January 10, 2013
KATHY NOBLE, PLAINTIFF-APPELLANT,
BOROUGH OF RED BANK, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3046-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2012 -
Before Judges Reisner and Hoffman.
This is a trip and fall personal injury negligence action under the New Jersey Tort Claims Act (Act).*fn1 Plaintiff Kathy Noble appeals from a June 26, 2012 order granting defendant's motion for summary judgment, resulting in the dismissal of her claims for personal injuries she sustained when she tripped and fell on a sidewalk in the neighborhood near her home. Based on the documentary submissions and photographs of the scene of the accident, the Law Division judge held that plaintiff failed to raise an issue of material fact that defendant "had notice, either actual or constructive, of a dangerous condition" under N.J.S.A. 59:4-2b. On that basis, we affirm.
On December 22, 2008, at approximately 7:15 a.m., plaintiff was walking her dog on the sidewalk of Marion Street in the Borough of Red Bank (the Borough). She had been walking her dog there, on average, about once a week. According to plaintiff, as she was walking, her toe caught on the edge of a crack in the sidewalk, causing her to fall, with resulting injury. At the time, plaintiff lived approximately two blocks away from where she fell.
It is undisputed that the Borough owned and maintained the portion of the sidewalk where plaintiff tripped and fell. On the property adjacent to the sidewalk, the Borough owns a small building formerly used as a well house. The Borough rarely accesses the building and now uses it to store materials. The Borough does attend to snow removal on the sidewalk.
Following plaintiff's fall, Robert Holiday, the Borough supervisor, conducted an investigation. Prior to plaintiff's fall, Holiday had not observed any cracks or declivities in the sidewalk. Nor was he aware of anyone else tripping or falling on the portion of the sidewalk where plaintiff fell.
Plaintiff produced photographs of the cracked sidewalk but did not submit an expert report. The motion judge found the plaintiff's proofs insufficient to create a factual issue on the issue of dangerous condition:
[P]laintiff has offered no statement in the motion record regarding the size or height of the sidewalk defect in question. Although photographs have been produced which appear to indicate a crack or separation in the sidewalk, neither plaintiff nor any expert has sufficiently identified the condition to permit a reasonable fact-finder to determine whether such condition could be considered "dangerous."
Although we disagree with the motion judge's conclusion that the sidewalk where plaintiff fell was not a dangerous condition, we agree with her conclusion that there is no evidence in the record that would support a finding that the Borough had actual or constructive notice of the sidewalk's condition.*fn2 Based upon the absence of actual or constructive notice, defendant's motion was properly granted.
Because this appeal arises from the grant of a motion for summary judgment, "we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff." Strawn v. Canuso, 140 N.J. 43, 48 (1995).
Absent immunity, N.J.S.A. 59:4-2 governs the liability of a public entity for injuries resulting from dangerous conditions on public property. It provides, in relevant part:
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 . . .
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.
N.J.S.A. 59:4-1(a) 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." "Whether property is in a 'dangerous condition' is generally a question for the finder of fact." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001).
In Atalese v. Long Beach Township, 365 N.J. Super. 1, 6 (App. Div. 2003), we concluded that where pedestrians were among the reasonably foreseeable users of a designated pedestrian-bicycle lane, "a three-quarter inch difference in the level of the pavement . . . could be accepted by a jury as creating a substantial risk of injury and hence a dangerous condition under the Tort Claims Act."
Upon close examination, the photographs of the sections of the sidewalk where plaintiff fell depict sufficient deviation to constitute a tripping hazard, albeit a latent one. Because a rational juror could conclude that the difference in the level of the pavement created a substantial risk of injury, and hence a dangerous condition under the Act, we disagree with the court's determination on the issue of dangerous condition.
Regarding the Act's notice requirement, plaintiff argues that the size and shape of the crack in the sidewalk make it obvious that the condition developed over time such that "the Borough either had to have known about it and its denials are not credible, or that had its employees been exercising due care rather than sleepwalking through their jobs, it should have known of the defect."
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). Constructive notice will 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).
We have previously considered the length of time a dangerous condition existed to determine whether a public entity had actual or constructive knowledge of such condition. 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 v. Evesham Twp., 388 N.J. Super. 501, 512 (App. Div. 2006) (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).
Plaintiff's own lack of awareness of this dangerous condition, despite being familiar with the area, seriously undermines her argument for constructive notice. See Maslo, supra 346 N.J. Super. at 349 ("Indeed, even Maslo, a resident of the neighborhood, said she was unaware of the condition of the sidewalk."); Gaskill v. Active Envt'l Techs., Inc., 360 N.J. Super. 530, 537 (App. Div. 2003) ("[E]ven plaintiff, a resident of the neighborhood who frequently walked down High Street, never noticed the raised grate prior to her fall. If anyone should have been aware of the problem and reported it to the township, it was plaintiff.")
On the issue of notice, we agree with the judge that the motion record is insufficient to create a genuine issue of material fact as to whether the Borough had actual or constructive notice of the dangerous condition prior to plaintiff's injury. As the motion judge explained,
Plaintiff herself testified that she had walked in the area on numerous occasions and had never noticed the alleged defect. Holiday testified that, in over 20 years of employment with the Borough, he had never heard of a fall at that location before plaintiff filed her Tort Claims Notice. At best, the Borough used the abutting building once a year and removed snow as necessary. Plaintiff has also failed to produce any testimony from an expert who could provide an opinion regarding the length of the time the condition existed prior to the accident.
A court should not hesitate to grant a motion for summary judgment if the evidence "is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Because the motion record on the issue of notice was so one-sided, summary judgment was appropriately entered in favor of the Borough.