On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6993-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued March 23, 2010
Before Judges Messano and LeWinn.
Plaintiff, Colleen A. Pazos, was injured as the result of a fall that occurred on August 30, 2005, while she was attending her son's freshmen football scrimmage at Sayreville War Memorial High School. Plaintiff stated that as she was leaving the game, she walked down a small hill behind a water table that had been set up for the players, stepped into a hole, lost her balance, fell and struck her head on the water table and injured her ankle.
Plaintiff*fn1 filed a personal injury action against defendants, pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. She now appeals from the August 18, 2009 order of the trial court granting summary judgment to defendants dismissing her complaint. We affirm.
The facts pertinent to our decision may be summarized as follows. At her deposition, plaintiff testified that she "[m]omentarily" saw the hole as she was falling because her right foot "was stuck in it." She was unable to describe either the depth or the diameter of the hole. Plaintiff "clearly noticed that the field was in lousy condition. But the specific spot where [her] foot went into the hole [she] had not noticed until after [she] fell."
The high school athletic director, John Kohutanycz, testified in deposition that he was aware that people would sit and congregate in the sloping area adjacent to the field near the location where plaintiff fell, and that spectators exiting the field would pass by that location. Kohutanycz testified that at no time prior to the date of plaintiff's accident did he notice any "safety concern or dangerous condition in that area[.]" Nor did he subsequently notice any such conditions when he was "shown the area where the incident occurred." Kohutanycz described the area in question as "grassy." He stated that he would consider "holes" or "depressions" in the field to be a "potential safety problem or concern[,]" but he observed no such "depression in the area where the accident occurred[.]"
Plaintiff submitted an expert report by Michael G. Natoli, an engineer. The report, dated February 6, 2009, describes Natoli's visit to the accident site on July 14, 2007, almost two years after the accident.
At the subject accident location, the surface depression hazard has been mitigated due to the placement of soil and seed providing the grass cover eliminating the prior depression hazard . . . . In essence, the remedial efforts were performed subsequent to the accident and prior to this investigation.
Based upon his observations and information he obtained from plaintiff regarding her recollection of the accident, Natoli reached the following conclusions:
The investigation concludes that the prior surface depression hazard exhibited in the exterior walking surfaces yielded unsafe conditions for pedestrians. Therefore, it is my opinion based on reasonable engineering probability that the prior surface depression formation present within the exterior walking surfaces is a cause of the plaintiff's injury. . . . [T]he unmarked surface depression (hole formation) present within the landscaped walking surface, eluded the plaintiff's perceptive view. Hence, as the plaintiff walked the surface depression's deep cavity region caused the plaintiff's foot to drop abruptly. . . .
The above fall incident occurred due to negligence on behalf of the defendant. The observed hole formation present within the walking surface areas created extremely hazardous conditions for pedestrians. Based on reasonable engineering probability, long-term exposure to the elements resulted in surface water runoff percolating downward into the soil mass which results in the localized settlement of the soil layer creating a "drawdown" effect and the accompanying prior hole (depression) formation. This condition occurring over time results in the ...