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Carolynn Hillman v. Township of Montclair and Luiz Mendez*Fn1 and Judy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 3, 2013

CAROLYNN HILLMAN, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF MONTCLAIR AND LUIZ MENDEZ*FN1 AND JUDY VELLA, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10253-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 18, 2012 -

Before Judges Harris and Hoffman.

Plaintiff Carolynn Hillman appeals from two summary judgment orders entered on November 18, 2011, dismissing her claims for personal injuries that resulted when she tripped and fell on a sidewalk in a residential neighborhood. We consolidated the two appeals on our own motion. We affirm in part and reverse in part.

I.

Because the motion judge disposed of the complaint at the summary judgment stage, "we are obliged to view the facts in the light most favorable" to Hillman. Estate of Hanges v. Metropolitan Property & Cas. Ins. Co., 202 N.J. 369, 374 (2010). Accordingly, we glean the following from the summary judgment motion record. Lombardi v. Masso, 207 N.J. 517, 549 (2011) (noting the appellate constraint that a summary judgment determination is defined and limited by the summary judgment record).

On June 1, 2009, Hillman tripped and fell on the uneven sidewalk along Oakwood Avenue in Montclair. Photographic evidence depicted an intact concrete sidewalk slab that was elevated approximately three to four inches above an adjacent sidewalk slab. Tree root activity was blamed for causing the sidewalk slab to rise above its cohorts.

Hillman sued the adjacent landowners, defendants Luis Mendez and Judy Vella (collectively the landowners), as well as defendant Township of Montclair (the Township). Hillman's complaint alleged that she sustained "serious and permanent injury which was caused solely by the negligence of the defendants."

Hillman's theory of liability against the landowners was their alleged failure to maintain and repair the sidewalk, as mandated by Montclair Ordinance 247-5. The Township was sued because it planted the tree, which resulted in an alleged dangerous condition of public property.

The property that abuts the sidewalk in question was purchased by the landowners in 1991. In the early 1990s, they obtained a permit and paid a contractor to replace the entire sidewalk in front of their property. Since that time, the landowners did no other repairs to the sidewalk. Sometime after the sidewalk was installed, Montclair planted a Zelkova tree -- a fast-growing deciduous tree -- between the sidewalk and curb.

By early 2009 (winter into spring), the landowners realized that the sidewalk had "popped." Mendez testified at his deposition that "[i]ts been a progression and then eventually it just popped. The sidewalk has been level and then eventually it just became, hey, the sidewalk is up."

After the landowners received notice of Hillman's accident, caution tape was placed around the raised sidewalk slabs. They contacted the municipality and were put in touch with Stephen Schuckman, a self-employed consulting arborist regularly used by the Township on a once-per-week basis.

Schuckman inspected the area of the accident and opined that the sidewalk slabs were lifted "[d]ue to tree root growth." Schuckman estimated the two trees along the sidewalk to be between twelve and fifteen years old. He further opined that for at least "two years, three years," the "fact the tree root had lifted up the sidewalk would be visible to anyone walking there."

Schuckman's job with the Township included conducting walking inspections street by street as time allowed, but his focus was on the trees, not the sidewalks. In addition, he also conducted windshield surveys when driving through the municipality -- generally once in the autumn and once in the spring, and only took note of trees that warranted action or a return inspection.

After obtaining the proper permit, the landowners hired a contracting company to restore the sidewalk. Schuckman indicated which sidewalk slabs needed to be raised, the Zelkova's roots were shaved down pursuant to Schuckman's instructions, and the sidewalk slabs lowered to create a more level walkway.

Prior to Hillman's accident, neither the landowners nor the Township received any complaints about the sidewalk in question. Stephen Wood, the Township's Director of Community Services testified that the municipality practiced regular oversight of its botanical assets. Not only did Woods's department prune, remove, and plant trees, it engaged in "routine inspections of the -- of the trees on Township property[.]" Wood further testified:

When time allows, we do street surveys. The arborist will go down the streets and see areas that are in need of pruning or where there's trees in decline that are going to need attention. There's probable areas, where you keep an eye on the tree that may be declining, and he prioritizes what's necessary as far as pruning or take-downs.

Wood added that "[t]here's no set schedule, because the crews are working to -- just to keep up with requests, requirements, take-downs, and the workload is just so heavy . . . so it's random." Generally, inspections happened on a weekly basis, where a north-to-south or east-to-west area is covered. Given the heavy workload, however, inspections occurred most frequently in the areas where work was already being done. If work were requested at a particular location, problem trees might be noticed by Township workers, but it depended on the "time of day, visibility, [and] workload."

Before being contacted by the landowners, Schuckman had neither received nor heard any complaints that tree roots had caused sidewalk slabs to uplift along Oakwood Avenue. Schuckman had never done a walking or windshield inspection of the neighborhood prior to July 2009.

Following the completion of depositions, the landowners moved for summary judgment, which was denied on April 15, 2011. In his denial, the motion judge wrote:

Even though Montclair may be found to be 100% [liable] by a jury, at present there is a genuine issue of material fact whether the moving defendants were even 1% comparatively negligent. It is not certain and uncontroverted that the sidewalk's defective condition was originally created by the moving defendants. If that is the case, and Montclair worsened the condition, then the moving defendants are not immune from liability.

Several months later, the Township moved for summary judgment, and the landowners renewed their previously unsuccessful summary judgment motion. Hillman objected to the landowners' do-over, claiming that they "just submitted the same papers again."

The motion judge granted the Township's motion. He found that he "[did] not see how any reasonable jury could infer any liability to the Township" because there was no notice to the Township -- actual or constructive -- of the sidewalk's condition. As for the landowners, the judge stated the following:

Well, there were issues at the outset back in April when the Court had entered that order that maybe it was premature . . . it would appear that at this point in time the [m]otion was filed and the Court will accept it as such and rule on the merits of this, although the argument that was made in April absent that of the Township of Montclair at the time being renewed and looking at all the facts and again all the facts must be viewed as to in, in the best light to the non-moving party.

And as to the homeowner[s] Mendez and Vella, based upon their actions and the fact that this was a tree that apparently Montclair assumed the responsibility for, they planted the tree in that location, and there is, there is no evidence before the Court that the sidewalk which was, you know, redone twenty years ago was done in a negligent fashion or was defective in any way which would have been the proximate cause of the fall in 2009 and nothing thereafter that the homeowner did that would inculpate them as to any liability or negligence or duty to the plaintiff. The Court will also enter a Judgment, the Order of Summary Judgment in favor of the homeowner.

These appeals followed.

II.

Hillman contends that the Law Division erred in several ways. First, she argues that it was an abuse of discretion to grant the landowners' motion because it was an improper motion for reconsideration. Second, she urges us to expand the liability parameters of residential landowners for injuries occurring on abutting sidewalks. Third, she disputes the absence of constructive notice to the Township and argues that, at least, there was a genuine of material fact in dispute about notice, thereby requiring the Township's motion to be denied. We agree with only the last of Hillman's points.

A.

It is well-established that a judge has inherent authority to reconsider prior interlocutory orders while a case is pending. R. 4:42-2; Lombardi, supra, 207 N.J. at 534-36. The April order denying summary judgment was interlocutory, rendering Hillman's arguments about Rule 4:49-2 and its twenty-day limitation of actions rule inapplicable. Accordingly, the judge had wide discretion to entertain the landowners' motion to reconsider. Lombardi, supra, 207 N.J. at 536 ("Interlocutory orders are always subject to revision in the interests of justice."). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). No such circumstances exist, and the Law Division was fully entitled to embark upon a more complete analysis of the facts and law vis-a-vis the liability of the landowners for Hillman's accident and injuries.*fn2

B.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governed the motion court. See Gray v. Caldwell Wood Prods., Inc., 425 N.J. Super. 496, 499 (App. Div. 2012); see also Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) ("An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46.") (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We must "consider 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In such review, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Estate of Hanges, supra, 202 N.J. at 382 (alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

In order for the landowners to be liable, they must have created the defect that led to the suffered injuries. Hayden v. Curley, 34 N.J. 420, 428 (1961). While we have held that commercial property owners or lessees have a duty to ensure "a public sidewalk [is] in a reasonably good condition," this "duty does not extend to the owners of residential property." Smith v. Young, 300 N.J. Super. 82, 85 (App. Div. 1997); see also Lucejko v. City of Hoboken, 207 N.J. 191, 195 (2011) (stating the commercial/residential distinction); Lodato v. Evesham Twp., 388 N.J. Super. 501, 507 (App. Div. 2006) (owners of residential property were entitled to summary judgment because "residential landowners are protected by common-law public sidewalk immunity"). The decisional law Hillman relies on to frame her argument speaks to the duty owed by commercial landlords and lessees. See, e.g., Monaco v. Hartz Mountain Corp., 178 N.J. 401 (2004); Nielsen v. Lee, 355 N.J. Super. 373 (App. Div. 2002); Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981)

Furthermore, as an intermediate appellate court, we are bound by the precedents of the Supreme Court. See Lake Valley Assocs., LLC v. Twp. of Pemberton, 411 N.J. Super. 501, 507 (App. Div.), certif. denied, 202 N.J. 403 (2010). The policy arguments that Hillman urges upon us were recently considered by the Court in Luchejko and rejected. It is not within our realm to second-guess the Court's rationale and holding. If Hillman wants a change in existing law, "[s]he must seek relief not from us, but from the Supreme Court or the Legislature." State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976).

Our review of the record confirms that there is no evidence that the landowners created the defect that led to the suffered injuries. Their last direct involvement with the sidewalk slabs was in the early 1990s, and Hillman has brought forth nothing to suggest that the installation was performed negligently or contrary to law. The Law Division properly granted summary judgment in the landowners' favor.

C.

The Township's liability stands on a different footing. Its culpability is measured by the defenses and immunities found in the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, which is intended to broadly limit the liability of public entities. Alston v. City of Camden, 168 N.J. 170, 176 (2001). The overarching purpose of the TCA is to provide "immunity for public entities with liability as an exception." Gilhooley v. Cnty. of Union, 164 N.J. 533, 538 (2000). Thus, the TCA "should be strictly construed to permit lawsuits only where specifically delineated." Gerber ex rel. Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 34 (App. Div. 2000).

Pursuant to the TCA:

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. [N.J.S.A. 59:4-2.]

Actual notice will be found if a claimant proves the public entity had "actual knowledge of the existence of the condition and knew or should have known of its dangerous character."

N.J.S.A. 59:4-3(a). On the other hand, constructive notice may be imputed where "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." N.J.S.A. 59:4-3(b).

The summary judgment motion record does not support a claim of actual notice. Our task, therefore, is to apply the indulgent standards of Brill and its progeny to the evidence marshaled by Hillman to ascertain if a rational jury could find that the Township had constructive notice of the effects of the tree root growth on the raised sidewalk. We are not in a position to consider whether those proofs demonstrate the presence or absence of palpable unreasonableness because the parties did not address that aspect of the TCA in the Law Division.*fn3

As provided in the TCA itself, courts have considered the length of time the dangerous condition existed to determine whether the public entity had actual or constructive knowledge. See Maslo v. City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002) (finding no actual or constructive notice where a one-inch sidewalk differential existed and plaintiff's expert opined it "must have been in existence for at least a year"); Lodato, supra, 388 N.J. Super. at 512 (finding constructive notice was an issue for the jury where the plaintiff established a raised sidewalk existed for at least eighteen years, similar conditions existed throughout the neighborhood, and municipal agents had repaired sidewalks in the vicinity of the plaintiff's fall).

Clearly, a raised sidewalk is an "open and obvious" condition. Ibid. What is not so clear is the duration that the condition persisted. Mendez testified that the sidewalk "popped" sometime in the winter or spring of 2009 -- a few months prior to Hillman's fall -- and he had not noticed any movement in the sidewalk slabs prior to 2009. On the other hand, Schuckman opined during his deposition that it could take two to three years for the roots to achieve the size necessary to lift the slab to its highly elevated condition on the date of the accident. Notably, Hillman did not offer the opinion of an expert addressing this issue more definitively.

Notwithstanding the imprecision of the proofs, we are satisfied that summary judgment was improvidently granted. On the only issue submitted for summary judgment scrutiny -- constructive notice -- a rational juror could conclude that the conditions on Oakwood Avenue "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." N.J.S.A. 59:4-3(b). We recognize that the more compelling conditions that were present in Lodato -- eighteen years in the making; nearby similar dangerous conditions; and municipal repairs -- are missing here. Nevertheless, summary judgment analysis does not parse the strength or persuasiveness of a non-moving party's evidence except to determine if a rational juror could accept it. Here, that evidence is sufficient to create an issue of fact for a jury to resolve.*fn4

In summary, we affirm the summary judgment dismissal of Hillman's complaint against the landowners. We reverse and remand for further proceedings the claims against the Township only. We do not retain jurisdiction.


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