Josef Langel v. State of New Jersey Department of Transportation ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1273-22
JOSEF LANGEL and
STEFANI LANGEL,
Plaintiffs-Appellants,
v.
STATE OF NEW JERSEY
DEPARTMENT OF
TRANSPORTATION, and
STATE OF NEW JERSEY,
Defendants-Respondents,
and
UNITED WATER CO./SUEZ,
BERGEN COUNTY, BERGEN
COUNTY DEPARTMENT OF
PUBLIC WORKS, BERGEN
COUNTY UTILITIES
AUTHORITY, ENGLEWOOD
CLIFFS DEPARTMENT OF
PUBLIC WORKS, and TOWN
OF ENGLEWOOD CLIFFS,
Defendants.
___________________________
Submitted May 14, 2024 – Decided July 10, 2024
Before Judges Gooden Brown and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8645-19.
Rebenack, Aronow & Mascolo, LLP, attorneys for
appellants (Rachel E. Holt, of counsel and on the
briefs).
Matthew J. Platkin, Attorney General, attorney for
respondents (Janet Greenberg Cohen, Assistant
Attorney General, of counsel; Maria A. Rojas, Deputy
Attorney General, on the brief).
PER CURIAM
Plaintiffs Josef Langel and Stefani Langel appeal from the Law Division's
November 14, 2022 order denying their motion for reconsideration of the
September 23, 2023 order granting summary judgment to defendants State of
New Jersey Department of Transportation (DOT) and State of New Jersey
(collectively, defendants) and dismissing their complaint with prejudice. We
affirm.
On March 16, 2019, plaintiff 1 was riding a bicycle on Sylvan Avenue,
which is Route 9 West, in Englewood Cliffs. He hit a pothole in the roadway,
was thrown off the bike onto the ground, and sustained injuries. Plaintiffs filed
1
We utilize the singular plaintiff to refer to Josef.
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a complaint against defendants and other county, municipal and private entities
alleging defendants had a duty to keep the roadway in a safe condition but failed
to provide proper warnings and safeguards of a dangerous condition , failed to
use reasonable care to remedy it, and their negligence resulted in plaintiffs'
injuries. The following facts were adduced during discovery.
On the day of the accident, plaintiff and three of his friends were on a bike
trip from New York City to Piermont, New York. Plaintiff had ridden his bike
on that section of Route 9 West for thirty years and rode that specific route about
six months prior to the accident. The pothole that caused the accident abutted a
manhole cover in the roadway. Plaintiff never noticed the pothole prior to the
accident, nor had he made any complaints about the road condition to any State
entities.
Vincent Bozzo was a Specialist 3 for the DOT. Bozzo testified the
Assistant Commissioner of Operations, Andrew Tunnard, had a policy that
required crew supervisors to be on the road conducting, at a minimum, weekly
inspections for potholes.
Ronald Gallucci was a crew supervisor for the DOT and supervised the
crew responsible for maintenance of Route 9 West. The maintenance crew
performed inspections of the roadway every other day, which consisted of
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driving around and looking for potholes, litter and overgrown grass. Gallucci
testified he had not seen this specific pothole before and, had the DOT received
a complaint about the pothole, he or his crew would have stopped and inspected
the area. When shown a photograph of the pothole, Gallucci testified it appeared
to have some patch material on top of it, but he was unable to describe how the
crew fixed potholes because he did not repair them himself.
Willam Falato was an equipment operator for the DOT. Falato testified
he was familiar with the area where the accident occurred and had never seen
the pothole prior to the accident. If the pothole had been there for a substantial
period of time, he or his crew would have noticed it because it was "pretty big."
He had also encountered instances where crews inspected an area and did not
see any potholes, then within days the DOT received a complaint that a pothole
had formed.
Englewood Cliffs Patrol Officer Marc Krapels responded to the scene of
the accident and later authored an incident report reflecting he advised the DOT
about the pothole and the DOT said it would address it. Krapels testified he had
not seen the pothole prior to the accident and, if he had, he would have reported
it. Krapels further stated there were not a lot of potholes in the area, and in his
experience, one could form at any time because the town is located on a cliff.
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The DOT's records documented it had received reports on March 17, 2015,
March 19, 2015, and February 27, 2019, regarding potholes approximately four
and a half miles away from the location of the accident. However, there were
no complaints about the pothole plaintiff hit.
Plaintiffs obtained an expert engineer report drafted by Richard M.
Balgowan, who opined the pothole had been present for at least a year prior to
plaintiff's accident. Notwithstanding his conclusion, Balgowan stated that to
determine the cause of the sinking or undermining of the pavement around the
pothole would require further investigation, which he did not perform.
Balgowan also acknowledged he did not perform an inspection of the location
until April 23, 2021, over two years after plaintiff's accident, and the pothole
had already been repaired by that date.
On August 1, 2022, defendants filed a motion for summary judgment
arguing they were entitled to Tort Claims Act (TCA) immunity under N.J.S.A.
59:2-3(a), plaintiffs failed to establish defendants had actual or constructive
notice of the alleged condition, defendants' conduct in maintaining the roadway
was not palpably unreasonable, and plaintiffs' expert report was a net opinion.
Plaintiffs cross-moved for summary judgment, arguing defendants were not
entitled to immunity, they had actual and constructive notice of the dangerous
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condition, their actions or omissions were palpably unreasonable, and the expert
report was not a net opinion.
After hearing argument on the motions, the court granted summary
judgment in favor of defendants, denied summary judgment to plaintiffs, and
dismissed the complaint with prejudice. The court found "there [wa]s no
evidence that the [d]efendants had actual knowledge of the existence of the
subject pothole and knew or should have known of its dangerous character prior
to [plaintiff]'s accident."
As to constructive notice, the court reviewed the deposition testimony of
Gallucci, Falato and Krapels, and found plaintiffs failed to establish the
condition had existed for such a period of time nor was it of such an obvious
nature that defendants, in the exercise of due care, should have discovered the
condition and its dangerous character. The court noted the area was routinely
inspected but no one noticed the pothole, which could have developed overnight.
The court also addressed plaintiffs' expert:
It is noteworthy that even [p]laintiffs' expert admits that
what caused the condition was the undermining of the
substrate under the road surface, a condition which
would not be visible from the ground level. The
[p]laintiffs' expert further admitted that he would have
had to conduct additional investigation to determine
what caused the substrate to wash away, which he
conceded he did not do. Without personally examining
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the manhole and the substrate, [p]laintiffs' expert had
no factual or scientific basis for making his assertion
that the condition was present for at least a year. His
opinions are therefore disregarded as net opinion.
Plaintiffs moved for reconsideration, arguing the court abused its
discretion by finding defendants were entitled to discretionary immunity and did
not have actual or constructive notice, and by determining Balgowan's report
was a net opinion.
Without conducting oral argument, the court issued an order denying
plaintiffs' motion for reconsideration. In the accompanying rider, the court
explained plaintiffs did not present any new information that would have
influenced its original decision on summary judgment, and simply took
objection to the manner in which the court addressed their claims. The court
further found plaintiffs failed to demonstrate the summary judgment decision
was based on plainly incorrect reasoning or failed to consider material evidence
and therefore the motion fell short of meeting the requisite standard to warrant
reconsideration.
This appeal follows, in which plaintiffs raise the following substantive
issues for our consideration:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION BY
DENYING PLAINTIFFS' REQUEST FOR ORAL
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ARGUMENT WHICH SHOULD HAVE BEEN
GRANTED AS OF RIGHT.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO CONSIDER OR APPRECIATE THE
FACTS OF THIS CASE WHICH ESTABLISH THAT
DEFENDANTS' ACTIONS ARE NOT ENTITLED TO
DISCRETIONARY IMMUNITY AND THUS
DENIED PLAINTIFFS' MOTION WITHOUT A
RATIONAL EXPLANATION AND ON AN
IMPERMISSIBLE BASIS.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO CONSIDER EVIDENCE SUGGESTIVE
OF DEFENDANTS' ACTUAL NOTICE OF THE
DEFECTIVE POTHOLE AND THUS DENIED
PLAINTIFFS' MOTION WITHOUT A RATIONAL
EXPLANATION AND ON AN IMPERMISSIBLE
BASIS.
POINT IV
THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO CONSIDER EVIDENCE OF
DEFENDANTS' CONSTRUCTIVE NOTICE OF THE
DEFECTIVE POTHOLE AND THUS DENIED
PLAINTIFFS' MOTION WITHOUT A RATIONAL
EXPLANATION AND ON AN IMPERMISSIBLE
BASIS.
POINT V
THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO PERFORM A PROPER NET OPINION
ANALYSIS WITH RESPECT TO PLAINTIFFS'
LIABILITY EXPERT AND THUS DENIED
PLAINTIFFS' MOTION WITHOUT A RATIONAL
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EXPLANATION AND ON AN IMPERMISSIBLE
BASIS.
Although the summary judgment order is not before us on appeal, we
discuss the reasons articulated in the rider to that order because the court
incorporated it into its denial of the motion for reconsideration.
Summary judgment should be granted "if the pleadings, depositions,
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." R.
4:46-2(c).
Plaintiffs' complaint arises from an accident on a public highway and
therefore the claims are governed by the TCA, N.J.S.A. 59:1-1 to :12-3. The
TCA provides:
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
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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.]
A public entity has 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). A public entity has constructive
notice of a dangerous condition "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).
Turning to the order on appeal, we review a trial judge's decision on
whether to grant or deny a motion for reconsideration under Rule 4:49-2 for an
abuse of discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021)
(citing Kornbleuth v. Westover, 241 N.J. 289, 301 (2020)). "An abuse of
discretion 'arises when a decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
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basis.'" Pitney Bowes Bank, Inc. v. ACB Caging Fulfillment, 440 N.J. Super.
378, 382 (App. Div. 2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002) (internal quotation marks and citation omitted)).
Reconsideration "is not appropriate merely because a litigant is
dissatisfied with a decision of the court or wishes to reargue a motion." Palombi
v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). Rather, reconsideration
should be utilized only for those cases which fall into
that narrow corridor in which either 1) the [c]ourt has
expressed its decision based upon a palpably incorrect
or irrational basis, or 2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the
significance of probative, competent evidence.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990)).]
The court's decision on summary judgment reflects its reasons for finding
defendants had neither actual nor constructive notice of the pothole. The
witnesses who patrolled the area testified they would have noticed it had it been
there, but they did not see it. There was no report of the pothole from the public,
and the nearest report of a pothole was four and a half miles away. Although
plaintiffs cited a photograph of the manhole cover showing it had been paved
over at some point, and thus established actual notice, the record was devoid of
any evidence the repair had been performed prior to plaintiff's accident.
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As to constructive notice, there was no dispute that the pothole was
sizeable, but plaintiffs could not show it had existed for such a period of time
that the DOT, in the exercise of due care, should have discovered it. The
witnesses all agreed that, in their experience with that area of Route 9 West, a
pothole could form within a few days or even overnight. Even plaintiff did not
notice the pothole when he biked on that road six months before the accident.
Therefore, plaintiffs' proof of constructive notice hinged on their expert's
opinion the pothole had been there at least a year prior to the accident.
The expert stated the pothole was formed by undermining of the substrate
under the road surface, which was not visible from the ground level , but did not
conduct the additional investigation needed to determine its cause. He also did
not view the pothole in person until two years after the accident, when it had
already been repaired. Therefore, the court found the expert to have rendered a
net opinion because he had no factual or scientific basis for his assertion the
pothole had existed for over a year. While the decision did not cite case law, it
sufficiently explained the expert's opinion was a mere conclusion because he
could not "give the why and wherefore" that supported his opinion. See
Pomerantz Paper v. New Cmty. Corp., 207 N.J. 344, 372 (2011) (quoting Polzo
v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).
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We next turn to discretionary immunity, which the court did not rely on
as a basis to grant defendants' motion but briefly discussed in the context of "the
discretion on how to inspect and maintain public property" under N.J.S.A. 59:2-
3. Contrary to plaintiffs' contentions, it is clear the court did not extend
discretionary immunity to the ministerial acts of inspecting for and repairing
potholes. To the extent plaintiffs' complaint encompassed the DOT Assistant
Commissioner's policies establishing how and when to inspect roadways and
make repairs, the court determined those decisions were entitled to discretionary
immunity.
Here, plaintiffs fail to show the court's denial of reconsideration was made
without rational explanation, inexplicably departed from established policies, or
rested on an impermissible basis, and we therefore discern no abuse of discretion
as to that decision. Additionally, to the extent plaintiffs contend the judge erred
in denying their request for oral argument on their reconsideration motion, we
are not persuaded. Unlike the trial court in Rispantini v. Arocho, 364 N.J. Super.
528 (App. Div. 2003), which is cited by plaintiffs, here the court heard argument
on the initial summary judgment motions. Therefore, while oral argument on
substantive motions should ordinarily be granted, Filippone v. Lee, 304 N.J.
Super. 301, 306 (App. Div. 1997), when a movant seeks reconsideration, but
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presents no new issues, the denial of oral argument is not an abuse of discretion.
Palombi, 414 N.J. Super. at 288.
Affirmed.
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