SHIRLEY BUEHLER VS. TOWNSHIP OF MONTCLAIR(L-0231-14, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2885-15T1
SHIRLEY BUEHLER,
Plaintiff-Appellant,
v.
TOWNSHIP OF MONTCLAIR,
Defendant-Respondent,
and
LAURA B. LEVINE, a/k/a LAURA
BAER and MICHAEL LEVINE,
Defendants.
____________________________________________________
Argued May 16, 2017 – Decided June 7, 2017
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-231-14.
Robert A. Smith argued the cause for appellant
(Smith & Doran, P.C., attorneys; Mr. Smith,
on the brief).
Alan J. Baratz argued the cause for respondent
(The Weiner Law Group LLP, attorneys; Mr.
Baratz, of counsel; Mr. Baratz and Andrew J.
Kyreakakis, on the brief).
PER CURIAM
Plaintiff commenced this action for damages resulting from
her fall, on April 24, 2013, while "power walking" on a sidewalk
in front a residence located on Mendl Terrace in the Township of
Montclair. Plaintiff claimed she tripped on a concrete sidewalk
slab raised approximately two to two-and-one-half inches higher
than an adjoining slab. The action sought relief against both the
owners of the residence adjacent to the sidewalk in question and
against Montclair. Defendant-residents obtained summary judgment,
as did Montclair.
It is only the disposition of the action against Montclair
that is the subject of this appeal. In that regard, plaintiff
argues:
I. THERE EXISTS A GENUINE ISSUE OF MATERIAL
FACT AS TO WHETHER OR NOT DEFENDANT HAD NOTICE
OF THE DANGEROUS CONDITION OF THE SIDEWALK
WHERE PLAINTIFF SUFFERED HER ACCIDENT AND
DEFENDANT IS JUDICIALLY ESTOPPED FROM DENYING
IT.
II. THERE EXISTS A GENUINE ISSUE OF FACT AS
TO WHETHER DEFENDANT TOWNSHIP OF MONTCLAIR WAS
PALPABLY UNREASONABLE IN FAILING TO REMEDIATE
THE DANAGEROUS CONDITION FOR A SEVEN-MONTH
PERIOD.
Because we agree with plaintiff's contention that the judge's
disposition of the motion was based on a ground not raised by
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Montclair in its summary judgment motion, we vacate the order
under review and remand for further proceedings.
The viability of the action against Montclair is governed by
the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, which obligates a
claimant to establish property was in a dangerous condition that
proximately caused a reasonably foreseeable risk of injury, that
the public entity had actual or constructive knowledge of the
dangerous condition and sufficient time to take protective
measures, and the public entity's inaction was palpably
unreasonable. See, e.g., Garrison v. Twp. of Middletown, 154 N.J.
282, 286-87 (1998); Carroll v. N.J. Transit, 366 N.J. Super. 380,
386-87 (App. Div. 2004).
What makes this case different from most sidewalk cases are
the facts that not only did plaintiff reside on the same street –
as plaintiff said at her deposition, she lived "two houses down"1
– but also that she had, approximately seven months earlier,
obtained a permit from Montclair, whose representatives visited
the site for that purpose, to repair the sidewalk in front of her
own home. Montclair did not move for summary judgment by claiming
it lacked notice of the condition; instead, Montclair limited its
1
The record does not disclose the actual distance between
plaintiff's residence and the location of the fall.
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contentions to whether the sidewalk constituted a dangerous
condition and whether its inaction was palpably unreasonable.
In its brief in support of the summary judgment motion,
Montclair asserted that although it "maintains that it did not
have actual or constructive knowledge," the "application seeking
summary judgment . . . does not address issues of notice."
Montclair only sought summary judgment, in the words contained in
its brief, solely "on issues of 'dangerous condition' and 'palpably
unreasonable.'" Montclair's approach did not change. At oral
argument in the trial court, defense counsel asserted that
Montclair's motion "is only related to the two elements,"
"dangerous condition and palpably unreasonable." To be sure, the
motion judge posed to plaintiff's counsel about whether Montclair
had actual or constructive notice, to which plaintiff's counsel
responded that Montclair had not raised that question, perhaps
because of evidence that Montclair representatives had inspected
the sidewalk in front of plaintiff's home months earlier. On the
return date, the trial judge acted consistently with the way the
motion was framed by Montclair; she rendered an oral decision that
recognized Montclair "did not raise the notice issue," that assumed
the alleged sidewalk defect "could be accepted by a jury as
creating substantial risk of injury and hence a dangerous
condition," and that "focus[ed] . . . on whether defendant acted
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in a palpably unreasonable manner." Following a thorough
discussion of the case law, the judge concluded in her oral
decision on February 19, 2016, that:
Even when the facts are viewed most favorably
to the plaintiff that the sidewalk was a
dangerous condition and [upon] assum[ing] that
defendant [had] actual knowledge or [was on]
constructive notice of the dangerous condition
of the sidewalk, which [it] does only for
purposes of this motion, I find that a
rational fact finder could not resolve the
question of palpable unreasonableness in favor
of the plaintiff . . . on this record.
That same day, the judge entered an order granting Montclair
summary judgment and dismissing the complaint with prejudice.
Plaintiff filed a notice of appeal on March 16, 2016. The day
after the appeal was filed, the motion judge issued a supplemental
opinion, presumably pursuant to Rule 2:5-1(b), which allows a
trial judge to amplify an earlier decision after the filing of an
appeal.2 In this supplemental opinion, the judge repeated her
earlier observations about the dangerousness of the alleged
condition, but added a determination that there was insufficient
evidence to suggest Montclair had actual or constructive knowledge
of that condition. The judge then, in light of her observations
about notice, concluded that there was insufficient evidence from
2
Eleven days later, the judge revised that supplemental opinion
but only because extraneous pages had been attached to what was
previously sent to the parties.
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which a trier of fact could find Montclair acted in a palpably
unreasonable way in failing to address the alleged dangerous
condition.
We agree that the manner in which these issues were decided
deprived plaintiff of a full and fair opportunity to address the
actual or constructive knowledge issue in responding to the summary
judgment motion. Consequently, the February 19, 2016 order will
be vacated and the matter remanded. In such a situation, a judge
– whose vision of a case may differ from counsel's – should ensure
that in reaching an unraised issue, all parties are given a fair
opportunity to respond. The particular manner in which the notice
issue was reached and resolved here deprived plaintiff of that
opportunity.
To be sure, the judge's written opinion makes clear that
summary judgment was granted not only on notice grounds but also
on palpably-unreasonable grounds. This might suggest we could
decide the appeal by addressing only the latter. The overall tenor
of the judge's written opinion, however, strongly suggests that
the reasonableness of Montclair's failure to address the alleged
dangerous condition was impacted, at least in part, or informed
by the judge's belief that Montclair had neither actual nor
constructive knowledge.
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The order under review is vacated and the matter remanded for
further proceedings in conformity with this opinion.3 We do not
retain jurisdiction.
3
In other words, we do not foreclose the judge's further
consideration of Montclair's application for summary judgment. We
simply conclude that, before considering whether Montclair had
actual or constructive notice, the judge first provide the parties
with the opportunity to factually and legally address that
question.
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