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Polzo v. County of Essex

August 24, 2010

DONALD T. POLZO, AS EXECUTOR FOR THE ESTATE OF MATHI KAHN-POLZO, AND DONALD T. POLZO, INDIVIDUALLY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
COUNTY OF ESSEX, DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND TOWNSHIP OF MILLBURN, STATE OF NEW JERSEY,*FN1 AND PUBLIC SERVICE ELECTRIC AND GAS,*FN2 DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8986-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 26, 2010

Before Judges Sapp-Peterson and Espinosa.

This appeal arises out of a fatal cycling accident. The trial court granted partial summary judgment dismissing the complaint after concluding no genuinely disputed issue of fact existed as to whether Essex County (the County) had constructive notice of the allegedly dangerous condition on the roadway's shoulder. We reverse and remand for trial as to whether the County maintained a dangerous condition of its property pursuant to N.J.S.A. 59:4-2(a) only. We affirm the grant of partial summary judgment on the question of the County's liability based upon constructive notice under N.J.S.A. 59:4-2(b).

On August 18, 2001, plaintiff's decedent, Mathi Kahn-Polzo (Kahn-Polzo), was cycling on the shoulder of Parsonage Hill Road, a county road located in Millburn. She was the last in a line of five cyclists riding on the shoulder when she reportedly fell off her bicycle after it traveled over a circular depression approximately two feet in diameter and one and one-half inches in depth. Plaintiff filed a complaint individually and as executor for Kahn-Polzo's estate on September 12, 2002. He named as defendants, the County, the State of New Jersey, and Millburn Township. Subsequently, the court granted plaintiff leave to file an amended complaint in which he added Public Service Electric and Gas Company as a defendant. With the exception of the County, all of the remaining public entity defendants were eventually dismissed from the complaint following successful summary judgment motions. In an order dated September 23, 2005, the motion judge granted summary judgment dismissing the complaint against the County after finding that no reasonable jury could conclude that the County's actions were palpably unreasonable. On appeal, in an unpublished opinion, we reversed. Polzo v. Essex, No. A-111-05 (App. Div. Aug. 22, 2007). We held that the evidence, "[w]hen viewed most favorably for plaintiff[,]... establishes the depression in the roadway 'existed for such a period of time and was of such an obvious nature' that it should have been discovered by the County." Id. at ___ (slip. op. at 7). We also concluded that: plaintiff's proofs were sufficient to raise a question of fact as to whether the County was palpably unreasonable for failing to repair the depression when it allegedly checked for potholes and repaired them along the entire length of Parsonage Hill Road on July 12, 2001--approximately five weeks prior to the decedent's tragic accident. [Ibid.]

The Supreme Court granted defendant's petition for certification and reversed. Polzo v. County of Essex, 196 N.J. 569, 574 (2008). Noting that the County, for purposes of summary judgment, did not object to the admissibility of the engineering report prepared by Dr. Ira S. Kuperstein on behalf of plaintiff, the Court nonetheless concluded that the report, "standing alone," was "insufficient to sustain plaintiff's burden[]" of establishing a prima facie case of constructive notice sufficient to survive summary judgment:

On its face, Dr. Kuperstein's report appears to provide no explanation for any of his conclusions: it does not explain the basis for his conclusion that the depression/declivity "would have existed for a significant period of time[;]" it does not support, in any manner whatsoever, the statement that the depression/declivity existed for "months if not years[;]" and it does not cite to or otherwise explain the relied-upon "recorded changes[.]" In sum, Dr. Kuperstein's opinion concerning whether the County was on constructive notice of the depression/declivity may suffer from the very ills that condemn a net opinion: it can be said to present solely a bald conclusion, without specifying the factual bases or the logical or scientific rationale that must undergird that opinion. [Id. at 581-84.]

The Court noted that the "threshold question - - whether the County was on constructive notice of the alleged dangerous condition - - was side-stepped by the motion court and too expansively determined by the Appellate Division." Id. at 586. The Court vacated both determinations and remanded the matter to the trial court for consideration of the issue of constructive notice. Ibid.

The remand order directed the motion judge to review the record as presented by the parties and permitted the court, in its discretion, to allow the parties to supplement the record. Id. at 586-87. However, in a footnote, the Court clarified the extent to which the record could be supplemented: "Because the issue of the sufficiency of plaintiff's expert report was not explored below, the motion court on remand should allow supplementation limited to the extent it would have allowed had the admissibility or weight of Dr. Kuperstein's report been challenged in the first instance." Id. at 586 n.7. (emphasis added).

From that supplemental record, the Court directed the motion judge "to determine whether plaintiff's proofs satisfy all of the elements required for a claim against a public entity for the alleged dangerous condition of public property." Id. at 586-87.

Following the remand, on December 11, 2008, plaintiff served upon the County a notice to take oral depositions of "[a]ny [p]erson or [p]ersons who received or recorded the information, prepared the work order and filled out any part of the form for Complaint Number 3713 dated July 6, 2001" for Parsonage Hill Road in the area where Kahn-Polzo died. Additionally, plaintiff noticed defendant to produce copies of any video or photographic logs of Parsonage Hill Road taken within the five-year period prior Kahn-Polzo's August 18, 2001 accident. These additional discovery requests were similar to discovery requests served upon defendant previously and for which plaintiff sought an order compelling defendant to provide the outstanding discovery or, alternatively, suppressing defendant's answer and defenses at the time of trial. In an order dated August 5, 2005, the court denied the motion, stating in its reasons incorporated in the order:

No compliance with [Rule] 1:6-2(a) - No listing of Discover[y] End Date (which was 9/15/03)[.] No compliance with [Rule] 1:6-2(c). No listing of trial date (9/12/05)[.] No compliance with [Rule] 4:24[.] - Motion must be made returnable before end of discovery.

This case is very peculiar. There is probably a very good explanation for the extraordinary delay, but to a judge who has never seen this case before, there is no explanation why this application should be entertained [two] years after discovery ended and one month prior to trial. If counsel had complied with [Rule] 1:6-2(a) and [Rule] 1:6-2(c)[,] it would have been obvious that some explanation was required. Notwithstanding the August 5, 2005 order, plaintiff again moved*fn3 for an order striking defendant's answer and compelling defendant to produce all outstanding discovery, as well as county employee Burton for deposition. By order dated April 17, 2009, the court denied plaintiff's motion in all respects except as to Dr. Kuperstein's third supplemental report, served upon defendant on January 29. The court ruled that it would accept the report. The order afforded the County the opportunity ...


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