June 19, 2013
MASON LESSA, a minor, by his natural parent and guardian ad litem, DONNA LESSA, Plaintiff-Appellant,
TOWNSHIP OF PEMBERTON, Defendant-Respondent, and ANNEMARIE WEWER AND SCOTT HAROLD NATZEL, Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 26, 2012
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2760-09.
Richard DiTomaso argued the cause for appellant (DiTomaso Law, attorneys; Mr. DiTomaso, on the brief).
David A. Clark argued the cause for respondent (Gluck Walrath, LLP, attorneys; Mr. Clark, of counsel and on the brief; Jaclyn Baker, on the brief).
Before Judges Graves and Espinosa.
Plaintiff, Mason Lessa, a minor represented in this action by his mother and guardian ad litem, appeals from an order that granted summary judgment to the Township of Pemberton (the Township), dismissing plaintiff's personal injury claim against the Township on the ground that it is immune from liability under the Torts Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We affirm.
This appeal arises from an accident that occurred in the intersection of Dogwood and Rugby Streets between an eleven-year-old cyclist, plaintiff, and a vehicle driven by Harold Natzel in June 2009. Plaintiff was riding his bicycle west on Dogwwod Street through the intersection and Natzel was driving north on Rugby Street. Plaintiff suffered "multiple fractured ribs, forehead and facial abrasions, left leg road rash, exposed tendons, partially removed heel, right shoulder, over 150 stitches with skin down to bone."
There were no traffic controls at the intersection. One of the corner properties, owned by Annemarie Wewer, had hedges.
In addition to suing Natzel, plaintiff sued Wewer for failing to maintain the shrubs located on her property, alleging that this obstructed Natzel's vision, and therefore was a proximate cause of the collision. Plaintiff's claims against Natzel and Wewer have been settled.
Plaintiff also sued the Township for
fail[ing] to properly control the intersection and/or allow[ing] an uncontrolled intersection at Dogwood and Rugby Streets to exist and fail[ing] to maintain the shrubs at the intersection to be a safe height for bicyclists and/or motorists and/or fail[ing] to enforce the maintenance of the shrubs[.]
The Township filed a motion for summary judgment, asserting the following as unrebutted material facts: (1) the accident occurred at the intersection of streets owned and controlled by the Township; (2) there were no traffic lights or signals at the intersection; and (3) the hedges were not on property owned by the Township, but on private property. In his opposition, plaintiff contended that the motion should be denied because the discovery period had not ended. The court granted the Township's summary judgment motion. In this appeal, plaintiff argues that the summary judgment order was premature; that discovery completed thereafter confirmed the existence of multiple issues of material fact, i.e., that the Township controlled the hedges, and that plaintiff should have been permitted to retain an expert "to address issues related to the emergent condition existing at the intersection on the date of the accident."
In reviewing an order granting summary judgment, this court employs the same standard of review as the trial court, Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J.Super. 219, 228 (App. Div. 2009), which grants summary judgment if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J.Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).
The TCA provides public entities, such as the Township, with broad immunity from liability for negligence. A public entity is immune from tort liability arising "out of an act or omission of the public entity" unless a specific statutory provision makes it answerable for the negligent act or omission. Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012); Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002); N.J.S.A. 59:2-1(a).
Plaintiff contends that the Township was negligent in failing to address the emergent condition existing at the intersection and in failing to address the dangerous condition caused by the hedges on Wewer's property. He argues that the Township was not immune from liability for these acts or omissions, citing N.J.S.A. 59:4-2 and N.J.S.A. 59:4-4.
Plaintiff contends that the liability alleged against the Township for failure to maintain the shrubs on Wewer's property is permitted under N.J.S.A. 59:4-2, which provides:
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.
"Public property" is defined as property that is "owned or controlled by the public entity[.]" N.J.S.A. 59:4-1.
It was not disputed that the hedges were not on property owned by the Township but on private property. Nonetheless, plaintiff argues that the Township could be liable under N.J.S.A. 59:4-2 because it "controlled" the hedges. The factual support provided for this assertion is that, at some time after the accident, the Township's public works department trimmed the hedges on Wewer's property.
Chapter 145 of the Township's ordinances, which establishes the duties and responsibilities of property owners, includes a requirement that the "landscaping on premises . . . shall be maintained in an orderly state, with lawns and buses trimmed and free from becoming overgrown . . . ." Pemberton Twp., N.J., Prop. Maint. Ordinance § 145-11 B. The fact that the Township exercised its legitimate police power to enter the property to trim the shrubs in light of Wewer's failure to do so, see N.J.S.A. 40:48-2.13, does not transform Wewer's private property into property "owned or controlled" by the Township.
The exercise of regulatory control is insufficient to establish control within the meaning of N.J.S.A. 59:4-1(c). Garry v. Payne, 224 N.J.Super. 729, 734-35 (App. Div. 1988). In order for the public entity's actions to constitute "control" within the meaning of the statute, it must exercise "possessory control consistent with property law[.]" Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 183 (2002). In Posey, the Court held that "possessory control is satisfied where a public entity treats private property as its own by using it for public purposes." Id. at 184 (emphasis added). Although it could be argued that the Township treated the property here as its own by trimming the hedges, there is no evidence or allegation that the Township ever used the property for public purposes. Since the Township lacked "possessory control consistent with property law[, ]" the Township's action in trimming the overgrown hedges does not provide a basis for liability under N.J.S.A. 59:4-2. See Dickson v. Twp. of Hamilton, 400 N.J.Super. 189, 197 (App. Div.), certif. denied, 196 N.J. 461 (2008).
We next turn to plaintiff's argument that liability exists under N.J.S.A. 59:4-4 because the Township failed to address the "emergent" condition existing at the intersection. Plaintiff alleges that the absence of traffic controls and the obstructed view created a "dangerous condition" within the meaning of the statute. He argues that the Township knew or should have known that the shrubs obstructed the intersection and that the Township had received complaints regarding the lack of controls at the intersection.
The TCA distinguishes between the posting of "ordinary" traffic control devices and those necessitated by emergent situations. N.J.S.A. 59:4-5 establishes immunity for "ordinary" traffic signals:
Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices.
It is only as to the failure to provide "emergency" signals that an exception to immunity exists. Specifically, N.J.S.A. 59:4-4 provides:
Subject to section 59:4-2 of this act, a public entity shall be liable for injury proximately caused by its failure to provide emergency signals, signs, markings or other devices if such devices were necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.
Thus, to establish liability under N.J.S.A. 59:4-4, plaintiff was required to prove that the dangerous condition "was so extraordinary that it would not be reasonably apparent or anticipated by a careful motorist; that the [Township] had actual notice of the condition; and that it was palpably unreasonable for the [Township] to fail to take action with regard to this condition once it became aware of its existence[.]" Robinson v. City of Jersey City, 284 N.J.Super. 596, 600 (App. Div. 1995) (internal citations omitted).
Consistent with the distinction between the immunity that attaches to a public entity's actions regarding "ordinary" signals and the liability that may attach regarding "emergency" signals, "the duty to warn addressed by N.J.S.A. 59:4-4 . . . concerns only extraordinary conditions that are qualitatively different from those conditions that would be 'reasonably apparent to' or 'anticipated by' a careful motorist[.]" Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 416 (1988) (emphasis added).
Here, the dangerous condition alleged is the presence of overgrown shrubs and the absence of a traffic control device. These are not extraordinary conditions, but rather a commonplace in driving experience. It would be readily apparent to a motorist exercising a reasonable degree of care that overgrown shrubs obscure one's view and that an uncontrolled traffic intersection requires one to be alert to the possible movements of others. Thus, plaintiff failed to establish the Township's liability under this provision.
Finally, plaintiff's argument that summary judgment was premature lacks merit. Plaintiff did not dispute the material facts that provided the basis for the disposition of the legal issues here.