NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 6, 2011
Before Judges Payne and Messano.
Plaintiffs Steven and Elise McGrath appeal from the grant of summary judgment to defendant, Township of Wall (Wall).*fn1 The motion judge concluded that plaintiffs failed to raise a disputed material fact as to Wall's liability under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3.
Viewed in a light most favorable to plaintiff, see R. 4:46-2, the motion record reveals that on April 21, 2008, plaintiff was working as a landscaper on private property located at 1536 Toboggan Run in Wall. During the performance of his duties, he stepped off the curb abutting the property and onto the roadway. Plaintiff's foot landed in a hole in the pavement that was concealed by an accumulation of leaves. He was injured as a result.
At deposition, plaintiff acknowledged that he had landscaped this particular property for eighteen years, including the last service provided in fall 2007. The date of the accident was the first time he had returned to the property in 2008. Plaintiff testified that he could not recall ever seeing any pothole adjacent to the curb line. The day after the accident, plaintiff called Wall's road department to report the existence of the hole.
Photographs of the area attached as exhibits to plaintiff's opposition to Wall's summary judgment motion reveal an area adjacent to the curb where the asphalt road bed was in a state of disrepair, and the underlying base materials were loose. While there is an obvious declivity, it is difficult to ascertain how deep it was. Immediately next to the hole are two areas of macadam that differ from the roadway's surface.
Robert Hendrickson, the foreman of Wall's road department, testified at deposition that he held that position for twenty-one years. In general, the duties of his department included plowing snow on the roads, and generally maintaining them, including "resurfac[ing] portions" and fixing potholes. The road department also picked up brush and debris left by the roadside "once a month." Garbage was picked up by members of Wall's sanitation department twice per week.
Hendrickson also testified that residents and other departments, e.g., sanitation, police and fire, would report problems to the road department. He would dispatch a repair crew that would address the problem in compliance with departmental standards previously-issued. Hendrickson testified that Toboggan Run was paved in the 1970s and no problems were reported in the area of Toboggan Run for eight years prior to plaintiff's accident. After the accident, the road department received notice of the condition and dispatched a crew to repair it.
Plaintiff's expert, William Poznak, P.E. & L.S., furnished a report. Based upon his review of the photographs, Poznak concluded that the condition "took quite some time to develop. This [wa]s evidenced by the worn, exposed edges, coupled with the base materials also disintegrating." Based upon his review of Hendrickson's deposition testimony, Poznak observed that the "municipality could easily have noted [the] pavement condition during the process of sweeping and snow removal of [the] roadway pavement area." Poznak ultimately concluded:
[Plaintiff's] accident and injury could easily have been avoided if the roadway surface void had been filled. Further, since said condition existed for [quite] some time, representative[s] of the municipality, after observing same, should have had this void filled and patched.
In an extensive oral decision, Judge Paul A. Kapalko initially concluded that plaintiff "raise[d] a colorable argument" that the declivity was "a dangerous condition . . . for individuals . . . reasonably expect[ed] [to] be utilizing the street." The judge further determined "that a jury could conclude . . . the pothole's existence proximately caused plaintiff's injuries given [that] the pothole itself is not level [and] is depressed below the street level." Judge Kapalko also determined that plaintiff's use of the street as a pedestrian was entirely forseeable.
The judge then considered "the more difficult question . . . of notice," since it was undisputed that Wall did not have actual notice of the condition. Judge Kapalko reasoned that Poznak's opinion failed to "approximate the length of time the condition was present," and there was no testimony "which suggest[ed] . . . how long the condition was present." Summarizing plaintiff's own testimony, i.e., that he had regularly serviced the property throughout 2007 without noticing the condition, and the accident occurred on the first day he serviced the property in 2008, the judge reasoned that "the length of time that it was taking for this [condition] to develop . . . [was] at the outside between some time in October of 2007, and April 21[,] 2008. Roughly a period of six months."
After citing extensively to Hendrickson's deposition testimony, Judge Kapalko noted that "it [wa]s not surprising that no public worker reported [the condition] based upon their routine work . . . . [T]he property owner, himself, made no complaint." The judge further observed, "There's no indication how long those leaves ha[d] been present in that ...