May 30, 2012
STEPHEN D. SAWRUK, PLAINTIFF-APPELLANT,
TOWNSHIP OF LACEY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-864-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2012 --
Before Judges Fisher and Carchman.
Plaintiff Stephen Sawruk appeals from an order of the Law Division granting summary judgment and dismissing his complaint seeking damages for an injury sustained after falling on the steps at the Lacey Township Municipal Building. In his complaint filed pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, plaintiff alleged that defendant Township of Lacey was responsible because it "permitted [its] rear stairwell to deteriorate to such a degree to create a dangerous condition." In her oral opinion, Judge Rochelle Gizinski concluded that plaintiff failed to establish that a dangerous condition existed. We agree and affirm.
The facts are simply stated. On March 12, 2007, plaintiff, intending to "check on the procedure for a property tax appeal" at the tax assessor's office, entered the Lacey Township Municipal Building. After walking across a vestibule immediately inside the building's rear entrance, Sawruk tripped as he "started to step off the landing" and fell onto the first descending flight of metal or iron stairs. Sawruk "tried to catch [his] balance and lean back" as he "reached out with [his] right hand," but his "feet went out from under [him] . . . . so fast it was like falling on ice."
Sawruk later examined the stair and concluded that "there was some type of a piece missing at the top of the stairs and there was a depression . . . like a trench." At his deposition plaintiff explained that "there [is] something missing on the edge of the step, I cannot say it any clearer than that" and that he fell after his "toe dropped into it."
Although plaintiff provided an array of photographs of the area, he did not proffer an expert to testify or provide an expert report.
According to plaintiff, the photographs "clearly [show] there is a difference in height" along the lip of the first stair. When reviewing the photographs, the judge commented that "the color photographs provided show no trench or depression of any kind." In finding that plaintiff failed to establish a dangerous condition, she added:
There are no missing pieces in the covering on the landing and the metal corner edge of the stair is intact, albeit with some paint worn off. In fact, plaintiff conceded, in his deposition, when looking at photographs of the stairs, there appears to be, ["]nothing there,["] that he could have caught his foot on.
As we have noted, the judge found no dangerous condition existed and dismissed the complaint.
We first consider our standard of review. When reviewing a trial court's decision on a motion for summary judgment, appellate courts employ the same standard that governs the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). That standard is grounded in Rule 4:46-2(c), which provides that summary judgment is appropriate when "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 judgment or order as a matter of law." Because only a legal question remains after resolution of all factual matters, we conduct a de novo review of any Law Division order granting summary judgment. Henry, supra, 204 N.J. at 330.
On appeal, plaintiff asserts that there is a genuine issue of material fact as to whether a dangerous condition existed and whether defendant had constructive notice of the dangerous condition.
The TCA exposes the State to tort liability for a condition of public property upon a showing: 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. 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. [the] public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. [N.J.S.A. 59:4-2.]
In addition to these elements, plaintiff must demonstrate that "the action the entity took to protect against the condition or the failure to take such action was . . . palpably unreasonable." N.J.S.A. 59:4-2. See also Wymbs v. Twp. of Wayne, 163 N.J. 523, 531-32 (2000). Since we are satisfied that the judge properly concluded that plaintiff failed to establish a dangerous condition, we focus our attention on that element of the statute.
The TCA defines a "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1. Furthermore, the phrase "'used with due care' refers not to the conduct of the injured party, but to the objectively reasonable use by the public generally." Garrison v. Twp. of Middletown, 154 N.J. 282, 291 (1998).
In Garrison, the plaintiff suffered a knee injury during an evening pick-up football game when he tripped as a result of a mild declivity in a municipal lot used for the game. Id. at 285. The Supreme Court determined that a parking lot with a mild declivity was not a "dangerous condition" because it did not pose a "substantial risk" to normal lot users exercising "due care." Id. at 293. Similarly, the photographic evidence here demonstrates that the alleged "depression" or "trench" on the Lacey Township Municipal Building's indoor stairwell posed little danger to those guests who used it in an "objectively reasonable" manner. Indeed, as Judge Gizinski recognized, those photographs provide no indication that the stairs here featured even the "mild declivity" at issue in Garrison, much less posed a "substantial risk" to municipal building guests.
Other cases support this conclusion. See, e.g., Levin v. Cnty. of Salem, 133 N.J. 35, 49-50 (1993) (finding no dangerous condition existed, though no signs warned of diving off the bridge over shallow water); Sharra v. City of Atlantic City, 199 N.J. Super. 535, 541-42 (App. Div. 1985) (finding no dangerous condition existed, though the town failed to paint bike lanes on its boardwalk to prevent riders from colliding); Hawes v. N.J. Dep't of Transp., 232 N.J. Super. 160 (Law Div.) (finding no dangerous condition existed, though New Jersey Transit failed to erect fences that would keep pedestrians out of the path of trains), aff'd o.b. 232 N.J. Super. 159 (App. Div. 1988)
Other cases provide examples of factual scenarios where dangerous conditions have been found. See, e.g., Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 129-30 (2001) (finding a "dangerous condition" existed when a defective railroad crossing gate failed to close at a time when a train approached the intersection); Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 264-65 (App. Div. 2011) (holding that a jury could find that a dangerous condition existed when a pedestrian slipped on a public housing authority's sidewalk while it was thoroughly glazed with ice), certif. denied, 209 N.J. 98 (2012). In a case involving raised pavement, we found a sufficient basis for plaintiff to withstand a motion for summary judgment when the alleged dangerous condition was a "three-quarter inch difference in the level of the pavement occupying a significant portion of a bike lane." Atalese v. Long Beach Twp., 365 N.J. Super. 1, 6 (App. Div. 2003).
However, unlike these cases, plaintiff here was unable to identify the cause of his fall, let alone connect his fall to the alleged "depression" in the landing of the staircase. Such a connection is mere speculation. Most important, his suggestion that the staircase does not conform to the "International Building Code" only highlights the absence of an expert to establish the bona fides of plaintiff's claim of a dangerous condition. See Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super. 320, 331 (App. Div. 2004) (holding that a plaintiff must provide expert testimony when an alleged defect "involves a complex instrumentality").
In sum, we agree with Judge Gizinski's determination that plaintiff failed to establish a dangerous condition sufficient to withstand a motion for summary judgment. As to that issue, we affirm substantially for the reasons set forth in her oral opinion of September 23, 2011.
We add one additional comment as to the second issue raised by plaintiff -- constructive notice. Plaintiff's argument regarding constructive notice rests on a theory that rust on the riser of the stairs was a sufficient basis to establish constructive notice. At oral argument, plaintiff conceded that the rust had nothing to do with the alleged dangerous condition. We find that this contention is without merit.
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