Opinion
DOCKET NO. A-3335-13T1
04-28-2015
MARIA MERCADO, Plaintiff-Appellant, v. WALLINGTON INDUSTRIAL DEVELOPMENT 2 ASSOCIATES, LP; NEW JERSEY MOTOR VEHICLE COMMISSION; NEW JERSEY MOTOR VEHICLE COMMISSION OF WALLINGTON SQUARE, Defendants-Respondents.
Kristian A. Krause argued the cause for appellant (Goldstein, Ballen, O'Rourke & Wildstein, attorneys; Ms. Krause, on the briefs). James A. McGhee, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. McGhee, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3906-12. Kristian A. Krause argued the cause for appellant (Goldstein, Ballen, O'Rourke & Wildstein, attorneys; Ms. Krause, on the briefs). James A. McGhee, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. McGhee, on the brief). PER CURIAM
Plaintiff Maria Mercado slipped and fell after renewing her motor vehicle registration at the New Jersey Motor Vehicle Commission (MVC) office in Wallington, on a dry, clear early morning at the end of July. She walked toward a vending machine to purchase a plastic cover for the registration when she slipped on a small puddle of water on the floor. She sustained injuries, sued defendants, and now appeals from the February 14, 2014 order granting summary judgment to defendants. We affirm.
Plaintiff estimated the size of the puddle was eight inches by five and one-half inches.
Plaintiff alleges that her fall raises a factual issue after applying the strict standards set forth in the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14-4. "The TCA provides protection for public entities involved in tort claims" and "[g]enerally, immunity prevails over liability to the extent that immunity has become the rule and liability is the exception." Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 490 (2014) (citation omitted).
The TCA declares that a public entity can be liable for an injury caused by a condition of its property only if:
[T]he 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 . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
[N.J.S.A. 59:4-2.]
A public entity has actual notice of a dangerous condition "if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a). A public entity has constructive notice "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." N.J.S.A. 59:4-3(b). A public entity is not liable "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.
As Judge Robert L. Polifroni stated in his decision, plaintiff offered no evidence as to the source of the water on the floor or how long the water had been on the floor. The weather was dry. No office vending machine sold beverages, nor were beverages permitted in the office. Janitorial services finished cleaning the floor hours before the incident. Ten to twelve MVC employees were in the area, but no one acknowledged seeing water on the floor prior to plaintiff's fall.
Plaintiff argues that because the public restroom was close by and the MVC employees were not trained to actively inspect the floor for water, the issue of whether the MVC was on constructive notice of the dangerous condition was a jury question. We disagree.
Plaintiff argues that we should apply here the reasoning in Milacci v. Mato Realty Co., 217 N.J. Super. 297 (App. Div. 1987). Milacci also involved a plaintiff slipping on a dangerous condition in a public building. Id. at 299. In Milacci, however, the dangerous condition was an accumulation of sand and dirt. Ibid. As we said in Milacci, the "description of the conditions as an 'accumulation of sand and dirt' indicates prima facie that the condition existed for some period of time. From this a jury might reasonably infer that the time involved was sufficient for the State and the custodial service to have discovered the condition." Id. at 302 (citations omitted). A small puddle of water does not demonstrate such a lengthy temporal existence, nor is it obvious to onlookers as is sand and dirt.
We affirmed summary judgment granted to New Jersey Transit where plaintiff slipped and fell on dog feces on subway steps. Carroll v. N.J. Transit, 366 N.J. Super. 380, 391 (App. Div. 2004). We determined that, even assuming the presence of defendant's employee in the area, this was inadequate to satisfy the notice requirement of N.J.S.A. 59:4-3, given the lack of evidence as to how long the dog feces was on the stairs. Carroll, supra, 366 N.J. Super. at 388.
Even if plaintiff had produced evidence of constructive notice, which she did not, she did not present evidence of palpably unreasonable conduct by MVC to protect against the dangerous condition. A MVC senior clerk testified at deposition that employees do a basic walk-through of the facility prior to opening in the morning and also that employees, including herself, would clean up any spills they saw throughout the day.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governed the trial court. Gormley v. Wood-El, 218 N.J. 72, 86 (2014) (citation omitted). We must "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). We also give the non-moving party "the benefit of the most favorable evidence and most favorable inferences drawn from that evidence." Gormley, supra, 218 N.J. at 86 (citation omitted). "[C]onclusions of law are reviewed de novo." Zaman v. Felton, 219 N.J. 199, 216 (2014).
We affirm Judge Polifroni's grant of summary judgment because plaintiff presented no proof that defendant had notice of the "dangerous condition" on its property, nor any proof of palpably unreasonable conduct by MVC.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION