On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2700-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Yannotti.
Plaintiffs Vera I. Baier and Frank Baier, her husband, appeal from a summary judgment dismissal of their claim against defendants the East Brunswick Police Department and the Township of East Brunswick (collectively "East Brunswick") for failure to meet the requirements of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We affirm.
On December 22, 2006, Vera tripped on a piece of uneven sidewalk on a concrete ramp outside the Municipal Building in East Brunswick. Vera did not see the uneven sidewalk until her toe caught on the "lip" of the indentation, causing her to fall. The indentation was approximately one-fourth to one-half of an inch deep and spanned a twelve-inch diameter. The fall caused several injuries, including fractures, lacerations, and chipped teeth.
Plaintiffs filed a timely TCA notice of claim and then sued East Brunswick. East Brunswick answered. After a period of discovery, East Brunswick moved for summary judgment. Plaintiffs opposed the motion.
These are the additional facts presented to the judge on summary judgment. James White, Business Administrator, testified in his deposition that there were no accidents reported in the area of the fall within the previous eleven years. White said that he and other public employees traverse the same sidewalk every day to access the municipal buildings. All employees were aware that they should report potentially hazardous conditions so repairs can be made.
James Bravo, Public Works Supervisor, testified that the twelve-inch patch of sidewalk had been removed in 1995 or 1996 so that a sump pump line could be installed in the Police Department's basement. A trench was dug below the sidewalk, a PVC pipe was installed and compacted "quarry blend" (crushed stones) was placed to fill the hole. The top layer of concrete was then replaced. It was even with the other slabs at that time. Bravo did not know when the sidewalk began to sink, but testified that a potential cause was the "freeze and thaw cycle, nature." After Bravo learned of plaintiff's fall, he sent a repair team out to fix the sunken slab. The workers removed the slab, put in a couple inches of quarry fill, and re-cemented the area.
William Poznak, P.E. & L.S., a civil engineer and construction official, submitted an expert report for plaintiffs. He describes the sidewalk as having a one-quarter to one-half inch indentation that was a "hazardous impediment . . . within the path of one's travel." Poznak provided no further details, except that, "said condition is as follows: 1. palpably unreasonable; 2. a nuisance to the public; [and] 3. the repair of same would require very little time, effort[,] and expense."
Poznak provided two additional one-page supplemental reports, but these erroneously were not included in East Brunswick's brief, nor did plaintiffs include them in the opposition brief. Thus judge did not consider these two supplemental reports when deciding East Brunswick's motion for summary judgment.
In the July 2, 2008 supplemental report, Poznak wrote as follows:
As previously noted, this area of ramp was cut away and trench excavated. Unfortunately, the fill had not been properly compacted, and therefore, began to sink over an extended period of time. Thus, the concrete slab above accordingly sank. Evidently, employees of the Municipality had proceeded over this walk when going to or from work. ...