October 30, 2013
YVETTE ALVARADO-COLON, Plaintiff-Appellant,
WOODBRIDGE HOUSING AUTHORITY, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 25, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5281-11.
Richard S. Panitch argued the cause for appellant (Nash & Tobias, LLC, attorneys; Mr. Panitch, on the brief).
Peter J. King argued the cause for respondent (King and Petracca, attorneys; Medea B. Chillemi, on the brief).
Before Judges Sapp-Peterson and Sabatino.
Plaintiff appeals from the trial court order granting summary judgment to defendant and dismissing her complaint against defendant for injuries she sustained when she tripped on a public sidewalk on October 7, 2009. The motion judge determined that plaintiff failed to raise a genuinely disputed issue-of-fact that a dangerous condition of public property existed within the meaning of N.J.S.A. 59:4-2 and that plaintiff additionally failed to raise a genuinely disputed issue-of-fact she sustained a permanent injury within the meaning of N.J.S.A. 59:9-2(d). We affirm.
Plaintiff's proofs in opposition to the motion included an expert report opining that the one and one-half inch raised sidewalk where plaintiff fell is a defect reflective of "basic construction defects" and that the condition "had clearly been present for a substantive time period before the accident" because "it typically takes at least several years to produce the exhibited level of concrete ridge formation." Plaintiff additionally presented an expert report from Dr. Steven L. Nehmer, an orthopedist, who opined that as a result of the fall, plaintiff sustained a fracture of the left clavicle and left ankle sprain. He determined that her injuries were permanent "based upon her continued pain, loss of motion, and loss of function."
In granting summary judgment to defendants, the motion judge found he "could not find that the town failed to protect against a dangerous condition, or that any action they did take or didn't take was palpably unreasonable." Addressing plaintiff's claimed permanent injury, the judge found that plaintiff "had worked continuously from the date of the accident." In addition, the judge noted that not only were full ranges of motion found at the time plaintiff received emergency-room treatment on the date of the accident, October 7, 2009, but also again by Dr. Andrew M. Hutner, who performed an orthopedic evaluation of plaintiff in June 2010 and September 2010. The judge further noted that Dr. Hutner discussed additional physical therapy with plaintiff but she expressed to him that she felt that she could continue on a home exercise program. Moreover, the judge found the record demonstrated that plaintiff had not undergone any treatment for her injuries since 2010. Based upon these findings, the judge concluded that plaintiff had not raised a genuinely disputed issue of fact as whether she experienced a permanent loss of any bodily function, "certainly none that is substantial in terms of her ability to function." The present appeal followed.
On appeal, plaintiff urges that the motion should have been denied because genuine issues of fact existed as to the presence of a dangerous condition. She also contends there are genuinely disputed issues of fact as to whether she suffered a permanent loss of a bodily function.
Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529–30 (1995). On appeal, we apply the same standard, deciding first whether there was a genuine issue of material fact. Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011). If there was not, we then must decide whether the judge's ruling on the law was correct. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Legal conclusions are subject to de novo review. Ibid.
The applicable principles are well-settled. Under the New Jersey Tort Claims Act ("Act"), N.J.S.A. 59:1-1 to 12-3, "immunity from tort liability is the general rule and liability is the exception." Garrison v. Township of Middletown, 154 N.J. 282, 286 (1998). To recover under the Act, a plaintiff must prove, among other things that at the time of the injury, the public entity's property was in a dangerous condition, that the condition created a foreseeable risk of the kind of injury that occurred, and that the condition proximately caused the injury. N.J.S.A. 59:4-2.
"Dangerous condition" is defined under the Act 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." N.J.S.A. 59:4-1(a). A substantial risk is one that "is not minor, trivial or insignificant." Polyard v. Terry, 160 N.J.Super. 497, 509, aff'd o.b., 79 N.J. 547 (1978). Even where a dangerous condition is found to exist, the Act imposes no liability on a public entity if "the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." Id. at 505.
"Palpably unreasonable" conduct contemplates more than mere negligence. Coyne v. State, Dept. of Transp., 182 N.J. 481, 493 (2005). Rather, the concept "imposes a steep burden on a plaintiff, " and "implies behavior that is patently unacceptable under any given circumstances[, ]" as well as behavior from which "it must be manifest and obvious that no prudent person would approve of its course of action or inaction." Ibid. (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).
Not every defect in a public roadway, even where caused by negligent maintenance, will be found actionable. Speziale v. Newark Housing Authority, 193 N.J.Super. 413, 416 (App. Div. 1984) (quoting Polyard, supra, 160 N.J.Super. at 508). The Act is not intended to impose liability upon a public entity for conditions of public property that are minor, trivial, or insignificant. Polyard, supra, 160 N.J.Super. at 509. "However, the defect cannot be viewed in a vacuum. Instead, it must be considered together with the anticipated use of the property to determine whether the condition creates a substantial risk of injury and, therefore, qualifies under the statute as dangerous." Atalese v. Long Beach Tp., 365 N.J.Super. 1, 5 (App. Div. 2003).
Here, the motion judge determined that no dangerous condition existed but provided no analysis. Because our review of summary judgment motions is de novo, we conclude, as a matter of law, that a jury could reasonably conclude that a one and one-half inch declivity across a sidewalk located outside of the entrance way to a public building and which sidewalk is intended for pedestrian travel, could be viewed as a dangerous condition within the meaning of the Act, when used with due care. Id. at 6. Our analysis, however, does not end here.
Viewing the evidence in the light most favorable to plaintiff also requires that we determine whether genuinely disputed issues of fact exist as to whether defendant's actions or inactions were palpably unreasonable. Ordinarily, resolving whether a public entity's conduct in connection with an alleged dangerous condition of its property was palpably unreasonable is a question for the trier of act. Black v. Borough of Atl. Highlands, 263 N.J.Super. 445, 451 (App. Div. 1993). However, "like any other fact question before a jury, [the palpably unreasonable determination] is subject to the court's assessment whether it can reasonably be made [based on] the evidence presented." Id. at 452.
Here, plaintiff's proofs, when viewed most favorably towards her, at best, establish ordinary negligence rather than patently unacceptable conduct, which no prudent person would accept, the standard by which palpably unreasonable conduct is measured. The slightly elevated sidewalk slab could not rationally be found to have created a substantial risk of injury. See N.J.S.A. 59:4-1(a). Notably, plaintiff presented no evidence of any prior tripping accidents. Such minor irregularities are commonplace on sidewalks. See, e.g., Polyard, supra, 160 N.J.Super. at 509. The "mere happening of an accident on public property is insufficient to impose liability upon a public entity." Wilson v. Jacobs, 334 N.J.Super. 640, 648 (App. Div. 2000). The condition of the property must pose a substantial risk of injury. N.J.S.A. 59:4-1. Therefore, we conclude that the plaintiff failed to raise a genuinely disputed issue of fact that defendant's actions or inactions were palpably unreasonable. See Brill, supra, 142 N.J. at 540; see also Judson v. Peoples Bank & Trust Co., 17 N.J. 67 (1954).
Because we are satisfied plaintiff failed to raise a genuinely disputed issue of fact as to the palpably unreasonable prong of a dangerous condition of public property within the meaning of the Act, we need not address whether disputed issues of fact also exist as to whether plaintiff sustained a permanent injury within the meaning of the Act.