RONALD A. AGUIRRE v. TOWNSHIP OF LONG HILL (L-2354-18, MORRIS COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-2207-20
RONALD A. AGUIRRE,
Plaintiff-Appellant,
v.
TOWNSHIP OF LONG HILL,
Defendant-Respondent.
__________________________
Submitted February 17, 2022 – Decided July 20, 2022
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-2354-18.
McHugh & Imbornone, PA, attorneys for appellant
(Salvatore Imbornone, Jr., on the briefs).
Dorsey & Semrau, attorneys for respondent (Fred
Semrau and Jonathan Testa, of counsel and on the brief;
Gabrielle J. Canaie, on the brief).
PER CURIAM
Plaintiff Ronald Aguirre appeals from a March 26, 2021 order granting
defendant Township of Long Hill's motion for summary judgment and
dismissing plaintiff's complaint with prejudice. We reverse and remand for trial.
We discern the following facts from the record. On November 19, 2017,
plaintiff was staying with his then girlfriend, whose home is located at the corner
of North Avenue and Chestnut Street in Stirling. Between 10:00 a.m. and 11:00
a.m. the girlfriend's dog escaped out of the back door. Plaintiff and his girlfriend
went outside to look, the two separated, and went in opposite directions.
Plaintiff testified that after going south on Chestnut Street past approximately
three or four houses, he turned around because his girlfriend had found her dog.
As plaintiff was walking back to the house, he did not see any obstructions
or potholes on Chestnut Street, but he did observe a lot of leaves. Because there
are no sidewalks in the area, plaintiff was forced to walk in the roadway. Prior
to turning around, plaintiff was walking in the center of the road because there
was no traffic; however, once he turned around, he walked a foot or two away
from the curb to avoid oncoming traffic. Plaintiff alleged when he approached
the southeast corner of Chestnut Street and North Avenue, he stepped in a hole
next to a storm drain inlet with his right foot. Plaintiff admitted that prior to
stepping in the hole, he was not looking down. The hole was covered with
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leaves, and he "probably went down at least five to seven to eight inches." After
his right foot got caught in the hole, he was trying to maintain his balance
because he "collapsed to one knee." He also recalled the "excruciating" and
"unimaginable" pain he felt in his right ankle. After a few minutes, plaintiff
managed to get up and limp back to the house.
During his deposition, plaintiff did not recall defendant or anyone doing
any work in the area immediately prior to the incident. His girlfriend also did
not see any construction on North Avenue between June 2016 and November
2017, or any obstructions or holes in the street in the area where plaintiff was
injured. She did not witness plaintiff fall.
Immediately following the incident, plaintiff decided not to call an
ambulance. Within a week, however, plaintiff saw Dr. Marc Silberman, who
diagnosed a right ankle medial malleolar fracture. Dr. Steven L. Nehmer opined
that plaintiff's injuries were causally related to his fall on November 19, 2017.
Plaintiff has since undergone several medical treatments and surgeries, but
according to Dr. Nehmer, a prognosis for a full recovery is poor. During his
deposition, plaintiff testified he walks with a cane.
Roughly a week after the incident, plaintiff took photographs of the
condition with his iPhone. At no point did he or anyone measure the condition.
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On November 30, 2018, plaintiff filed a complaint seeking damages for
injuries he sustained after the November 19, 2017 fall. More than six months
prior, plaintiff served a notice of claim upon defendant as required by N.J.S.A.
59:8-1 et seq. On January 2, 2019, defendant filed an answer.
On February 20, 2020, Alessandro Gallo, defendant's director of public
works, was deposed. Gallo testified that defendant has an online reporting
system where citizens can notify the town of defects in the road, and the system
has reports from as early as 2015. Gallo stated that in 2016 and 2017 there were
no reports regarding the vicinity of Chestnut Street and North Avenue. Gallo
confirmed that all employees were instructed to keep a look out for unsafe
conditions on the roadways and to report such conditions to Gallo or the
foreman. If there were reports from the online system or from an employee,
then the condition would be repaired, with or without being inspected prior.
Gallo also testified that in 2015 he did a minor repair to the structure around the
storm sewer at the intersection of Chestnut Street and North Avenue. Gallo
explained the repair involved digging up the area around the storm sewer grate
and subsequently filling in the cut out with stone and topping it with asphalt.
Gallo stated he dug down about a foot. Finally, Gallo testified that he inspected
the area of the incident roughly eight months prior to his deposition. At the time
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of his inspection, Gallo did not observe any holes and indicated that no further
work had been done to the area. Gallo did observe a roughly three or four inch
indentation, which he said was caused by settling. Additionally, both parties
provided expert reports.
On February 19, 2021, after discovery concluded, defendant filed a motion
for summary judgment seeking a dismissal of the complaint with prejudice. At
the summary judgment hearing on March 19, 2021, defendant argued plaintiff
failed to show that the alleged hole was a dangerous condition, that the defendant
had notice of the condition, and that defendant's actions were palpably
unreasonable. Plaintiff in turn argued his expert explained that Gallo's way of
repairing the area back in 2015 was the wrong way to do the job and created the
condition that led to the accident in 2017. Plaintiff contended that the
photographs he took showed there was a sinkhole next to the area in which Gallo
repaired. Regarding whether defendant's actions were palpably unreasonable,
plaintiff stated, "that's a jury question."
On March 26, 2021, the judge granted defendant's motion for summary
judgment and dismissed plaintiff's complaint with prejudice in an order and
written decision. In his written decision, the judge determined summary
judgment was appropriate because
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even in viewing the evidence in the light most favorable
to [p]laintiff as the non-moving party, the evidence is
insufficient here to support a finding that [d]efendant
had actual or constructive notice of the alleged
dangerous condition or that the Township acted in a
"palpably unreasonable" manner by not addressing the
alleged pothole upon which [p]laintiff allegedly fell.
The judge also found "insufficient evidence to submit the issue of 'dangerous
condition' to a jury."
Regarding the issue of notice, the judge relied on the fact that defendant
has an electronic pothole reporting system and that defendant had "no record of
any prior complaints and/or reports of any potholes at the location alleged in the
[c]omplaint." Further, the judge reasoned that the pothole was not "of such a
large, open, and obvious nature that the Township should have or could have
been aware of its existence by way of exercising due diligence." The judge
stressed that no one formally measured the pothole.
The judge then stated "[a]ssuming arguendo that the work was performed
poorly or negligently, there is no evidence whatsoever that the claimed
negligence caused the condition, and there is no evidence that the condition
constituted a 'dangerous condition' under the [Tort Claims Act]." The judge
explained "[b]ecause the location was examined by experts retained by the
parties long after the November 2017 accident had occurred . . . there is nothing
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contained in any of the experts' reports that supports a finding that a dangerous
condition existed in November 2017."
Finally, the judge found that "[p]laintiff offer[ed] nothing to show that the
condition was clearly obvious and glaring before the accident, such that the
Township's failure to notice it and repair it was palpably unreasonable." This
appeal followed.
On appeal, plaintiff presents the following arguments for our
consideration:
POINT I
THE ORDER GRANTING SUMMARY JUDGMENT
TO THE DEFENDANT AND DISMISSING THE
COMPLAINT AS A MATTER OF LAW SHOULD BE
[REVERSED] BECAUSE THE INFERENCES OF
FACT WEIGHED IN THE PLAINTIFF'S FAVOR
WOULD ALLOW A JURY TO FIND THE
DEFENDANT LIABLE UNDER THE [TCA] FOR A
DANGEROUS CONDITION OF PUBLIC
PROPERTY
A. The Defendant's Motion For Summary
Judgment Should Have Been Denied
Because The [Inferences] of Fact Weighed
In the Plaintiff's Favor Would Allow A
Jury To Find That The Hole Located On
The Roadway Was A Dangerous Condition
Of Public Property
B. The Defendant's Motion For Summary
Judgment Should Have Been Denied
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Because The [Inferences] of Fact Weighed
In the Plaintiff's Favor Would Allow A
Jury To Find That The Dangerous
Condition Of Public Property Was A
Proximate Cause Of The Plaintiff's Injuries
C. The Defendant's Motion For Summary
Judgment Should Have Been Denied
Because The [Inferences] of Fact Weighed
In the Plaintiff's Favor Would Allow A
Jury To Find That The Dangerous
Condition Was Created By The Wrongful
Act And Omissions Of The Defendant's
Employees
D. The Defendant's Motion For Summary
Judgment Should Have Been Denied
Because The [Inferences] of Fact Weighed
In the Plaintiff's Favor Would Allow A
Jury To Find That The Defendant Had
Actual And/Or Constructive Notice Of The
Dangerous Condition Existing On Its
Property
E. The Defendant's Motion For Summary
Judgment Should Have Been Denied
Because The [Inferences] of Fact Weighed
In the Plaintiff's Favor Would Allow A
Jury To Find That The Defendant's Failure
To Protect Against The Dangerous
Condition Existing On Its Property Was
Palpably Unreasonable
We review a trial court's grant of summary judgment de novo, applying
the same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346
(2017). Summary judgment must be granted "if the pleadings, depositions,
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answers to interrogatories and admissions on file, together with the affidavits, if
any, show that 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."
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224
N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). However, if the evidence is
conflicting and there are material facts in dispute that a rational jury could
resolve in favor of the non-moving party, the motion must be denied. Mangual
v. Berezinsky, 428 N.J. Super. 299, 308-09 (App. Div. 2012). All reasonable
inferences must be resolved in favor of the party opposing summary judgment.
Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012).
N.J.S.A. 59:4-2 states:
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 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
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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.
[(emphasis added).]
N.J.S.A. 59:4-1(a) defines a "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."
To pose 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
. . . ." Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div. 2003).
The phrase "used with due care" means an "objectively reasonable" use.
Garrison v. Twp. of Middletown, 154 N.J. 282, 291 (1998). "A use that is not
objectively reasonable from the community perspective is not one 'with due
care.' To this extent, 'used with due care' refers not to the conduct of the injured
party, but to the objectively reasonable use by the public generally." Ibid."Whether 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,
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123 (2001). A court, however, may properly decide whether property is in a
dangerous condition under N.J.S.A. 59:4-1(a) where it determines a reasonable
factfinder could not find the plaintiff established the property was in a dangerous
condition. Id. at 124.
We conclude that the trial court erred in resolving the issue whether a
dangerous condition existed as a matter of law. Although the condition was
never measured, a jury could reasonably consider plaintiff's personal
observation, expert report, and photographs to determine whether the condition
was dangerous. Plaintiff's deposition testimony and Charles J. Witczak, III,
P.E.'s expert report describe a hole that is approximately eight inches deep.
Specifically, Witczak explained the hole was approximately twelve to eighteen
inches long and six to eight inches wide based on the features and proximity of
the measured trench and adjacent inlet grating. According to Witczak, the size
of the hole greatly exceeded the maximum allowed change in levels of
walkways, which is one quarter inch. Witczak also reported that there was a
cross slope of between twenty and twenty-five percent, which is hazardous and
significantly greater than the typical maximum roadway section cross slope of
roughly three percent.
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Additionally, there were facts to support a conclusion that plaintiff was
using the property with due care. Plaintiff testified that he was forced to walk
in the roadway because there are no sidewalks in the area. Plaintiff was not
proceeding in the face of known danger because he stated the hole was covered
by leaves. It is foreseeable that there would be leaves on the ground in
November and that those leaves would collect at the edges of the street.
"[A] public entity is 'immune from tort liability unless there is a specific
statutory provision' that makes it answerable for a negligent act or omission."
Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of
Wallington, 171 N.J. 3, 10 (2002)). "Whether a public employee created a
dangerous condition through negligent acts or omissions may be an issue of fact
that must be decided by a jury." Tymczyszyn v. Columbus Gardens, 422 N.J.
Super. 253, 264 (App. Div. 2011).
In his opinion the judge stated, "there is no evidence whatsoever that the
claimed negligence caused the condition," however, this conclusion conflicts
with the evidence suggesting that Gallo's repair work in 2015 created the
condition. Witczak's expert report opined Gallo negligently repaired the storm
drain inlet in 2015. Witczak explained the repair was improper because Gallo
should have dug down three to four feet to correctly conduct the repair. He
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concluded Gallo's failure to dig far enough down or properly compact the
subbase created a hazardous condition in the walking surface that caused
plaintiff's injury.
Further, according to Jody F. DeMarco, P.E., defendant's expert, if the
area was repaired negligently in 2015, then the roadway surface would continue
to deteriorate resulting in an observable sinkhole, which DeMarco stated did not
happen. DeMarco, relying on his expertise in human factor, principally opined
that an overweight man wearing sandals should not be walking on town
roadways to find a lost dog even if there are no sidewalks. The conflicting expert
reports further demonstrate that there is a genuine issue as to whether the repair
in 2015 was done negligently and whether that alleged negligence caused the
condition.1
Finally, to establish palpably unreasonable behavior, a plaintiff has a
"steep burden" to prove "more than ordinary negligence." Coyne v. State Dep't
of Transp., 182 N.J. 481, 493 (2005). "'[P]alpably unreasonable' implies
'behavior [by a public entity] that is patently unacceptable under any
circumstance' and that 'it must be manifest and obvious that no prudent person
1
Because there are sufficient questions of fact as it relates to Gallo's actions in
2015, we need not resolve whether there was notice as a matter of law. See
N.J.S.A. 59:4-2.
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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)).
An analysis of whether a public entity's behavior is palpably unreasonable
involves "not only what was done" but also the entity's "motivating concerns."
Schwartz v. Jordan, 337 N.J. Super. 550, 563 (App. Div. 2001). "Simply put,
the greater the risk of danger known by the Township and sought to be remedied,
the greater the need for urgency." Ibid.Whether a public entity's behavior was palpably unreasonable is generally
a question of fact for the jury. See Vincitore, 169 N.J. at 130. A determination
of palpable unreasonableness, however, "like any other fact question before a
jury, is subject to the court's assessment whether it can reasonably be made
under the evidence presented." 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." Maslo v. City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002).
Here, the condition was allegedly large enough for a foot to step down
into, causing the person to fall to one knee. It was located on a road with no
sidewalks. Further, defendant knew of numerous other potholes along Chestnut
Street and could have discovered this condition while repairing the other holes.
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There is evidence the town does not properly repair roadway defects. Thus,
there is a question of fact on the issue of palpable unreasonableness.
To the extent we have not addressed the parties' remaining arguments, we
conclude that they are without sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(1)(E).
Reversed and remanded. We do not retain jurisdiction.
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