HAZEL CHERRY VS. CITY OF NEWARKÂ (L-1165-13, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4162-14T1
HAZEL CHERRY,
Plaintiff-Appellant,
v.
CITY OF NEWARK,
Defendant-Respondent,
and
J. FLETCHER CREAMER &
SONS, and VERIZON,
Defendants.
______________________________
Submitted November 15, 2016 – Decided May 17, 2017
Before Judges Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-1165-
13.
Vincent M. Russo, attorney for appellant.
Willie L. Parker, Corporation Counsel,
attorney for respondent (Steven F. Olivo,
Assistant Corporation Counsel, on the brief).
PER CURIAM
Plaintiff, Hazel Cherry, appeals from the Law Division's
order granting defendant, City of Newark, summary judgment and
dismissing her complaint with prejudice.1 Plaintiff alleged in
her complaint that she fell and injured her arm due to a defect
in a crosswalk. The motion judge granted defendant's application
because plaintiff could not establish defendant's liability under
the Tort Claims Act (TCA), N.J.S.A. 59:-1 to 12-3, as plaintiff
failed to present any evidence that defendant had notice of the
alleged dangerous condition. On appeal, plaintiff contends that
the evidence she submitted to the court, including photographs and
proof that work had been performed in the area of the defect, was
sufficient to withstand summary judgment. We disagree and affirm.
We derive the following material facts from the evidence
submitted by the parties on defendant's summary judgment motion,
viewed in a light most favorable to plaintiff, the non-moving
party. Polzo v. Cty. of Essex, 209 N.J. 51, 56 n.1 (2012) (Polzo
II) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523 (1995)). Plaintiff fell in a crosswalk on a street in Newark
on June 6, 2012, and injured her arm. In her complaint, plaintiff
1
Plaintiff's claims against defendants J. Fletcher Creamer &
Sons and Verizon were dismissed with prejudice pursuant to the Law
Division's April 10, 2015 order, which is not the subject of this
appeal.
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alleged that her fall was caused by "cracked and uneven asphalt"
in a crosswalk.2 Plaintiff did not submit any expert's report
regarding the cause of her fall or the nature of the street's
defective condition or how long it existed. Rather, plaintiff
relied upon certain photographs and work permits issued by
defendant and other public information regarding the area near the
defect to establish defendant's liability.
The photographs plaintiff relied upon that were taken of the
area shortly after her fall depicted spray paint markings in the
area typically used to identify the location of underground
utilities. According to plaintiff, it was reasonable to infer
that when the spray paint was used, the defect already existed,
so defendant had notice of its existence. Moreover, the
accumulation of dirt, plant life, and debris depicted in the
photograph of the depression also supported the inference that the
defect pre-existed her fall. In addition, plaintiff asserts a
subsequent photograph, taken a year after the fall, shows another
"pothole" in line with the one that caused plaintiff's fall, which
plaintiff posits constitutes evidence that the original pothole
stemmed from an underground cave-in.
2
At oral argument before the motion judge, plaintiff's counsel
referred to it as a pothole.
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Plaintiff also relied upon permits issued by defendant in
2011. According to plaintiff, defendant had earlier issued
construction permits that allowed a utility company and a
construction entity to make borings in the general area of the
accident eleven months earlier. In addition, she claims that
defendant also performed work in the area at some point prior to
her fall, and it had received complaints from other people about
the condition of the street in general, but not about the
particular defect.
At oral argument before Judge Stephen J. Taylor, plaintiff's
counsel referred to submissions made to the court that evidently
included "transcripts" of witnesses' testimony, municipal records,
and photographs. Defense counsel also referred to plaintiff's and
other witnesses' deposition testimony and the photographs relied
upon by plaintiff in opposition to defendant's motion.
After considering counsels' oral arguments, Judge Taylor
granted defendant's motion, placing his reasons on the record.
The judge initially found "sufficient evidence of a permanent
injury [and] the permanent loss of a bodily function" to present
to a jury. Turning to the issue of notice, the judge found the
facts presented to be similar to those considered by the Supreme
Court in Polzo v. County of Essex, 196 N.J. 569 (2008) (Polzo I).
He concluded that, while the photographs he considered established
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the existence of "a depression in the crosswalk," which defendant
did not argue was not a dangerous condition, there was no proof
that defendant had any actual prior notice of the condition. The
judge then considered the case law applicable to determining
whether a public entity had constructive notice of a dangerous
condition. Judge Taylor observed that it was plaintiff's
obligation to establish that "the condition had existed for such
a period of time and was of such an obvious nature that the public
entity [through] the exercise of due care should have discovered
the condition or its dangerous character." Although the judge
found other deficiencies in plaintiff's proofs, he stated,
however, that the "main reason" for granting summary judgment was
the "lack of evidence regarding how long that pothole existed."
The judge stated: "There's no expert report here indicating what
caused the pothole or an opinion on how long that condition existed
in the crosswalk." According to the judge, a jury would have to
"engage in guess work and speculation in order to determine how
long that [pothole] existed or the depression."
After concluding his statement of reasons, Judge Taylor
entered an order granting defendant's motion. This appeal
followed.
Plaintiff argues on appeal that her opposition to defendant's
motion established sufficient evidence to create "questions of
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fact satisfying the requirements of N.J.S.A. 59:4-2" and that her
injuries constituted a "permanent loss of a bodily function within
the meaning of the TCA, N.J.S.A. 59:9-2(D) so as to justify the
denial of summary judgment." We find no merit to the former
contention and, therefore, no need to address the latter.
We begin our review by observing that plaintiff failed to
satisfy her obligation to support her appeal with an appendix
containing the submissions made to the motion judge as required
by Rule 2:6-1(a)(1). "[T]he Rule was obviously intended to
precisely identify for the reviewing court that which was presented
to the trial court 'on the motion for summary judgment,' regardless
of how the motion was decided." Noren v. Heartland Payment Sys.,
____ N.J. Super. ____, ____ (App. Div. 2017) (slip op. at 2-3)
(quoting Lombardi v. Masso, 207 N.J. 517, 542 (2011)). Plaintiff
here only provided an appendix that included the pleadings, orders,
transcript of the oral argument, the motion judge's decision, and
copies of photographs without any certification. The Rule requires
that the appendix contain a "statement of all items submitted to
the [trial] court" and copies of those items. R. 2:6-1(a)(1). As
noted, the transcript made reference to various items being
considered by Judge Taylor which, along with the motions papers,
were not included in the appendix.
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Nevertheless, after considering the limited record that was
provided, we conclude the motion judge correctly granted
defendant's motion. We find plaintiff's arguments to the contrary
to be without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the
reasons stated by Judge Taylor in his thorough oral decision. We
add only the following comments.
We review the trial court's grant of summary judgment de novo
and apply the same standard as the trial court. Cypress Point
Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 414 (2016).
Summary judgment must be granted if there is no genuine issue of
material fact challenged and the moving party is entitled to
judgment as a matter of law. R. 4:46-2. Thus, we consider
"whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Liberty Surplus Ins.
Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting
Brill, supra, 142 N.J. at 536).
Applying that standard and the provisions of the TCA, we
conclude defendant was entitled to summary judgment because
plaintiff failed to establish defendant had notice of the condition
in the crosswalk that allegedly caused her fall.
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"Potholes and depressions are a common feature of our
roadways. However, 'not every defect in a highway, even if caused
by negligent maintenance, is actionable.'" Polzo II, supra, 209
N.J. at 64 (quoting Polyard v. Terry, 160 N.J. Super. 497, 508
(App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)). In order to
recover for an injury caused by such defects, a plaintiff must
prove all of the criteria of the TCA. See id. at 66.
Under the TCA, "immunity from tort liability is the general
rule [for a public entity] and liability is the exception." Polzo
I, supra, 196 N.J. at 578 (citations omitted). It states in
relevant part that a public entity may be held liable for an injury
sustained that was proximately caused by a dangerous condition on
a public property. N.J.S.A. 59:4-2. Liability will be found if
"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." N.J.S.A. 59:4-2(b). "A public entity shall be deemed
to have 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 shall be deemed to have constructive notice
of a dangerous condition . . . only if the plaintiff establishes
that the condition had existed for such a period of time and was
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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). "Whether a public entity is on
actual or constructive notice of a dangerous condition is measured
by the standards set forth in N.J.S.A. 59:4-3(a) and (b), not by
whether [for example] 'a routine inspection program' by the [public
entity] . . . would have discovered the condition." Polzo II,
supra, 209 N.J. at 68.
"[P]laintiff [has not] show[n], even under the indulgent
summary-judgment standard of review, that the . . . depression
'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.'" Id. at 75 (quoting N.J.S.A. 59:4-3(b)).
Plaintiff's reliance on photographs taken after the accident and
an alleged history of work permits and complaints pertaining only
to the surrounding area established neither actual nor
constructive notice of the alleged dangerous condition. Plaintiff
has presented no competent evidence - much less expert proof — as
to the length of time the depression existed. Nothing in the
summary judgment record suggests that any complaints or accidents
concerning the depression were ever reported to defendant.
Consequently, we conclude that no reasonable jury could have
concluded that defendant had actual or constructive notice of the
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condition in the crosswalk a sufficient time prior to the injury
to have taken measures to protect against it. The grant of summary
judgment in favor of defendant was proper.
Affirmed.
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