July 24, 2013
THERESA J. DEFREESE AND JANICE DEFREESE, Plaintiffs-Appellants/ Cross-Respondents,
JOHN A. SPIZZIRI, TRUSTEE OF THE ANN CLEARY SACHS TESTAMENTARY TRUST, Defendant, and TOWNSHIP OF MAHWAH, Defendant-Respondent/ Cross-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 14, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9573-09
Michael J. Breslin, Jr., argued the cause for appellants/cross-respondents.
Robert Zimmerer argued the cause for respondent/cross-appellant (Zimmerer, Murray, Conyngham & Kunzier, attorneys; Robert Zimmerer of counsel and on the brief).
Before Judges Reisner and Hoffman.
Plaintiffs Theresa DeFreese and Janice DeFreese appeal from the May 10, 2012 Law Division order granting summary judgment in favor of the Township of Mahwah (Township), finding that plaintiffs' claims are barred by the New Jersey Tort Claims Act (Act). For the reasons that follow, we affirm.
On August 10, 2008, at approximately 2:54 a.m., Theresa DeFreese was operating a motor vehicle, with her mother, Janice DeFreese, in the passenger's seat. While plaintiffs were traveling northbound on Stag Hill Road, a tree fell on top of plaintiffs' vehicle, resulting in damage to the vehicle and bodily injury to plaintiffs. At the time of the accident, the weather was clear and the roadway dry. Plaintiffs were extracted from their vehicle and transported to the hospital.
The Township's Department of Public Works (DPW) was called to remove the tree that had fallen on plaintiffs' vehicle. A DPW employee responded the same night and removed the portions of the tree that were on Stag Hill Road.
The Township, the largest municipality in Bergen County, encompasses 26.7 square miles. The area of the Township located west of the Ramapo River, which includes the entirety of Stag Hill Road, is a New Jersey Highlands Preservation Area. Tree removal within this area requires approval from the New Jersey Highlands Council and the New Jersey Department of Environmental Protection (NJDEP).
The Township has a Tree Preservation Ordinance, which governs the removal of trees. Employees of the Township's DPW perform tree maintenance on Township property, including right-of-ways owned by the Township, on an as needed basis except for large jobs which may be performed by private contractors. At the time of the incident, there were twenty-nine full-time blue collar employees in the DPW.
Stag Hill Road is located within a right-of-way owned by the Township. It is approximately two miles long and is flanked on either side by a wooded area. Photographs produced by plaintiffs show that the area where the tree at issue was located is heavily wooded. According to a location survey performed by Frank M. Krupinski, a professional land surveyor, the tree was located thirty-two feet from the center of the road.
Plaintiffs retained Michael Ferguson of Cedar Pond Tree and Landscape, Inc., a New York State certified arborist, to inspect the tree at issue. According to Ferguson's report, the tree "has been dead a number of years. There is visible rot throughout the entire tree. There [are] also many sections of bark missing. . . . The uprooted stump [is] also extensively rotten."
In years prior to the accident, the DPW had received sporadic reports regarding issues with trees on Stag Hill Road: On June 8, 2004, a tree was lying across the road near Aranwood Estates; on August 21, 2004 a tree limb had fallen on the road; on August 18, 2007, a tree was leaning; on March 20, 2008, a tree was down on the road.
On May 10, 2012, the motion judge issued an oral decision granting summary judgment in the Township's favor. The judge subsequently issued a written opinion expounding on the oral decision. The judge determined that the Township lacked notice of the decayed tree and that "no reasonable jury under the circumstances could find the failure to take action to protect against the condition being a decayed tree in an area which is not maintained and left in its natural state was palpably unreasonable." This appeal followed.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We "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).
Plaintiffs argue that the Township had notice of the tree's dangerous condition and that it was palpably unreasonable for it not to address the condition. We disagree.
Pursuant to the Act, N.J.S.A. 59:4-2:
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.
Plaintiffs contend that the tree "had existed for a long period of time . . . and . . . because of the lack of leaves and bark, it was of such an obvious nature . . . that [the Township] in the exercise of due care, should have discovered the condition and its dangerous character." We disagree.
Pursuant to the Act:
A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 only if the plaintiff establishes that 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.
There are various ways a plaintiff can demonstrate constructive notice. The appearance of the dangerous condition can show constructive notice. Chatman v. Hall, 128 N.J. 394, 418 (1992) (finding the size of a pothole can indicate it existed long enough that a public entity may have had constructive notice of its existence); Milacci v. Mato Realty Co., Inc., 217 N.J.Super. 297, 302-03 (App. Div. 1987) (finding a large accumulation of dirt and sand on the floor of an office can indicate a public entity may have had constructive notice of its existence). Additionally, prior accidents at the same location of the dangerous condition can create an issue of fact as to constructive notice. Wymbs v. Twp. of Wayne, 163 N.J. 523, 536 (2000).
In this case, although a person observing the tree prior to the accident may have recognized that the tree was dead, the record indicates that the tree was not in a readily visible location. The photographs in the record show the tree was located in a densely wooded area. Moreover, a survey of the area located the tree at the very edge of the Township's right-of-way, thirty-two feet from the center of the road. Township employees driving on Stag Hill Road would not have observed the tree's condition given its location in a heavily wooded area.
Plaintiff contends that the "due care" under the Act requires the Township to inspect the woods adjacent to Stag Hill Road for dead trees that may potentially fall on the roadway. We find this contention unreasonable. Our Supreme Court has recognized that courts do "not have the authority or expertise to dictate to public entities the ideal . . . inspection program, particularly given the limited resources available to them." Polzo v. County of Essex, 209 N.J. 51, 69 (2012). Here, if we were to find constructive notice based on plaintiff's theory of due care, we would be implicitly imposing an inspection program on the Township, contrary to the Court's admonition in Polzo. Accordingly, we refuse to apply constructive notice under this theory.
Plaintiffs also contend that the Township had constructive notice due to the four reports of issues regarding trees on Stag Hill Road in years prior to the accident. However, none of those reports related to the tree at issue in this case. Moreover, four sporadic reports of issues with trees over the course of four years —— two of which occurred in 2004 —— are insufficient to show the Township had constructive notice that the tree in this case posed a dangerous condition to motorists on Stag Hill Road.
B. Palpable Unreasonableness
Even assuming the Township had constructive notice, plaintiffs would still have to clear the hurdle of showing the Township's action or inaction in regards to the tree was palpably unreasonable, which they have not done.
Apart from proof of notice, to establish liability against a public entity under N.J.S.A. 59:4-2, a plaintiff must establish a prima facie case that the action or inaction of the public entity was "palpably unreasonable." Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005); Carroll v. New Jersey Transit, 366 N.J.Super. 380, 386-87 (App. Div. 2004); Maslo v. City of Jersey City, 346 N.J.Super. 346, 349 (App. Div. 2002). The term "implies behavior that is patently unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). The behavior "must be manifest and obvious that no prudent person would approve of its course of action or inaction." Ibid.
Whether the public entity's behavior was palpably unreasonable is generally a question of fact for the jury. See Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001). However, a determination of palpable unreasonableness, "like any other fact question before a jury, is subject to the court's assessment whether it can reasonably be made under the circumstances presented." Maslo, supra, 346 N.J.Super. 346, 351 (quoting Black v. Borough of Highlands, 263 N.J.Super. 445, 452 (App. Div. 1993)). Accordingly, "the question of palpable unreasonableness may be decided by the court as a matter of law in appropriate cases." Id. at 350 (citing Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998)).
The record in this case shows that the motion judge correctly decided as a matter of law that the Township's actions pertaining to the tree were not palpably unreasonable. As already noted, given the limited resources of municipalities, it is not within our power to impose an ideal tree inspection program on the Township. Polzo, supra, 209 N.J. at 69. There was not a frequent problem of decayed trees falling on Stag Hill Road. The program that the Township had in place was not unreasonable —— if a tree or branch fell on the road, or appeared at risk of doing so, the DPW would remove it as soon as possible, thereby removing the dangerous condition.
There is no evidence of any similar accident occurring in the past on Stag Hill Road or any other road in the Township. Palpably unreasonable conduct "implies a more obvious and manifest breach of duty" than negligence "and imposes a more onerous burden on the plaintiff." Williams v. Phillipsburg, 171 N.J.Super. 278, 286 (App. Div. 1979). No rational factfinder could find that it was palpably unreasonable for the Township to respond to fallen trees on an as needed basis, rather than by inspecting two miles of woods on foot, looking for trees that had the potential to fall on the road.