On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2305-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Lihotz and Baxter.
Plaintiff Chieko Moore was sitting on a bollard owned by defendant, County of Mercer (County), when the bollard tipped over, causing an injury to plaintiff's left ankle. She sued the County, alleging that the bollard constituted a dangerous condition of public property for which the County was liable under the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. She also sued defendant, Joseph Jingoli & Sons Contracting (Jingoli), alleging that one of Jingoli's backhoes had struck the bollard and created the dangerous condition. We affirm the grant of summary judgment to both defendants.
On October 16, 2006, after completing her matter at the Mercer County Civil Courthouse, plaintiff walked to the sidewalk outside, and leaned against one of the bollards at the edge of the sidewalk while awaiting a taxicab. The bollard tipped over, trapping her left ankle and causing a fracture.
Pretrial discovery revealed that the bollard was owned by the County and was used as a barrier between pedestrians and the street. Until the day in question, the County had never been notified of any problem with the bollard.
In July 2006, three months before plaintiff was injured, Jingoli was hired by Trigen Energy Company to repair an underground steam leak below the sidewalk. Jingoli's work continued until three days before plaintiff was injured. The work being performed by Jingoli required Jingoli to use a backhoe to excavate portions of the sidewalk slab and brickwork. A photograph taken during the course of construction in July 2006 shows the Jingoli backhoe parked adjacent to one of the bollards, which was in an upright position.
Discovery also revealed that although none of the bollards was leaning over on the day Jingoli began its work in July 2006, Ron Brown, a superintendent employed by Jingoli, realized that one of the bollards was loose on the day Jingoli's work began, and he notified a representative of Trigen accordingly. He did not advise the County of the bollard's condition. Nor did the Trigen employee ever notify the County or anyone in the courthouse of the condition of the bollard.
Edward Urbanik, the supervisor of buildings and grounds for the County, testified at his deposition that it did not occur to him, or to any other County employee, that any of the work being performed by Jingoli would, or had, loosened any of the bollards; however, he commented that had he been notified that there was a problem with any of the bollards, his staff would have repaired it. Indeed Urbanik's staff took steps to repair the bollard in question as soon as Urbanik was notified of the incident involving plaintiff. Urbanik conceded that at no time prior to the date of plaintiff's injury did the County have in place a policy or a procedure for periodically inspecting and maintaining the bollards.
At the conclusion of pretrial discovery, both defendants moved for summary judgment. During the course of oral argument on the motions, plaintiff presented to the judge a photograph of Jingoli's backhoe on July 25, 2006 parked on the street, near one of the bollards that was in a full upright position; however, none of the photographs taken during the course of Jingoli's work show Jingoli's backhoe touching any of the bollards. Additionally, none of the bollards had any damage that would be consistent with having been struck by a backhoe. Nonetheless, plaintiff argued that she was entitled to the inference that one of Jingoli's backhoes must have damaged the bollard during construction because some of the bollards were within the fencing that surrounded Jingoli's work site. As to the County, plaintiff argued that the County's failure to periodically inspect the bollards constituted "palpably unreasonable" conduct for which the County was liable pursuant to N.J.S.A. 59:4-2(b).
At the conclusion of oral argument on September 2, 2010, the judge granted both motions. As to Jingoli, the judge reasoned:
There's no credible evidence in the record tying the backhoe to the bollard being defective . . . . I trust juries, and I . . . am happy to give them the case, but, if . . . they were to come back [with] a verdict in [plaintiff's] favor against Jingoli, I don't know what credible evidence ...