MARY LOU RAPP VS. VILLAGE OF RIDGEFIELD PARK(L-5188-14, 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NOT FOR PUBLICATION WITHOUT THE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-2525-15T1
MARY LOU RAPP AND
WILLIAM L. RAPP,
Plaintiffs-Appellants,
v.
VILLAGE OF RIDGEFIELD
PARK, SHADE TREE COMMISSION
OF THE VILLAGE OF RIDGEFIELD
PARK, ERDWHIN ESCARRET AND
YAMILA ESCARRET,
Defendants-Respondents.
___________________________________________
Argued June 6, 2017 – Decided July 13, 2017
Before Judges Messano and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-5188-14.
Thomas J. Giblin argued the cause for
appellants (Giblin & Lynch, attorneys; Mr.
Giblin and Eileen Lackey, on the briefs).
Christopher C. Botta argued the cause for
respondents (Botta & Associates, L.L.C.,
attorneys; Natalia R. Angeli, of counsel and
on the brief; Renee F. McCaskey, on the
brief).
PER CURIAM
Plaintiffs Mary Lou Rapp and William L. Rapp appeal the Law
Division's January 22, 2016 order that granted summary judgment
to defendants, Village of Ridgefield Park (the Village) and the
Shade Tree Commission of the Village of Ridgefield Park (the STC),
and dismissed plaintiffs' complaint.1 The judge concluded
plaintiff failed to present a prima facie case of liability under
the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, in two
respects. He determined plaintiff did not demonstrate defendants
were on actual or constructive notice of a dangerous condition
that proximately caused plaintiff's injuries. N.J.S.A. 59:4-3.
Secondly, the judge concluded plaintiff failed to demonstrate she
suffered the permanent loss of a bodily function that was
substantial. N.J.S.A. 59:9-2(d); Brooks v. Odom, 150 N.J. 395,
406 (1997). The judge also granted the STC summary judgment,
concluding it was immune from liability pursuant to N.J.S.A. 40:64-
14.
I.
The motion record revealed that plaintiff was walking her dog
near her home when she tripped and fell on a raised portion of the
1
Plaintiffs are husband and wife, and William L. Rapp's claims
are wholly-derivative of those brought by his wife. Therefore,
the singular, "plaintiff," used throughout the balance of the
opinion refers to Mary Lou Rapp.
2 A-2525-15T1
sidewalk in front of the residence of defendants Erdwhin and Yamila
Escarret.2 At their depositions, the Escarrets collectively
testified that in 2007, they complained to the Village about a
tree in front of their home, which roots were causing the upheaval
of the sidewalk. The tree was removed, and the Escarrets neither
made any further complaints nor received any complaints from others
regarding the sidewalk. Mrs. Escarret indicated on a photograph
where that tree was, and there is a dispute as to whether plaintiff
fell in that same location on the sidewalk. However, Mrs. Escarret
also stated that the sidewalk in front of her house was always
uneven. Approximately one year after plaintiff's accident, Mr.
Escarret repaired the sidewalk in an attempt to make it more level.
The superintendent of the Village's Department of Public
Works (DPW), Alan O'Grady, had served in that post for twenty-
three years and lived across the street from the Escarret home for
thirty-five years. He testified at deposition that the sidewalks
on the street were in "bad condition," "uneven and . . . [had]
become dislodged" because of trees. O'Grady had complained to the
STC about an uplifted sidewalk in front of his own home, and the
STC had a private contractor repair the sidewalk.
2
The judge granted the Escarret defendants summary judgment.
Plaintiff has not appealed from that order.
3 A-2525-15T1
In 2007, O'Grady personally inspected the front of the
Escarret home and recommended removal of a tree because it had
"lifted up" the sidewalk. O'Grady said either DPW, or a private
company, repaired the sidewalk by lifting the sidewalk and
replacing it after removing the tree’s roots. He also stated that
DPW removed two other trees from a property on the same street
approximately three months before plaintiff fell.
According to O'Grady, the STC fielded complaints from
homeowners about uplifted sidewalks on their properties caused by
trees or tree roots. The STC would evaluate the situation and
hire a private contractor to repair the sidewalk and thereafter
reimburse the homeowner for the costs. When asked for his personal
"assessment of whether or not" the sidewalks on that particular
street were dangerous, O'Grady responded, "I'm sure . . . some of
the sidewalks are dangerous, but . . . it's my opinion, it's the
homeowner that's responsible . . . ."
The Village created the STC by ordinance in 1979. The
ordinance forbid any person from "lay[ing] any sidewalk" that
interfered with or injured a tree without the STC's consent. One
of the commissioners testified at deposition that the tree removed
from the Escarret home was not replaced because the strip of land
between the curb and sidewalk in which it was planted was too
narrow. The Village also enacted a property maintenance ordinance
4 A-2525-15T1
that required all property owners to keep sidewalks "in a proper
state of repair" or replace them if necessary.
As a result of her fall, plaintiff suffered a non-displaced
fracture of her elbow that did not require surgery. She also
suffered a displaced fracture of her patella and underwent surgery
the day after the incident. The procedure was by "open reduction"
and "internal fixation," requiring the installation of hardware,
some of which remains in plaintiff's knee.
Plaintiff's complaints required further non-surgical
interventions, including injections and manipulations under
anesthesia. More than one year after her fall, plaintiff underwent
arthroscopic surgery. Although her surgeon reported plaintiff had
achieved full range of motion, he noted her risk for "posttraumatic
arthritis," and stated she "had permanent alterations in her knee
mechanics" as a result of the fall. Plaintiff's medical expert
for purposes of this litigation opined that her knee will not heal
to normal function, she will continue to experience arthritic
changes as she resumes normal activities and she will need future
medical treatment.
Plaintiff, who worked as a medical records clerk, was out of
work for seven months. She also worked part-time in a department
store but never returned to that position because she was unable
to stand for long periods. Plaintiff testified regarding continued
5 A-2525-15T1
daily pain in her knee, an inability to bend or kneel and some
restrictions on her activities of daily living.
II.
"[W]e review the trial court's grant of summary judgment de
novo under the same standard as the trial court." Cypress Point
Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016)
(citing Mem'l Props., L.L.C. v. Zurich Am. Ins. Co., 210 N.J. 512,
524 (2012)). We first determine whether the moving party
demonstrated there were no genuine disputes as to material facts.
Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224,
230 (App. Div.), certif. denied, 189 N.J. 104 (2006).
[A] determination whether there exists a
"genuine issue" of material fact that
precludes summary judgment requires the motion
judge to 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 v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995).]
We then decide "whether the motion judge's application of the law
was correct." Atl. Mut., supra, 387 N.J. Super. at 231. In this
regard, "We review the law de novo and owe no deference to the
trial court . . . if [it has] wrongly interpreted a statute."
Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
6 A-2525-15T1
Generally speaking, "a public entity is 'immune from tort
liability unless there is a specific statutory provision' that
makes it answerable for a negligent act or omission." Polzo v.
Cty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough
of Wallington, 171 N.J. 3, 10 (2002)). A public entity may be
liable if "a negligent or wrongful act or omission" of its employee
"create[s] [a] dangerous condition" or, if it had "actual or
constructive notice of the dangerous condition . . . a sufficient
time prior to the injury to have taken measures to protect against
the dangerous condition." N.J.S.A. 59:4-2(a) and (b). As the
Court has repeatedly stated,
[I]n order to impose liability on a public
entity pursuant to [N.J.S.A. 59:4-2], a
plaintiff must establish the existence of a
"dangerous condition," that the condition
proximately caused the injury, that it
"created a reasonably foreseeable risk of the
kind of injury which was incurred," that
either the dangerous condition was caused by
a negligent employee or the entity knew about
the condition, and that the entity's conduct
was "palpably unreasonable."
[Vincitore v. N.J. Sports & Exposition Auth.,
169 N.J. 119, 125 (2001) (quoting N.J.S.A.
59:4-2); accord Polzo v. Cty. of Essex, 196
N.J. 569, 579 (2008) ("Polzo I").]
"Th[e]se requirements are accretive; if one or more of the elements
is not satisfied, a plaintiff's claim against a public entity
7 A-2525-15T1
alleging that such entity is liable due to the condition of public
property must fail." Polzo I, supra, 196 N.J. at 585.
The TCA treats public sidewalks like other public property.
Norris v. Borough of Leonia, 160 N.J. 427, 446 (1999). "Generally,
a sidewalk is classified public or private based on who owns or
controls the walkway, not based on who uses it." Qian v. Toll
Bros. Inc., 223 N.J. 124, 138 (2015).
Plaintiff asserts that defendants were not entitled to
summary judgment on any essential element of her cause of action.
Given that we apply the same standard as the trial court when
reviewing a summary judgment record, we address the issues the
motion judge did not reach. Defendants do not contest that
plaintiff fell on a public sidewalk, or that they exerted control
over it. Rather, defendants contend plaintiff failed to adduce
sufficient proof that the sidewalk was a "dangerous condition,"
of which they had actual or constructive notice, and their conduct
was "palpably unreasonable." We disagree.
"The [TCA] defines a '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.'" Garrison v. Twp. of
Middletown, 154 N.J. 282, 286-87 (1998) (quoting N.J.S.A. 59:4-
1(a)). "A dangerous condition under [the TCA] refers to the
8 A-2525-15T1
'physical condition of the property itself and not to activities
on the property.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 532
(2000) (quoting Levin v. Cty. of Salem, 133 N.J. 35, 44 (1993)).
Here, the motion judge did not decide whether the upraised
sidewalk slab was a "dangerous condition" for purposes of summary
judgment, and, instead, granted defendants’ motion based upon lack
of notice. In opposing defendant's summary judgment motion,
plaintiff was entitled to all favorable evidence and inferences
in the motion record. R. 4:46-2. It is undisputed that plaintiff
was walking her dog when she fell, i.e., she was using the sidewalk
in a reasonably foreseeable manner. Plaintiff's testimony, along
with that of the homeowners and O'Grady, was sufficient to
demonstrate the sidewalk was significantly uneven. Her expert
engineer opined that the uneven slab was a tripping hazard.
Defendants refer to photographs demonstrating the differential
between slabs was minimal. However, the photos were taken after
plaintiff's fall and after Mr. Escarret's attempted repair.
Mr. Escarret testified that he attempted to correct the
unevenness of the sidewalk approximately one year after the
accident. While we do not determine whether this evidence is
admissible at trial, plaintiff was entitled to its consideration
for purposes of opposing summary judgment. See Harris v. Peridot
Chem. (N.J.), Inc., 313 N.J. Super. 257, 293 (App. Div. 1998)
9 A-2525-15T1
("[E]vidence of subsequent corrective measures has long been
permitted in New Jersey to prove 'the condition existing at the
time of the accident.'" (quoting Lavin v. Fauci, 170 N.J. Super.
403, 407 (App. Div. 1979))). In short, plaintiff raised a genuine
factual dispute about the dangerous condition of the sidewalk.
N.J.S.A. 59:4-3 provides:
a. 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.
b. 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.
However, "the mere '[e]xistence of an alleged dangerous condition
is not constructive notice of it.'" Polzo I, supra, 196 N.J. at
581 (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law
Div. 1990)). It follows that absent actual or constructive notice,
the public entity cannot have acted in a palpably unreasonable
manner. Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-
51 (App. Div. 2002).
Palpably unreasonable conduct "means 'behavior that is
patently unacceptable under any circumstance' and . . . it must
10 A-2525-15T1
be 'manifest and obvious that no prudent person would approve of
[the public entity's] course of action or inaction.'" Pandya v.
State, Dep't. of Transp., 375 N.J. Super. 353, 372 (App. Div.
2005) (alteration in original) (quoting Holloway v. State, 125
N.J. 386, 403-04 (1991)). In most circumstances, "[p]alpable
unreasonableness is a question of fact." Vincitore, supra, 169
N.J. at 130.
Here, defendants had actual notice of the condition of the
sidewalks along the street where plaintiff fell, removed a tree
that upheaved the sidewalk at or near the spot of her fall, and
attempted to repair the sidewalk after the tree was removed by
resetting the slabs, although the record is unclear whether the
DPW or a private contractor made the repairs. In addition, the
Village's superintendent of public works had actual knowledge of
the poor condition of the sidewalks, and the STC was aware that
trees planted along that street had outgrown the narrow strip of
land between sidewalk and curb. This evidence was sufficient to
defeat summary judgment on the issue of knowledge.
Lastly, as noted, whether the public entity’s conduct was
palpably unreasonable is generally a factual issue for the jury
to decide, however "the question of palpable unreasonableness may
be decided by the court as a matter of law in appropriate cases."
11 A-2525-15T1
Maslo, supra, 346 N.J. Super. at 350 (citing Garrison, supra, 154
N.J. at 311). The motion judge did not address this issue.
The record reveals the STC employed a process to identify and
remediate problem trees in the Village. However, in this case,
the issue was not a problem tree, but, rather the condition of the
public sidewalk after a tree had been removed. One of the factors
to consider in determining whether a jury could find the public
entity's conduct palpably unreasonable is whether there was actual
notice of the dangerous condition. See, e.g., Posey ex rel. Posey
v. Bordentown Sewerage Auth., 171 N.J. 172, 191 (2002) (holding
"a jury could conclude that it was palpably unreasonable for the
Township and or the County not to warn or otherwise protect against
the dangerously deep pond of which they had actual notice"). In
this case, a jury could conclude defendants had actual notice of
the dangerous condition of the sidewalk, based upon their activity
at the site in 2007, continued complaints about sidewalk upheaval
at other addresses on the same street and O'Grady's particularized
knowledge of the conditions of the sidewalks along the street.
Whether defendant's conduct was palpably unreasonable presented a
jury question.
As noted, the motion judge also concluded defendant failed
to meet the threshold requirements of N.J.S.A. 59:9-2(d). That
provision of the TCA provides:
12 A-2525-15T1
No damages shall be awarded against a public
entity . . . for pain and suffering resulting
from any injury; provided, however, that this
limitation on the recovery of damages for pain
and suffering shall not apply in cases of
permanent loss of a bodily function, permanent
disfigurement or dismemberment where the
medical treatment expenses are in excess of
$3,6000.00.3
[Ibid.]
We disagree with the judge's conclusion.
Plaintiff argues her circumstances are similar to those
presented in Gilhooley v. County of Union, 164 N.J. 533 (2000).
There, the plaintiff suffered a fractured patella that required
repair by surgical intervention via open reduction and internal
fixation. Id. at 536-37. She was left with a scar, and, although
she "returned to work in her full capacity," the plaintiff
continued to experience stiffness and pain in her knee. Id. at
537.
In reversing our affirmance of the trial court's grant of
summary judgment, the Court said:
We are satisfied that the Legislature intended
to include within the notion of aggravated
cases those involving permanent injury
resulting in a permanent loss of normal bodily
function even if modern medicine can supply
replacement parts to mimic the natural
function. As is the case with dismemberment
and disfigurement, when pins, wires,
mechanisms and devices are required to make
3
Plaintiff's medical expenses in this case exceeded $248,000.
13 A-2525-15T1
the plaintiff normal, the statutory standard
is met. The fact that a physician has jury-
rigged the knee to function with pins and
wires in no way inhibits the characterization
of that injury as the permanent loss of a
bodily function.
[Id. at 542-43.]
Plaintiff's situation is no different. Viewing the evidence in
the most favorable light to plaintiff, the grant of summary
judgment on this ground was improper.
Plaintiff, however, fails to assert any argument regarding
the grant of summary judgment to the STC. An issue not briefed
is deemed waived on appeal. N.J. Dep't of Envtl. Prot. v. Alloway
Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.), certif. denied,
222 N.J. 17 (2015).
We affirm the grant of summary judgment to the STC. We
reverse the grant of summary judgment to the Village.
14 A-2525-15T1