Opinion
DOCKET NO. A-0045-14T1
11-09-2015
KAREEM FARRAR, Plaintiff-Appellant, v. CITY OF PERTH AMBOY AND PERTH AMBOY DIVISION OF PARKS AND RECREATION, Defendants-Respondents.
Martin F. Kronberg, attorney for appellant (Mr. Kronberg, on the brief). James P. Nolan & Associates, LLC, attorneys for respondents (Fredrick L. Rubenstein, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Kennedy. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7862-12. Martin F. Kronberg, attorney for appellant (Mr. Kronberg, on the brief). James P. Nolan & Associates, LLC, attorneys for respondents (Fredrick L. Rubenstein, on the brief). PER CURIAM
Kareem Farrar appeals the grant of summary judgment dismissing his complaint for personal injuries and argues that a jury should have been permitted to determine whether the public defendants maintained a dangerous condition of property, had actual or constructive notice of the condition, and were palpably unreasonable in failing to correct the condition. We disagree and affirm.
The facts are as follows.
On December 6, 2011, plaintiff was playing football with friends at the Veterans Memorial Park in Perth Amboy. The park, a large complex of football, baseball, and soccer fields, is owned by the City of Perth Amboy and maintained by its Division of Parks and Recreation (defendants). Plaintiff said that he "jogg[ed]" over to a water fountain during a time out and,
I was going to get a drink of water. I wasn't paying attention. I was just into the game. And I just tripped over the thing and then I fell down and I got back up and went back to the field.Plaintiff stated that he tripped at a point "between . . . some sort of cement slab . . . and some sort of control box[,]" and added, "I didn't go in no hole. It was just like I tripped over it[.]" Plaintiff alleged that he suffered "multiple fractures" of his right knee as a consequence of his fall.
Photographs show the water fountain situated on top of a concrete pad that measures fifty-seven and seventy inches, set within a grassy area bordering an asphalt sidewalk. Abutting the concrete pad on the grassy side is a control box for the fountain that is flush to the ground. Plaintiff's expert, Michael G. Natoli, P.E., said that the "grassy and asphalt pavement regions meet flush with the concrete [pad]," except that the pad is elevated "approximately one inch" where the control box cover abuts the pad, creating a "distinct tripping hazard." Plaintiff later identified that spot as the point of his fall.
Frank Hoffman, supervisor of the Perth Amboy Department of Public Works, explained that the Parks Department would "do inspections on the fields," and would perform other "general maintenance[,]" including mowing the grass in the park. Referring to the concrete slab on which the water fountain was located, Hoffman suggested Parks Department employees would have used a "weed-wacker" rather than a lawn mower because "the lawn mower wouldn't be able to cut all around the edges of the [concrete pad]."
Asked whether he considered the "space between the box that contains the water shut-off valve and the cement of the pad that the water foundation is based on," "to be a dangerous condition," Hoffman replied that the "space" was "very minimal" and that "there's sidewalks that are raised far more than that, and we haven't gotten any complaints. So I can't say that I think that's a danger."
The Law Division granted summary judgment dismissing the complaint against defendants pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA). The summary judgment standard is well-established. A trial court must grant a summary judgment motion 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); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If the evidence submitted on the motion "'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
When a party appeals from a trial court order granting or denying a summary judgment motion, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Thus, we must determine whether there was a genuine issue of material fact, and if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review legal conclusions de novo. Henry, supra, 204 N.J. at 330.
New Jersey's common-law doctrine of sovereign immunity has been replaced by the TCA, which governs negligence claims against public entities. See Rochinsky v. Dep't of Transp., 110 N.J. 399, 404 (1988). "'[T]he public policy of this State is that public entities shall be liable for their negligence only as set forth in the [TCA].'" Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) (first alteration in original) (quoting Pico v. State, 116 N.J. 55, 59 (1989)), certif. denied, 196 N.J. 461 (2008)). "[T]he Legislature carefully outlined a design of broad immunity and limited liability, and declared that it is 'the public policy of this State that public entities shall only be liable for their negligence within the limitations of [the TCA] . . . .'" Marcinczyk v. N.J. Police Training Comm'n, 203 N.J. 586, 595 (2010) (emphasis removed) (quoting N.J.S.A. 59:1-2). The TCA provides broad immunity to public entities because "'the area within which the government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done.'" Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (quoting N.J.S.A. 59:1-2).
The TCA provides "a public entity is 'immune from tort liability unless there is a specific statutory provision' that makes it answerable for a negligent act or omission." Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)). "When both liability and immunity exist, immunity prevails." Dickson, supra, 400 N.J. Super. at 195.
In examining whether a governmental entity is liable, "courts should employ an analysis that first asks whether an immunity applies and if not, should liability attach." Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 128 (1993) (emphasis removed) (internal citation quotation marks omitted). The public entity "has the burden to plead and prove [its] immunity under the TCA." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 582 (2009) (citing Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985)). Guided by these principles, we turn to the TCA itself.
N.J.S.A. 59:4-2 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.
[N. J.S.A. 59:4-2.]
To hold a public entity liable under this statute, plaintiff must establish: (1) that a dangerous condition existed; (2) that the condition created a foreseeable risk of the kind of injury that occurred; and (3) that the dangerous condition proximately caused the injury. Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998). In addition, plaintiff must prove either that municipal employees created the dangerous condition or that the municipality had actual knowledge or constructive notice of the dangerous condition within sufficient time to eliminate the danger. N.J.S.A. 59:4-2(a), (b); Carroll v. N.J. Transit, 366 N.J. Super. 380, 386-87 (App. Div. 2004). Lastly, plaintiff must prove the municipality's action or inaction with respect to the dangerous condition was palpably unreasonable. N.J.S.A. 59:4-2; Garrison, supra, 154 N.J. at 286.
A "dangerous condition" is defined in the TCA 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). "[W]hether a dangerous condition is present depends on a combination of factors relating to physical condition, permitted conduct, and objectively foreseeable behavior." Burroughs v. City of Atlantic City, 234 N.J. Super. 208, 218-19 (App. Div.), certif. denied, 117 N.J. 647 (1989). "The term 'dangerous condition' as defined in N.J.S.A. 59:4-1(a) refers to the physical condition of the property itself and not to activities on the property." Sharra v. City of Atlantic City, 199 N.J. Super. 535, 540 (App. Div. 1985). "If a public entity's property is dangerous only when used without due care, the property is not in a 'dangerous condition.'" Garrison, supra, 154 N.J. at 287.
In certain circumstances, the existence of a "dangerous condition" must be resolved by the court as a matter of law, in order that the "legislatively-decreed restrictive approach to liability" is enforced. Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 643 (D.N.J. 1997) (citation omitted). Thus, the pertinent inquiry here is whether reasonable minds could differ as to whether the condition at the water fountain was "dangerous" as defined in the TCA.
In Wilson v. Jacobs, 334 N.J. Super. 640 (App. Div. 2000), we considered a claim that is similar to that at bar. In that case, the plaintiff sued the Township of Hazlet for injuries she sustained when she tripped on a sidewalk. The plaintiff claimed that a space between two concrete blocks "where some grass [was] growing" constituted a dangerous condition under the Act. Id. at 648. After examining color photographs of the sidewalk, the Law Division judge granted summary judgment in favor of the defendant. The judge found that there was "no obvious defect in the elevation of that particular sidewalk[,]" and that the condition of the sidewalk was not one which any finder of fact would conclude created a dangerous condition. Ibid. We affirmed, concluding that the plaintiff failed to present any evidence of "potential public entity liability." Id. at 649.
In the present case, as in Wilson, an exposed lip in the concrete slab of one inch, does not constitute a dangerous condition that creates a substantial risk of injury. Further, the failure of defendants to correct the condition was not palpably unreasonable.
The "mere happening of an accident on public property is insufficient to impose liability upon a public entity." Id. at 648. The condition of the property must pose a substantial risk of injury. N.J.S.A. 59:4-1. Our Supreme Court has instructed that the motion judge is required to make a "preliminary determination as to whether the alleged condition is in fact a dangerous one within the meaning of the statute. Otherwise the legislatively-decreed restrictive approach to liability would be illusory." Polyard v. Terry, 160 N.J. Super. 497, 508 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979). Thus, not every defect in a public roadway, even where caused by negligent maintenance, will be found actionable. Speziale v. Newark Housing Auth., 193 N.J. Super. 413, 419 (App. Div. 1984).
In this case, the slight elevation of the concrete pad at the valve cover could not reasonably be found to have created a substantial risk of injury. N.J.S.A. 59:4-1(a). Such minor irregularities are commonplace on sidewalks. See, e.g., Polyard, supra, 160 N.J. Super. at 509. Therefore, we conclude that plaintiff failed to present evidence establishing public entity liability, and thus failed to present a genuine issue of material fact. Brill, supra, 142 N.J. at 540. We also conclude that defendants' failure to fix the slight lip cannot be viewed as "palpably unreasonable." N.J.S.A. 59:4-2.
Although the term "palpably unreasonable" is not defined in the TCA, it "means more than ordinary negligence, and imposes a steep burden on a plaintiff." Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005). A public entity's palpably unreasonable conduct implies behavior by a public entity that is "'patently unacceptable under any given circumstances.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 532 (2000) (quoting Kolitch, supra, 100 N.J. at 493). This high threshold for liability "recognizes the difficulties inherent in a public entity's responsibility for maintaining its vast amounts of public property" and reflects the judgment that "a public entity's discretionary decisions to act or not to act in the face of competing demands should generally be free from the second guessing of a coordinate branch of Government." Polzo, supra, 209 N.J. at 76 (quoting Harry A. Margolis & Robert Novack, Claims Against Public Entities, 1972 Attorney General's Task Force on Sovereign Immunity comment on N.J.S.A. 59:4-2 (Gann 2011)). See also Muhammad v. N.J. Transit, 176 N.J. 185, 196 (2003) (internal citation and quotation marks omitted) ("Part of the equation in determining whether a public entity acted in a palpably unreasonable manner involves the exercise of its discretion in determining what action should or should not have been taken.").
A public entity's decisions when marshalling the priority of its tasks must be afforded deference unless the act or omission is so "manifest and obvious that no prudent person would approve of its course of action or inaction." Coyne, supra, 182 N.J. at 493 (internal citation and quotation marks omitted). We find unsupported plaintiff's argument suggesting that defendants' delay in undertaking a repair meets this standard. See Polzo, supra, 209 N.J. at 77-78 ("[I]n view of the County's considerable responsibility for road maintenance in a world of limited public resources, the depression here . . . might not have been deemed a high priority, even if the County were on notice of its presence.").
We therefore determine the evidence does not support defendants' liability under the TCA.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION