Opinion
DOCKET NO. A-4016-13T4
08-01-2016
GEORGE YULIS AND CONIE YULIS, Plaintiffs-Appellants, v. TOWNSHIP OF TEANECK, J.A. ALEXANDER, INC., CONSULTING ENGINEERS, and CHRISTOPHER P. STATILE, P.A., Defendants-Respondents, and POPPY INVESTMENT COMPANY, INC., RUTH REALTY, ARLYN/CEDAR LANE ASSOCIATES, and SHRI-LAXMI CORPORTATION t/a ROCKLINS, Defendants.
Kelly A. Conlon argued the cause for appellant (Law Offices of Rosemarie Arnold, attorneys; Sheri A. Breen, of counsel and on the brief). Dennis B. O'Brien argued the cause for respondent J.A. Alexander, Inc. (Law Offices of Michael C. Urciuoli; Mr. O'Brien, on the brief). Dennis G. Harraka argued the cause for respondent Township of Teaneck (Winne, Banta, Hetherington, Basralian & Kahn, P.C., attorneys; Mr. Harraka, of counsel and on the brief; Linda Torosian, on the brief). Walter F. Kawalec, III, argued the cause for respondents Consulting Engineers and Christopher P. Statile, P.A. (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Adam E. Levy and Mr. Kawalec, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6487-11. Kelly A. Conlon argued the cause for appellant (Law Offices of Rosemarie Arnold, attorneys; Sheri A. Breen, of counsel and on the brief). Dennis B. O'Brien argued the cause for respondent J.A. Alexander, Inc. (Law Offices of Michael C. Urciuoli; Mr. O'Brien, on the brief). Dennis G. Harraka argued the cause for respondent Township of Teaneck (Winne, Banta, Hetherington, Basralian & Kahn, P.C., attorneys; Mr. Harraka, of counsel and on the brief; Linda Torosian, on the brief). Walter F. Kawalec, III, argued the cause for respondents Consulting Engineers and Christopher P. Statile, P.A. (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Adam E. Levy and Mr. Kawalec, on the brief). PER CURIAM
The issue to be decided is whether the Law Division erred in granting summary judgment to defendants Township of Teaneck, Christopher P. Statile, P.A., Consulting Engineers, and J.A. Alexander, Inc. (JAA), and denying summary judgment to plaintiffs George Yulis and Conie Yulis for injuries he sustained when he tripped and fell on a mountable curb at a pedestrian plaza in Teaneck. Plaintiff alleged that defendants were negligent in the plan or design of the mountable curb.
Since Conie Yulis' claim is wholly derivative of her husband's, we use the singular "plaintiff" throughout the balance of this opinion.
The motion court granted Teaneck summary judgment based upon plan or design immunity afforded by the New Jersey Tort Claim Act (TCA), N.J.S.A. 59:4-6, with the remaining defendants granted summary judgment based upon derivative design immunity from the same statute. Plaintiff was denied summary judgment for the reasons that defendants were granted their relief. Plaintiff's subsequent motion for reconsideration was denied, and this appeal followed. Having considered the arguments in light of the record and applicable legal standards, we affirm.
I.
We glean the following facts from the motion record. On the afternoon of March 11, 2010, plaintiff tripped and fell while walking on a portion of a sloped curb in the pedestrian plaza. The plaza, owned and maintained by Teaneck, entails a number of township blocks closed to motor vehicle traffic to create a pedestrian thoroughfare. The curb, known as a mountable curb, is sloped at an angle to discourage normal motor vehicle traffic from traversing into the plaza, but allows for heavy vehicles to access the plaza for emergencies.
Teaneck hired Statile and Consulting Engineers to plan and design the plaza. Their plans did not specify the exact degree of the slope to be constructed. Statile's design plans were approved by Teaneck's governing body and its Emergency Services Department, as well as the New Jersey Department of Transportation.
Consisting of the full-time, non-voluntary representatives of the Teaneck Ambulance, Fire, and Police Departments.
Teaneck awarded JAA the general construction contract to construct the plaza. In its bid proposal, JAA included the sloped mountable curb as a line item. JAA constructed the pedestrian plaza according to the design plans, and upon completion, Statile certified that the project had been completed in substantial conformance with the approved contract documents.
At the close of discovery, Consulting Engineers and Statile filed a motion for summary judgement, followed by similar motions by Teaneck and JAA. Plaintiff opposed the motions and filed a cross-motion for summary judgment. Thus, the motion court had to determine whether: plan or design immunity applied to Teaneck; and derivative plan or design immunity applied to defendants Consulting Engineers, Statile, and JAA.
Following argument, the court reserved decision. Four days later, on February 18, 2014, the court issued an order, with a rider setting forth conclusions of facts and law, granting summary judgment to defendants and denying plaintiff summary judgment. The court found that Teaneck was entitled to plan or design immunity under N.J.S.A. 59:4-6 for the sloped mountable curb. Relying upon Thompson v. Newark Housing Authority, 108 N.J. 525, 535 (1987), the court reasoned that since the mountable curb was set forth in several plans, diagrams, correspondence, and hand-outs reviewed by Teaneck when it approved the project, it was not necessary that the exact slope of the curb be specified for immunity to apply. In addition, citing Margolis & Novack, Claims Against Public Entities, Comment to N.J.S.A. 59:4-6 (2013), and Cobb v. Waddington, 154 N.J. Super. 11, 18 (App. Div. 1977), the court further found that, as contractors for a municipal body which approved the design plans, Consulting Engineers, Statile, and JAA were entitled to derivative immunity. Consequently, plaintiff was denied summary judgment.
Plaintiff filed a timely reconsideration motion contending that the motion court made no reference to an unpublished opinion and supplemental arguments he submitted following oral argument on the motion day. On April 11, 2014, the court denied the motion, stating in a rider to its order that plaintiff did not meet the standards set forth in D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), and that the post-argument submissions were improper, unfair to defendants, and not considered. This appeal followed.
Plaintiff's notice of appeal, filed on May 8, 2014, seeks review only of the trial court's April 11, 2014 order denying his motion for reconsideration, not the February 18, 2014 order granting defendants' summary judgment and denying plaintiff summary judgment. We could, therefore, limit our review to that order alone. See W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review."). We choose to overlook that technical error and consider the merits of defendant's appeal because "the substantive issues in the case and the basis for the . . . judge's ruling [at trial] and [the] reconsideration motion[] [were] the same." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002). Moreover, plaintiff's legal arguments on appeal do not address the reconsideration motion.
II.
Initially, we note plaintiff's argument, raised for the first time on appeal, that Teaneck and JAA should not have been allowed to join in Statile's motion for summary judgment because their motions were untimely. Pursuant to Rule 4:46-1, the motions were not served less than twenty-eight days before the time specified for their return date.
Nevertheless, this court "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Neither plaintiff's opposition to motions by Teaneck and JAA nor oral argument on the motions raised an issue regarding timeliness of the return date. Thus, we decline to consider the timeliness issue.
Turning to the merits of plaintiff's appeal, we are guided by well-established principles. We review a ruling on a 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 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 (citation omitted). "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) (citations omitted).
Plaintiff contends on appeal that the motion court erred in application of plan or design immunity to Teaneck, Consulting Engineers, Statile, and JAA, arguing that his cross-motion for summary judgment should have been granted. Specifically, plaintiff contends that defendants failed to meet their burden of proof that the degree of the sloped mountable curb was specifically considered and sufficiently addressed in the design plans approved by Teaneck. He maintains that, based on his expert's opinion, the degree of the slope was a palpably unreasonable dangerous condition. We disagree with these contentions.
To support his argument that we should rule that plan or design immunity does not apply because Teaneck did not specifically address the mountable curb or its sloped degree, plaintiff relies on an unpublished opinion, Wood v. Township of Wall, No. A-0751-12 (App. Div. December 17, 2013). Unpublished opinions do not constitute precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall Twp., 170 N.J. 39, 48 (2001); R. 1:36-3. Moreover, Wood is factually dissimilar to this case. There, the motion record included no plans for the improvements, and the engineer only certified that the bike trail at issue followed existing contours of the land. Wood, supra, slip op. at 21-22. In this case, Teaneck approved plans that indicated the sloped curb would be constructed within certain parameters, even if the actual calculation of the slope did not appear on the plans. --------
The fundamental principles embodied in the TCA include the notion that governmental immunity is the rule unless the Act itself creates an exception. Kepler v. Taylor Mills Developers, Inc., 357 N.J. Super. 446, 453 (App. Div. 2003). N.J.S.A. 59:4-2 states that a public entity is liable if a plaintiff establishes:
that [public] property was in a 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 [a public employee] 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.
However, the Act insulates a public entity from liability related to the design of public property. N.J.S.A. 59:4-6(a) provides:
Neither the public entity nor a public employee is liable . . . for an injury caused by the plan or design of public property . . . where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.
"A public entity does not automatically receive the benefit of that immunity." Wymbs v. Twp. of Wayne, 163 N.J. 523, 539 (2000). "It is well established that the burden is on the public entity both to plead and prove its immunity under [the TCA], . . . and that to succeed on a motion for summary judgment, the entity must 'come forward with proof of a nature and character [that] would exclude any genuine dispute of fact. . . ." Kolitch v. Lindedhal, 100 N.J. 485, 497 (quoting Ellison v. Housing Auth. of South Amboy, 162 N.J. Super. 347, 351 (App. Div. 1978) (alteration in original)).
"Application of plan-or-design immunity turns on whether the public entity has approved the feature in question so as to immunize it from challenge." Manna v. State, 129 N.J. 341, 353 (1992). "In other words, 'the public entity must establish that an approved feature of the plan sufficiently addressed the condition that is causally related to the accident.'" Ibid. (quoting Thompson, supra, 108 N.J. at 536). "[T]he defect that causes the injury must be in the plans before immunity is conferred." Thompson, supra, 108 N.J. at 535.
Importantly, "plan or design immunity does not depend upon any showing of the reasonableness of the design, nor can it be lost by changed circumstances . . . ." Birchwood Lakes Colony Club v. Medford Lakes, 90 N.J. 582, 599 (1982). "[A]lthough liability cannot be based on the inadequacy of the design or plan, immunity from liability for an independent affirmative act . . . is afforded in the first instance only for an approved feature of the plan or design." Ibid. (emphasis added). Moreover, "[o]nce design immunity attaches, it cannot be lost if later knowledge shows a design or plan to be dangerous." Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 336 (App. Div. 2000) (citing Thompson, supra, 108 N.J. at 532).
Public work cloaked with plan or design immunity extends to private contractors through derivative immunity. "The statutory immunity [under N.J.S.A. 59:4-6(a)] would be meaningless if a public entity's contractor which follows government specifications were held to the liability from which the public entity is shielded." Cobb, supra, 154 N.J. Super. at 18. Thus, "a public contractor . . . is not liable for work done in accordance with plans and specifications furnished by a public entity . . . where the work is performed under the guidance and supervision of representatives of the public entity." Rodriguez v. N.J. Sports & Exposition Authority, 193 N.J. Super. 39, 45 (App. Div. 1983), certif. denied, 96 N.J. 291 (1984).
With these principles in mind, we reject plaintiff's contention that defendants were not entitled to plan or design immunity by failing to demonstrate specific consideration of the mountable curb. Our review of the motion record leads us to agree with the motion court that the mountable curb was sufficiently presented to and reviewed by Teaneck when it approved the plaza project, thereby immunizing defendants from plaintiff's claim that the mountable curb's negligent design created a dangerous condition.
We conclude there was no heightened degree of detail required of the plans to show that Teaneck contemplated, considered, and approved the installation of mountable curbs whose function was to ease emergency vehicle access to the pedestrian plaza. The present situation is unlike the circumstances in Manna, where the Court considered whether the original design plans for a steel-grated bridge sufficiently considered the feature at issue: a safety feature concerning tire traction on the bridge's steel surface. Manna, supra, 129 N.J. at 353-54. The Court found that the State had met its burden of proof establishing the applicability of plan or design immunity because the plans included a design that specifically addressed traction - a configuration detailing a metric pattern for the metal grid designed to act as a slipping deterrent. Id. at 354.
Here, the mountable curb feature was not a conceptual safety feature, as was the safety feature of surface traction in Manna, but was instead a functional boundary feature serving to ease emergency vehicle access to the pedestrian plaza. The inclusion of this feature in the design plan alone afforded Teaneck the opportunity to consider whether it wanted to install the mountable curb feature in the pedestrian plaza; specific indication of slope degree would not alter the boundary function of the curb. It was not necessary that the exact slope of the curb be specified for plan or design immunity to apply. Hence, immunity is afforded to Teaneck, and derivative immunity to Consulting Engineers, Statile, and JAA.
Having concluded that defendants are entitled to plan or design immunity, we need not address plaintiff's argument that the mountable curb was a dangerous condition. Kolitch, supra, 100 N.J. at 497 (noting that even if the public property (highway curve) at issue was a dangerous condition, the public entity was immune pursuant to N.J.S.A. 59:4-6).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION