SUSAN SCHEPS AND STEPHEN SCHEPS VS. TOWNSHIP OF DELRAN (L-1942-16, BURLINGTON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0142-18T3
SUSAN SCHEPS and
STEPHEN SCHEPS,
husband and wife,
Plaintiffs-Appellants,
v.
TOWNSHIP OF DELRAN
Defendant-Respondent.
_____________________________
Submitted August 13, 2019 – Decided August 23, 2019
Before Judges Sumners and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Docket No. L-1942-16.
Petrillo & Goldberg, PC, attorneys for appellant
(Jeffrey M. Thiel, on the brief).
Raymond, Coleman, Heinold, LLP, attorneys for
respondent (Douglas L. Heinold and Stephen E.
Raymond, on the brief).
PER CURIAM
In this New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3,
negligence lawsuit involving a trip and fall due to a pothole, plaintiffs Susan
Scheps and Stephen Scheps 1 appeal from a Law Division order granting
summary judgment to defendant Township of Delran (the Township) dismissing
their complaint. Plaintiff contends that the evidence she submitted to the motion
judge was sufficient to withstand summary judgment under the TCA. In
particular, she argues the pothole was a dangerous condition that the Township
had constructive notice of, but failed to repair because of its palpably
unreasonable conduct. Having considered the parties' arguments in light of the
record and applicable legal standards, we affirm.
I
In considering the motion judge's order granting summary judgment, we
detail the undisputed facts presented and consider them in the light most
favorable to plaintiff, the party opposing summary judgment. See Angland v.
Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian
Life Ins. Co., 142 N.J. 520, 523 (1995)).
1
Stephen Scheps, who filed a per quod claim, also appeals. Given that his claim
is wholly derivative of his wife's, we therefore use the singular "plaintiff"
throughout the balance of this opinion.
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2
On November 22, 2014, plaintiff and her husband went to visit their long-
time friends, who lived on Fox Chase Drive in Delran. When they arrived
around 8:00 p.m., her husband parked their car in front of their friend's home
within a few feet of the curb. Upon leaving around 11:00 p.m., plaintiff was
walking to the vehicle when she stepped into a pothole in the street and fell on
her left shoulder. Eleven days later, she had surgery to mend a left shoulder
fracture.
Over a month after the incident, on January 5, 2015, Jerry DeSanto,
Supervisor of the Township's Department of Public Works, conducted an
inspection of the street where plaintiff fell. When shown at his deposition a
photograph he took of the pothole in question on February 6, DeSanto responded
that it was the type of hole that normally should have been filled in by the
Township. He noted that it would have taken only ten or fifteen minutes and
"five bucks" to repair. He also said that he was not sure whether it would be
correct to call the "hole" a pothole when it looked more like "some alligatoring
. . . of the asphalt,"2 or "a deteriorating street."
2
DeSanto explained that "alligatoring" is "when an old road starts to break
down, . . . it looks like an alligator's back where it just cracks and starts to
crumble."
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3
DeSanto also explained that potholes never end as "they [are] popping
back up" due to cold weather, especially in the winter. Although he said that no
single pothole should remain unfixed for over a year once it has appeared, it was
unclear whether the pothole in question was fixed and then re-appeared. Three
or four times a year, public works employees repair potholes that they find as
they circulate the Township, according to DeSanto.
Five months after the accident, on April 20, plaintiff's liability expert,
Charles J. Penza, inspected the location where plaintiff tripped and fell. His
report revealed that there was a "pothole" two inches below the street's surface,
which began at thirty-six inches from the curb and extended forty-five inches
from the curb. The pothole had a "broken and erratic asphalt edge result[ing] in
an irregular and hazardous foot-landing surface." Penza also maintained that
the pothole violated both the American Society of Testing Materials (ASTM)
and New Jersey Department of Transportation's (NJDOT) roadway standards,
which require roadways to remain flush and even with adjacent surfaces.
Additionally, Penza indicated that near the area of plaintiff's fall was a
streetlamp with less than one foot-candle of illumination – a minimum amount
of light at floor level required by most building codes – making it likely that
plaintiff was unable to see the pothole. This supported plaintiff's deposition
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testimony that she could not see what had caused her to fall. Penza also noted
that there was no street sign prohibiting curbside parking. In sum, he opined
within a reasonable degree of engineering probability that the kind of hole in
question evolved over more than forty years.
The Township's records revealed that in the three years prior to the
incident, twenty-two complaints of potholes on Fox Chase Drive were made.
There were four complaints in 2012, five in 2013, and thirteen in 2014. In 2013,
a woman broke her ankle on a pothole. In September 2014, another resident
complained that the street was "breaking up" in front of her house due to
potholes in the area. Prior to plaintiff's incident, no one, including plaintiff's
friends, notified the Township of the pothole in question.
The Township made pothole repairs in 2014, including on Fox Chase
Drive, but not to the particular hole in question. In addition, although Fox Chase
Drive was on the Township's pothole repair list, there was no guarantee that the
street would be repaired immediately, since, under the Township's Road
Rehabilitation Program, specified roadways are ranked from most in need of
repair to least, based on multiple factors by several agencies of the Township
and selected by the Township Council. The factors considered are road usage,
costs, availability of municipal funds and grant money, and public safety needs.
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In her complaint, plaintiff alleged that she fell due to the Township's
negligence in creating dangerous conditions on a public roadway that were
allowed to exist, and failing to inspect the roadway and warn her of the danger.
At the conclusion of discovery, the Township filed a motion for summary
judgment based upon immunities under the TCA. The Township argued that
plaintiff failed to prove that: (1) the pothole was a dangerous condition, N.J.S.A.
59:4-2; (2) the Township had actual or constructive notice of the dangerous
condition, N.J.S.A. 59:4-4; and (3) the Township's conduct was not palpably
unreasonable in failing to repair the pothole, N.J.S.A. 59:2-3(d).
On August 7, 2018, at the conclusion of argument, the motion judge
entered an order and rendered her oral decision granting summary judgment.
The judge determined that it was up to the jury to determine whether the pothole
was a dangerous condition. The issue of whether the pothole was a dangerous
condition, according to the judge, did not preclude summary judgment. The
judge found there was no genuine dispute that the Township did not have actual
notice of the pothole; no one had reported it to the Township prior to plaintiff's
accident. The judge also found that the Township did not have constructive
notice because receiving many complaints about potholes in the same street and
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repairing them "[did not] create constructive notice of this particular condition
of the road."
Moreover, relying on Polzo v. County of Essex (Polzo II), 209 N.J. 51(2012), the judge determined there were several reasons why the actions of the
Township in failing to repair the pothole were not palpably unreasonable. First,
she reasoned the fact that Fox Chase Drive was on the repair list did not make
the Township's failure to address the pothole in question palpably unreasonable
because a public entity is not responsible for ensuring the safety of roadways for
pedestrians' use, and "the municipal budget [did] not allow for every road to be
repaired each year." The judge noted this was due to policy considerations that
expanding public entities' liability would impose undue burden on them with
limited resources, and that courts "do[] not have the authority or expertise to
dictate to public entities the ideal form of road inspection program."
Second, the judge maintained that the failure to repair the pothole and
violation of certain construction codes alone was not sufficient to make the
Township's conduct palpably unreasonable because plaintiff's claims involve
maintenance of roadway, not its construction. Third, the judge determined that
DeSanto's testimony that the Township would have repaired the pothole if it had
knowledge of the condition, did not make the Township's actions in not fixing
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the pothole palpably unreasonable because it was not aware of the pothole.
Fourth, the judge pointed out that a pedestrian must be prepared to encounter
and watch out for obstructions in a roadway. Fifth, the judge explained that
Penza's opinion that the pothole was a dangerous condition was "really limited"
because his April inspection of the accident site occurred five months following
the November accident and after the winter season had taken its toll on the
roadway.
This appeal followed.
II
Plaintiff argues the motion judge erred in granting summary judgment.
She contends the pothole that caused her to trip and fall constituted a dangerous
condition under the TCA. For support, she points to Penza's expert opinion that
the defect violated many national and state safety codes.
Plaintiff moreover asserts that there was a genuine issue of material fact
as to whether the Township had constructive notice of the pothole in question
based upon the twenty-two complaints to the Township about potholes,
including thirteen reports in the year of the accident. Lodato v. Evesham Twp.,
388 N.J. Super. 501, 512 (App. Div. 2006) (holding there was constructive
notice where other individuals in the immediate vicinity had removed trees
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causing a similar condition to a sidewalk in which plaintiff sustained injury after
tripping over sidewalk raised by a tree root); see also Roman v. City of
Plainfield, 388 N.J. Super 527, 532, 539 (App. Div. 2006), (ruling the fact that
there had been numerous occasions where trees were uplifted due to the similar
problem supports the existence of constructive notice of the defect) . Plaintiff
also asserts that the Township's knowledge of prior poor conditions on Fox
Chase Drive – a woman sustained a broken ankle injury after stepping into a
pothole in 2013 and a resident's complaint two months before her accident that
the street was breaking up in front of her house due to potholes – provides proof
that the Township had constructive notice. Further, plaintiff argues the Google
Street View taken fourteen months before her accident shows the pothole, and
Penza's analysis that the hole would have developed over forty years, support
the existence of the Township's constructive notice.
Finally, plaintiff argues there is a genuine dispute of material fact as to
whether the Township's failure to repair the subject pothole was palpably
unreasonable because it would cost only "five bucks" to fill. She also asserts
that the prior complaints about potholes on Fox Chase Drive, the two prior
incidents concerning potholes and DeSanto's testimony that the hole should have
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been filled, support the conclusion that the Township's failure was palpably
unreasonable.
We review a ruling on a summary judgment motion de novo, applying the
same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 346
(2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016)). 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.'" Holmes v. Jersey City Police Dep't, 449 N.J. Super. 600, 602-03 (App.
Div. 2017) (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. Support Servs. v. Rochman, 430 N.J. Super.
325, 333 (App. Div. 2013) (quoting Brill, 142 N.J. at 540). 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).
Applying these standards and the provisions of the TCA discussed below,
we affirm substantially for the reasons stated by the motion judge in her cogent
oral decision that plaintiff failed to establish the Township had actual or
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constructive notice of the pothole that allegedly caused her fall. We add the
following comments.
"Potholes and depressions are a common feature of our roadways.
However, 'not every defect in a highway, even if caused by negligent
maintenance, is actionable.'" Polzo II, 209 N.J. at 64 (quoting Polyard v. Terry,
160 N.J. Super. 497, 508 (App. Div. 1978)). In order to recover for an injury
caused by such defects, a plaintiff must prove all of the criteria of the TCA. See
id. at 66.
Under the TCA, "immunity from tort liability is the general rule [for a
public entity] and liability is the exception." Polzo v. Cty. of Essex (Polzo I),
196 N.J. 569, 578 (2008) (citations omitted). It states in relevant part that a
public entity may be held liable for an injury sustained that was proximately
caused by a dangerous condition on a public property. N.J.S.A. 59:4-2.
Liability will be found if "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." N.J.S.A.
59:4-2(b). "A public entity shall be deemed to have actual notice of a dangerous
condition . . . if it had actual knowledge of the existence of the condition and
knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a).
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"A public entity shall be deemed to have constructive
notice of a dangerous condition . . . only if the plaintiff
establishes 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."
[N.J.S.A. 59:4-3(b).]
"Whether a public entity is on actual or constructive notice of a dangerous
condition is measured by the standards set forth in N.J.S.A. 59:4-3(a) and (b),
not by whether [for example] 'a routine inspection program' by the [public
entity] . . . would have discovered the condition." Polzo II, 209 N.J. at 68.
Here, plaintiff did not "show, even under the indulgent summary-
judgment standard of review, that the . . . [pothole] '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.'" Id. at 75 (quoting N.J.S.A. 59:4-
3(b)). Plaintiff's reliance on Penza's inspection five months after the accident,
a history of complaints to the Township, and its history of pothole repairs
pertaining only to the surrounding area established neither actual nor
constructive notice of the pothole that caused plaintiff's accident. Plaintiff has
presented no competent evidence as to the length of time that pothole existed.
Penza's opinion that the pothole "evolved over forty years" is not a testament to
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when the depression manifested itself to such a condition that it was a dangerous
condition and that the Township knew or should have known the pothole needed
to be repaired.
Nothing in the summary judgment record suggests that any complaints or
accidents concerning the pothole in front of plaintiff's friend's home were ever
reported to the Township. Consequently, we are convinced that no reasonable
jury could have concluded that the Township had actual or constructive notice
of the pothole in a sufficient time prior to plaintiff's injury to have taken
measures to protect against it.
Given our conclusion that the Township did not have actual or
constructive notice of the pothole that caused plaintiff's accident, the Township's
failure to repair it cannot be viewed as palpably unreasonable under the TCA.
"The mere '[e]xistence of an alleged dangerous condition is not constructive
notice of it.'" Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App.
Div. 2013) (alteration in original) (quoting Sims v. City of Newark, 244 N.J.
Super. 32, 42 (Law Div. 1990)). It therefore follows that absent actual or
constructive notice, the public entity cannot have acted in a palpably
unreasonable manner. See Maslo v. City of Jersey City, 346 N.J. Super. 346,
350-51 (App. Div. 2002).
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Yet, even if we conclude that there was actual or constructive notice of
the pothole, plaintiff has not presented any facts that show the Township's
conduct was palpably unreasonable. Apart from proof of notice, to establish
liability against a public entity under N.J.S.A. 59:4-2, a plaintiff must establish
a prima facie case that the action or inaction of the public entity was "palpably
unreasonable." Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005); Maslo, 346
N.J. Super. at 349. Similarly, N.J.S.A. 59:2-3(d) provides,
A public entity is not liable for the exercise of
discretion when, in the face of competing demands, it
determines whether and how to utilize or apply existing
resources, including those allocated for equipment,
facilities and personnel unless a court concludes that
the determination of the public entity was palpably
unreasonable.
"[The] subsection incorporates the thesis that once resources have been
provided a public entity may be liable for its determination of priorities in the
application of such resources if that determination is palpably unreasonable."
Margolis & Novack, Claims Against Public Entities, 1972 Task Force Comment
on N.J.S.A. 59:2-3(d). "Broadly speaking [N.J.S.A.] 59:2-3 provides that there
shall be no liability for the decision-making process of public entities." Id. at
cmt. 1 on N.J.S.A. 59:2-3.
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The term "palpably unreasonable" implies "behavior that is patently
unacceptable under any given circumstance." Muhammad v. N.J. Transit, 176
N.J. 185, 195 (2003) (citations omitted); see also Ogborne v. Mercer Cemetery
Corp., 197 N.J. 448, 459 (2009) (to constitute "palpably unreasonable" conduct,
"it must be manifest and obvious that no prudent person would approve of [the]
course of action or inaction."). Whether the public entity's behavior was palpably
unreasonable is generally a question of fact for the jury. See Vincitore v. N.J.
Sports & Exposition Auth., 169 N.J. 119, 130 (2001). However, a determination
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
circumstances presented." Maslo, 346 N.J. Super. at 351 (quoting Black v.
Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)).
Accordingly, "the question of palpable unreasonableness may be decided by the
court as a matter of law in appropriate cases." Id. at 350 (citing Garrison v. Twp.
of Middletown, 154 N.J. 282, 311 (1998)).
The record in this case convinces us that as a matter of law the Township's
actions pertaining to the failure to repair the pothole was not palpably
unreasonable. There is no dispute that the Township's inspection of its public
streets was a discretionary activity. Given the limited resources of
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municipalities, it is not within our power to impose a more comprehensive
pothole inspection and repair program on the Township. See Polzo II, 209 N.J.
at 69.
Palpably unreasonable conduct "implies a more obvious and manifest
breach of duty" than negligence "and imposes a more onerous burden on the
plaintiff." Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979).
There was no reported problem of a pothole in front of plaintiff's friends' home.
The program the Township had in place was not unreasonable. Under these
circumstances, no rational factfinder could find that it was palpably
unreasonable for the Township not to have repaired the pothole that caused
plaintiff's unfortunate injury.
Affirmed.
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