JOANNE GREEN VS. THE BOROUGH OF ENGLEWOOD CLIFFS (L-5060-15, BERGEN COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0289-17T3
    JOANNE GREEN,
    Plaintiff-Appellant,
    v.
    THE BOROUGH OF ENGLEWOOD
    CLIFFS and ENGLEWOOD CLIFFS
    DEPARTMENT OF PUBLIC WORKS,
    Defendants-Respondents.
    __________________________________
    Argued January 10, 2019 - Decided July 9, 2019
    Before Judges O'Connor and DeAlmeida.
    On appeal from the Superior Court of New Jersey, Law
    Division, Bergen County, Docket No. L-5060-15.
    Timothy J. Foley argued the cause for appellant (Law
    Offices of Jeffrey D. Marks, PC, attorneys; Timothy J.
    Foley, of counsel; Jeffrey D. Marks, on the briefs).
    David B. Bole argued the cause for respondents (Winne
    Dooley & Bole, PC, attorneys; David B. Bole, on the
    brief).
    PER CURIAM
    Plaintiff Joanne Green appeals from a July 7, 2017 order granting both
    defendants summary judgment on her claims against them under the Tort Claims
    Act (TCA), N.J.S.A. 59:1-1 to 12-3. She also appeals from an August 18, 2017
    order denying reconsideration of the July 7, 2017 order. We affirm.
    I
    The salient facts, derived from the motion record and viewed in the light
    most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 523 (1995), are as follows. On August 24, 2014, plaintiff was riding her
    bicycle in the middle of a street located in defendant Borough of Englewood
    Cliffs (municipality). After entering an intersection, she decided to make a right
    turn. As she turned her wheels to the right, she hit a patch of loose gravel in the
    middle of the intersection, which caused her to fall to the ground and sustain
    injuries. The police took photographs of the gravel on which plaintiff alleges to
    have skidded.1 The gist of her claim was the loose gravel originated from the
    inadequate repair of either a pothole or other defect on one of the roads that
    formed the intersection.
    1
    Copies of these photographs were not included in the record.
    A-0289-17T3
    2
    Through defendant Englewood Cliffs Department of Public Works
    (DPW), the municipality maintains a total of thirty-seven road miles, including
    the two roads that formed the intersection in which plaintiff fell. Mark Neville,
    the superintendent of the DPW, testified that, in 2014, he had limited staff to
    maintain the roads given the workload of the department. Specifically, he had
    eleven workers. He testified he was unaware of any loose gravel or potholes in
    the intersection before plaintiff's fall.
    Neville described how the municipality repairs a pothole. Any loose
    debris in and around the pothole is removed, and the pothole is prepared with
    tar tack to enable asphalt to bond to the material that exists at the base and on
    the sides of the pothole. If a pothole is repaired during the summer, the DPW
    applies hot asphalt and "I-5 mix." If the weather is cold, the DPW uses a "cold
    patch mix." Neville claimed the gravel discovered in the intersection was not
    made of a material the municipality used for any purpose, and opined the gravel
    may have fallen from a truck that had been improperly covered.
    In support of her claims, plaintiff served defendants with reports and
    affidavits drafted by her proposed expert engineer, Richard M. Balgowan, P.E.
    In his opinion, the photographs of the subject intersection showed "deteriorating
    conditions of the roadway" and "temporary/improper repairs." He stated the
    A-0289-17T3
    3
    gradation and color of the loose gravel indicated the gravel came from a
    breakdown of asphalt pavement, which subsequently migrated to the middle of
    the intersection.
    In addition, Balgowan claimed the photographs and his visit to the site
    revealed numerous areas of the road that had been patched with hot mix asphalt
    or cold patch asphalt. He maintained that cold patch asphalt, an old technology,
    breaks down quickly and that a roadway patched with such material must be
    repeatedly repaired. Balgowan concluded that
    [t]he repair methods used by Englewood Cliffs would
    predictably result in the repair eventually failing and
    would predictably cause aggregate to dislodge onto the
    adjacent pavement. The pothole patching method,
    utilized by Borough of Englewood Cliffs Department
    of Public Works, was a temporary repair and required
    frequent monitoring to determine when it needed to be
    redone.
    Balgowan also opined the roadway repair process DPW utilized resulted
    in a dangerous condition at the subject intersection at the time of plaintiff 's fall,
    and that it was "palpably unreasonable for defendants to do nothing and allow
    the dangerous condition to persist at the peril of the anticipated users of the
    roadway."
    The trial court granted defendants' motion for summary judgment, finding
    "the record does not show that the injury was proximately caused by the
    A-0289-17T3
    4
    dangerous condition that instead. [sic] The evidence showed that the injuries
    were caused by plaintiff's own lack of attention . . . ." Additionally, the court
    concluded there was no merit to plaintiff's allegations defendants' actions or
    omissions with respect to maintaining the subject area of the road were palpably
    unreasonable.
    The trial court denied plaintiff's motion for reconsideration because
    plaintiff failed to identify any evidence or law it overlooked when it granted
    defendants' motion for summary judgment, or to provide a basis for the court to
    find its decision was palpably incorrect or irrational. This appeal ensued.
    II
    On appeal, plaintiff asserts the following arguments for our consideration.
    POINT I: THE ORDERS GRANTING SUMMARY
    JUDGMENT AND DENYING RECONSIDERATION
    MUST BE REVERSED BECAUSE THE EVIDENCE
    PRESENTED GENUINE ISSUES OF MATERIAL
    FACT THAT WERE DECIDED BY THE TRIAL
    JUDGE INSTEAD OF A JURY.
    POINT II:   THE GRANT OF SUMMARY
    JUDGMENT    AND   THE   REFUSAL    TO
    RECONSIDER MUST BE REVERSED BECAUSE
    THE EVIDENCE PRESENTED GENUINE ISSUES
    OF MATERIAL FACT REGARDING WHETHER
    DEFENDANTS' ACTIONS WERE PALPABLY
    UNREASONABLE.
    A-0289-17T3
    5
    We "review[] an order granting summary judgment in accordance with the
    same standard as the motion judge." Bhagat v. Bhagat, 
    217 N.J. 22
    , 38 (2014).
    We must "review the competent evidential materials submitted by the parties to
    identify whether there are genuine issues of material fact and, if not, whether
    the moving party is entitled to summary judgment as a matter of law." Ibid.; see
    also Brill, 
    142 N.J. at 540
     (1995); R. 4:46-2(c).       However, a trial court's
    determination that a party is entitled to summary judgment as a matter of law is
    "not entitled to any special deference," and is subject to de novo review. See
    Manalapan Realty, L.P. v. Twp. Comm., 
    140 N.J. 366
    , 378 (1995).
    When evaluating the motion record, we view the facts in the light most
    favorable to the non-moving party, "keeping in mind '[a]n issue of fact is
    genuine only if, considering the burden of persuasion at trial, the evidence
    submitted by the parties on the motion . . . would require submission of the issue
    to the trier of fact.'" Schiavo v. Marina Dist. Dev. Co., 
    442 N.J. Super. 346
    , 366
    (App. Div. 2015) (alteration in original) (quoting R. 4:46-2(c)). A motion for
    summary judgment will not be defeated by bare conclusions lacking factual
    support, Petersen v. Twp. of Raritan, 
    418 N.J. Super. 125
    , 132 (App. Div. 2011),
    or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J.
    Court Rules, cmt. 2.1 on R. 4:46-2 (2019). "Competent opposition requires
    A-0289-17T3
    6
    'competent evidential material' beyond mere 'speculation' and 'fanciful
    arguments.'" Hoffman v. Asseenontv.Com, Inc., 
    404 N.J. Super. 415
    , 426 (App.
    Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 
    374 N.J. Super. 556
    , 563 (App. Div. 2005).
    "Reconsideration [of an order] is a matter to be exercised in the trial
    court's sound discretion." Capital Fin. Co. of Del. Valley v. Asterbadi, 
    398 N.J. Super. 299
    , 310 (App. Div. 2008). "Reconsideration should be utilized only for
    those cases which fall into that narrow corridor in which either 1) the [c]ourt has
    expressed its decision based upon a palpably incorrect or irrational basis, or 2)
    it is obvious that the [c]ourt either did not consider, or failed to appreci ate the
    significance of probative, competent evidence." D'Atria v. D'Atria, 
    242 N.J. Super. 392
    , 401 (Ch. Div. 1990). An abuse of discretion "arises when a decision
    is 'made without a rational explanation, inexplicably departed from established
    policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor,
    
    171 N.J. 561
    , 571 (2002) (quoting Achacoso-Sanchez v. Immigration and
    Naturalization Serv., 
    779 F.2d 1260
    , 1265 (7th Cir. 1985)).
    Public entity liability is restricted under the TCA. Polzo v. Cty. of Essex,
    
    209 N.J. 51
    , 55 (2012) (Polzo II). Generally, a public entity is "immune from
    tort liability unless there is a specific statutory provision imposing liability."
    A-0289-17T3
    7
    Kahrar v. Borough of Wallington, 
    171 N.J. 3
    , 10 (2002) (citing Collins v. Union
    Cty. Jail, 
    150 N.J. 407
    , 413 (1997)); see N.J.S.A. 59:1-2 and 59:2-1.
    Accordingly, "immunity for public entities is the general rule and liability is the
    exception." Kemp v. State, 
    147 N.J. 294
    , 299-300 (1997).
    N.J.S.A. 59:4-2 "creates public liability for dangerous conditions on
    public property." Manna v. State, 
    129 N.J. 341
    , 347 (1992). The TCA defines
    "dangerous condition" as "a condition of property that creates a substantial risk
    of injury when such property is used with due care in a manner in which it is
    reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a). A public entity
    is liable for a dangerous condition on 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.
    A-0289-17T3
    8
    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.]
    Thus, for liability to attach, a plaintiff must establish the following five
    elements: (1) a "dangerous condition" existed on the property at the time of the
    injury; (2) the dangerous condition proximately caused the injury; (3) the
    dangerous condition "created a reasonably foreseeable risk of the kind of injury
    which was incurred" either because (a) the dangerous condition was caused by
    a negligent employee or, alternatively, (b) the public entity knew or should have
    known about the condition; and (4) the entity's conduct was "palpably
    unreasonable." Vincitore v. N.J. Sports & Expo. Auth., 
    169 N.J. 119
    , 125 (2001)
    (quoting N.J.S.A. 59:4-2).
    Thus, even if a plaintiff proves the first four elements, "the public entity
    still will not be liable unless the public entity's failure to protect against the
    dangerous condition can be deemed 'palpably unreasonable.'" Polzo II, 209 N.J.
    at 66 (quoting N.J.S.A. 59:4-2). "Plaintiff bears the burden of proving that [the
    public entity] acted in a palpably unreasonable manner." Muhammad v. N.J.
    Transit, 
    176 N.J. 185
    , 195 (2003).
    A-0289-17T3
    9
    Here, it is undisputed there was gravel in the middle of the intersection
    and that it caused plaintiff to skid and fall. Because plaintiff is the non-moving
    party, we accept as true her contentions the gravel on which she skidded was
    caused by defendants' use of materials on the road that easily crumbled, which
    caused the loose gravel to form, and that defendants failed to promptly remove
    such gravel.     However, after examining the record and applicable legal
    principles, we agree with the trial court that defendants' conduct was not
    palpably unreasonable.
    The term palpably unreasonable "implies behavior that is patently
    unacceptable under any given circumstance." 
    Id. at 195
     (quoting Kolitch v.
    Lindedahl, 
    100 N.J. 485
    , 493 (1985)). "[F]or a public entity to have acted or
    failed to act in a manner that is palpably unreasonable, it must be manifest and
    obvious that no prudent person would approve of its course of action or
    inaction." Id. at 195-96 (quoting Kolitch, 
    100 N.J. at 493
    ). "Although 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 II, 209 N.J. at 75 n.12.
    Here, it is not manifest and obvious that no prudent person would approve
    of the conduct plaintiff alleges as the basis for defendants' liability. In reaching
    A-0289-17T3
    10
    this conclusion, we are guided by our Supreme Court's decision in Polzo II.
    There, the Court observed that, notwithstanding that roadways are used by
    bicyclists, roadways "generally are built and maintained for cars, trucks and
    motorcycles," not bicyclists. Id. at 71. The Court stated:
    The "roadway" is "that portion of a highway . . .
    ordinarily used for vehicular travel . . . ." A "vehicle"
    is defined as "every device in, upon or by which a
    person or property is or may be transported upon a
    highway, excepting devices moved by human power or
    used exclusively upon stationary rails or tracks or
    motorized bicycles." By the Motor Vehicle Code's
    plain terms, roadways generally are built and
    maintained for cars, trucks, and motorcycles – not
    bicycles.
    [Id. at 70-71 (citations omitted) (quoting N.J.S.A. 39:1-
    1).]
    Recognizing that bicyclists face inherent dangers on roadways, such as
    potholes, which do not present hazards to the drivers of and the passengers in
    motor vehicles – the general, intended users of roadways – the Court found
    "[p]ublic entities do not have the ability or resources to remove all dangers
    peculiar to bicycles.   Roadways cannot possibly be made or maintained
    completely risk-free for bicyclists." Id. at 71. Further, "not every defect in a
    highway, even if caused by negligent maintenance, is actionable." Id. at 64
    A-0289-17T3
    11
    (quoting Polyard v. Terry, 
    160 N.J. Super. 497
    , 508 (App. Div. 1978), aff'd o.b.,
    
    79 N.J. 547
     (1979)).
    Even if, as plaintiff here contends, the trial court erred when it found
    plaintiff's actions were the proximate cause of her injuries, she did not meet "the
    heavy burden of establishing that defendants' conduct was palpably
    unreasonable." Russo Farms, Inc. v. Vineland Bd. of Educ., 
    144 N.J. 84
    , 106
    (1996). It was not palpably unreasonable for defendants to fail to remove the
    gravel at issue here, material "a car would harmlessly pass over," Polzo II, 209
    N.J. at 71, given that municipalities do not have a duty to make roadways risk-
    free for bicyclists. Id. at 77. "[A] public entity – in choosing when and what
    repairs are necessary – might reasonably give lesser priority to" correcting
    conditions harmless to vehicles. Ibid.
    In light of our ruling, we need not reach the issue of whether plaintiff's
    actions were the proximate cause of her injuries.
    Affirmed.
    A-0289-17T3
    12