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Dolores Franchino v. Lyndhurst Residential Communities Two


June 10, 2011


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8047-08.

Per curiam.


Submitted April 5, 2011

Before Judges Carchman, Messano and St. John.

Plaintiff Dolores Franchino appeals from an order dated June 29, 2010, which granted summary judgment in favor of the Township of Lyndhurst (Township). We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, plaintiff's summary judgment motion, viewed in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On October 23, 2007, plaintiff suffered a slip and fall resulting from stepping into a leaf-covered pothole or depression, as she stepped off the curb to enter her vehicle located at or near 441 Valley Brook Avenue, in the Township. Plaintiff claimed that she sustained injuries to her right foot and ankle, which were permanent in nature, and causally related to the accident.

Plaintiff filed a complaint, naming as defendant the Township, as well as several other defendants.*fn1 She sought compensatory damages for the injuries resulting from her October 2007 fall.

The Township filed a motion for summary judgment. Following oral argument, Judge Robert C. Wilson entered an order granting that motion, from which plaintiff now appeals.

On appeal, plaintiff contends that the declivity constitutes a dangerous condition, of which the Township had constructive notice, and that the Township's inaction was palpably unreasonable. In addition, plaintiff asserts that she sustained a permanent loss of a bodily function that is substantial. We disagree.

The standard for summary judgment is well established. Judgment must be granted "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." R. 4:46-2(c); see also Brill, supra, 142 N.J. at 523. "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). The court must determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

We apply the same standard as the trial court in reviewing the grant of a motion for summary judgment. We first decide whether there is a genuine issue as to a material fact. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). If there was none, we will decide whether the trial court's ruling on the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006).

Here, plaintiff contended that she was injured as a result of a dangerous condition on public property. In order to establish liability under the New Jersey Tort Claims Act (the Tort Claims Act or the Act), N.J.S.A. 59:1-1 to 12-3, for conditions on public entity property, a plaintiff must demonstrate the following:

[T]hat the property was in a 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. [N.J.S.A. 59:4-2.]

This statute "was not enacted for the purpose of creating liability." Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999) (citing Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 110 (1996)). Rather, it "was enacted for the purpose of reestablishing the general rule immunizing public entities from liability for injuries to others." Ibid. (citing Brooks v. Odom, 150 N.J. 395, 402 (1997)).

Here, plaintiff contends that she has established a basis for liability because the condition of the property was unsafe, the Township had constructive notice of the dangerous condition, and the risk of injury was foreseeable. Plaintiff further posits that it was error for the motion judge to make a factual determination as to the non-existence of a "dangerous condition" as a matter of law.

Applying the terms of N.J.S.A. 59:4-2 to the present case, we need not focus upon the elements of a dangerous condition, and whether that condition created a reasonably foreseeable risk of injury, notwithstanding the substantial evidential deficiencies identified by the motion judge concerning these elements. Instead, we rest our analysis upon the pivotal element of notice.

Plaintiff asserts that the Township had constructive notice of the pothole. She submitted pictures of the subject roadway taken by the Township's engineering firm on January 22, 2007, over ten months prior to the accident, and pictures taken by her investigator on November 13, 2007 as evidence of the prior existence of the pothole. The January 22 pictures showed declivities but not the same declivities as shown in the November 13 pictures. Judge Wilson addressed the issues of actual and constructive notice as follows:

As to actual notice, this Court finds that the Plaintiff has failed in her burden to offer any evidence that the Township of Lyndhurst . . . knew of any alleged dangerous condition at the subject location prior to the date of this accident. The Plaintiff herself never testified that she had ever noticed the pothole in this location although she routinely was picked up in this area for an extended duration.

There is also no evidence that any specific complaints were made to the Township about the condition of the subject location. Further, this Court finds that Plaintiff has failed to present any evidence that would reach the level of constructive notice of the alleged dangerous condition. The pictures of the alleged pothole were not remarkable and sufficient to rise to the level of an "obvious nature." Furthermore, there has been no prior complaints of this pothole by the Plaintiff. Therefore, the Township of Lyndhurst did not have actual or constructive notice of any alleged dangerous condition.

The public entity must have had actual or constructive notice of the dangerous condition for liability to attach. Under the Tort Claims Act "[t]he existence of a dangerous condition is only one of the essential elements of the cause of action against the public entity. It is not the cause of action itself." Robinson v. City of Jersey City, 284 N.J. Super. 596, 599 (App. Div. 1995). A plaintiff asserting a claim against a public entity for failure to protect against a dangerous condition must establish that "[the public entity] had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a). Alternatively, the plaintiff must establish 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).

"The mere '[e]xistence of an alleged dangerous condition is not constructive notice of it.'" Polzo v. County of Essex, 196 N.J. 569, 581 (2008) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). A plaintiff must establish "'the fundamental requirement of constructive notice under N.J.S.A. 59:4-3(b), namely that the condition could have existed for such a period of time that the public entity should have discovered it.'" Polzo, supra, 196 N.J. at 586 (quoting Carroll v. N.J. Transit, 366 N.J. Super. 380, 388 (App. Div. 2004)). Viewing the evidence as a whole, we agree with Judge

Wilson's conclusion that the Township did not have actual or constructive notice of the declivity. Therefore, we decline to address the elements of the Act that the public entity property was in a dangerous condition at the time of the injury, and that the conduct of the Township was palpably unreasonable. We also do not address the allocation of resources immunity, as that affirmative defense was not at issue during the motion for summary judgment or in the motion judge's decision. In light of our holding, we need not consider whether plaintiff's injuries met the requirement for the award of pain and suffering damages. N.J.S.A. 59:9-2(d).

We find summary judgment was proper since, as a threshold issue, plaintiff cannot establish that the Township had actual or constructive notice of a dangerous condition.


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