Opinion
DOCKET NO. A-4920-13T3
06-19-2015
RHONDA KOTULA, Plaintiff-Appellant, v. HAWKEYE DEVELOPERS, INC., C.J. HESSE, INC., CHARLES J. HESSE, INC., HESSE CONSTRUCTION, MOORE'S TAVERN AND RESTAURANT, INC., FREEHOLD TOWNSHIP WATER DEPARTMENT, and FREEHOLD TOWNSHIP PUBLIC WORKS DEPARTMENT, Defendants, and TOWNSHIP OF FREEHOLD and FREEHOLD TOWNSHIP BOARD OF EDUCATION, Defendants-Respondents.
Shebell & Shebell, LLC, attorneys for appellant (Thomas F. Shebell, III, of counsel; Robert A. Morley, on the briefs). Gilmore & Monahan, P.A., attorneys for respondent Township of Freehold (Christen E. McCullough, on the brief). Cascio & Capotorto, attorneys for respondent Freehold Township Board of Education (John Goworek, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Koblitz and Haas. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0319-12. Shebell & Shebell, LLC, attorneys for appellant (Thomas F. Shebell, III, of counsel; Robert A. Morley, on the briefs). Gilmore & Monahan, P.A., attorneys for respondent Township of Freehold (Christen E. McCullough, on the brief). Cascio & Capotorto, attorneys for respondent Freehold Township Board of Education (John Goworek, on the brief). PER CURIAM
Plaintiff Rhonda Kotula appeals from two March 31, 2014 orders granting summary judgment and dismissing her complaint against defendants Freehold Township and the Freehold Township Board of Education, and from a June 6, 2014 order denying reconsideration. We affirm.
Viewing the evidence in the light most favorable to plaintiff, she tripped and fell on a slab of sidewalk that was raised one and one-half inches above the level of the next paving slab. The fall caused her to break the little finger on her right hand. In a brief report, plaintiff's expert opined that the uneven sidewalk (the declivity) caused plaintiff's fall, and that the sidewalk was in an unreasonably dangerous condition. The expert based the latter opinion on his professional experience and on two model codes that addressed safe walking surfaces. The expert did not, however, offer an opinion as to how long the declivity had existed or what might have caused it. There was no evidence that either of the defendant public entities caused the declivity or had prior notice of it. There was no evidence that plaintiff or anyone else had previously complained about the condition of the sidewalk or that any public employee whose job included sidewalk inspection had observed the condition.
There was evidence that a portion of the sidewalk and a water main cover set into one edge of the sidewalk were both painted blue. However, there was no evidence that this painting was part of a sidewalk inspection program. The only evidence suggested that the painting was done by an employee of the Township's utility department to designate the presence of the water main. There was no evidence as to when the painting was done or whether the declivity existed at that time. --------
In a comprehensive written statement of reasons issued with the March 31 orders, Civil Presiding Judge David F. Bauman found that plaintiff had raised a material factual issue as to whether the sidewalk was in an unreasonably dangerous condition. However, he found that plaintiff failed to produce evidence that the public entities created the sidewalk's allegedly dangerous condition or had either actual or constructive notice of its dangerous condition. See N.J.S.A. 59:4-2; N.J.S.A. 59:4-3. Because proof of at least one of those three elements is required under the Tort Claims Act (TCA), N.J.S.A. 59:4-2, that evidentiary failing was fatal to plaintiff's case. Judge Bauman also found no evidence that either defendant acted in a palpably unreasonable manner in failing to repair the sidewalk. See N.J.S.A. 59:4-2. In an equally thorough opinion, issued with the June 6 order, Judge Bauman rejected plaintiff's reconsideration motion.
On this appeal, our review of the trial court's summary judgment decision is de novo, employing the same legal standard the trial court used. See Bhagat v. Bhagat, 217 N.J. 22, 38 (2014); Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We review a trial court's decision on a reconsideration motion for abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
On this appeal, plaintiff raises the following issues in contending that the trial court erred in granting summary judgment.
POINT I.
THE COURT ERRED IN FINDING THE ABSENCE OF A FACTUAL DISPUTE WITH REGARD TO MULTIPLE FACTS ABOUT WHICH REASONABLE MINDS MAY DIFFER.
POINT II.
THE COURT ERRONEOUSLY ACCEPTED FACTS SUPPORTED BY BRIAN BOYLE, WHOSE CREDIBILITY WAS IMPAIRED BECAUSE HE MADE A STATEMENT UNDER OATH THAT WAS PLAINLY CONTRADICTED.POINT III.
THE COURT ERRED WHEN IT FOUND THAT THE TOWNSHIP OF FREEHOLD DOES NOT OWN THE PUBLIC SIDEWALK.
POINT IV.
THE COURT ERRED WHEN IT FOUND THAT THE TOWNSHIP OF FREEHOLD HAD NO NOTICE OF A DANGEROUS CONDITION OF PROPERTY.
POINT V.
THE COURT ERRED WHEN IT FOUND THAT THE FREEHOLD BOARD OF EDUCATION HAD NO ACTUAL OR CONSTRUCTIVE NOTICE OF A DANGEROUS CONDITION OF PROPERTY.
POINT VI.
THE COURT ERRED WITH IT FOUND THAT AN INFERENCE OF PALPABLY UNREASONABLE CONDUCT MAY BE NEGATED BY AN ALLOCATION OF RESOURCES DEFENSE THAT WAS NOT RAISED.
POINT VII.
THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE TOWNSHIP OF FREEHOLD BASED UPON THE ABSENCE OF PROOF OF PALPABLY UNREASONABLE CONDUCT, WHERE THE TOWNSHIP DID NOT SERIOUSLY RAISE THIS ISSUE.
POINT VIII.
THE COURT ERRED IN FINDING THAT FREEHOLD BOARD OF EDUCATION DID NOT ENGAGE IN PALPABLY UNREASONABLE CONDUCT.
Having reviewed the record in light of the applicable legal standards, we conclude that Judge Bauman thoroughly and correctly addressed the issues in his written opinions, and plaintiff's appellate arguments are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E). We affirm for the reasons stated in Judge Bauman's March 31 and June 6 opinions.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION