BRIAN SHORT VS. CITY OF TRENTON (L-2568-14, MERCER COUNTY AND STATEWIDE) ( 2018 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
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    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-0757-16T1
    BRIAN SHORT,
    Plaintiff-Appellant,
    v.
    CITY OF TRENTON,
    Defendant-Respondent.
    _____________________________
    Submitted May 15, 2018 – Decided June 20, 2018
    Before Judges Yannotti and DeAlmeida.
    On appeal from Superior Court of New Jersey,
    Law Division, Mercer County, Docket No. L-
    2568-14.
    Martin J. Hillman, attorney for appellant.
    Walter D. Denson, Law Director, City of
    Trenton Legal Department, attorneys for
    respondent (John Morelli, Assistant City
    Attorney, on the brief).
    PER CURIAM
    Plaintiff Brian Short appeals from an order entered by the
    Law Division on June 27, 2016, which granted summary judgment in
    favor of defendant, City of Trenton (the City), and an order
    entered by the court on September 15, 2016, denying his motion for
    reconsideration. We affirm.
    I.
    On November 5, 2014, plaintiff filed a complaint in the trial
    court alleging that on November 25, 2013, at around 4:00 p.m., he
    was on East State Street in the City. He alleged he was injured
    because the City's property was "negligently owned, controlled,
    supervised,      operated,    managed,      inspected,        repaired    and
    maintained." Plaintiff claimed he sustained severe external and
    internal injuries, suffered great pain, could not attend to his
    business, and incurred medical expenses. He sought damages and the
    costs of suit. The City filed an answer denying liability.
    After discovery, the City filed a motion for summary judgment,
    pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1
    to 12-3, arguing that plaintiff failed to present sufficient
    evidence to establish a cause of action against the City based on
    an alleged dangerous condition of public property. The City also
    argued that plaintiff's injuries did not meet the threshold under
    the TCA for the award of pain and suffering damages.
    Plaintiff    opposed    the   motion   and   filed   a   certification.
    Plaintiff stated that on November 25, 2013, he was walking to
    board a bus on East State Street and noticed the bus he wanted to
    2                               A-0757-16T1
    board had stopped in the middle of the block due to heavy traffic.
    According   to   plaintiff,   the   driver   of   the   bus   was   letting
    passengers on, so he crossed the street to board the bus. Plaintiff
    stated that water was coming up into the street from under the
    ground and ice had formed on the street. Plaintiff slipped and
    fell on the ice. He stated that marks had been spray-painted on
    the roadway, which indicated that "repairs or some type[] of work
    [was] going to be done on that area."
    In his deposition, plaintiff testified that at the relevant
    time, there was traffic on East State Street and buses were backed
    up. He crossed the street, "slipped on black ice," twisted his
    ankle, and "broke it on the sidewalk." Plaintiff acknowledged he
    did not cross the street in the crosswalk. Plaintiff said water
    "was coming up from the area where the black ice was." There was
    no sewer hole at that location, and he guessed "a water pipe had
    burst."
    Plaintiff also stated that someone had "marked the road where
    they're supposed to dig and fix the problem, I guess." He admitted,
    however, that he did not know what those marks were. Plaintiff
    testified that he did not see anyone put the marks on the street,
    and he did not know how long the marks had been there.
    Plaintiff further testified that he did not know if the City
    had been notified of water bubbling up in the street. He admitted
    3                               A-0757-16T1
    he did not give notice to the City of that condition. Plaintiff
    said he had never before seen water bubbling up in the area where
    he fell. Plaintiff said he took a photo of the scene before he was
    taken by ambulance for medical treatment. The record includes a
    photo which shows some ice in the street near the curb.
    Plaintiff also submitted a report by Randy S. Tartacoff, M.D.
    Dr. Tartacoff stated that on November 25, 2013, plaintiff slipped
    and fell on an "icy street." Plaintiff immediately complained of
    severe right ankle pain and was subsequently evaluated at a medical
    center.      It    was    determined        that    plaintiff         had   sustained      a
    trimalleolar fracture of the right ankle.
    On November 26, 2013, plaintiff had surgery, specifically,
    open   reduction         and    internal    fixation      of    the    ankle     fracture.
    According     to    Dr.        Tartacoff,    plaintiff         followed     up    with    an
    orthopedic clinic on three dates in December 2013, January 2014,
    and February 2014. Plaintiff also was placed in a physical therapy
    rehabilitative program, but could not attend the program because
    he lacked medical insurance.
    Dr.    Tartacoff         opined      that    plaintiff         had   suffered       a
    "consequential limitation of use of his right ankle joint," and
    the    injury      was    permanent.        Based    on    plaintiff's         subjective
    complaints and the doctor's objective findings, Dr. Tartacoff
    concluded plaintiff has a permanent limitation of motion and
    4                                     A-0757-16T1
    function to the right ankle joint, and he will never return to his
    "pre-morbid state." The doctor wrote that he expected plaintiff
    "will have a much lower threshold for repeated injury and a more
    rapid progression of traumatic degenerative disease."
    On June 27, 2016, the motion judge placed an oral decision
    on the record. The judge found that there was no genuine issue of
    material fact, and the City was entitled to judgment as a matter
    of law.
    The judge rejected the City's contention that plaintiff had
    not been using the property with due care because he crossed in
    the middle of the street, rather than at the crosswalk. The judge
    therefore found that plaintiff had presented sufficient evidence
    to show that the condition in the City's street was a "dangerous
    condition" under the TCA. Nevertheless, the judge determined that
    plaintiff failed to show the City had either actual or constructive
    notice of the dangerous condition.
    The   judge   also   found   that   plaintiff   had   not   presented
    sufficient evidence to show that the City's action with regard to
    the alleged dangerous condition was palpably unreasonable. In
    addition, plaintiff failed to show that he met the threshold for
    the award of pain and suffering damages under the TCA. The judge
    memorialized her decision in an order filed June 27, 2016.
    5                              A-0757-16T1
    Plaintiff filed a motion for reconsideration. He argued that
    the question of whether the City's actions regarding the alleged
    dangerous condition were palpably unreasonable is an issue that
    should be decided by a jury. Plaintiff further argued that he
    presented sufficient evidence to satisfy the threshold for pain
    and suffering damages under the TCA.
    On September 15, 2016, the judge placed an oral decision on
    the record, concluding that there was no basis for reconsideration
    of the June 27, 2016 order granting the City's motion for summary
    judgment. The judge entered an order dated September 15, 2016,
    denying the motion for reconsideration. This appeal followed.
    II.
    On appeal, plaintiff argues that the trial court erred by
    granting   summary   judgment   to    the   City.   He   contends   that    he
    presented sufficient evidence to raise a genuine issue of material
    fact as to whether the City had notice of the alleged dangerous
    condition in the street where he fell, and whether the City's
    failure to address that condition before his fall was palpably
    unreasonable.
    Summary judgment must be granted when there is no genuine
    issue of material fact and the moving party is entitled to judgment
    as a matter of law. R. 4:46-2(c). "An issue of fact is genuine
    only if, considering the burden of persuasion at trial, the
    6                              A-0757-16T1
    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 of fact." Ibid.
    The non-moving party may not defeat a motion for summary
    judgment "merely by pointing to any fact in dispute." Brill v.
    Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 529 (1995) (emphasis
    in original). "If there exists a single, unavoidable resolution
    of the alleged disputed issue of fact, that issue should be
    considered   insufficient   to   constitute   a   'genuine'   issue    of
    material fact for purposes of Rule 4:46-2." 
    Id.
     at 540 (citing
    Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 250 (1986)).
    "On appeal, we accord no special deference to a trial judge's
    assessment of the documentary record, and instead review the
    summary judgment ruling de novo as a question of law." Davidovich
    v. Israel Ice Skating Fed'n, 
    446 N.J. Super. 127
    , 159 (App. Div.
    2016) (citations omitted). In determining whether the trial court
    erred by granting summary judgment, we apply the same standard
    that the trial court must apply in ruling on the motion. Conley
    v. Guerrero, 
    228 N.J. 339
    , 346 (2017) (citing Templo Fuente De
    Vida Corp. v. Nat'l Union Fire Ins. Co. of Pitt., 
    224 N.J. 189
    ,
    199 (2016)).
    7                            A-0757-16T1
    To establish liability against a public entity under the TCA
    for an injury allegedly caused by a dangerous condition of public
    property, the plaintiff must show:
    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
    [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.]
    These elements are "accretive," which means that "if one or more
    of the elements is not satisfied, a plaintiff's claim against a
    public entity alleging that such entity is liable due to the
    condition of public property must fail." Polzo v. Cty. of Essex,
    
    196 N.J. 569
    , 585 (2008).
    8                          A-0757-16T1
    Plaintiff argues he presented sufficient evidence to show the
    icy condition of the street constituted a dangerous condition
    under N.J.S.A. 59:4-2 and the City had actual notice of that
    condition. Plaintiff maintains the photo of the street where he
    fell shows markings painted in the roadway at the spot where "the
    problem was occurring." In his certification, plaintiff asserts
    that sometime after the accident, he noticed the City's employees
    digging up the street in the spot where the water and ice allegedly
    caused him to fall.
    The City argues that plaintiff has not shown that the icy
    condition where plaintiff fell was a dangerous condition under the
    TCA. The term "dangerous condition" is defined in N.J.S.A. 59:4-
    1(a) 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." The City
    contends plaintiff was not using the property with due care because
    he failed to cross the street at the crosswalk. The City notes
    that plaintiff crossed in the middle of the street in an effort
    to board a bus.
    We need not address this issue because plaintiff failed to
    present   sufficient   evidence   to   show   the   City   had   actual    or
    constructive notice of the alleged dangerous condition. Here,
    plaintiff relies upon the markings in the street as evidence that
    9                                A-0757-16T1
    the City had actual notice of the condition. He did not, however,
    identify the person or entity who painted the marks in the street,
    or the reason for the marks. Plaintiff asserts that sometime after
    the accident, he observed City workers digging in the spot where
    he fell, but there is no evidence that the marks or the excavation
    had anything to do with the water flowing in the street or the
    resulting icy condition.
    Moreover,   plaintiff           failed   to   show   that   the     City   had
    constructive notice of the alleged dangerous condition. The mere
    "[e]xistence of an alleged dangerous condition is not constructive
    notice of [that condition]." Polzo, 
    196 N.J. at 581
     (quoting Sims
    v. City of Newark, 
    244 N.J. Super. 32
    , 42 (Law Div. 1990)).
    To establish constructive notice of an alleged dangerous
    condition, the plaintiff must show 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." Polzo v.
    Cty. of Essex, 
    209 N.J. 51
    , 67 (2012) (quoting N.J.S.A. 59:4-3).
    Here,   there     is    no   evidence     that    the    alleged    dangerous
    condition    existed        before     plaintiff      fell.    Indeed,    at    his
    deposition, plaintiff testified that before the accident, he had
    never seen water bubbling up in the street at the location. Thus,
    plaintiff failed to show that the alleged dangerous condition
    10                                 A-0757-16T1
    existed for such a period of time and was of such obvious nature
    that the City, through the exercise of due care, should have
    discovered its dangerous character. N.J.S.A. 59:4-3(b).
    In addition, plaintiff failed to present sufficient evidence
    to raise a genuine issue of material fact as to whether the City's
    failure to take action regarding the alleged dangerous condition
    was palpably unreasonable. "Palpably unreasonable" means "behavior
    that   is   patently   unacceptable     under     any   given   circumstance."
    Muhammad v. N.J. Transit, 
    176 N.J. 185
    , 195 (2003) (quoting Kolitch
    v. Lindedahl, 
    100 N.J. 485
    , 493 (1985)). When a public entity acts
    in a palpably unreasonable manner, it should be "obvious that no
    prudent person would approve of its course of action or inaction."
    Id. at 196 (quoting Kolitch, 
    100 N.J. at 493
    ).
    In this case, plaintiff presented no evidence showing that
    the City had received complaints regarding the alleged dangerous
    condition in the street. There also was no evidence of how long
    the    condition   existed   before    plaintiff       fell.   Thus,   plaintiff
    failed to present sufficient evidence to raise a genuine issue of
    material fact as to whether the City's failure to address the
    alleged dangerous condition was palpably unreasonable.
    III.
    Plaintiff   further    argues       that   he    presented      sufficient
    evidence to raise a genuine issue of material fact as to whether
    11                                  A-0757-16T1
    he met the threshold for the award of pain and suffering damages
    under N.J.S.A. 59:9-2(d). The statute provides that in an action
    under the TCA against a public entity or public employee, a
    plaintiff may not be awarded damages for pain and suffering
    resulting from any injury unless the plaintiff presents evidence
    of a "permanent loss of a bodily function, permanent disfigurement
    or dismemberment where the medical treatment expenses are in excess
    of $3,600.00." 
    Ibid.
    The City concedes that in this matter, plaintiff's medical
    expenses exceeded $3600. The City argues, however, that plaintiff
    failed to present sufficient evidence            to show he suffered a
    permanent dismemberment or permanent loss of a bodily function.
    The   City   notes   that   in   his    deposition   testimony,   plaintiff
    indicated that he still engages in his normal activities and only
    has minor inconvenience.
    Plaintiff argues that he sustained a permanent loss of a
    bodily function. He fractured his right ankle, which required open
    reduction and internal fixation of the ankle. He states that the
    hardware remains in his ankle and causes him significant pain.
    Plaintiff claims he cannot stand or walk for prolonged periods of
    time. He also claims he has pain when he walks and tries to sleep
    at night. He alleges that due to his injury, his daily activities
    are limited.
    12                           A-0757-16T1
    In   view   of   our   determination   that   summary   judgment   was
    properly granted to the City because plaintiff failed to present
    sufficient evidence to support a claim under N.J.S.A. 59:4-2 for
    the alleged dangerous condition of public property, we need not
    address the question of whether plaintiff satisfied the threshold
    for pain and suffering damages under N.J.S.A. 59:9-2(d).
    Affirmed.
    13                             A-0757-16T1