Opinion
DOCKET NO. A-1262-14T4
05-12-2016
SHERRIE PEARL, Plaintiff-Appellant, v. VOORHEES TOWNSHIP BOARD OF EDUCATION and VOORHEES TOWNSHIP PUBLIC SCHOOLS, Defendants-Respondents, and CAMDEN COUNTY and CAMDEN COUNTY BOARD OF ELECTIONS, Defendants.
Cedar Law Firm, LLC and Williams Cuker Berezofsky, attorneys for appellant (David M. Cedar, Alan H. Sklarsky, and Joseph Alan Venti, on the briefs). McDowell Posternock Apell & Detrick, PC, attorneys for respondents (Daniel Posternock and Diana R. Sever, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1429-13. Cedar Law Firm, LLC and Williams Cuker Berezofsky, attorneys for appellant (David M. Cedar, Alan H. Sklarsky, and Joseph Alan Venti, on the briefs). McDowell Posternock Apell & Detrick, PC, attorneys for respondents (Daniel Posternock and Diana R. Sever, on the brief). PER CURIAM
This is a personal injury action. Plaintiff Sherrie Pearl appeals from an October 10, 2014 order granting summary judgment in favor of defendants Voorhees Township Board of Education and Voorhees Township Public Schools (collectively, the Board), dismissing her complaint with prejudice. She contends the trial court committed two errors requiring reversal: first, it erroneously determined the Board's actions were not palpably unreasonable, as that issue turned on disputed facts that should have been decided by a jury; and second, it erroneously determined the dangerous condition that caused plaintiff's injury — a flag pole blown over by a gust of wind as she walked by — was not created by the Board's employee. Having considered plaintiff's arguments in light of the record and controlling legal principles, we conclude plaintiff did not demonstrate a jury issue as to whether her accident and injuries were caused by a dangerous condition of public property. Accordingly, we affirm.
We discern the following facts from the evidence presented on the motion record, viewed in the light most favorable to plaintiff, as required by Rule 4:46-2 and Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On the day of plaintiff's accident, a school board election was being held at Osage School, which the Board owned and controlled. That morning, at approximately six o'clock, a thirty-year Board employee placed a flag near the gymnasium's entrance to mark the polling place for voters, as he had always done for at least fifteen years. According to the employee's deposition testimony, the flag pole assembly consists of a "pretty heavy" base, approximately one and one-half feet in diameter; a pole, approximately twelve or thirteen feet high, which slides into a slot in the base, where it is permanently secured; and, on top of the pole, an ornamental eagle.
In a statement the employee gave two weeks after the accident, he said: "I . . . had placed the flag and its stand as was always done here near the entrance of the outside gym door facing the parking lot. Since it was a very windy day I had to secure it to the side of the gym and a bush to hold it steady." The employee explained during his deposition, "[w]e always did it like that. We always placed it there. We always placed it in that area, always." He further explained that when he used the word "secured," he was referring to placing the base of the flagpole between a bush and the wall, an area where the base was "very tight," because there was "just enough room" for it. The employee also said that because of the base, which is "pretty heavy," the flagpole "stands on its own just about because of the weight." During the fifteen years the employee had been placing the pole at that location on election days, there had never been an incident; this was the "[f]irst ever."
When questioned during his deposition about the weather, the employee said, "[t]hat morning when I put the flag out, it was pretty clear that day, that morning. But by the afternoon, it started to get real windy, pretty bad." A written "Weather History for Mount Holly" reported winds were "calm" until 6:54 a.m., when speeds increased, varying from 3.5 m.p.h. at that time to 5.8 m.p.h. at 1:54 p.m., the highest reported speed of 6.9 m.p.h. occurring at 12:54 p.m. The weather history reported one gust speed of 17.3 m.p.h. at 2:54 p.m.
Plaintiff arrived at the school at approximately 2:00 p.m. At approximately 2:30 p.m., a gust of wind toppled the flagpole, which fell and struck plaintiff in the left forehead. The extent and seriousness of her injuries are not at issue on this appeal.
After timely serving the Board with a notice of claim, plaintiff filed a complaint alleging she sustained permanent injuries as a result of a dangerous condition of public property created and maintained by the Board. The Board filed an answer, the parties engaged in discovery, and the Board moved for summary judgment. Following oral argument, the court granted the Board's motion. The court concluded that if a dangerous condition caused plaintiff's accident, the condition was the high wind rather than the conduct of the Board employee, which in any event was not palpably unreasonable. Plaintiff appealed from the ensuing order granting the Board summary judgment and dismissing her complaint with prejudice.
The County of Camden was initially named as a defendant but plaintiff dismissed her complaint as to the County. Plaintiff also dismissed her complaint against the Camden County Board of Elections. --------
When a party appeals from an order granting summary judgment, our review is de novo and we apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). "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 fact." R. 4:46-2(c). We review the legal conclusions of the trial court de novo, without any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Plaintiff does not dispute the Board is a public entity within the meaning of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Public entities are liable "only . . . within the limitations of [the TCA] and in accordance with the fair and uniform principles established [t]herein." N.J.S.A. 59:1-2. The TCA was "designed to reestablish the immunity of public entities while relieving some of the harsh results of the doctrine of sovereign immunity." Alston v. City of Camden, 168 N.J. 170, 176 (2001) (citation omitted). Consequently, "the approach of the [TCA] is to broadly limit public entity liability." Ibid. (quoting Harry A. Margolis & Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:1-2 (2001)). "As the Comment to N.J.S.A. 59:2-1 . . . states, 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). Courts should also exercise restraint in accepting novel causes of action against public entities. Comment, N.J.S.A. 59:2-1; Ayers v. Twp. of Jackson, 106 N.J. 557, 574 (1987).
In the case before us, plaintiff alleges she was injured as the result of a dangerous condition of public property. The circumstances under which a public entity may be held liable for an injury caused by a condition of its property are contained in N.J.S.A. 59:4-2, which 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.
Here, plaintiff contends the Board's employee "created the dangerous condition when he brought outside the indoor flag on a very windy Election Day, and placed it near where voters (and plaintiffs) will come and go." Plaintiff further contends the issue of whether the employee's conduct was palpably unreasonable was a factual issue to be decided by the jury, not a legal issue to be decided by the court. We disagree. We conclude, as a matter of law, plaintiff failed to present evidence from which a reasonable juror could determine the employee's conduct was palpably unreasonable.
Palpably unreasonable behavior is behavior "patently unacceptable under any given circumstance." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)). For behavior to be palpably unreasonable, "it must be manifest and obvious that no prudent person would approve of [the] course of action or inaction." Ibid. Significantly, the Supreme Court has noted that "[a]lthough ordinarily the question of whether a public entity acted in a palpably unreasonable manner is a matter for the jury, in appropriate circumstances, the issue is ripe for a court to decide on summary judgment." Polzo v. Cnty. of Essex, 209 N.J. 51, 75 n.12 (2012) (citing Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002)); see also Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 451-52 (App. Div. 1993) (explaining that the issue of palpable unreasonableness, "like any other fact question before a jury, is subject to the court's assessment whether it can reasonably be made under the evidence presented.").
The Board's employee in the case before us had, on election days, placed the flagpole in the same location, in the same manner, for at least fifteen years without incident before plaintiff's accident. On the day of plaintiff's accident, the flagpole remained secure for eight or more hours after the employee wedged its "pretty heavy" base between the gymnasium wall and a bush. Plaintiff produced no evidence to demonstrate the Board's employee had any reason to anticipate the flagpole would not remain in place, even though the day was windy, or that the employee should have anticipated a high-speed wind gust. In short, the circumstances under which the employee placed the flagpole would not permit a reasonable jury to conclude the employee's behavior was patently unacceptable under any circumstance. Ogborne, supra, 197 N.J. at 459.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION