NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 20, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4612-10.
James P. Kimball argued the cause for appellant (Seigel Capozzi Law Firm, LLC, attorneys; Patrick M. Metz, on the brief).
David T. Pfund argued the cause for respondent (Pfund McDonnell, P.C., attorneys; Mr. Pfund, of counsel; Mary McDonnell, on the brief).
Before Judges Parrillo, Fasciale and Maven.
Plaintiff Paula Giordano appeals from the Law Division's summary judgment dismissal of her slip and fall negligence complaint against defendants Township of Hillsdale and Hillsdale Public Library (collectively defendants). We affirm.
The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. In the early afternoon of May 10, 2009, plaintiff was walking in the parking lot of the Hillsdale Public Library. According to plaintiff, as she approached the building, she slipped and fell on a curb cut in the sidewalk in the rear of the library. The barrier-free curb cut is part of a walkway from the parking lot to provide pedestrians with access to the sidewalk and rear entrance to the library.
In her deposition, plaintiff explained that when she reached the curb cut in the sidewalk, she stepped up onto the curb with her left foot and then stepped with her right foot onto the decline in the curb cut. When she stepped onto the decline of the curb cut with her right foot, she lost her balance and fell. She attributes her loss of balance to dirt and debris covering the base of the curb cut, which her expert opined "washed down onto the curb cut obscur[ing] the patio and curb cut and created a tripping and slipping hazard." Photographs of the scene taken that same afternoon reveal a small amount of dirt and pebbles at the base of the curb cut.
Prior to the accident, no complaints were ever made about the condition of the walkway. According to the library director, David Franz, part of the library staff's routine duties was to inspect the area leading up to the door in the rear of the library and bring to his attention any hazardous condition observed. No such complaints concerning the pathway leading to the library were ever made to him. The Borough employs a cleaning service for the library's interior that also addresses the property's landscaping needs. In addition, the Borough's Department of Public Works occasionally sweeps the parking lot area.
Plaintiff sued defendants alleging that they "negligently and carelessly allowed a dangerous and hazardous condition to exist on the property or failed to warn of same which caused plaintiff to slip and fall." Following discovery, the judge granted defendants' motion for partial summary judgment as to that portion of plaintiff's complaint alleging negligent design of the sidewalk ramp. Defendants later moved for summary judgment dismissal of the remainder of plaintiff's complaint based on the immunities afforded under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3. In granting the requested relief, the motion judge held that, as a matter of law, plaintiff failed to establish that (1) the property was in a dangerous condition at the time of the accident; (2) her injuries were proximately caused by the alleged condition; (3) the alleged condition created a reasonably foreseeable risk of the kind of injury which plaintiff incurred; (4) that neither (a) a negligent or wrongful act or omission of one of defendants' employees within the scope of employment created the dangerous condition or that (b) defendants had actual or constructive notice of the alleged condition; and (5) that neither defendant acted in a palpably unreasonable manner.
On appeal, plaintiff argues that summary judgment was improper because there were genuine issues of material fact as to the existence of a dangerous condition, defendants' constructive notice thereof, and whether their failure to take action was palpably unreasonable. We disagree and conclude that the area of plaintiff's fall did not constitute a "dangerous condition" within the meaning of the Act, N.J.S.A. 59:4-2.
We review a trial court's grant of summary judgment de novo, applying the same standard as the trial court. Turner v. Wong, 363 N.J.Super. 186, 198-99 (App. Div. 2003). Summary judgment must be granted if "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 a judgment or order as a matter of law." R. 4:46-2(c); see also Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The court first decides whether there was a genuine issue of material fact. If there was ...