MARY MICHAS VS. NEW JERSEY TRANSIT CORP. (L-1032-14, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-4997-15T1
MARY MICHAS,
Plaintiff-Appellant,
v.
NEW JERSEY TRANSIT CORP.
and BOROUGH OF BERNARDSVILLE,
Defendants-Respondents.
______________________________
Submitted July 18, 2017 – Decided July 28, 2017
Before Judges Reisner and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County, Docket
No. L-1032-14.
Caruso Smith Picini, PC, attorneys for
appellant (Steven J. Kaflowitz, on the
briefs).
DiFrancesco, Bateman, Kunzman, Davis, Lehrer
& Flaum, PC, attorneys for respondents
(Timothy P. Beck, on the brief).
PER CURIAM
Plaintiff Mary Michas appeals from a July 8, 2016 order
granting summary judgment dismissing her personal injury complaint
against defendants New Jersey Transit Corp. (NJT) and the Borough
of Bernardsville. Our review of a summary judgment order is de
novo, employing the same Brill1 standard used by the trial court.
Davis v. Brickman Landscaping, 219 N.J. 395, 405 (2014). Having
reviewed the record with that standard in mind, we affirm.
The following facts were undisputed. In September 2013,
plaintiff fell due to a pothole in the parking lot of the
Bernardsville train station and suffered a broken wrist. The
Borough leased the station from NJT and was contractually obligated
to maintain the lot. The Borough did not receive any report as
to this particular pothole. However, solely for purposes of the
motion, defendants admitted that the pothole was an unreasonably
dangerous condition, of which the Borough had constructive notice.
Defendants produced evidence that the Borough had a regular
maintenance schedule for filling potholes, which included
maintenance at the station lot approximately four times a year.
The schedule was based on the Borough's limited resources,
including five full-time employees to perform all maintenance for
the entire Borough, and the fifty-two miles of roadways and five
parking lots for which they were responsible. Based on that
schedule, the Borough performed regular pothole repair work at the
train station in April, June and October 2013. No potholes were
1
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
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reported between June and September, but if they had been reported,
the report would have been placed on a list and the work would
have been prioritized according to available resources.
Plaintiff's engineering expert examined the parking lot two
years after the accident, and opined that the pothole should have
been repaired. Contrary to plaintiff's argument on this appeal,
he did not opine that the pothole in which plaintiff fell had
existed for three years. The expert found the lighting in the
lot to be inadequate on the day of his inspection, but had no
knowledge as to the lighting on the date of the accident.
In granting summary judgment, the motion judge concluded that
the Borough's conduct was not palpably unreasonable, within the
meaning of the Tort Claims Act, N.J.S.A. 59:4-2.
Defendant had finite resources. They made
decisions on how to best maintain the roadway
and the lots and that decision involved
repairing the lot in dispute once every four
months.
Defendant's decisions and the priority
assigned to the lot are afforded deference,
as they are not, obviously, improper [such]
that no prudent person would approve of their
action and, therefore, the defendant's motion
for summary judgment is . . . granted.
On this appeal, much of plaintiff's brief is devoted to
whether the Borough was on notice of the pothole and whether it
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was an unreasonably dangerous condition. But that is not the
issue on which summary judgment was granted.
As the motion judge recognized, the Tort Claims Act insulates
a public entity from liability for a dangerous condition of its
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; see Polzo v. Cnty. of Essex, 209
N.J. 51, 55 (2012). Based on our review of the record, we conclude
that there were no material factual disputes as to that issue, and
"no prudent person" could conclude that the Borough's repair
schedule was palpably unreasonable in light of its limited
resources. Coyne v. DOT, 182 N.J. 481, 494 (2005). In fact,
plaintiff's expert offered no opinion on that issue. See Polzo,
supra, 209 N.J. at 68-69. As in Polzo, "[w]e cannot find that the
absence of a more systematic program violates the Tort Claims Act,
particularly when plaintiff has not provided this Court with any
recognized standard of care that demands otherwise." Id. at 69.2
Plaintiff's appellate arguments are without sufficient merit
to warrant further discussion. R. 2:11-3(e)(1)(E).
2
Plaintiff's brief did not even cite Polzo, much less attempt to
distinguish the case.
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Affirmed.
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