January 18, 2012
NANCY E. ERICKSON, PLAINTIFF-APPELLANT,
MARIO J. RODRIGUEZ AND 613 4TH STREET, LLC, DEFENDANTS, AND CITY OF HOBOKEN, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3299-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 21, 2011
Before Judges Fuentes, Graves, and Harris.
Plaintiff Nancy E. Erickson appeals the summary judgment dismissal of her personal injury complaint against defendant City of Hoboken. Erickson claims that Hoboken's negligent traffic control maintenance and inspection program allowed a tree to grow naturally and obscure a stop sign at the intersection of 4th and Jackson Streets, which thereby contributed to the injuries she sustained in an automobile accident at that intersection on June 23, 2008. The Law Division determined, among other things, that Hoboken was immunized from Erickson's claims because of the lack of evidence suggesting that Hoboken (1) "had either actual or constructive notice of any dangerous condition" or (2) "behaved in a palpably unreasonable manner." We agree with this analysis and affirm.
We recite the facts most indulgently in favor of Erickson because Hoboken prevailed on its motion to dismiss the complaint on summary judgment. We are bound to "'view the facts in the light most favorable to the non-moving party' -- plaintiff." Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 564 n.3 (2011) (quoting Bauer v. Nesbitt, 198 N.J. 601, 604-05 n.1 (2009)); see also R. 4:46-2(c).
The police report memorializing the occurrence of the accident at 6:49 a.m. on June 23, 2008, states the following:
[Erickson] was traveling north on Jackson Street. [Mario J. Rodriguez] was traveling west on 4th Street. Both vehicles collided at the intersection of 4th [and] Jackson Streets.
A stop sign (on the right side of the roadway) erected by Hoboken, together with a painted stop line on the pavement and the word "STOP" painted in white, controlled the two-lanes of northbound one-way traffic on Jackson Street. No traffic control devices were present on 4th Street at its intersection with Jackson Street.
A tree (also on the right side of the roadway), planted by Hoboken prior to its 2005 Hoboken Downtown Sidewalk/Streetscape Improvements project (but permitted by that initiative to remain), was located approximately thirteen feet south of the stop sign. Erickson's first amended complaint alleged that "Hoboken was responsible for constructing/maintaining the stop sign and planting/maintaining the tree." Furthermore, Erickson contended that the "tree obstructed the view of the stop sign for motorists traveling in the direction of [p]laintiff" and "as a result of the obstructed view aforesaid, [p]laintiff entered the intersection and an accident occurred with the vehicle operated by [d]efendant Rodriguez." Consequently, Erickson alleged that Hoboken created a dangerous condition, was on notice of it, and the city's failure to take measures to protect against the dangerous condition was palpably unreasonable.
The Law Division found that Hoboken had the discretion whether and when to inspect its trees and traffic control devices pursuant to N.J.S.A. 59:2-3(d). Furthermore, it held that Erickson had "failed to demonstrate how [Hoboken's] practices regarding inspecting and fixing problems with trees and traffic signs are palpably unreasonable." Moreover, the court determined that there was no evidence of notice to Hoboken about a dangerous condition vis-a-vis the stop sign and the tree. Accordingly, the motion court determined that Erickson had failed to satisfy the requisite elements of N.J.S.A. 59:4-2, and dismissed the complaint. This appeal followed.
Orders granting summary judgment are reviewed de novo, and we apply the legal standard employed by the Law Division. Canter v. Lakewood of Voorhees, 420 N.J. Super. 508, 515 (App. Div. 2011). In performance of our appellate function we consider, as did the motion court, "'whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Ingraham v. Ortho-McNeil Pharm., 422 N.J. Super. 12, 20 (App. Div. 2011) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). We conclude that summary judgment in favor of Hoboken was properly granted under N.J.S.A. 59:4-2. The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, narrowly prescribes the liability of a public entity for injury caused by a condition of its property. N.J.S.A. 59:4-2 states:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in 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.
Thus, in order to impose liability on Hoboken, Erickson must prove: (1) the obscured stop sign at the intersection of Jackson and 4th Streets constituted a dangerous condition; (2) the dangerous condition created a foreseeable risk of, and proximately caused, injury to Erickson; (3) Hoboken knew of the dangerous condition; and (4) the action taken by Hoboken to protect against the dangerous condition was palpably unreasonable. Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003).
Erickson bears the burden of proving that Hoboken acted in a palpably unreasonable manner. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 493 (2005). "Palpably unreasonable" "implies behavior that is patently unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). Although the question of whether a public entity acted in a palpably unreasonable manner is generally one of fact, see Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 130 (2001), under some circumstances it can be decided as a matter of law. See Carroll v. N.J. Transit, 366 N.J. Super. 380, 390 (App. Div. 2004) (citing Muhammad, supra, 176 N.J. at 200).
Upon review of the record, we reach the same conclusions as the Law Division. First, Erickson presented no evidence that Hoboken had either actual or constructive knowledge of a dangerous condition and second, she was unable to create a disputed fact suggesting that Hoboken acted in a palpably unreasonable manner. The evidence plainly demonstrated the utter lack of complaints concerning the stop sign, as well as the discretionary manner in which Hoboken deployed its resources to ensure that stop signs remained posted. Accordingly, the summary judgment dismissal in favor of Hoboken was appropriate.
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