August 30, 2011
CHIEKO MOORE, PLAINTIFF-APPELLANT,
COUNTY OF MERCER AND JOSEPH JINGOLI & SONS CONTRACTING, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 they would be basing it on, besides speculating on these [photographs]. . . .
[I]f . . . there was some repair report from Jingoli, in their file, or an eyewitness that saw the backhoe touch it, . . . those are different factors, but there's none of that in the record.
Well, . . . the issue is whether there's a material factual dispute that Jingoli, in any way loosened, or caused the bollard to become defective. And in my opinion, based on the record before me and my . . . detailed review of the record, there's no material fact that I would give to the jury where there's a credible dispute of fact on that issue.
As to the County, the judge held plaintiff had not presented a genuine issue of material fact on whether the County's actions were "palpably unreasonable" within the meaning of N.J.S.A. 59:4-2(b). The judge reasoned:
[T]he catchall provision here is whether the County's actions were palpably unreasonable . . . . Could [a jury] conclude that they were negligent? Yes. That would be a reasonable conclusion. But, the standard for palpably unreasonableness goes far beyond that, and we're taught with the Tort Claims Act that it is set up to favor immunity, and we need to look at it in that regard. And palpably unreasonable is not defined in the statute, but the caselaw tells us that palpably unreasonable is where it's manifest and obvious that no prudent person would approve of [the public entity's] course of action or inaction.
The judge also found plaintiff failed to demonstrate that the County had notice of the dangerous condition:
Now, that's a pretty high standard, that no prudent person would approve of [the County's] course of action or inaction. I don't see how a reasonable juror could come to that conclusion, even giving all reasonable inferences in [plaintiff's] favor. And one of the issues on palpably unreasonableness is notice. There is no complaints, no constructive notice, no actual notice to the County that this bollard was defective in any way. [(Emphasis added).]
On appeal, plaintiff urges us to reverse both orders. As to Jingoli, she argues that the court "improperly substitut[ed] its own subjective opinion as to the weight of the evidence and the ultimate truth" of her claims instead of applying the well-accepted summary judgment standard set forth in Rule 4:46-2(c). As for the grant of summary judgment to the County, plaintiff maintains that the trial court's ruling "was not in conformity with established precedent"; the "trial court improperly ruled that the failure of the County to have a proactive plan or program to inspect and maintain the bollards did not constitute palpable unreasonableness"; the court erred "in finding that notice is a dispositive consideration [when] determining whether the absence of routine maintenance and inspection . . . constitutes palpably unreasonableness" [sic]; and the court erred when it determined that expert testimony was necessary for the plaintiff's claims to survive the County's summary judgment motion.
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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "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 of 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)). Opposition that is merely "gauzy," "fanciful" or based on mere suspicion is insufficient to defeat a summary judgment motion. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).
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. 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).
In Point I, plaintiff asserts that the grant of summary judgment to Jingoli must be reversed because the judge improperly substituted his view of the facts for the jury's right to find the facts as it deems appropriate. To sustain a common law cause of action in negligence against a private party such as Jingoli, a plaintiff must establish the following four elements: "(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages." Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008) (internal alterations and citation omitted). We are willing to assume that Jingoli had a duty to members of the public, such as plaintiff, to avoid causing damage to the County's property when such damage could cause personal injury. It was the second and third factors, namely, whether there was a breach of that duty, and whether any such breach was a contributing cause of plaintiff's injury, that were the bases of the grant of summary judgment to Jingoli.
As we have noted, the judge concluded that there was no evidence in the record to support the inference that any of Jingoli's employees or construction equipment had in any way damaged the bollard. Plaintiff disagrees, arguing that photographs presented to the judge at the motion hearing show one of the bollards "to no longer be in an upright position" while Jingoli was on site. We have carefully reviewed the two photographs to which plaintiff draws our attention, which are contained at pages 318 and 320 of her appendix, and cannot agree that the bollard is not upright. One of the two bollards depicted in the photographs is tilted, at most, to a three or four degree angle to the left. The critical question, therefore, is whether there was any proof in the record that Jingoli caused that defect, and whether that defect contributed in any way to the collapse of the bollard on the day in question.
Implicitly acknowledging that there is no such direct evidence, plaintiff argues:
The record is unequivocal in that Jingoli needed to access an area well within the perimeter of the bollards with a backhoe. The record is equally . . . clear that Jingoli actually did access the project site with the backhoe, which was driven, at least partially, onto the sidewalk. In fact, a photograph in the . . . record shows the backhoe . . . being operated while abutting the very bollard from which the plaintiff fell and broke her ankle. It is not an unreasonable inference, nor an illogical conclusion, that in its attempt to move the backhoe as close as possible to the project site without removing the bollards, the machinery was pushed up against the bollard in such a way that it partially dislodged the bollard, which was then set back in place without any notice that the bollard was now unsecure.
This evidence and the reasonable inferences gleaned therefrom, even if isolated from the other evidence in the record as it concerns Jingoli, is more than sufficient to allow the plaintiff's claims to survive a motion for summary judgment[.]
As the party opposing Jingoli's motion for summary judgment, plaintiff was entitled to the benefit of all favorable inferences that a reasonable jury could draw. Brill, supra, 142 N.J. at 540. Nonetheless, a plaintiff has not raised a genuine issue of material fact sufficient to defeat an opposing party's summary judgment motion if the party's opposition is based on mere suspicion and conjecture. Genovay v. Fox, 29 N.J. 436, 438 (1959). We agree with the judge that plaintiff's assertion that one of Jingoli's pieces of construction equipment must have touched the bollard is nothing more than speculation and conjecture. Even giving plaintiff's proofs the indulgent treatment that Brill requires, we agree with the judge's conclusion that plaintiff presented no evidence from which a reasonable jury could conclude that Jinogli in any way damaged the bollard so as to cause it to fall when plaintiff leaned on it. With no evidence in the record demonstrating why the bollard was in a damaged condition on the day in question, the jury would be left to engage in pure speculation untethered to any evidence in the record. Merely because the bollard at issue was at some time contained inside a fence erected by Jingoli to protect the general public from the construction area, does not raise a genuine issue of material fact on the question of whether Jingoli damaged the bollard.
While it is true that at some point the backhoe shown in the photographs was driven onto the sidewalk, nothing is known of where the backhoe was positioned on the sidewalk or the route it traveled from the roadway to the sidewalk. Under such circumstances, a conclusion by a jury that the backhoe somehow struck the bollard and caused its condition would be nothing more than speculation and conjecture. Significantly, no evidence in the record establishes the date on which the bollard was damaged. Indeed, the evidence in the record, namely, the testimony of Brown, establishes that on the day Jingoli began its work, the bollard was already loose. Viewed in their entirety, plaintiff's proofs fail to establish a genuine issue of material fact and are therefore the "gauzy" and insubstantial opposition that Judson, supra, 17 N.J. at 75, deemed insufficient to defeat a motion for summary judgment.
Moreover, we reject plaintiff's argument that the judge applied an incorrect and subjective standard when he decided Jingoli's motion. While the judge commented that he had found no "credible" evidence that would raise a genuine issue of material fact, we view his use of that term as merely a stray remark of no significance. Having thoroughly reviewed the record, we are satisfied that the judge carefully and properly canvassed the record to determine whether plaintiff's proofs raised a genuine issue of material fact, and that he did not resolve any disputed issues of fact or in any other way deviate from the requirements of R. 4:46-2(c). We therefore affirm the grant of summary judgment to Jingoli.
We turn to plaintiff's arguments respecting the grant of summary judgment to the County. Plaintiff contends that she was injured as a result of a dangerous condition on public property. To establish liability under the Act 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.]
As the Supreme Court held in Polzo, "[a]ny application of the Tort Claims Act must start from its guiding principle, that is, that immunity from tort liability is the general rule and liability is the exception." Supra, 196 N.J. at 578 (internal quotation marks and citations omitted).
As is evident from the language of N.J.S.A. 59:4-3(b), in the absence of actual notice of the dangerous condition, 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."
Plaintiff insists that, in keeping with the provisions of N.J.S.A. 59:4-3(b), the County had constructive notice of the dangerous condition of the bollard because a reasonable inspection of the bollards at periodic intervals would have disclosed the dangerous condition of the affected bollard. In Polzo, the Court considered the identical argument in connection with a depression or declivity in the roadway on which the plaintiff's decedent was fatally injured when she was thrown off her bicycle. Supra, 196 N.J. at 580-81. The Court rejected the constructive notice argument advanced by the plaintiff:
[T]he deposition testimony of the County's assistant supervisor of roads to the effect that the County would have repaired the depression/declivity identified by plaintiff if it had been made known to the County is irrelevant to the question of whether the County had constructive notice of that dangerous condition. The testimony addressed what the County would have done if it had actual notice of the depression/declivity, and not whether the County should have known of -- that is, had constructive notice of -- the condition of the shoulder at that location. [Ibid.]
The Court emphasized that the mere existence of an alleged dangerous condition is not constructive notice of it. [Id. at 581 (internal quotation marks and citation omitted).]
In light of Polzo, we reject plaintiff's argument that because a periodic inspection of the bollards might have revealed the dangerous condition in question, the County should be deemed to be on constructive notice.
We likewise reject plaintiff's contention that the County's failure to conduct periodic inspection of the bollards was "palpably unreasonable" conduct within the meaning of N.J.S.A. 59:4-2(b) and that liability therefore attaches. As the Court observed in Polzo, the requirements of N.J.S.A. 59:4-2 "are accretive; if one or more of the elements is not satisfied, a plaintiff's claim against a public entity alleging that such entity is liable due to the condition of public property must fail." Id. at 585. Only if a plaintiff raises a genuine issue of material fact on the question of constructive or actual notice of the dangerous condition should the court proceed to determine whether the public entity's actions or inactions were "palpably unreasonable." Ibid. Here, the motion judge correctly declined to reach the issue of whether the County's actions were palpably unreasonable when he observed that the County had received "no complaints, no constructive notice, no actual notice . . . that this bollard was defective in any way." The record is devoid of any evidence explaining how or when the bollard was damaged; for how long, if at all, the bollard remained in a tilted condition; the extent of any such tilt and whether it would have been obvious to a County employee; or how frequently any such routine inspections should have been performed. We therefore concur in the judge's determination that plaintiff failed to raise a genuine issue of material fact on the question of constructive notice. That being so, the threshold element of notice under N.J.S.A. 59:4-2(b) was not satisfied, and summary judgment was properly granted to the County. Plaintiff's remaining arguments on the subject of the grant of summary judgment to the County lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).
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