Lois Henry v. Township of Cranford ( 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NOT FOR PUBLICATION WITHOUT THE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-0844-23
LOIS HENRY,
Plaintiff-Appellant,
v.
TOWNSHIP OF CRANFORD and
CRANFORD CONSERVATION
CENTER,
Defendants-Respondents.
______________________________
Submitted October 28, 2024 – Decided November 15, 2024
Before Judges Sabatino and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-0640-22.
Lord, Kobrin, Alvarez & Fattell, LLC, attorneys for
appellant (Craig J. Kobrin and Paula C. Nunes, on the
briefs).
Savo, Schalk, Corsini, Warner, Gillespie, O'Grodnick
& Fisher, PA, attorneys for respondents (Matthew R.
Flynn, of counsel and on the brief).
PER CURIAM
In this slip-and-fall case, plaintiff Lois Henry appeals the trial court's
order granting summary judgment and dismissing her complaint under the Tort
Claims Act, N.J.S.A. 59:1-1 to 12-3 ("TCA") against defendants Township of
Cranford and the Cranford Conservation Center, and the court's subsequent
denial of reconsideration. We affirm.
The underlying facts may be simply stated. On April 7, 2021, plaintiff
arrived at the Cranford Conservation Center, a recycling facility owned and
maintained by the Township. The Center provides a place for residents to
dispose of their recycling and yard waste. It is staffed by part-time members of
the Township's Department of Public Works ("DPW").
When visitors arrive at the site, they pass a small entrance building where
employees are located, and then a paved driveway leads them to various box
cars designated for different types of recycling. In front of the containers is a
filler of mixed stones of varying shapes and sizes to prevent puddling and icy
conditions from forming in front of the recycling containers that are not
connected to the paved road.
Plaintiff tripped and fell returning to her car after dropping off recycling
in one such box car. She described the incident as follows: "[O]n the way out
I put my foot down and there are a lot of rocks and gravel there, and when I put
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my foot down . . . it twisted on—I stepped on a rock and my foot twisted . . .
and I went right down on my knee."
Although other members of the public and a DPW employee were present
when she fell, plaintiff did not interact with anyone and drove home on her own.
Her spouse drove her to an urgent care facility, which diagnosed plaintiff with
a fracture of her fifth metatarsal on her right foot. Plaintiff's spouse returned to
the Center to take photographs of a box car like the one at which she tripped.
Plaintiff sued defendants under the TCA, contending the gravel and filler
at the site comprised a dangerous condition of public property. The Director of
the Township's DPW, Erik Hastrup, testified in his deposition that the filler was
placed in front of the box car to avoid puddling and icy conditions. Hastrup
stated he inspected the area whenever he visited, and that employees were there
to keep things in order but that there were no scheduled inspections or specific
regulations regarding the filler. He was unaware of any previous incidents at
the location.
An employee on site at the time of the accident, Jeremy Slivinski, testified
that he did not remember the incident and did not observe it. He further testified
that he never received any complaints about the stone filler, and there had been
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no other accidents he knew of, but that he was aware of some people losing their
balance on the stones.
After discovery ended, defendants moved for summary judgment. On
October 6, 2023, Judge John Hudak granted the motion and dismissed the
complaint with prejudice after rendering an oral opinion. Plaintiff moved for
reconsideration, which was denied in an order dated November 17, 2023.
On appeal, plaintiff argues the court erred in granting summary judgment.
She contends there are genuine issues of material fact concerning various
elements of dangerous condition liability under the TCA.
In considering plaintiff's appeal we adhere to well-established principles
governing summary judgment practice and liability under the TCA. On a
summary judgment motion, a court must view the motion record in a light most
favorable to the non-moving party, here plaintiff. Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 528–29 (1995); see also R. 4:46-1 to -6. On appeal
we apply the same perspective. Statewide Ins. Fund v. Star Ins. Co., 253 N.J.
119, 124–25 (2023). We review a grant of summary judgment de novo. Ibid.As to the TCA, we are mindful "[t]he Legislature passed the TCA after
this Court abolished the common law doctrine of sovereign immunity . . . ."
Stewart v. N.J. Tpk. Auth., 249 N.J. 642, 655 (2022) (citing Vincitore ex rel.
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Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 124 (2001)). "In
doing so, the Legislature provided that public entities could be held liable for
negligence 'within the limitations of [the TCA].'" Ibid. (alteration in original)
(quoting N.J.S.A. 59:1-2). "[T]he 'guiding principle' of the [TCA] is 'that
"immunity from tort liability is the general rule and liability is the exception."'"
D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013).
Under the terms of the TCA, a public entity may be liable for a personal
injury caused by the "dangerous condition" of its public property. N.J.S.A. 59:4-
2. "The applicable standards for dangerous condition liability under the TCA
are well established. To recover for an injury under the general liability section
of the TCA, N.J.S.A. 59:4-2, a plaintiff must prove several elements." Estate of
Massi v. Barr, 479 N.J. Super. 144, 156 (App. Div. 2024). The statute
prescribes:
A public entity is liable for injury caused by a condition
of its property if the plaintiff establishes that [(1)] the
property was in dangerous condition at the time of the
injury, [(2)] that the injury was proximately caused by
the dangerous condition, [(3)] that the dangerous
condition created a reasonably foreseeable risk of the
kind of injury which was incurred, and [(4)] 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 [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 (emphases added).]
The TCA defines a dangerous condition of property as a condition 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." N.J.S.A.
59:4-1(a). A "substantial risk" is "one that is not minor, trivial or insignificant."
Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (quoting Polyard v. Terry, 160
N.J. Super. 497, 509 (App. Div. 1978)).
If it can be shown that public property is safe unless foreseeable users fail
to exercise due care, there is no dangerous condition for purposes of the
TCA. Garrison v. Twp. or Middletown, 154 N.J. 282, 290 (1998). Where the
"physical characteristics" of the property would "reasonably notify prospective
users that their proposed activity will be hazardous, then the plaintiff's
engagement in that activity is not an exercise of due care under N.J.S.A. 59:4-1
and -2." Estate of Massi, 479 N.J. Super. at 158.
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Proof of notice of the dangerous condition of the public property is also
an essential element for premises liability under the TCA. Actual notice is
proven if the public entity 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). Alternatively, constructive notice is satisfied if the plaintiff shows
"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); see,
e.g., Chatman v. Hall, 128 N.J. 394, 418 (1992).
Beyond these requirements, dangerous condition liability under the TCA
obligates a plaintiff to prove that the public entity's failure to protect against the
danger was "palpably unreasonable." N.J.S.A. 59:4-2. The Supreme Court has
explained "the term implies behavior that is patently unacceptable under any
given circumstance." Kolitch, 100 N.J. at 493. "[I]t must be manifest and
obvious that no prudent person would approve of [the public entity's] course of
action or inaction." Ibid. (quoting Polyard, 148 N.J. Super. at 216); see also
Gonzalez by Gonzalez v. City of Jersey City, 247 N.J. 551, 576 (2021). The
burden of proving a public entity defendant acted in a palpably unreasonable
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manner is on the plaintiff. Coyne v. State Dep't of Transp., 182 N.J. 481, 493
(2005).
Applying these principles here and viewing the record in a light most
favorable to plaintiff, we affirm the issuance of summary judgment,
substantially for the sound reasons stated in the motion judge's oral opinion.
Although plaintiff's injury is unfortunate, there are no genuine issues of material
fact that reasonably could support defendants' liability under the required
elements of the TCA. Among other things, there were no previous reported
accidents at the location or other sufficient proof of actual or constructive notice.
The photos do not establish an actionable "dangerous condition" of public
property. There is no bona fide jury question on whether the Township's choice
of surface outside of the container was so irrational and extreme to be found
"palpably unreasonable" as required under the TCA.
Affirmed.
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