EDWARD GROSS VS. BOROUGH OF FORT LEE (L-5742-15, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5642-16T3
EDWARD GROSS and JUDY GROSS,
his wife,
Plaintiffs-Appellants,
v.
BOROUGH OF FORT LEE,
Defendant-Respondent,
and
CHURCH OF GOOD SHEPARD,
Defendant.
_______________________________
Argued July 2, 2018 – Decided July 23, 2018
Before Judges Carroll and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
5742-15.
Sheri A. Breen argued the cause for appellants
(Law Offices of Rosemarie Arnold, attorneys,
Natalie A. Zammitti Shaw, on the briefs).
Joanne M. Venino argued the cause for
respondent (Keenan & Doris, LLC, attorneys,
Ian C. Doris, of counsel, Joanne M. Venino,
on the brief).
PER CURIAM
Plaintiff Edward Gross1 appeals from the Law Division's June
9, 2017 summary judgment dismissal of his slip and fall negligence
complaint against defendant Borough of Fort Lee and from a July
21, 2017 order denying reconsideration. We affirm.
The facts, viewed most favorably to plaintiff, Brill v.
Guardian Life Insurance Company of America, 142 N.J. 520, 540
(1995), are accurately summarized in Judge Robert C. Wilson's June
9, 2017 written opinion as follows:
On or about September 4, 2014,
[p]laintiff . . . tripped over raised pavers
while walking on Parker Avenue in Fort Lee,
New Jersey. He fell to the ground and
sustained injuries. Neither he nor his wife
saw the raised pavers before he fell.
Plaintiff testified at his deposition that he
was familiar with the area and lived right
down the block from it. Plaintiff's wife
reported the condition to the Borough the day
after the accident.
As part of their duties and depending on
the season, the Fort Lee Department of Public
Works ("DPW") employees cut grass, collect
garbage, remove snow and remove leaves on
public property in the Borough, including
Parker Avenue. If, during the course of
performing these duties, DPW employees had
seen that the pavers on Parker Avenue where
[p]laintiff fell had shifted, they would have
reported it to their supervisor who would then
direct DPW employees to correct the condition,
1
In our opinion we refer to Edward Gross as plaintiff, although
we recognize Judy Gross, his wife, also has filed a derivative
claim for loss of consortium.
2 A-5642-16T3
per protocol. The DPW Assistant
Superintendent at the time of the accident,
Michael Meresca ("Meresca"), first learned of
the accident when he was informed by his then
supervisor, Tony Leone ("Leone"), that someone
had fallen and to send someone to fix it.
Meresca sent DPW employees to repair the
condition the same day he was informed of the
accident.
The public sidewalk on Parker Avenue where plaintiff
allegedly fell abuts the Fort Lee Museum, which is owned by the
Borough. Neither plaintiff nor his wife reported the condition
of the raised pavers to the Borough prior to his fall. The next
day, plaintiff's wife took photographs of the sidewalk where
plaintiff fell and, as indicated, reported the condition to the
Borough.
On June 19, 2015, plaintiff filed suit against the Borough 2
alleging a dangerous condition of property, and seeking damages
for his personal injuries, including related pain and suffering.
Because plaintiff's cause of action involved a public entity, he
was required to satisfy the mandates of the New Jersey Tort Claims
Act ("TCA"), N.J.S.A. 59:1-1 to -12-3.
During discovery, plaintiff produced the report of his expert
engineer, George Gianforcaro, P.E. Gianforcaro inspected the
2
Plaintiff also named Church of Good Shepherd as a defendant, but
it was subsequently dismissed from the litigation and is not a
party to this appeal.
3 A-5642-16T3
sidewalk on September 23, 2016, two years after the accident.
Because the Borough had repaired the pavers by that time,
Gianforcaro's conclusions were drawn from the photographs taken
by plaintiff's wife. By looking at the photographs, Gianforcaro
noted: "There is a 'Cluster' of Brick Pavers that are at a higher
elevation than the adjacent Brick Pavers. The 'cluster['] of
Brick Pavers consist[s] of [fifteen] to [twenty] Brick Pavers that
are one (1) to two (2) inches higher in elevation than the adjacent
Brick Pavers throughout the 'Cluster.'" Additionally, he
concluded,
The Raised Brick Pavers created . . .
dangerous, hazardous and palpably
unreasonable conditions for a person or
persons attempting to traverse the Public
Sidewalk. The Raised Brick Pavers in the
Public Sidewalk created a Walking Surface that
is not on a level, even and uniform plane with
the adjacent Walking Surfaces in the Public
Sidewalk. The Raised Brick Pavers have
existed for a long period of time. Based on
the Raised or "Upheaval" of Brick Pavers, it
is this Engineer's opinion that this condition
has existed for a long period of time. This
condition has existed for a period of more
than five (5) years.
Following the completion of discovery, the Borough moved for
summary judgment, and to bar Gianforcaro's report and testimony
as an inadmissible net opinion. The Borough argued plaintiff
failed to prove his fall was caused by a dangerous condition on
public property and, even if it existed, plaintiff did not
4 A-5642-16T3
demonstrate defendant had actual or constructive notice of the
alleged dangerous condition or that its actions in addressing the
condition were palpably unreasonable.
On June 9, 2017, Judge Wilson granted summary judgment and
dismissed plaintiff's complaint. In granting the motion, the
judge held that, as a matter of law, plaintiff failed to establish
that the Borough had actual or constructive notice of the alleged
dangerous condition, or that it acted in a palpably unreasonable
manner. In his comprehensive written opinion, Judge Wilson
explained:
This [c]ourt finds that the Borough did
not have actual or constructive notice of the
raised pavers prior to [p]laintiff's accident
as required under [N.J.S.A. 59:4-2]. As to
actual notice, this [c]ourt finds that . . .
[p]laintiff has failed to proffer any evidence
that the Borough knew of any alleged dangerous
condition at the subject location prior to the
date of this accident. There is no evidence
that any specific complaints were made to the
Borough about the condition of the sidewalk.
The Borough was put on notice only after the
accident had occurred, when [p]laintiff's wife
called the DPW the day after the accident.
The burden is on . . . [p]laintiff to provide
evidence of actual notice of a dangerous
condition on the part of the Borough but he
has not met this burden. See Norris [v.
Borough of Leonia], 160 N.J. [427, 448
(1999)].
In accordance with N.J.S.A. 59:4-3(b), in
order for the [Borough] to be held liable for
[p]laintiff's alleged injuries on the theory
that it had constructive notice of a dangerous
5 A-5642-16T3
condition, [plaintiff] must proffer evidence
that a dangerous 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; Carroll v. N.J. Transit, 366
N.J. Super. 380 (App. Div. 2004).
This [c]ourt also finds that [p]laintiff
has failed to present any evidence that would
reach the level of constructive notice of the
alleged dangerous condition. It is well-
settled that a public entity is only liable
for a dangerous condition of his property when
an alleged dangerous condition is of an
obvious nature. N.J.S.A. 59:4-3. No proof
is offered that shows the raised pavers
existed in this condition for a significant
period of time, except [p]laintiff's expert
stating that the condition of the pavers is a
result of improper maintenance over the last
five years based on pictures [p]laintiff's
wife took of the raised pavers. However, the
mere existence of an alleged dangerous
condition is not constructive notice of it.
Fine v. City of Margate, 48 F. Supp. [3d] 772,
781 (D.N.J. 2014) (quoting Polzo v. Cty. of
Essex, 196 N.J. 569, 581 (2008)). With only
the pictures taken by [p]laintiff's wife, the
raised pavers' existence on Parker Avenue does
not rise to the level of "obvious" for the
purposes of N.J.S.A. 59:4-3. As such, the
Borough had no actual or constructive notice
of this alleged dangerous condition.
. . . .
Had the condition of the pavers on Parker
Avenue been obvious, someone would have
reported to the Borough. In that scenario,
it would have been palpably unreasonable for
the Borough not to send out DPW employees to
repair the pavers. However, [plaintiff]
elicit[s] no facts to show that the condition
6 A-5642-16T3
was clearly obvious and glaring before the
accident such that the Borough's failure to
notice it and repair it was palpably
unreasonable. Plaintiff and his wife never
reported this condition to the Borough that
evening before [p]laintiff's accident. There
is also no record of any other pedestrian
informing the Borough of the raised pavers.
Given the lack of complaints, the Borough's
inaction prior to [p]laintiff's accident was
not palpably unreasonable under the
circumstances.
Having dismissed the complaint, the court denied the motion
to bar Gianforcaro's report and testimony as moot. On July 21,
2017, the court denied plaintiff's motion for reconsideration.
This appeal followed.
On appeal, plaintiff argues that summary judgment was
improper because there were genuine issues of material fact as to
the existence of a dangerous condition, the Borough's constructive
notice thereof, and whether the Borough's failure to take action
was palpably unreasonable.3 We disagree and affirm substantially
for the reasons expressed in Judge Wilson's thoughtful written
opinion. We add the following comments.
We review a grant of summary judgment de novo, observing the
same standard as the trial court. Townsend v. Pierre, 221 N.J.
3Plaintiff does not address the denial of the motion for
reconsideration. An issue not briefed is deemed waived. See
Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); see also, Pressler
& Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2018).
7 A-5642-16T3
36, 59 (2015). Summary judgment should be granted only if the
record demonstrates there is "no genuine issue as to any material
fact challenged and that the moving party is entitled to a judgment
or order as a matter of law." R. 4:46-2(c). We 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." Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 406 (2014) (quoting Brill, 142 N.J. at 540).
If no genuine issue of material fact exists, the inquiry then
turns to "whether the trial court correctly interpreted the law."
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430
N.J. Super. 325, 333 (App. Div. 2013) (citation omitted).
Defendant is a public entity, requiring assessment of the
claimed liability against the immunity provisions of the TCA,
which serves as "the statutory mechanism through which our
Legislature effected a waiver of sovereign immunity." D.D. v.
Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 133 (2013). We
recognize "the 'guiding principle' of the [TCA] is 'that immunity
from tort liability is the general rule and liability is the
exception.'" Id. at 134 (quoting Coyne v. N.J. Dep't of Transp.,
182 N.J. 481, 488 (2005) (citation omitted)). Accordingly, "a
public entity is 'immune from tort liability unless there is a
8 A-5642-16T3
specific statutory provision' that makes it answerable for a
negligent act or omission." Polzo, 209 N.J. at 65 (quoting Kahrar
v. Borough of Wallington, 171 N.J. 3, 10 (2002)).
Pursuant to the TCA,
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
. . . .
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.
[N.J.S.A. 59:4-2.]
The TCA defines "public property" as property that is "owned
or controlled by the public entity." N.J.S.A. 59:4-1(c). Further,
a "'[d]angerous condition' means 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
9 A-5642-16T3
that it will be used." Roman v. City of Plainfield, 388 N.J.
Super. 527, 534 (App. Div. 2006) (quoting N.J.S.A. 59:4-1(a)).
[T]o be considered a "substantial risk of
injury" a condition of property cannot be
minor, trivial, or insignificant. However,
the defect cannot be viewed in a vacuum.
Instead, it must be considered together with
the anticipated use of the property to
determine whether the condition creates a
substantial risk of injury and, therefore,
qualifies under the statute as dangerous.
[Atalese v. Long Beach Twp., 365 N.J. Super.
1, 5 (App. Div. 2003).]
"Thus, 'when a public entity creates or suffers a dangerous
condition on public property that leads ineluctably and
foreseeably to injury, it is not insulated from liability under
N.J.S.A. 59:4-2 . . . .'" Seals v. Cty. of Morris, 210 N.J. 157,
179 (2012) (quoting Smith v. Fireworks by Girone, Inc., 180 N.J.
199, 217 (2004)).
"Public-entity liability may also be based on the entity's
actual or constructive notice of a dangerous condition if its
failure to protect against the danger is palpably unreasonable."
Polzo, 209 N.J. at 67. "The term 'palpably unreasonable' -- as
used in N.J.S.A. 59:4-2 -- 'implies behavior that is patently
unacceptable under any given circumstance.'" Id. at 75-76 (quoting
Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003)). "When a
public entity acts in a palpably unreasonable manner, it should
10 A-5642-16T3
be 'obvious that no prudent person would approve of its course of
action or inaction.'" Id. at 76 (quoting Muhammad, 176 N.J. at
195-96).
The threshold determination as to "[w]hether property is in
a 'dangerous condition' is generally a question for the finder of
fact." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119,
123 (2001). Courts analyzing whether conditions of walkways or
road surfaces are "dangerous" within the meaning of the TCA
typically review measurements of the gap, crack or other surface
defect said to have caused the plaintiff's injury. See, e.g.,
Charney v. City of Wildwood, 732 F. Supp. 2d 448, 456 (D.N.J.
2010) (finding a one and one-half inch deep, one and one-quarter
inch wide triangular hole in boardwalk was not a dangerous
condition).
In the present case, the trial court did not comment on
whether the raised pavers constituted a "dangerous condition"
within the intent of the TCA. But assuming, without deciding,
that a deviation in the height among the sidewalk pavers
constituted a harmful tripping hazard to allow a jury to conclude
the differential created a substantial risk of injury to a
pedestrian like plaintiff, there is no proof the Borough had actual
or constructive knowledge of it.
11 A-5642-16T3
Here, no complaints were ever voiced about the condition of
the property, nor prior incidents reported. Moreover, museum
staff never notified the Borough of any hazard or defect in the
area. Nor did any DPW workers notify their superior in accordance
with established protocol when such defects are observed.
"The mere '[e]xistence of an alleged dangerous condition is
not constructive notice of it.'" Polzo, 196 N.J. at 581(alteration in original) (quoting Sims v. City of Newark, 244 N.J.
Super. 32, 44 (Law Div. 1990)). Although plaintiff relies on
Gianforcaro's opinion that the raised pavers must have existed for
a substantial period of time based on photographs taken by
plaintiff's wife after the accident, we are not persuaded this
establishes constructive notice of the condition. See Maslo v.
City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002)
(finding the City lacked actual and constructive notice of a one-
inch height difference between two portions of a sidewalk,
notwithstanding the plaintiff's expert's opinion that the
condition must have existed for at least a year).
Finally, even if a jury could reasonably find all other
elements, plaintiff has failed to prove the Borough's inaction was
"palpably unreasonable." See, e.g., Muhammad, 176 N.J. at 199-
200; Carroll, 366 N.J. Super. at 390-91. As we have noted, for a
public entity such as the Borough to have acted, or failed to act,
12 A-5642-16T3
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." Holloway v. State, 125 N.J. 386, 403-04
(1991) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).
In other words, the term implies behavior that is "patently
unacceptable under any given circumstance." Lindedahl, 100 N.J.
at 493.
Here, we find no proof of "palpable unreasonableness" to
warrant jury consideration. The unrefuted evidence is that the
Borough's DPW employees cut grass, collect garbage, and remove
snow and leaves on public property in the Borough, including Parker
Avenue near the Fort Lee Museum where plaintiff fell, and DPW
workers were instructed to alert a supervisor of any hazards.
Further, as previously noted, the record is devoid of any evidence
of a history of incidents or complaints similar to plaintiff's,
or a demonstrable pattern of conduct or practice to suggest the
need for a more frequent inspection or maintenance schedule. As
such, plaintiff's claims of palpable unreasonableness presented
no jury question. See Garrison v. Twp. of Middletown, 154 N.J.
282, 311 (1998) (Stein, J., concurring); Maslo, 346 N.J. Super.
at 350 (recognizing that the issue could be decided as a matter
of law in appropriate cases).
13 A-5642-16T3
In summary, plaintiff cannot establish the Borough had actual
or constructive notice of the condition of which he complains. We
further conclude there is an equally fatal lack of evidence that
the Borough's inaction with respect to the pavers was "palpably
unreasonable." Accordingly, the summary judgment dismissal of
plaintiff's complaint was properly ordered.
Affirmed.
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