August 13, 2010
BARBARA AKILI-OBIKA, PLAINTIFF-APPELLANT,
CITY OF TRENTON, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2345-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2010
Before Judges Cuff and Payne.
Plaintiff, Barbara Akili-Obika, appeals from orders of summary judgment that, successively, dismissed her claim against the City of Trenton for pain and suffering arising from displaced fractures of her tibia and fibula, allegedly sustained in a fall on an uneven Trenton sidewalk, and then her claim against Trenton in toto.
The record discloses that, on December 5, 2003, while walking on a sidewalk that bordered 311 West Hanover Street in Trenton, plaintiff tripped and fell breaking her left distal tibia and fibula. She underwent a closed reduction under general anesthesia on December 6. Plaintiff's leg was then placed in a full-leg cast for two months and then in shorter casts during a subsequent two-month period. On September 2, 2005, plaintiff filed suit against Trenton alleging a dangerous condition of property and seeking damages pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 through 59:12-3, including damages for pain and suffering.
On June 20, 2008, Trenton moved for partial summary judgment on plaintiff's claim of pain and suffering. Following oral argument, the motion was granted and, on July 18, 2008, an order of partial summary judgment was entered. Following a further motion, on March 20, 2009, plaintiff's remaining claims against Trenton were dismissed. The motion judge found that plaintiff had failed to demonstrate that the allegedly dangerous condition of the sidewalk had been created by Trenton, or that the city had either actual or constructive notice of the condition. Additionally, the judge found that plaintiff had failed to offer evidence that the failure of Trenton to take action to repair the allegedly dangerous condition was palpably unreasonable. As a consequence, the judge found that plaintiff had failed to establish liability on Trenton's part pursuant to N.J.S.A. 59:4-2.
Plaintiff has appealed, contesting both rulings against her. We focus on the second, which we regard as dispositive. In doing so, we are mindful of the fact that the same standard applies to our review of this matter as applied initially to its consideration by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). As set forth in Rule 4:46-2(c), "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," summary judgment must be entered. In Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), the Court stated:
[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.]
The record reflects that, at the time of plaintiff's accident, she was proceeding along a public walkway that consisted of a herringbone patterned brick sidewalk, followed by one made of concrete. The level of the concrete sidewalk was higher than that of the brick. Plaintiff alleges that she tripped on the edge of the concrete at the join between the two surfaces. Plaintiff testified at her deposition that she had walked in the same area previously and had not noticed the hazard, she had never reported the hazard to Trenton, and she was not aware of anyone else who had done so.
Trenton acquired the property by foreclosure on September 17, 1997. In connection with the present litigation, Leonard Pucciatti, the Director of Trenton's Department of Inspections and its Construction Official, gave his deposition regarding the property. Pucciatti testified that at the time of the sale of the property to Trenton, no one from his department had inspected it. Pucciatti testified further that the Division of Property Maintenance was responsible for city-owned properties. If that Division became aware of a dangerous condition of property, it would notify the Department of Inspections and request that the property be inspected and any necessary repairs be made. Pucciatti testified that no one from his Division had inspected 311 West Hanover Street prior to December 5, 2003, nor had any one been asked to do so.
Pucciatti acknowledged that, at some point, a city crew had boarded up the building located at 311 West Hanover Street adjoining the sidewalk. However, he did not know whether the condition of the sidewalk depicted in plaintiff's photographs existed at the time that the work was performed, and he did not know immediately the identity of the workers or whether they examined the sidewalk.
Pucciatti estimated that the brick sidewalk had been in place for at least fifty years. He acknowledged that a different location within the brick sidewalk had been patched with asphalt, and he surmised that the repair had occurred after curb cocks or gas valves had been removed. However, he also testified that the service removals could have been accomplished by Public Service, the city water utility, the city sewer utility, or Verizon. Pucciatti could not tell which utility had done the work or installed the patch, and he stated that utility company records would have to be searched to determine the answer.
Pucciatti testified that Trenton had thousands of linear feet of sidewalk. When asked what was the procedure or policy for inspecting sidewalks generally, he responded:
Well, given the fact that the City has literally thousands of linear feet of sidewalk, the basic process is it's a response to situations. Right now the City only has one sidewalk inspector,*fn1 that sidewalk inspector's time is split with street reconstruction. We have been able to keep a handle on pretty much if we have a situation that has to be dealt with when we are notified. We do have a number of project[s]. The other method, of course, we are doing streetscape projects; we replace the street; we do the sidewalks, curbs. At that point in time what will happen is the inspector will be there and then we can get a look at what's going on around those areas. There's a couple of mechanisms in place for, you know, repairing bad situations.
According to Pucciatti, the city had a ten-year plan to reconstruct all of the city's streets and sidewalks, and that the project was ongoing.
Pucciatti testified that if his department had been notified of the condition, he would have repaired it, utilizing concrete to cast a new sidewalk. However, he had checked departmental records and had verified that his department had received no complaints about the sidewalk whatsoever. He stated that no non-city employees were responsible for the maintenance or inspection of the sidewalk in that location.
Plaintiff's expert, Raymond J. Nolan, P.E., also offered evidence that plaintiff claims to be relevant to her action. Nolan inspected the sidewalk on January 12, 2007. However, by that time, the adjoining buildings had been raised, and the brick sidewalk had been removed, leaving dirt in its place. As a consequence, Nolan's conclusions were drawn from the photographs taken on plaintiff's behalf after her accident. By looking at the photographs, Nolan estimated that there was a two-inch change in elevation between the surface of the brick and the concrete. Additionally, he concluded:
It is my engineering opinion that, within reasonable engineering certainty conditions visible in photos taken 3 months after the accident date depict a clearly defective and unsafe sidewalk. In addition, the deterioration present at the time of the accident is judged to be old since, several years, since the settlement of soil under the brick was most likely caused by a poor and inadequate installation that allowed the brick to settle differentially. Properly installed walks of this kind do not settle as shown in the photos.
Plaintiff's action was instituted pursuant to N.J.S.A. 59:4-2, which provides:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
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.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
As we stated previously, the motion judge determined that plaintiff had failed to demonstrate that the condition was created by the city or a city employee, that the city had actual or constructive notice of the condition, and that the city's failure to make repairs was palpably unreasonable. We concur with that determination.
In this regard, we note that plaintiff has offered no evidence that would suggest that the condition at issue was created by the city or its employees, since the sidewalk was in place at the time that the city acquired the property at issue.
Although a repair to the sidewalk appears in the photographs upon which plaintiff relies, plaintiff did not fall in the area of the repair. Moreover, plaintiff cannot demonstrate that the repair was made by the city and not by Public Service, Verizon or another entity.
Plaintiff argues that actual notice of the defect in the sidewalk existed because at some point after acquiring ownership of the property, city work crews boarded up the building located on it. However, plaintiff has offered no evidence that would suggest that the defect in the sidewalk existed at the time the work was accomplished, that the workers included a sidewalk inspection within the scope of their duties, or that they observed that a dangerous condition of the sidewalk existed.
Plaintiff additionally claims that the city had constructive notice of the condition of the sidewalk. "In the absence of actual notice, a public entity will be liable for a dangerous condition 'only if the plaintiff 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. 59:4-3(b)." Polzo v. Cty. of Essex, 196 N.J. 569, 581 (2008).
In the present matter, plaintiff argues that the photographs of the sidewalk where she fell show a "rather large defect that existed for quite some time." The fact that plaintiff had not previously noticed the alleged defect while traversing the area suggests that the defect was not as large as she now claims it to be. Moreover, while the photographs certainly suggest that the sidewalk was old and in other respects poorly maintained, the photographs provide no evidence upon which to base a determination of when the settling that led to the differences in elevation between the brick and concrete sidewalk surfaces occurred.
In this regard, plaintiff also relies on the report of her expert, Raymond Nolan. However, that report does not support plaintiff's constructive notice claim. As a close reading of the report reveals, Nolan states that "the deterioration," not the settlement, had been present for several years. Even if we construe "deterioration" to equate to "settlement," Nolan provides no basis for a conclusion as to the length of time that the condition existed. In this regard, after noting the existence of deterioration that was "old since, several years," Nolan notes, in what appears to be a non sequitur, that settlement "was most likely caused by a poor and inadequate installation that allowed the brick to settle differentially."
He does not opine why he reached his opinion as to the cause of settlement - a conclusion that would be difficult to support in any case since Nolan never viewed the brick sidewalk or its underlayment. Further, he does not opine when settlement would have occurred, and he does not provide any basis for inferring the length of time required for the settlement process. As a result Nolan's opinion is net in nature. Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981); see also Polzo, supra, 196 N.J. at 582-83. As a consequence, we are satisfied that the judge properly determined that notice had not been established by plaintiff in this matter. Carroll v. N.J. Transit, 366 N.J. Super. 380, 388-89 (App. Div. 2004); Maslo v. City of Jersey City, 346 N.J. Super. 346, 349 (App. Div. 2001).
As the Court found in Polzo:
[T]he Tort Claims Act makes clear that, even if the public entity's property constituted a "dangerous condition;" even if that dangerous condition proximately caused the injury alleged; even if it was reasonably foreseeable that the dangerous condition could cause the kind of injury claimed to have been suffered; and even if the public entity was on notice of that dangerous condition; no liability will be imposed "upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable."
[Polzo, supra, 196 N.J. at 585.]
For conduct to be palpably unreasonable, the behavior must be "patently unacceptable under any circumstances, and... it must be manifest and obvious that no prudent person would approve of the public entity's course of action or inaction." Maslo, supra, 346 N.J. Super. at 349 (citing Holloway v. State, 125 N.J. 386, 403-04 (1991); Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)). As we stated in Maslo,
Most recently, the Supreme Court reasserted this stringent view of the phrase "palpably unreasonable" in Wymbs v. Township of Wayne, 163 N.J. 523, 532 (2000). The term "palpably unreasonable" connotes "'behavior that is patently unacceptable under any given circumstance.'" Ibid. (quoting Kolitch, supra, 100 N.J. at 493). [Id. at 349-50.]
We perceive no evidence that would support a finding of palpable unreasonableness in Trenton's conduct in this case. As the evidence demonstrates, the city had an established policy of repairing or replacing sidewalks when defects were brought to its attention. However, this particular condition was never noted. At the time, Trenton had two sidewalk inspectors. No evidence suggests that it was palpably unreasonable not to have more. Additionally, the city had a ten-year plan for replacement of city streets and adjoining sidewalks, which remained in progress at the time of Pucciatti's deposition. No evidence suggests that it was palpably unreasonable for Trenton to have failed to reach this particular location in the course of its repairs prior to plaintiff's fall. Accordingly, we agree with the motion judge that, in this case, the issue of palpable unreasonableness could be decided as a matter of law, providing a further ground for summary judgment against plaintiff. See Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998) (concurring opinion of Stein, J.); Maslo, supra, 346 N.J. Super. at 350 (recognizing that the issue could be decided as a matter of law in appropriate cases).
As a final matter, we note that Trenton moved to strike certain portions of plaintiff's appendix as not included in the record before the motion judge. We reserved decision on that motion and now address it. Our review of the record satisfies us that the disputed materials were submitted to the motion judge by Trenton as Exhibit E to its certification in support of partial summary judgment. Moreover, the evidence is not relevant to our decision on appeal. Accordingly the motion is denied.
The motion to strike is denied; summary judgment is affirmed.