SALLY PINNELLA VS. MEDFORD TOWNSHIP PUBLIC SCHOOLÂ DISTRICT VS. YMCA CAMP OCKANICKON, INC.(L-338-13, BURLINGTON COUNTY AND STATEWIDE)

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0220-15T2
SALLY PINNELLA,
Plaintiff-Appellant,
v.
MEDFORD TOWNSHIP PUBLIC SCHOOL
DISTRICT,
Defendant/Third Party
Plaintiff-Respondent,
v.
YMCA CAMP OCKANICKON, INC.,
Third-Party Defendant.
____________________________________
Argued May 30, 2017 — Decided July 11, 2017
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-338-13.
Joel R. Rosenberg argued the cause for
appellant (Stark & Stark, P.C., attorneys; Mr.
Rosenberg, of counsel; Mr. Rosenberg and
Dominic A. Speziali, on the briefs).
Timothy J. Schipske argued the cause for
respondent (Salmon, Ricchezza, Singer &
Turchi, LLP, attorneys; Mr. Schipske, of
counsel and on the brief).
PER CURIAM
Plaintiff Sally Pinnella appeals from the summary judgment
order that dismissed the personal injury action she filed under
the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3.
She contends the trial court erred when it granted summary judgment
to defendant Medford Township Public School District (the
District), because she established a prima facie case that a
dangerous condition of the District's property — a wet cafeteria
floor — caused her slip and fall accident and resulting injuries.
To establish a prima facie case of a tort claim alleging a
dangerous condition of public property, a plaintiff must prove,
among other elements, that the action the public entity took to
protect against the condition was palpably unreasonable. N.J.S.A.
59:4-2. Here, the District positioned warning signs to warn people
entering the cafeteria of the wet floor. Such action was not
palpably unreasonable. For this reason, we affirm the summary
judgment order.
Plaintiff commenced this action by filing a complaint in
February 2013. The District answered and filed a third-party
complaint against the YMCA seeking indemnification, but the
District dismissed the third-party complaint shortly thereafter.
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Plaintiff and the District undertook discovery. On May 1, 2015,
the District moved for summary judgment. The motion record
discloses the following facts.
Plaintiff worked as a camp counselor for a YMCA Camp. The
YMCA entered into an agreement with the Medford Township Board of
Education (the Board) to operate before and after school programs
at certain locations in certain schools, including the cafeteria
of Taunton Forge Elementary School (Taunton). The agreement
between the YMCA and the Board required the Board to provide space
for the YMCA to host its programs. The rental fee for the space
was one dollar for the two-year term of the agreement beginning
on July 27, 2011. The agreement required the Board to maintain
the rental space in good condition and provide janitorial services.
Plaintiff slipped and fell on Taunton's cafeteria floor on
May 1, 2012. Taunton's Head Custodian (the custodian), who mopped
the floor each day, testified at her deposition that the last
group of students left the cafeteria each afternoon at
approximately 1:20 p.m. The custodian would then begin to sweep
the cafeteria floor before she began mopping. Before beginning
to mop, she would place two cones at the cafeteria's entrance
doorways. One cone, a "fold-up type," came to her knee. The
other cone came to her waist. Both had warnings in English and
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Spanish stating, "Caution: Wet Floor." She usually finished
mopping at approximately 1:45 p.m. or 1:50 p.m.
On the afternoon of May 1, 2012, between 1:50 p.m. and 2:20
p.m., plaintiff arrived at the Taunton cafeteria to set up for her
program activities. The custodian testified that plaintiff
arrived while she, the custodian, was still mopping the floor.
When plaintiff entered the cafeteria, the custodian told her "she
was early and the floor is still wet." Plaintiff replied, "[i]t's
okay."1 The custodian observed plaintiff walk by a wet floor
warning cone, step onto the wet floor, and begin preparing for her
afternoon program.
Plaintiff admitted she saw warning cones, but alleged they
"were always up every day whether the floors were wet or not." In
addition, plaintiff testified the floors were mopped every day,
and "some days they were very wet. Some days they were a little
wet. Some days they were [not]." Plaintiff asserted "there were
still puddles and slippery spots" on the floor "many times" when
the children arrived for their after-school programs. She also
1
In her deposition, the custodian testified she recalled that
conversation with plaintiff. In plaintiff's response to
defendant's statement of material facts, plaintiff admitted the
custodian recalled that conversation. However, when deposed,
plaintiff denied anyone ever warned her, upon her arrival at the
Taunton cafeteria, that the floor was wet.
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asserted, "everybody in the school knew" the floors were wet when
the after-school programs started.
A few minutes before she fell, plaintiff asked another camp
counselor to see if the outdoor playground was too wet for the
children, as it had been raining. As the other counselor left to
check the playground, plaintiff told her "to be careful on the
floor because . . . they had just mopped." When the counselor
returned, plaintiff had fallen.
Plaintiff recalled she had been in the cafeteria
approximately twenty minutes when she slipped in a puddle while
walking to get snacks. She sustained serious injuries, including
factures to both wrists.
Following plaintiff's fall, the school nurse came to her aid.
Although the floor did not appear wet to the nurse, she
nevertheless paid close attention to the floor because the
custodian "installed the fear of God into [everyone] walking on
her floors because she did [not] want any[one] to get hurt. This
was not just the after-school people. It was anybody that would
have to go in the cafeteria."
Emergency medical personnel arrived at approximately 3:25
p.m., treated plaintiff, and transported her to a local hospital.
A Medford Township police officer also arrived at Taunton. The
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officer noted "some of the [cafeteria] floor was still wet with
water in some areas."
The District's Director of Operations and Technology, whose
duties included facilities maintenance and custodial services,
testified the cafeteria could not be cleaned at night. Rather,
the cafeteria was required to be cleaned immediately following
lunches to remove any food products on the floor.
The motion record was devoid of any evidence of a previous
slip and fall accident on the cafeteria floor. Plaintiff could
not recall any complaints made to the District. The YMCA's Child
Care and Day Care Director testified that at no time before May
1, 2012, the date of plaintiff's accident, was she ever informed
of any concerns about the condition of the cafeteria when camp
counselors arrived for the "School's Out" program. Further, an
outside company's employee, who had been in charge of the cash
register systems for school lunches for approximately six years,
testified she never heard of anyone other than plaintiff falling
in the cafeteria on an allegedly wet floor.
In support of its summary judgment motion, defendant
submitted a civil engineer's expert report in which the engineer
concluded the cafeteria floor was "safe, slip-resistant and
suitable for use by the YMCA for child care programs." The expert
asserted plaintiff "knowingly chose to walk on the cafeteria floor"
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and "disregarded wet floor signage warning her the flooring was
wet." The expert opined plaintiff's leather-soled loafers
generally "provide reduced traction characteristics in the
presence of flooring contaminants." Ultimately, the expert
concluded "[t]he most reasonable scientific explanation for this
incident . . . relates directly and solely to [plaintiff's] own
unsafe actions and conduct."
Plaintiff countered with her own expert, a Director of
Transportation and School Safety for an Indiana public school
district. Plaintiff's expert opined the District violated the
Occupational Safety Health Act of 1970 (OSHA) by failing to meet
its statutory requirements to keep its workplace free from dangers.
The expert further opined the "system" the District "had in place
to clean the cafeteria floor was not in keeping with OSHA
regulations or the New Jersey Public Employee Safety and Health
Plan, as it did not provide a clean, dry surface for YMCA
employees." Lastly, the expert opined the District's response to
plaintiff's injury was flawed, "as first responders were not
contacted in a timely manner."
On appeal, plaintiff argues defendant "readily admitted that
its cafeteria floor was in a 'dangerous condition' on May 1, 2012."
Plaintiff further argues it was reasonably foreseeable that she
would be in the cafeteria fifteen minutes before class was
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dismissed; and, the court erred by granting summary judgment in
the face of genuinely disputed material facts demonstrating the
District created the dangerous condition. Lastly, plaintiff
contends there are genuinely disputed issues of material fact as
to whether the measures the District took to guard against the
dangerous condition were palpably unreasonable.
The trial court granted defendant's summary judgment motion.
The court could not find that "putting signs up and mopping a
cafeteria floor . . . creates a dangerous condition." Further,
even if such activity created a dangerous condition, "people would
be on notice and aware of the fact that there was water on this
floor. And certainly that is not conduct that can be criticized
and that can be called palpably unreasonable." The trial court
concluded this was "a situation where . . . plaintiff is not able
to meet her burden of proof with regard to a dangerous condition,
due care, and palpably unreasonable conduct[.]"
Plaintiff moved for reconsideration. The trial court denied
the motion. Plaintiff filed this appeal.
We review the trial court's grant of summary judgment under
well-known standards. "[W]e apply the same standard governing the
trial court – we view the evidence in the light most favorable to
the non-moving party." Nicholas v. Mynster, 213 N.J. 463, 478
(2013) (citation omitted). If "the record reveals that 'there is
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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,' then a court should grant summary judgment." Ibid. (quoting
R. 4:46-2(c)).
"[A] non-moving party cannot defeat a motion for summary
judgment merely by pointing to any fact in dispute." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995). Rather,
"once the moving party presents sufficient evidence in support of
the motion, the opposing party must 'demonstrate by competent
evidential material that a genuine issue of fact exists.'" Globe
Motor Co. v. Igdalev, 225 N.J. 469, 479-80 (2016) (quoting Robbins
v. Jersey City, 23 N.J. 229, 241 (1957)). Thus, a reviewing court
must decide "whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Davis
v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citation
omitted).
When reviewing an order dismissing a tort claim against a
public entity, we bear in mind that public entities are liable
"only . . . within the limitations of [the TCA] and in accordance
with the fair and uniform principles established [t]herein."
N.J.S.A. 59:1-2. The TCA was "designed to reestablish the immunity
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of public entities while relieving some of the harsh results of
the doctrine of sovereign immunity." Alston v. City of Camden,
168 N.J. 170, 176 (2001) (citation omitted). Consequently, "the
approach of the [TCA] is to broadly limit public entity liability."
Ibid. (quoting Harry A. Margolis & Robert Novack, Claims Against
Public Entities, comment to N.J.S.A. 59:1-2 (2001)). "As the
Comment to N.J.S.A. 59:2-1 . . . states, courts should employ an
analysis that first asks 'whether an immunity applies and if not,
should liability attach.'" Bligen v. Jersey City Hous. Auth., 131
N.J. 124, 128 (1993). Courts should also exercise restraint in
accepting novel causes of action against public entities. Attorney
General's Task Force on Sovereign Immunity -- 1972, Comment to
N.J.S.A. 59:2-1; Ayers v. Twp. of Jackson, 106 N.J. 557, 574
(1987).
A public entity's liability for an injury occurring on its
property is circumscribed by N.J.S.A. 59:4-2:
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
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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.
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, a plaintiff must prove the following elements: "(1) the
[property] was in dangerous condition; (2) the dangerous condition
created a foreseeable risk of, and actually caused, injury to
plaintiff; (3) [the public entity] knew of the dangerous condition;
and (4) the action taken by [the public entity] to protect against
the dangerous condition was palpably unreasonable." Muhammad v.
N.J. Transit, 176 N.J. 185, 194 (2003).
Palpably unreasonable behavior is behavior "patently
unacceptable under any given circumstance . . . ." Ogborne v.
Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (quoting Kolitch
v. Lindedahl, 100 N.J. 485, 493 (1985)). For behavior to be
"palpably unreasonable," "it must be manifest and obvious that no
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prudent person would approve of [the] course of action or
inaction." Ibid. (citation omitted). As we have explained:
the legislative intention was to allow
sufficient latitude for resourceful and
imaginative management of public resources
while affording relief to those injured
because of capricious, arbitrary, whimsical or
outrageous decisions of public servants. We
have no doubt that the duty of ordinary care,
the breach of which is termed negligence,
differs in degree from the duty to refrain
from palpably unreasonable conduct. The
latter standard implies a more obvious and
manifest breach of duty and imposes a more
onerous burden on the plaintiff.
[Williams v. Phillipsburg, 171 N.J. Super.
278, 286 (App. Div. 1979).]
Although the issue of whether a public entity's conduct was
palpably unreasonable usually presents a fact question for a jury,
Vincentore v. Sports & Expo. Auth., 169 N.J. 119, 130 (2001), the
issue may be ripe for disposition on a summary judgment motion.
Polzo v. Cty. of Essex, 209 N.J. 51, 75 n.12 (2012); see also
Muhammad, supra, 176 N.J. at 199-200. The case now before us is
ripe for disposition on summary judgment. Even assuming
plaintiff's evidence and expert report established the partially
wet cafeteria floor constituted a dangerous condition, the trial
court correctly determined the District's conduct in placing cones
or signs to warn of the wet floor was not palpably unreasonable.
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Plaintiff argues the issue of palpable unreasonableness was
a jury question for several reasons. First, the warning cones
were placed regardless of whether the floor was being mopped or
whether it was wet, thus rendering the presence of the warning
cones useless and negating any "notice" or "awareness" the warnings
otherwise would have conveyed to individuals walking on the
cafeteria floor.
Second, setting up an afternoon program in the cafeteria soon
after the floor had been mopped, and failing to dry the floor, mop
it at night, or use a different cleaning method was palpably
unreasonable. In support of her second assertion, plaintiff cites
the testimony of Kyle Francis, a camp counselor, who opined the
school should have mopped the floor at a different time. Plaintiff
also cites the testimony of the school's custodian, who testified
in response to a leading question that there was nothing preventing
a custodian from mopping the cafeteria floor at night.
Lastly, plaintiff asserts a jury could have determined it was
palpably unreasonable for the District not to require its
custodians to use a dry mop or fans to expedite the drying process
after the floor was mopped.
We reject plaintiff's arguments for several reasons. First,
the camp counselor's opinion about when the floor should have been
mopped, and the custodian's response to a leading question implying
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there was nothing to prevent custodians from mopping the floor at
night, are irrelevant. Many outsiders who come into contact with
various organizations, if asked, might volunteer opinions about
why the organization's operations should be other than what they
are. Such outsider opinions are relatively meaningless in
determining whether an organization has been negligent, and
particularly whether a public entity's conduct is palpably
unreasonable. As to the latter issue, the decisions of public
employees charged with operational supervision and discretionary
decision-making are the relevant persons whose opinions must be
evaluated in the context of the TCA. Here, the Director of
Operations testified the cafeteria had to be cleaned immediately
following lunch to remove any food products on the floor. Had
that not be done, and had a child been injured after slipping on
food, the District would likely be criticized or sued for not
cleaning the floors after lunch.
Insofar as the custodian is concerned, the response to the
leading question, "is there anything that prevents a custodian
from mopping the cafeteria floor at night," is meaningless due to
its vague nature. The absence of "anything preventing" such
activity does not mean there were no countervailing reasons to mop
the floor when it was mopped. Besides, the custodian was not the
Director of Operations.
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Plaintiff's remaining arguments are unsupported by the record
or constitute little more than hindsight criticism. For example,
the argument the signs were rendered useless because they were
placed regardless of whether the floor was wet is contrary to the
evidence. The record establishes the custodian placed the signs
before she began to mop. Depending upon numerous factors, the
time it took for the floor to dry varied. There is no competent
evidence the signs were placed at times when the floor was not
mopped. To the extent plaintiff's claim is one that the floor
typically dried before the signs were removed does not render the
placement of the sigs palpably unreasonable.
Plaintiff's argument that the District should have used fans
or dry mops – apparently to assure the floors were perfectly dry
– are bald assertions without any consideration of how long such
procedures would have taken, how many employees it would have
taken to implement them, and whether they could have been completed
in time for the after school program.
The question the trial court was required to answer was not
whether the District could have taken every conceivable measure
or, in hindsight, taken extraordinary steps to guard against the
wet floor. Rather, the question was whether the action the
District did take – placing warning cones where they were plainly
visible to all who entered the cafeteria – was palpably
15 A-0220-15T2
unreasonable. In other words, was it manifest and obvious that
no prudent person would approve of such course of action; was the
action taken capricious, arbitrary, whimsical or outrageous? We
conclude that the issue — whether placing cones that warned of a
recently mopped floor, still in the process of drying, was palpably
unreasonable — was properly decided by the trial court on summary
judgment. We agree with the trial court that the action the
District took did not create a jury question as to palpable
unreasonableness. Accordingly, we affirm the trial court's order
granting summary judgment to the District and dismissing the
complaint with prejudice.
Affirmed.
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