JOANNE GREEN VS. THE BOROUGH OF ENGLEWOOD CLIFFS (L-5060-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0289-17T3
JOANNE GREEN,
Plaintiff-Appellant,
v.
THE BOROUGH OF ENGLEWOOD
CLIFFS and ENGLEWOOD CLIFFS
DEPARTMENT OF PUBLIC WORKS,
Defendants-Respondents.
__________________________________
Argued January 10, 2019 - Decided July 9, 2019
Before Judges O'Connor and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-5060-15.
Timothy J. Foley argued the cause for appellant (Law
Offices of Jeffrey D. Marks, PC, attorneys; Timothy J.
Foley, of counsel; Jeffrey D. Marks, on the briefs).
David B. Bole argued the cause for respondents (Winne
Dooley & Bole, PC, attorneys; David B. Bole, on the
brief).
PER CURIAM
Plaintiff Joanne Green appeals from a July 7, 2017 order granting both
defendants summary judgment on her claims against them under the Tort Claims
Act (TCA), N.J.S.A. 59:1-1 to 12-3. She also appeals from an August 18, 2017
order denying reconsideration of the July 7, 2017 order. We affirm.
I
The salient facts, derived from the motion record and viewed in the light
most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 523 (1995), are as follows. On August 24, 2014, plaintiff was riding her
bicycle in the middle of a street located in defendant Borough of Englewood
Cliffs (municipality). After entering an intersection, she decided to make a right
turn. As she turned her wheels to the right, she hit a patch of loose gravel in the
middle of the intersection, which caused her to fall to the ground and sustain
injuries. The police took photographs of the gravel on which plaintiff alleges to
have skidded.1 The gist of her claim was the loose gravel originated from the
inadequate repair of either a pothole or other defect on one of the roads that
formed the intersection.
1
Copies of these photographs were not included in the record.
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Through defendant Englewood Cliffs Department of Public Works
(DPW), the municipality maintains a total of thirty-seven road miles, including
the two roads that formed the intersection in which plaintiff fell. Mark Neville,
the superintendent of the DPW, testified that, in 2014, he had limited staff to
maintain the roads given the workload of the department. Specifically, he had
eleven workers. He testified he was unaware of any loose gravel or potholes in
the intersection before plaintiff's fall.
Neville described how the municipality repairs a pothole. Any loose
debris in and around the pothole is removed, and the pothole is prepared with
tar tack to enable asphalt to bond to the material that exists at the base and on
the sides of the pothole. If a pothole is repaired during the summer, the DPW
applies hot asphalt and "I-5 mix." If the weather is cold, the DPW uses a "cold
patch mix." Neville claimed the gravel discovered in the intersection was not
made of a material the municipality used for any purpose, and opined the gravel
may have fallen from a truck that had been improperly covered.
In support of her claims, plaintiff served defendants with reports and
affidavits drafted by her proposed expert engineer, Richard M. Balgowan, P.E.
In his opinion, the photographs of the subject intersection showed "deteriorating
conditions of the roadway" and "temporary/improper repairs." He stated the
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gradation and color of the loose gravel indicated the gravel came from a
breakdown of asphalt pavement, which subsequently migrated to the middle of
the intersection.
In addition, Balgowan claimed the photographs and his visit to the site
revealed numerous areas of the road that had been patched with hot mix asphalt
or cold patch asphalt. He maintained that cold patch asphalt, an old technology,
breaks down quickly and that a roadway patched with such material must be
repeatedly repaired. Balgowan concluded that
[t]he repair methods used by Englewood Cliffs would
predictably result in the repair eventually failing and
would predictably cause aggregate to dislodge onto the
adjacent pavement. The pothole patching method,
utilized by Borough of Englewood Cliffs Department
of Public Works, was a temporary repair and required
frequent monitoring to determine when it needed to be
redone.
Balgowan also opined the roadway repair process DPW utilized resulted
in a dangerous condition at the subject intersection at the time of plaintiff 's fall,
and that it was "palpably unreasonable for defendants to do nothing and allow
the dangerous condition to persist at the peril of the anticipated users of the
roadway."
The trial court granted defendants' motion for summary judgment, finding
"the record does not show that the injury was proximately caused by the
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dangerous condition that instead. [sic] The evidence showed that the injuries
were caused by plaintiff's own lack of attention . . . ." Additionally, the court
concluded there was no merit to plaintiff's allegations defendants' actions or
omissions with respect to maintaining the subject area of the road were palpably
unreasonable.
The trial court denied plaintiff's motion for reconsideration because
plaintiff failed to identify any evidence or law it overlooked when it granted
defendants' motion for summary judgment, or to provide a basis for the court to
find its decision was palpably incorrect or irrational. This appeal ensued.
II
On appeal, plaintiff asserts the following arguments for our consideration.
POINT I: THE ORDERS GRANTING SUMMARY
JUDGMENT AND DENYING RECONSIDERATION
MUST BE REVERSED BECAUSE THE EVIDENCE
PRESENTED GENUINE ISSUES OF MATERIAL
FACT THAT WERE DECIDED BY THE TRIAL
JUDGE INSTEAD OF A JURY.
POINT II: THE GRANT OF SUMMARY
JUDGMENT AND THE REFUSAL TO
RECONSIDER MUST BE REVERSED BECAUSE
THE EVIDENCE PRESENTED GENUINE ISSUES
OF MATERIAL FACT REGARDING WHETHER
DEFENDANTS' ACTIONS WERE PALPABLY
UNREASONABLE.
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We "review[] an order granting summary judgment in accordance with the
same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).
We must "review the competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact and, if not, whether
the moving party is entitled to summary judgment as a matter of law." Ibid.; see
also Brill, 142 N.J. at 540 (1995); R. 4:46-2(c). However, a trial court's
determination that a party is entitled to summary judgment as a matter of law is
"not entitled to any special deference," and is subject to de novo review. See
Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
When evaluating the motion record, we view the facts in the light most
favorable to the non-moving party, "keeping in mind '[a]n issue of fact is
genuine only if, considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion . . . would require submission of the issue
to the trier of fact.'" Schiavo v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366
(App. Div. 2015) (alteration in original) (quoting R. 4:46-2(c)). A motion for
summary judgment will not be defeated by bare conclusions lacking factual
support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011),
or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J.
Court Rules, cmt. 2.1 on R. 4:46-2 (2019). "Competent opposition requires
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'competent evidential material' beyond mere 'speculation' and 'fanciful
arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App.
Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374
N.J. Super. 556, 563 (App. Div. 2005).
"Reconsideration [of an order] is a matter to be exercised in the trial
court's sound discretion." Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J.
Super. 299, 310 (App. Div. 2008). "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 appreci ate the
significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990). An abuse of discretion "arises when a decision
is 'made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Public entity liability is restricted under the TCA. Polzo v. Cty. of Essex,
209 N.J. 51, 55 (2012) (Polzo II). Generally, a public entity is "immune from
tort liability unless there is a specific statutory provision imposing liability."
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Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002) (citing Collins v. Union
Cty. Jail, 150 N.J. 407, 413 (1997)); see N.J.S.A. 59:1-2 and 59:2-1.
Accordingly, "immunity for public entities is the general rule and liability is the
exception." Kemp v. State, 147 N.J. 294, 299-300 (1997).
N.J.S.A. 59:4-2 "creates public liability for dangerous conditions on
public property." Manna v. State, 129 N.J. 341, 347 (1992). The TCA defines
"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." N.J.S.A. 59:4-1(a). A public entity
is liable for a dangerous condition on 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 injury to have
taken measures to protect against the dangerous
condition.
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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.]
Thus, for liability to attach, a plaintiff must establish the following five
elements: (1) a "dangerous condition" existed on the property at the time of the
injury; (2) the dangerous condition proximately caused the injury; (3) the
dangerous condition "created a reasonably foreseeable risk of the kind of injury
which was incurred" either because (a) the dangerous condition was caused by
a negligent employee or, alternatively, (b) the public entity knew or should have
known about the condition; and (4) the entity's conduct was "palpably
unreasonable." Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 125 (2001)
(quoting N.J.S.A. 59:4-2).
Thus, even if a plaintiff proves the first four elements, "the public entity
still will not be liable unless the public entity's failure to protect against the
dangerous condition can be deemed 'palpably unreasonable.'" Polzo II, 209 N.J.
at 66 (quoting N.J.S.A. 59:4-2). "Plaintiff bears the burden of proving that [the
public entity] acted in a palpably unreasonable manner." Muhammad v. N.J.
Transit, 176 N.J. 185, 195 (2003).
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Here, it is undisputed there was gravel in the middle of the intersection
and that it caused plaintiff to skid and fall. Because plaintiff is the non-moving
party, we accept as true her contentions the gravel on which she skidded was
caused by defendants' use of materials on the road that easily crumbled, which
caused the loose gravel to form, and that defendants failed to promptly remove
such gravel. However, after examining the record and applicable legal
principles, we agree with the trial court that defendants' conduct was not
palpably unreasonable.
The term palpably unreasonable "implies behavior that is patently
unacceptable under any given circumstance." Id. at 195 (quoting Kolitch v.
Lindedahl, 100 N.J. 485, 493 (1985)). "[F]or a public entity to have acted or
failed to act in a manner that is palpably unreasonable, it must be manifest and
obvious that no prudent person would approve of its course of action or
inaction." Id. at 195-96 (quoting Kolitch, 100 N.J. at 493). "Although ordinarily
the question of whether a public entity acted in a palpably unreasonable manner
is a matter for the jury, in appropriate circumstances, the issue is ripe for a court
to decide on summary judgment." Polzo II, 209 N.J. at 75 n.12.
Here, it is not manifest and obvious that no prudent person would approve
of the conduct plaintiff alleges as the basis for defendants' liability. In reaching
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this conclusion, we are guided by our Supreme Court's decision in Polzo II.
There, the Court observed that, notwithstanding that roadways are used by
bicyclists, roadways "generally are built and maintained for cars, trucks and
motorcycles," not bicyclists. Id. at 71. The Court stated:
The "roadway" is "that portion of a highway . . .
ordinarily used for vehicular travel . . . ." A "vehicle"
is defined as "every device in, upon or by which a
person or property is or may be transported upon a
highway, excepting devices moved by human power or
used exclusively upon stationary rails or tracks or
motorized bicycles." By the Motor Vehicle Code's
plain terms, roadways generally are built and
maintained for cars, trucks, and motorcycles – not
bicycles.
[Id. at 70-71 (citations omitted) (quoting N.J.S.A. 39:1-
1).]
Recognizing that bicyclists face inherent dangers on roadways, such as
potholes, which do not present hazards to the drivers of and the passengers in
motor vehicles – the general, intended users of roadways – the Court found
"[p]ublic entities do not have the ability or resources to remove all dangers
peculiar to bicycles. Roadways cannot possibly be made or maintained
completely risk-free for bicyclists." Id. at 71. Further, "not every defect in a
highway, even if caused by negligent maintenance, is actionable." Id. at 64
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(quoting Polyard v. Terry, 160 N.J. Super. 497, 508 (App. Div. 1978), aff'd o.b.,
79 N.J. 547 (1979)).
Even if, as plaintiff here contends, the trial court erred when it found
plaintiff's actions were the proximate cause of her injuries, she did not meet "the
heavy burden of establishing that defendants' conduct was palpably
unreasonable." Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 106
(1996). It was not palpably unreasonable for defendants to fail to remove the
gravel at issue here, material "a car would harmlessly pass over," Polzo II, 209
N.J. at 71, given that municipalities do not have a duty to make roadways risk-
free for bicyclists. Id. at 77. "[A] public entity – in choosing when and what
repairs are necessary – might reasonably give lesser priority to" correcting
conditions harmless to vehicles. Ibid.
In light of our ruling, we need not reach the issue of whether plaintiff's
actions were the proximate cause of her injuries.
Affirmed.
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