ANGELA PRESTOL VS. HENPAL REALTY ASSOCIATES, LLC (L-3643-17, 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NOT FOR PUBLICATION WITHOUT THE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-0633-19
ANGELA PRESTOL and
HECTOR PRESTOL, her spouse,
Plaintiffs-Appellants,
v.
HENPAL REALTY ASSOCIATES,
LLC, a/k/a HENPAL REALTY
ASSOCIATES, SUEZ WATER
NEW JERSEY, INC., f/k/a
UNITED WATER NEW JERSEY,
INC., and CITY OF HACKENSACK.
Defendants-Respondents,
and
COUNTY OF BERGEN and
STATE OF NEW JERSEY,
Defendants.
_____________________________
Argued December 1, 2020 – Decided March 23, 2021
Before Judges Haas and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3643-17.
Manuel B. Sameiro, Jr. argued the cause for appellant
(Davis, Saperstein & Salomon, PC, attorneys; Adam B.
Lederman, on the brief).
Cynthia J. Birkitt argued the cause for respondent
Henpal Realty Associates, LLC (Law Offices of James
H. Rohlfing, attorneys; Cynthia J. Birkitt, on the brief).
Brian R. Ade argued the cause for respondent Suez
Water New Jersey Inc. (Rivkin Radler LLP, attorneys;
Brian R. Ade and Alexander G. Pappas, on the brief).
Ruby Kumar-Thompson argued the cause for
respondent City of Hackensack (Cleary Giacobbe
Alfieri Jacobs, LLC, attorneys; Ruby Kumar-
Thompson, of counsel and on the brief).
PER CURIAM
In this trip and fall matter, plaintiffs Angela and Hector Prestol sued
Henpal Realty Associates, LLC (Henpal), Suez Water New Jersey, Inc. (Suez),
and the City of Hackensack (Hackensack) when plaintiff 1 fell after stepping in
an approximate two-inch depression on a public roadway in front of the building
where she worked. She contends the street's unsafe condition caused her to fall,
1
Plaintiff's husband Hector Prestol sought per quod damages based on loss of
consortium. We refer to Angela as plaintiff and Hector by his first name for
clarity, intending no disrespect.
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and she obtained liability expert reports to support her claims. She fractured her
ankle and underwent surgery to address her injuries.
After the completion of discovery, defendants moved for summary
judgment. As to Hackensack, the court concluded Angela failed to establish
liability under the New Jersey Tort Claims Act (TCA), N.J.S.A 59:1-1 to 12-3
and dismissed Hector's derivative per quod claim. The court also dismissed
plaintiffs' claims against Henpal and Suez under general negligence principles,
and other bases. On appeal, plaintiffs argue the motion record contained
disputed questions of material fact that warranted denial of defendants' motions.
We disagree and affirm.
I.
We derive the following facts from the competent evidence submitted by
the parties in support of, and in opposition to, the summary judgment motions,
viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. of Am.,
142 N.J. 520, 540 (1995). On October 23, 2015, plaintiff was crossing the street
outside of the crosswalk directly across from Hackensack Physical Therapy,
where she had worked for approximately fifteen years. Hackensack Physical
Therapy was located at 343A Main Street in Hackensack in a building owned by
Henpal.
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Plaintiff stated she fell after stepping in what she initially described as a
"big pothole" near the curb and which measured one and a half to two inches,
injuring her right ankle and left knee. Plaintiff continued to experience pain a
week after the incident and her doctor prescribed a foot brace and physical
therapy. Plaintiff later visited Ralph Napoli, M.D. who, after reviewing a
magnetic resonance imaging of her ankle, diagnosed plaintiff with a fractured
right ankle, synovitis, and a partial tendon tear.
In their initial complaint, plaintiffs named Henpal, Hackensack, the
County of Bergen, the State of New Jersey, and John Does and XYZ
corporations as fictitious, unknown individual and entity defendants. 2 The
complaint alleged that the defendants negligently inspected, repaired, and/or
maintained the area which caused plaintiff's fall.
On September 5, 2018, plaintiffs' engineering expert, Kelly-Ann
Kimiecik, P.E., submitted a report following a May 29, 2018 inspection in which
she concluded that the incident "transpired due to negligence on behalf of the
defendant(s)." She concluded the pavement was replaced as a result of trench
reconstruction and noted the restoration "when backfilled and poorly compacted,
2
Bergen County was dismissed with prejudice on July 31, 2017, and the State
of New Jersey was dismissed without prejudice on December 21, 2018.
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results in . . . settlement action . . . until the crack width widens to the point of
pavement spalling." Kimiecik reasoned that "over a period of time, exposure to
the elements and live load impacts created by active motor vehicle traffic
resulted in a breakdown of the asphalt pavement." She concluded "based on
reasonable engineering probability, had the trench backfilling operations been
performed with proper subgrade compaction at the subject accident location,
then the effects of settlement would have been negligible."
Kimiecik also noted her observation that repairs had been performed at
the scene "which attempted to alleviate the prior roadway pothole (deterioration)
condition that created extremely hazardous conditions for the public," but that
"the repairs . . . have deteriorated to [a point] where a pothole formation existed
at the time of the inspection."
Further, she observed indicia of "water main work . . . in the roadway
pavement, through the pavement subbase, at the plaintiff's incident location."
Kimiecik referenced Google Maps photos of the scene from August 2012,
observing that "[t]he deteriorated pavement condition . . . bespeaks long -term
and continued existence of the same" and that because "the advanced stage of
deterioration has occurred over a period of several years[,] . . . sufficient notice
was made to correct this condition prior to the plaintiff's injury." She further
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determined that the estimated cost of materials to repair the pothole was less
than $200 and that the failure to mitigate the hazard "renders the failure to make
the repairs palpably unreasonable."
Based on her investigation, Kimiecik concluded that "deterioration
(surface depression/pothole) existing within the roadway yielded unsafe
conditions for the public," and that "based on reasonable engineering
probability," the pothole caused plaintiff's injury. Further, because of the "type
of roadway parking layout" at the scene and the fact that the pothole was in front
of a physical therapy facility without "warnings of the hazardous condition,"
Kimiecik opined that the pothole was "an extremely dangerous condition for
pedestrians."
Jim Rittgers, an employee for CJ Lombardo Real Estate (Lombardo),
Henpal's property manager and managing agent, testified at his deposition that
Henpal was "responsible for the common areas of the property such as the
parking lots and sidewalks" as well as the roofs, but that "[t]he streets are not
our responsibility." After reviewing photographs of the area surrounding the
pothole, Rittgers stated that there had been "utility work in front of that building
specifically," and that he saw "numerous patches and work done right in front
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of the handicap sign." He also indicated that "[t]hey may have dug up the street
there for access to the water or gas or something at some point."
On November 8, 2018, Joseph Inglima, a representative of the Hackensack
Department of Public Works (DPW) testified in deposition that he had no
knowledge of the policies and procedures regarding repair of potholes at that
time of plaintiff's accident as he did not work for the DPW until September 2017.
He did, however, testify that Suez would be responsible for repairing pavement
where they conduct an excavation in order to maintain or repair city water lines.
The following week, plaintiffs filed a motion to extend discovery, to
amend their complaint in order to add Suez as a defendant, and to compel a
different representative of Hackensack to provide deposition testimony. The
court granted plaintiffs' motion and plaintiffs accordingly filed an amended
complaint on December 5, 2018, which included Suez as a defendant, in the
place of one of the fictitious party defendants.
In January 2019, Jesse D'Amore, former superintendent of the Hackensack
DPW, was deposed. D'Amore testified that the DPW was responsible for
repairing potholes and "taking care of curbs [and] sidewalks" but that water main
repairs were contracted out. He indicated that a hotline was put in place
allowing residents to call and report potholes. D'Amore also stated that
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beginning in the middle of winter, the Hackensack "[s]treet crew [was]
responsible for the potholes."
D'Amore also testified that Hackensack was responsible for maintenance
and repair of the street, but that either "United Water," "Hackensack Water
Company," or Suez was responsible for water repairs. He also noted that he
"would imagine" that Hackensack would be notified of water repairs by Suez
and that a Hackensack project manager "would oversee the project that the water
company . . . was opening up the street for [them] to do."
Finally, Jeffrey Picinich, a department superintendent at Suez, was
deposed on June 19, 2019. He testified regarding work orders associated with
343A Main Street on December 17, 1997, January 15, 1998, and July 6, 2011,
and indicated that a permit was not necessary for specific utility work at these
times, as utility companies were granted annual permits by Hackensack.
Picinich acknowledged that photos of the scene from 2012 and 2018 showed a
utility cut. While he stated that Suez had no record of making such a cut, it was
"possible" that Suez did the work in that area in 1997.
On August 2, 2019, defendants individually moved for summary
judgment. Hackensack noted that "the managing agent for Henpal . . . conducts
regular inspections of the property in front of 343A Main Street" and that
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Rittgers "could not recall observing a pothole or crack in proximity to the
property." It also noted that it "maintained a hotline for citizens to call
[Hackensack] to alert members of the DPW that a pothole/street crack required
repair" and that it received no notice of the pothole.
Suez argued that plaintiffs' claims against it were "barred by the two[-
]year statute of limitations for personal injury actions, N.J.S.A. 2A:14-2(a)." It
also contended that plaintiffs' claims were barred by the ten-year statute of
repose, N.J.S.A. 2A:14-1.1. In this regard, Suez claimed that "it performed work
in front of 343[A] Main Street" in 1997 and 2011, but that the 2011 work "did
not require excavation of the roadway," and that its records did not indicate
whether the 1997 work included an excavation. Separately, it asserted that
plaintiffs' amended complaint, filed on December 5, 2018, was time barred as it
did not relate back to the filing of the May 25, 2017 initial complaint because
plaintiffs "did not exercise due diligence in their investigation and
identification" of Suez prior to Inglima's deposition.
Henpal contended it was undisputed that plaintiff fell in the roadway,
which it neither controlled nor had an obligation to maintain. In this regard,
Henpal stressed that it was not responsible for the pothole because Inglima
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testified that Hackensack would be responsible for the roadway up to the curb.
Henpal also claimed that it had no notice of the pothole.
Plaintiffs opposed defendants' motions and submitted a supplemental
report from Kimiecik. She noted that none of her previous conclusions were
changed by her supplemental review, but further opined that: 1) in 1997 "[t]he
water company created the utility cut and failed to properly restore the pavement
region that resulted in the pothole formation"; 2) "[t]he property owner/manager
failed to inspect and maintain the gutter region in accordance with . . . municipal
ordinances" and "two work orders produced by Suez indicate[d] that the calls
related to these work orders were made by Lombardo; thus, bespeaking their
understanding of the water company's facilities at the accident location"; and 3)
Hackensack failed to maintain and inspect the accident location because the
utility cut maintenance period had long expired and Hackensack "repetitively
undergoes construction efforts."
On August 30, 2019, after hearing oral arguments, the court granted
defendants' motions for summary judgment in a twenty-four-page written
opinion and corresponding orders. In its written opinion, it found that "[t]he
pothole was next to the curb on the street as can be seen in the exhibit photos
located between two handicap parking spaces in front of 343A Main Street." It
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noted that those handicap parking spaces "were installed at the request of
[plaintiff's employer] for the benefit of its patients" and that the "paint separating
the two spaces goes directly into the pothole."
The court found that the street had metered parking, which it was
Hackensack's responsibility to enforce, and that Hackensack admitted "that one
of its employees conducted meter collections on Main Street [one to two] times
per week during the time period in issue" and that "it is responsible for
maintaining and repairing the roadway surface where the subject pothole was
located." To this end, the court found that Hackensack would send a street crew
out each winter to check for potholes to repair.
Nonetheless, it found that Hackensack had neither actual nor constructive
notice of the pothole under N.J.S.A. 59:4-3 because "there [was] no evidence
that any specific complaints were made to [Hackensack] about the conditions"
at 343A Main Street and plaintiffs "failed to produce evidence to support the
premise that the condition had existed for such a period of time and was of such
an obvious nature that [Hackensack] should have discovered it."
The court determined that the pothole is located in the gutter in front of
the commercial property owned by Henpal, and that Henpal hired Lombardo to
perform "regular inspections of the entire property, including the front of
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[plaintiff's employer's building] to pick up garbage and any debris, among other
things." The court also considered that Kimiecik concluded that Suez created
the utility cut next to the water valve "and failed to properly restore the pavement
region that resulted in the pothole formation."
The court first concluded that summary judgment was appropriate as to
Henpal because Henpal "is not responsible for repairs or maintenance of the
public roadway" in that area. In this regard, it determined that Henpal had no
duty "to maintain or repair the public roadway where [p]laintiff fell."
Notwithstanding a Hackensack ordinance allegedly requiring property owners
to repair or maintain abutting sidewalks, the court explained that such an
ordinance does not create a duty in tort.
Second, the court determined that plaintiffs failed to prove each of the
elements of the TCA, and accordingly granted Hackensack's motion. It
concluded that the pothole was not a "dangerous condition" covered by N.J.S.A.
59:4-1(a) because "it was homogenous with the surrounding roadway . . . [and]
was nothing more than a 'minor imperfection' that clearly did not create a
'substantial' risk of injury."
The court also determined that since plaintiff was jaywalking, "[i]t was
not foreseeable that [p]laintiff would have been using that portion of the
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roadway as a pedestrian." The court explained that Hackensack's failure to
repair the pothole was not palpably unreasonable because it "maintained a
hotline for citizens to alert members of the DPW of such conditions and
designated the DPW's street crew to make repairs that it was notified of."
Finally, the court concluded that plaintiffs' claims against Hackensack for
damages relating to emotional distress and pain and suffering were bar red by
N.J.S.A. 59:9-2(d) because plaintiff's injuries did not constitute a "permanent
loss of a bodily function" as required by the TCA. Further, it denied Hector's
per quod claim because he did not meet the requirements in N.J.S.A. 59:9-2 as
he produced no evidence of a therapist or other medical professional "to meet
the requirement for objective permanent substantial injury to his own person" or
"proof of incurring medical treatment expenses" in excess of $3,600.
As to Suez, the court determined that summary judgment was appropriate
because plaintiffs' claims were barred by the statute of limitations for personal
injury actions, N.J.S.A. 2A:14-2(a). To this end, it concluded that plaintiffs'
claims in their amended complaint do not relate back to the original filing
because plaintiffs "did not diligently seek to identify S[uez] before the
limitations period expired or within a reasonable time thereafter."
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The court also determined that plaintiffs' negligent construction claim
against Suez was barred by the ten-year statute for improvements to property
under N.J.S.A. 2A:14-1.1. In doing so, it found that Suez's 2011 maintenance
work did not require roadway excavation, and that even if Suez's 1997 work "did
involve excavation, backfilling, or paving," it was undisputed that the 1997 work
occurred over ten years prior to the accident.
The court determined that Suez did not owe a duty of care to plaintiff and
that plaintiffs failed to show that Suez had actual or constructive notice of the
pothole. Finally, the court concluded the motion record failed to contain
competent proofs for a jury to conclude that Suez's 1997 maintenance work
created the pothole in 2015. This appeal followed.
Plaintiffs contend on appeal that there were general questions of material
fact that precluded the entry of summary judgment. According to plaintiffs,
those genuine issues of material fact included whether the pothole was a
dangerous condition, whether Hackensack had notice of the pothole, whether its
actions were palpably unreasonable, and whether plaintiff suffered a permanent
injury.
With respect to Suez, plaintiffs contend the trial court erred in determining
its claims were time barred and subject to the statute of repose. Plaintiffs also
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contend the court incorrectly resolved disputed factual questions regarding
Suez's notice and whether it and Henpal were liable under general negligence
principles.
II.
Our review of a ruling on summary judgment is de novo, applying the
same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59
(2015). Summary judgment must be granted if the court determines "that there
is 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." R. 4:46-2(c). The court
must "consider 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." Brill, 142 N.J. at 540. We accord no special deference to
the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J.
463, 478 (2013) (citation omitted).
Applying these standards and the provisions of the TCA discussed below,
we agree with the motion judge that plaintiffs failed to establish that Hackensack
had actual or constructive notice of the pothole or that its conduct in failing to
observe and maintain the pothole was palpably unreasonable. We also agree
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with the court that the motion record failed to create a genuine and material
question of fact regarding Henpal and Suez's liability under general negligence
principles.
A. Hackensack
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."
Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2012) (citing Collins v. Union
Cty. Jail, 150 N.J. 407, 413 (1997)); see also N.J.S.A. 59:1-2, 2-1. Accordingly,
"immunity for public entities is the general rule and liability is the exception."
Kemp v. State, 147 N.J. 294, 299 (1997); accord D.D. v. Univ. of Med. &
Dentistry of N.J., 213 N.J. 130, 134 (2013) (describing that rule as the "guiding
principle" of the TCA (quoting Coyne v. State Dep't of Transp., 182 N.J. 481,
488 (2005))).
"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, 209 N.J. at 64 (quoting Polyard v. Terry,
160 N.J. Super. 497, 508 (App. Div. 1978)). Under the TCA:
A public entity is liable for injury caused by a
condition of its property if the plaintiff establishes that
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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.
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.]
"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 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).
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"The mere '[e]xistence of an alleged dangerous condition is not
constructive notice of it . . . .'" Arroyo v. Durling Realty, LLC, 433 N.J. Super.
238, 243 (App. Div. 2013) (alteration in original) (quoting Sims v. City of
Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). "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, 209 N.J. at 68.
As the motion judge concluded that plaintiffs failed to satisfy each of the
elements of the TCA necessary to pursue their claims against Hackensack, we
need not address each element specifically. We agree that summary judgment
was appropriate because plaintiffs did not establish that Hackensack had actual
or constructive notice of a dangerous condition, and even assuming the motion
record created a factual question on that issue, Hackensack's actions were not
palpably unreasonable.
We initially note that at oral argument in the trial court, plaintiffs
conceded that Hackensack did not have actual notice of the pothole. That
concession was consistent with the motion record which failed to suggest
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Hackensack received complaints, accidents, or concerns regarding any issue
with the public roadway in front of her employer's building.
Instead, before us plaintiffs contend Hackensack had constructive notice
of the alleged dangerous condition based on: 1) an August 2012 Google Maps
photograph purportedly showing the depression in the roadway and the
existence of "blue striping" purportedly painted by Hackensack employees or
agents in the pothole and the surrounding area; 2) observations that could, and
should, have been made by municipal employees working in the vicinity of the
pothole; and 3) the expert opinions of Kimiecik. We disagree that any of these
"facts" individually, or collectively, create a genuine and material question of
fact regarding Hackensack's constructive notice.
First, plaintiffs failed to present competent evidence to establish the length
of time the pothole existed. The Google Maps photographs, most of which are
undated, do not clearly identify the pothole. Further, even indulging plaintiffs'
arguments that a depression can be seen, the photographs do not show its extent
(i.e., length or depth) to establish Hackensack's constructive notice. As
plaintiffs offered the photographs to assert the truth of a matter in dispute —
rather than for demonstrative or illustrative purpose or on an undisputed point —
it was necessary for the photographs to be properly authenticated under N.J.R.E.
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901. In any event, as noted, the photographs do not establish the condition of
the pothole in 2015, or its condition in the interim period.
Nor did plaintiffs establish who painted the blue stripes or when. Even
were we to assume Hackensack employees performed that task, the record does
not establish, directly or by reasonable inference, the condition of the depression
at the time the painting occurred. Indeed, the Google Maps photograph shows
fading in the blue lines in and around the roadway area where plaintiff fell.
Similarly, the Kimiecik reports, which substantially rely upon the
aforementioned deficient proofs, do not establish when the pothole first
manifested itself or when it degraded to the alleged dangerous condition causing
plaintiff's fall and injuries to support the expert's opinion that Hackensack had
constructive notice. As was the trial court, we are unpersuaded that Hackensack
should have observed the minor depression in the roadway through its agents
and employees who serviced the parking meters and otherwise traversed along
the roadway to perform their municipal functions.
In this regard, the pothole abutted a parking space on a roadway where
cars regularly parked and was not of a magnitude such that one would expect an
employee to observe it in the regular course. See Polzo II, 209 N.J. at 68.
Consequently, we are convinced that no reasonable jury could have concluded
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that Hackensack had actual or constructive notice of the pothole in a sufficient
time prior to plaintiff's injury to have taken measures to protect against it.
Absent actual or constructive notice, Hackensack could not have acted in
a palpably unreasonable manner. See Maslo v. City of Jersey City, 346 N.J.
Super. 346, 350-51 (App. Div. 2002). Apart from proof of notice, to establish
liability against a public entity under N.J.S.A. 59:4-2, a plaintiff must establish
a prima facie case that the action or inaction of the public entity was "palpably
unreasonable." Coyne, 182 N.J. at 493; N.J.S.A. 59:2-3(d).
The term "palpably unreasonable" implies "behavior that is patently
unacceptable under any given circumstance." Muhammad v. N.J. Transit, 176
N.J. 185, 195 (2003) (citations omitted); see also Ogborne v. Mercer Cemetery
Corp., 197 N.J. 448, 459 (2009) (to constitute "palpably unreasonable" conduct,
"it must be manifest and obvious that no prudent person would approve of [the]
course of action or inaction" (citations omitted)). Further, palpably
unreasonable conduct "implies a more obvious and manifest breach of duty"
than negligence and "imposes a more onerous burden on the plaintiff." Williams
v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979).
Whether the public entity's behavior was palpably unreasonable is
generally a question of fact for the jury. See Vincitore v. N.J. Sports &
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Exposition Auth., 169 N.J. 119, 130 (2001) (citations omitted). However, a
determination of palpable unreasonableness, "like any other fact question before
a jury, is subject to the court's assessment whether it can reasonably be made
under the evidence presented." Maslo, 346 N.J. Super. at 351 (quoting Black v.
Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)).
Accordingly, "the question of palpable unreasonableness may be decided by the
court as a matter of law in appropriate cases." Maslo, 346 N.J. Super. at 350
(citing Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998)).
As noted, there was no reported problem of a pothole in front of plaintiff's
employers' building, where she had worked for approximately fifteen years.
Further, Hackensack's maintenance and notice programs in place at the time of
the incident were not unreasonable. There is no dispute that Hackensack's
inspection of its public streets was a discretionary activity. Given the limited
resources of municipalities, it is not within our power to impose a more
comprehensive pothole inspection and repair program on Hackensack. See
Polzo II, 209 N.J. at 69. Under these circumstances, we conclude no rational
factfinder could find that it was palpably unreasonable for Hackensack not to
have repaired the pothole that caused plaintiff's unfortunate injury.
B. Henpal
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Plaintiffs argue that Henpal had a duty to maintain the area in front of
343A Main Street because its tenant's patrons intended to use the area in which
the pothole was located. Plaintiffs further assert that the trial court misapplied
Monaco v. Hartz Mountain Corp., 178 N.J. 401 (2004), when it concluded that
a commercial landowner's duty did not extend past the adjacent sidewalk.
Instead, plaintiffs contend that the factors outlined in Monaco support the
imposition of a duty on Henpal. We disagree. Henpal, as a commercial property
owner, clearly was not liable for plaintiff's injuries as it had no role in the
creation of the pothole or knowing of its existence, and it had no duty to maintain
any part of the public roadway.
"To establish a prima facie case of negligence, a plaintiff must establish
the following elements: (1) duty of care, (2) breach of that duty, (3) proximate
cause, and (4) damages." D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579
(App. Div. 2011) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 417
(1996)). Whether a party owes a legal duty, as well as the scope of the duty
owed, are questions of law for the court to decide. Carvalho v. Toll Bros. &
Devs., 143 N.J. 565, 572 (1996). "The inquiry has been summarized succinctly
as one that 'turns on whether the imposition of such a duty satisfies an abiding
sense of basic fairness under all of the circumstances in light of considerations
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of public policy.'" Olivo v. Owens–Illinois, Inc., 186 N.J. 394, 401 (2006)
(quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). We
examine foreseeability, Clohesy v. Food Circus Supermarkets, Inc., 149 N.J.
496, 502-03 (1996), as well as such factors as "the relationship of the parties,
the nature of the attendant risk, the opportunity and ability to exercise care, and
the public interest in the proposed solution." Acuna v. Turkish, 192 N.J. 399,
414 (2007) (internal quotation marks and citation omitted).
In Monaco, the Court stated that a commercial landlord owes a duty to:
[E]xercise reasonable care for an invitee's safety. That
includes making reasonable inspections of its property
and taking such steps as are necessary to correct or give
warning of hazardous conditions or defects actually
known to the landowner. The landowner is liable to an
invitee for failing to correct or warn of defects that, by
the exercise of reasonable care, should have been
discovered.
[178 N.J. at 414-15 (citations omitted).]
A commercial landlord's liability may extend "to cases in which the
landowner had no control over the dangerous condition and the condition was
not located on its property." Id. at 415. Indeed, "neither ownership nor control
is the sole determinant of commercial landlord liability when obvious danger to
an invitee is implicated." Id. at 417. Instead, "whether [a commercial landlord]
owes a duty of reasonable care toward another [individual] turns on whether the
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imposition of such a duty satisfies an abiding sense of basic fairness under all
of the circumstances in light of considerations of public policy." Id. at 418(quoting Hopkins, 132 N.J. at 439).
In Monaco, a traffic sign situated on the abutting sidewalk of the property
of a commercial landlord became dislodged and the landowner's invitee was
injured. Id. at 404. Our Supreme Court found that the landlord owed a duty to
the invitee to maintain safe premises, including areas of ingress and egress, and
to inspect and give warning of the dangerous condition. Id. at 413-14.
Unlike in Monaco, Henpal neither installed nor maintained the area of the
public roadway where plaintiff fell or had any responsibility for doing so. At
most, its tenant, Hackensack Physical Therapy, requested that Hackensack put
handicap parking spaces in front of that area. Further, Henpal conducted
inspections of the sidewalks and there was no evidence it had actual or
constructive notice of any dangerous condition. It simply would be unfair to
hold that Henpal had a duty to plaintiff to warn her of the condition in the public
roadway for which it was unaware and had no role in creating.
C. Suez
As to Suez, plaintiffs argue that the trial court erred in concluding Suez
did not have actual or constructive notice of the pothole because it "went back
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to the very location in July[] 2011 to access the water valve at issue." They
further contend that, in any event, they were not obligated to establish Suez's
notice as it created the dangerous condition according to their expert's net
opinion. We disagree.
Under New Jersey law, there are two distinct theories of recovery in a trip-
and-fall personal injury action. When an alleged dangerous condition is not
caused by a defendant, a plaintiff must establish actual or constructive notice.
However, where the defendant's actions create a foreseeable risk of harm, an
injured plaintiff need not prove either actual or constructive notice.
Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 264 (App. Div. 2011);
Smith v. First Nat'l Stores, 94 N.J. Super. 462, 466 (App. Div. 1967); Maugeri
v. Great Atl. & Pac. Tea Co., 357 F.2d 202, 203 (3d Cir. 1966); Model Jury
Charge (Civil), 5.20F(5), (9) (rev. Nov. 2019).
As plaintiffs rely on Kimiecik's initial and supplemental reports in support
of their conclusion that Suez is responsible for plaintiff's injuries, we briefly
discuss the relevant evidentiary rules and case law regarding the admissibilit y
of expert opinions. A determination on the admissibility of expert testimony is
committed to the sound discretion of the trial court. Townsend, 221 N.J. at 52
(citing State v. Berry, 140 N.J. 280, 293 (1995)). A trial court's grant or denial
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of a motion to preclude expert testimony is entitled to deference on appellate
review. The Supreme Court has instructed: "[W]e apply [a] deferential
approach to a trial court's decision to admit expert testimony, reviewing it
against an abuse of discretion standard." Id. at 53 (second alteration in original)
(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72
(2011)).
Two rules of evidence frame the analysis for determining the admissibility
of expert testimony. N.J.R.E. 702 identifies when expert testimony is
permissible and requires the experts to be qualified in their respective fields.
N.J.R.E. 703 addresses the foundation for expert testimony. Expert opinions
must "be grounded in facts or data derived from[:] (1) the expert's persona l
observations, or (2) evidence admitted at the trial, or (3) data relied upon by the
expert which is not necessarily admissible in evidence but which is the type of
data normally relied upon by experts." Townsend, 221 N.J. at 53 (quoting Polzo
v. Cty. of Essex (Polzo I), 196 N.J. 569, 583 (2008)). "The net opinion rule is a
'corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an
expert's conclusions that are not supported by factual evidence or other data.'"
Id. at 53-54 (alteration in original) (quoting Polzo I, 196 N.J. at 583).
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Therefore, an expert is required to "'give the why and wherefore' that
supports the opinion, 'rather than a mere conclusion.'" Id. at 54 (quoting
Borough of Saddle River v. 66 E. Allendale, L.L.C., 216 N.J. 115, 144 (2013)).
The net opinion rule directs that experts "be able to identify the factual bases for
their conclusions, explain their methodology, and demonstrate that both the
factual bases and the methodology are reliable." Id. at 55 (quoting Landrigan v.
Celotex Corp., 127 N.J. 404, 417 (1992)). In short, the net opinion rule is "a
prohibition against speculative testimony." Harte v. Hand, 433 N.J. Super. 457,
465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580
(App. Div. 1998)).
Here, there was no competent evidence in the record, even after providing
plaintiffs with all reasonable inferences, to suggest Suez had actual or
constructive notice of the dangerous conditions. The only evidence that
plaintiffs point to is the fact that Suez did work near the site in July 2011. Even
assuming Suez performed additional work near 343A Main Street, that work is
insufficient to establish actual or constructive notice of an approximately two -
inch pothole near the curb that plaintiff fell in nearly four years later. Indeed,
an employee of Suez stated in their deposition that the 2011 work only entailed
turning off 343A Main Street's water valve which did not require an examination
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of any work in the street. As noted previously, the Google Maps photographs
do not competently show the existence or extent of a pothole in August 2012,
let alone July 2011.
Further, Kimiecik's reports as to Suez are general, speculative, and
conclusory. At bottom, she concludes that Suez created the asphalt cut in the
road in 1997 and negligently repaired the area contrary to ASTM and New Jersey
Department of Transportation standards by failing to properly fill the hole and
compact it correctly. As a result of this alleged negligent work, Kimiecik opines
that Suez is responsible for the two-inch depression that formed near the curb at
some indeterminate point during the next seventeen years. Kimiecik's opinions,
however, are unsupported by any objective data other than her post-accident
observations.
Moreover, Kimiecik's opinions are speculative as they fail to consider or
address in any substantive manner the other conditions unrelated to Suez's work
that could have caused the pothole's formation during the seventeen-year period
between Suez's 1997 repair and plaintiff's 2015 fall. To this point, Kimiecik
does not conclude that the pothole would not have formed even if Suez correctly
completed the work consistent with the standards upon which she relied. In fact,
she opines that the pothole's creation was caused, in part, by Hackensack's
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failure to maintain the roadway as well as exposure to the elements and live load
impacts. Considering the significant temporal gap between the 1997 excavation
and repair and plaintiff's 2015 fall, Kimiecik's opinion as to Suez's responsibility
fails to contain the necessary "why and wherefore," Townsend, 221 N.J. at 54,
to support her conclusion that Suez is responsible for the two inch depression in
the roadway.
In light of our decision, we need not address the court's alternate bases for
granting summary judgment to Suez; namely that: 1) it owed no duty of care to
plaintiff, and 2) the statute of limitations and statute of repose applied barring
plaintiffs' claims. To the extent we have not addressed any of the parties'
remaining arguments it is because we have determined that they are without
sufficient merit to warrant discussion in a written opinion. See R. 2:11-
3(e)(1)(E).
Affirmed.
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