half years the case was pending, plaintiff had presented no evidence that United Water had excavated and refilled the trench in the area where she fell. United Water pointed out that at no point in his report did plaintiff's expert indicate that United Water was responsible for "trench cover settlement." It contended plaintiff's case against it was pure conjecture based solely on the existence of a nearby utility cover bearing the word "water" and the Borough representative's generalized speculation in interrogatory answers, without detail or documentary evidence, that the depression was caused by United Water's failure to restore the roadway after a road opening. United Water also produced four schematic drawings that had been attached to its interrogatory answers that appeared to be the property of PSE&G and seemed to depict trench work on various portions of Park Avenue, including the area of plaintiff's fall. There is a July l5, 1994 date stamp on the first page and a reference to "w.o. #300299803" with an arrow pointing to the area between 115 and 111 Park Avenue, and at the bottom of the page containing 136 Park Avenue, there is a reference to "w.o. #300299593." Based on that, United Water argued that PSE&G or a non-United Water entity dug up the street where plaintiff fell.
In response, plaintiff argued the motions were premature as PSE&G, which had recently been added as a defendant by order granting plaintiff leave to file an amended complaint, had not yet filed an answer and that discovery would be extended after an answer was filed. R. 4:24-1(b). Plaintiff also argued the schematics, without interpretation by an engineering expert, were not competent proof on a motion for summary judgment. Plaintiff urged that, based on the photographs, it appeared the trench led directly to the water access plate, which permitted the reasonable inference that the trench was dug by United Water.
Following argument on December 7, 2007, the court found plaintiff failed to present documentary evidence or any other proof that either United Water or the Borough caused or created the depression in the roadway in which plaintiff tripped and fell. Nor was plaintiff able to make a showing of any "negligent or wrongful act or omission" of a Borough employee that created the dangerous condition or of prior actual or constructive notice of the condition on the Borough's part so as to impose liability under N.J.S.A. 59:4-2 of the Tort Claims Act. Accordingly, the court entered orders on that date granting summary judgment in favor of United Water and the Borough and dismissing plaintiff's complaint with prejudice. In the interim, PSE&G filed an answer and plaintiff conducted discovery. In interrogatory answers, PSE&G produced documents referencing work order #300299593, including its February 21, 2007 application to the Borough for approval for a subcontractor, Kemsco Construction, Inc. (Kemsco), to perform street excavation at sites abutting ll5, 125 and 147 Park Avenue, evidencing that the schematics relied upon by United Water were for work done about two and a half years after the accident. Plaintiff then deposed Alan DeRosa, the Borough's superintendent of public works, who explained that around the time of the accident, the utility companies were required to obtain excavation permits but did not always do so, and Borough counsel confirmed that in response to his inquiry, he was informed no permits had been issued for the premises in question. DeRosa notified the police department after the accident "who would normally call into the utilities to have a repair made" but he did not know whether that was done. The street was repaired around 2006. According to DeRosa, who had answered the interrogatories, based on his knowledge through his employment, the Borough did not perform the work. He posited that it "would  be fair to say" the only other entity that could have done the work was a utility company such as United Water or PSE&G.
On October 21, 2008, plaintiff moved to vacate the summary judgment orders and for an order "declaring that the doctrine of alternative liability as announced in Anderson v. Somberg[, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S.Ct. 279, 46 L.Ed. 2d 258 (1975)] and as subsequently expanded applies herein shifting the burden of proof to defendants to exculpate themselves from liability for creating the condition that injured plaintiff." Plaintiff contended the only three entities that could have dug the trench were the Borough, United Water or PSE&G, all of which denied digging the trench or having any other liability. Relying on DeRosa's testimony, she claimed she could not identify which entity excavated and refilled the trench because such entity failed to obtain a permit. She also contended all potential tortfeasors were identified and before the court and urged that her engineering report demonstrated a prima facie case of negligence.
United Water and the Borough filed opposition, challenging the motion as untimely and procedurally improper, relying on Rules 4:49-2 and 2:5-6, requiring motions for reconsideration and appeals from interlocutory orders, respectively, to be made within twenty days after service of the order. The Borough also argued DeRosa's testimony confirmed that Borough employees did not dig the trench and emphasized that plaintiff's expert's report identified it as a "utility trench." Accordingly, the Borough asserted it engaged in no conduct as to the trench to activate the doctrine of alternative liability. United Water contended plaintiff presented no additional evidence that it was involved in the creation of the trench.
PSE&G argued Anderson is inapposite to the present case as plaintiff was not "helpless or anesthetized" and her injuries arising from a trip and fall did not "clearly bespeak negligence." See Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 340 (2000). PSE&G reiterated its discovery responses that it did not create the condition and had no gas services in and around the area of plaintiff's fall and further noted, with respect to electric, its discovery responses demonstrated that Kemsco performed some manhole-related work on Park Avenue subsequent to plaintiff's accident.
The court denied plaintiff's motion by order of December 8, 2008, with the written notation "[c]ase dismissed with prejudice on 12/7/07 no motion to reconsider nor appeal ever filed." On the January 20, 2009 trial date of plaintiff's case against PSE&G, counsel reiterated plaintiff's arguments from the prior motion, conceding plaintiff had no affirmative proof of negligence of PSE&G. On April 22, 2009, the court entered an order ...