Opinion
DOCKET NO. A-2269-13T1
09-30-2015
STEPHEN MARQUARD AND LEE ANN MARQUARD, h/w, Plaintiffs-Appellants, v. VILLAGE OF RIDGEWOOD and NEW JERSEY TRANSIT CORP., Defendants-Respondents.
Mark McBratney argued the cause for appellants (Siegel Capozzi Law Firm LLC, attorneys; Douglas S. Grossbart, of counsel and on the briefs). Matthew S. Rogers argued the cause for respondent Village of Ridgewood. Steven Hahn, Deputy Attorney General, argued the cause for respondent New Jersey Transit Corporation (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Hahn, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0142-12. Mark McBratney argued the cause for appellants (Siegel Capozzi Law Firm LLC, attorneys; Douglas S. Grossbart, of counsel and on the briefs). Matthew S. Rogers argued the cause for respondent Village of Ridgewood. Steven Hahn, Deputy Attorney General, argued the cause for respondent New Jersey Transit Corporation (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Hahn, on the brief). The opinion of the court was delivered by SIMONELLI, J.A.D.
In this slip and fall matter, plaintiff Stephen Marquard appeals from two December 20, 2013 Law Division orders, which granted summary judgment to defendants Village Of Ridgewood (Ridgewood) and New Jersey Transit (NJT) pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:4-1 to -10, and dismissed the complaint with prejudice. We affirm.
Plaintiff's wife, Lee Ann Marquard, who filed a per quod claim, also appeals.
We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motions, viewed in the light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)). On February 10, 2010, twelve inches of snow fell in Ridgewood. On February 15, 2010, temperatures in Ridgewood ranged from twenty-five to forty degrees. On February 16, 2010, an additional six inches of snow fell in Ridgewood and the temperatures ranged from thirty-two to thirty-six degrees. At 6:51 a.m. on February 17, 2010, the temperature in Ridgewood was twenty-eight degrees.
Plaintiff alleged that at approximately 7:00 a.m. on February 17, he slipped and fell on ice that had formed on the pavement directly below a leaking rain gutter on the Ridgewood train station building, sustaining permanent injuries. Plaintiff, who used the train station on a daily basis, acknowledged he did not see a dangerous condition at the train station the day before his fall. Nonetheless, he alleged that Ridgewood and NJT were liable for his injuries based on a dangerous and hazardous condition on the property.
The court granted partial summary judgment to plaintiff as to the permanency of his injuries under the TCA. Defendants do not challenge that determination in this appeal.
Ridgewood acquired title to the train station building and portions of surrounding accessory properties from NJT's predecessor, Erie-Lackawanna Railroad Company, by deed dated September 13, 1967 (the deed). The deed required Ridgewood to maintain the property in good condition, repair, and cleanliness and keep it "free of ice, snow and accumulation of water."
A February 4, 2009 deed of easement between Ridgewood and NJT subdivided the property between the two entities (the easement). Under the easement, Ridgewood owned the station building, baggage building, taxi dispatch building, boarding platforms, except the center platform between the tracks, and pedestrian underpass, including stairs and two outer kiosk structures providing weather protection thereto. Ridgewood's responsibilities under the easement were as follows, in pertinent part:
Except for the ticket agent portion of the [s]tation [b]uilding, the cleaning and routine maintenance of which shall be the responsibility of [NJT], Ridgewood will be responsible for maintenance, cleaning, lighting, heating and air conditioning, upkeep and/or replacement of systems, equipment and devices of those areas and buildings it owns, including those to which [NJT's] [r]eserved [e]asement applies[.]
Under the easement, NJT received a right-of-way to the tracks, center platform, and the kiosk providing access to the center platform from the pedestrian underpass, including stairs, and was only responsible for the maintenance and upkeep of the areas within its easement, including the ticket agent portion of the station building, but not the station building itself.
Plaintiff's claims against Ridgewood and NJT are governed by the TCA. NJT filed a motion for summary judgment, arguing it bore no liability for plaintiff's injuries because it did not own or control the property where plaintiff fell and N.J.S.A. 59:4-2 applies only to injuries caused by a condition of its property. NJT relied on the deposition testimony of its employees, who all denied having responsibility over the area where plaintiff fell, although one employee testified he would sometimes voluntarily clear snow at the station building out of a moral obligation, not NJT policy. At oral argument, all parties agreed that Ridgewood, not NJT, had authority over the area where plaintiff fell. The motion judge granted summary judgment to NJT, finding there was no dispute it did not own or control that area of the property.
Ridgewood also filed a motion for summary judgment, arguing that plaintiff could not establish that there was a dangerous condition on the property, Ridgewood had actual or constructive knowledge of the dangerous condition, and Ridgewood's actions were palpably unreasonable, as required by N.J.S.A. 59:4-2. Ridgewood also argued it was entitled to weather immunity pursuant to N.J.S.A. 59:4-7, and common law snow and ice removal immunity.
In opposition, plaintiff relied on a February 2010 monthly report from the Ridgewood Department of Public Works (DPW), which indicated that a truck caused a hole in a gutter, and a March 2010 monthly report, which indicated the gutter had not been repaired. The reports did not specify the location of the damaged gutter.
Plaintiff also relied on a November 10, 2009 letter from the New Jersey Department of Transportation (NJDOT), which indicated that Ridgewood was proposing to replace the roof on the station building due to water seepage from the roof's tiles, and the project included replacing the gutters and leaders. Plaintiff argued this letter demonstrated that Ridgewood had actual notice of a drainage issue because the project included the installation of new gutters.
Plaintiff also relied on Ridgewood's engineer, who testified at his deposition that they were aware the roof was leaking and had broken tiles, and this was why they had to repair the roof. Plaintiff further relied on a fact witness, who testified at his deposition that "[r]ight where the gutters came together in that corner [where plaintiff fell], they leaked all the time."
The court granted summary judgment to Ridgewood, finding that plaintiff failed to show there was a dangerous condition; Ridgewood had actual or constructive knowledge of a dangerous condition; and Ridgewood's actions were palpably unreasonable. This appeal followed.
The court subsequently denied plaintiff's motion for reconsideration. Plaintiff does not challenge that decision in this appeal.
We review a ruling on motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations and internal quotation marks omitted). Thus, we consider, as the motion judge did, "'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.'" Id. at 406. If there is no genuine issue of material fact, we must then "'decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Applying the above standards, we conclude that the judge properly granted summary judgment to NJT. First, plaintiff's counsel agreed that Ridgewood, not NJT, had authority over the area where plaintiff fell. Concessions by plaintiff's counsel on a motion for summary judgment are binding on appeal. Ji v. Palmer, 333 N.J. Super. 451, 459 (App. Div. 2000).
In any event, NJT was entitled to summary judgment as a matter of law, as it did not own or control the property where plaintiff fell. "A public entity is liable for injury caused by a condition of its property[.]" N.J.S.A. 59:4-2 (emphasis added). A public entity cannot be held liable for injuries sustained on another's property. Ball v. N.J. Bell Tel. Co., 207 N.J. Super. 100, 107 (App. Div.), certif. denied, 104 N.J. 383 (1986). "Public property" is defined as "property owned or controlled by the public entity, but does not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity." N.J.S.A. 59:4-1(c).
The deed and easement establish that NJT did not own the property where plaintiff fell and had no obligation to maintain it, including keeping it free of snow and ice. In addition, neither the deed nor the easement gave NJT any control over that property. Accordingly, NJT was not liable for plaintiff's injuries.
Ridgewood was also entitled to summary judgment as a matter of law. N.J.S.A. 59:4-2 provides as follows:
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:The notice requirements for a "dangerous condition" are set forth in N.J.S.A. 59:4-3, which provides as follows, in pertinent part:
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 [N.J.S.A.] 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.]
a. A public entity shall be deemed to have 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.
b. A public entity shall be deemed to have constructive notice of a dangerous condition . . . 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.
Even assuming plaintiff showed there was a dangerous condition on the property, there was no proof of actual notice to Ridgewood. For instance, there was no evidence that Ridgewood received complaints about the dangerous condition, see, e.g., Norris v. Borough of Leonia, 160 N.J. 427, 447 (1999), or that there were prior accidents at the site, see, e.g., Wymbs v. Twp. of Wayne, 163 N.J. 523, 536-37 (2000). The NJDOT's November 10, 2009 letter does not constitute actual notice, as it did not mention any defect in the gutters outside the station building, let alone the particular gutter plaintiff claimed was leaking. In addition, Ridgewood's representative testified at her deposition that Ridgewood replaced the roof on the station building because of leaks inside the building, not outside, and no one reported the gutters were leaking. Thus, in the absence of actual notice, Ridgewood would be be liable for a dangerous condition "only if the plaintiff establishe[d] 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).
The "mere '[e]xistence of an alleged dangerous condition is not constructive notice of it.'" Polzo v. Cnty. of Essex, 196 N.J. 569, 581 (2008) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). However, a reasonable inference of notice is created where a condition has existed for a sufficient length of time and was open and obvious. For instance, in Chatman v. Hall, 128 N.J. 394 (1992), the Court found sufficient evidence to deny the township's summary judgment motion where local residents complained at least one year before the accident of a very large pothole that ran across much of the street and both the injured party and the truck driver, whose truck hit the hole and struck the plaintiff, had noticed the hole for a couple of months. Id. at 399-400. The Court reasoned that the length of time the hole existed and the size of the hole created a reasonable inference that the defendant had either actual notice or constructive notice. Id. at 418.
In Polzo, supra, a bicyclist died after striking a declivity in the road. 196 N.J. at 574. The decedent's wife brought an action against the County alleging that the declivity in the shoulder of the roadway constituted a dangerous condition giving rise to liability. Ibid. The report of the plaintiff's engineering expert opined that since the depression "could or should have been noticed for a significant period of time" the County had constructive knowledge of the dangerous condition. Id. at 582 (internal quotation marks omitted). The Court held that the expert's report, which provided no explanation for any of its conclusions, id. at 583, was insufficient, by itself, to sustain the plaintiff's burden of showing that the County had constructive knowledge of the dangerous condition, id. at 584.
Here, plaintiff presented no proof, let alone expert proof, as to the length of time the subject gutter leaked and formed ice on the pavement below. Not only was there no proof of the duration of the leaking gutter, plaintiff himself admitted that he used the train station on a daily basis and did not see a dangerous condition the day before his accident. In addition, nothing in the summary judgment record suggests that any complaints or accidents concerning the alleged dangerous condition were ever reported to Ridgewood in the interim. Consequently, we are satisfied that no reasonable jury could have concluded that Ridgewood had actual or constructive notice of the alleged dangerous condition a sufficient time prior to the injury to have taken measures to protect against the alleged leak, see N.J.S.A. 59:4-2, and therefore the grant of summary judgment in Ridgewood's favor was proper.
For the sake of completeness, we briefly address Ridgewood's alternative arguments that it was entitled to weather immunity pursuant to N.J.S.A. 59:4-7, and common law snow and ice removal immunity. N.J.S.A. 59:4-7 provides that "[n]either a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions." Our Supreme Court has held that "the internal driveway servicing [a public] apartment complex is not a 'street' or 'highway.'" Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 130 (1993). "The same logic excludes 'sidewalks' as places to which the immunity provision applies under N.J.S.A. 59:4-7." Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012); see also Luchejko v. City of Hoboken, 414 N.J. Super. 302, 316 (App. Div. 2010) (holding the immunity did not apply because the plaintiff's injuries occurred on a sidewalk, not a street or highway), aff'd, 207 N.J. 19 (2011). Consequently, because plaintiff's injury in this case did not occur on a public street or highway, Ridgewood was not entitled to immunity under N.J.S.A. 59:4-7.
However, Ridgewood was immune under the common law snow and ice removal immunity, which is preserved by N.J.S.A. 59:2-1(b). See also Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 402 (1988) (holding that the TCA did not abrogate the absolute immunity for snow-removal activities conferred on public entities). The common immunity applies to situations where, as here, ice is an alleged cause of the accident. Miehl v. Darpino, 53 N.J. 49, 53 (1968); see also Luchejko, supra, 414 N.J. Super. at 317-18 (concluding public entity was immune where its snow removal activities created a snow bank, which melted onto an adjacent sidewalk leading to icy conditions causing the plaintiff's fall).
N.J.S.A. 59:2-1(b) provides that "[a]ny liability of a public entity established by [the TCA] is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person." --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION