CHARLES BLAIR v. ASBURY PARK HOUSING AUTHORITY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0500-04T50500-04T5

A-0624-04T5

CHARLES BLAIR,

Plaintiff-Appellant,

v.

ASBURY PARK HOUSING AUTHORITY,

Defendant-Respondent,

Third-Party Plaintiff/Cross-Appellant,

v.

CITY OF ASBURY PARK,

Third-Party Defendant/Cross-Respondent.

___________________________________________

 

Argued October 12, 2005 - Decided

Before Judges Conley and Francis.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, MON-L-4174-03.

Martin F. Kronberg argued the cause for appellant.

Christine B. Smith argued the cause for defendant-respondent, third-party plaintiff/ cross-appellant Asbury Park Housing Authority (Cooper, Rose & English, attorneys; Ms. Smith and John J. DeLaney, Jr., on the brief).

Barry M. Capp argued the cause for third-party defendant/cross-respondent City of Asbury Park (Ansell Zaro Grimm & Aaron, attorneys; Mr. Capp, on the brief).

PER CURIAM

Plaintiff tenant appeals summary judgment granted his landlord, Asbury Park Housing Authority (APHA), dismissing his slip and fall personal injury complaint. APHA filed a protective appeal from a grant of summary judgment in favor of the City of Asbury Park, dismissing APHA's third-party complaint. We affirm the grant of summary judgment to APHA. It is not necessary, therefore, for us to address the cross-appeal.

In February 2003, plaintiff was a tenant of APHA at its Boston Way Village in Asbury Park. He had lived in Boston Way Village on and off for approximately thirty years. As of February 21, 2003, he had lived in Apartment 17, Building 4 for about one year. On that date, at approximately 8:30 p.m., plaintiff, who had gone out to a nearby Quick Chek, was returning to his apartment. He stepped from the parking lot, owned by the City of Asbury Park, onto the sidewalk, owned by APHA, and slipped and fell on black ice. Plaintiff regularly walked on this sidewalk and had not seen the ice there before he fell.

Three days before, on February 18, 2003, a snow storm had occurred, leaving twenty-three inches of snow. Plaintiff's expert, an engineer, asserted that as of February 21, twenty inches remained. At the time of plaintiff's fall, however, the sidewalk was clear of snow. The expert opined that the black ice occurred because snow had melted during the day and water flowed onto walking surfaces. According to the U.S. Naval Observatory Astronomical Applications Department (NOAA), on February 21, 2003, sunset occurred at 5:38 p.m. and civil twilight ended at 6:06 p.m. Climatology data from the NOAA concerning average temperatures for eleven cities in New Jersey showed that on February 21, 2003, the high temperatures ranged from 45 F to 55 F. Asbury Park was not one of the eleven cities, but the data showed that the high temperature for nearby Long Branch/Oakhurst was 49 F with a low of 21 F. Based on reasonable engineering probability, the expert opined that water runoff from the remaining snow had frozen and caused "an extremely hazardous walking surface condition." He concluded that the lack of proper maintenance in removing ice from the walking surface areas caused plaintiff's injuries. At the time of his fall, plaintiff noticed no sand or other deicing materials on the sidewalk.

It is undisputed that after the snowfall, APHA's maintenance crew cleared the snow from the sidewalks in the Village. In this respect, the motion record contains no complaints to it, prior to February 21, 2003, of improper snow removal or icy conditions. And, too, plaintiff, who regularly walked the area, had encountered no problem with black ice between the snowfall and February 21.

R. 4:46-2(c) provides that a motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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." See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). That is to say, "when the evidence 'is so one-sided that one party must prevail as a matter of law'" summary judgment should be granted. Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). The judge should not "'weigh the evidence and determine the truth of the matter'" but should "'determine whether there is a genuine issue for trial,'" giving the opposing party all legitimate inferences. Ibid.

When determining if summary judgment was properly granted below, we apply a de novo standard of review. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 427 (App. Div. 2004). "As does the motion judge, we first decide if there is a genuine issue of material fact, and if none, whether the moving party is entitled to judgment as a matter of law." Ibid.

APHA's liability is governed by the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA). Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 136-37 (1993). The TCA establishes a general rule of immunity for public entities with narrow exceptions to that rule. Vincitore ex rel. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 124 (2001). Specifically, N.J.S.A. 59:2-1a provides that "[e]xcept as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person."

Pertinent hereto, one exception to the general rule of immunity is N.J.S.A. 59:4-2, which provides:

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 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.

Known as the dangerous condition liability provision, liability thereunder requires "a plaintiff [to] establish the existence of a 'dangerous condition,' [as defined in N.J.S.A. 59:4-1a], that the condition proximately caused the injury, that it 'created a reasonably foreseeable risk of the kind of injury [that] 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 ex rel. Vincitore v. N.J. Sports & Exposition Auth., supra, 169 N.J. at 125. If a plaintiff tenant of a public housing authority establishes dangerous condition liability on the part of the authority arising from its snow removal activities pursuant to N.J.S.A. 59:4-2, then the public housing authority may be liable for damages it caused the tenant. Bligen v. Jersey City Hous. Auth., supra, 131 N.J. at 136-37.

The basis of the motion judge's determination here was that plaintiff did not establish a jury issue as to the notice element of the Act or the palpably unreasonable element. The latter, ordinarily, is a matter for the jury, Vincitore ex rel. Vincitore v. N.J. Sports & Exposition Auth., supra, 169 N.J. at 130. We need not grapple with whether a jury issue on that element existed here as we are convinced that "the competent evidential materials presented, when viewed in the light most favorable to [plaintiff], are [in]sufficient to permit a rational factfinder to resolve the [notice] dispute[] . . . in favor of [plaintiff]." Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 540.

In this respect, N.J.S.A. 59:4-3 provides:

a. A public entity shall be deemed to have actual notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 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 within the meaning of subsection b. of section 59:4-2 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.

[Emphasis added.]

If a plaintiff cannot establish actual or constructive notice, then summary judgment to the public entity is warranted. Norris v. Borough of Leonia, 160 N.J. 427, 448 (1999) (summary judgment properly granted public entity where plaintiff's proofs, including notice by a neighbor to the public entity of cracks in the curb on his property, were insufficient to establish actual or constructive notice of dangerous condition existing on plaintiff's curb). See Carroll v. N.J. Transit, 366 N.J. Super. 380, 388-89 (App. Div. 2004) (public entity had neither actual nor constructive notice of dog feces on subway steps, as there was no evidence as to how long it had been there, or of prior complaints from members of the public, or of similar prior incidents of pedestrians slipping on dog feces at that location).

Plaintiff here does not, and cannot, contend there was actual notice of the black ice condition. In order to establish a jury issue on constructive notice, the motion record must support a rational finding that the black ice "had existed for such a period of time and was of such an obvious nature" that it should have been discovered by the public entity. N.J.S.A. 59:4-3b.

Constructive notice depends on the circumstances of each case. See Chatham v. Hall, 128 N.J. 394, 418 (1992), superseded by statute on other grounds, N.J.S.A. 59:8-3, 59:8-8 (pot hole which ran across most of city street and had existed for seven or eight months and of which resident had complained created a reasonable inference of constructive notice); Speaks v. Hous. Auth. of City of Jersey City, 193 N.J. Super. 405, 408-10 (App. Div.), certif. denied, 97 N.J. 655 (1984) (plaintiff was struck by a bicycle frame that had fallen or was thrown from a window, which was missing its upper frame, and notice of a dangerous condition was found when there had been several recent complaints of objects dropping or being thrown from windows and the upper frame of the window had been missing for at least two weeks). Id. at 409-10.). Contrast Norris v. Borough of Leonia, supra, 160 N.J. at 448; Carroll v. N.J. Transit, supra, 366 N.J. Super. at 388-89.

Here, there were no prior complaints of black ice after the snow removal. Indeed, plaintiff, who walked the area regularly, had not observed such incidents of black ice. Moreover, plaintiff offered no expert evidence as to the elevations of the property in the area that would support a reasonable inference that the snow that remained would melt onto the cleaned sidewalk, potentially creating a hazardous condition upon freezing.

Plaintiff's reliance on McGowan v. Borough of Eatontown, 151 N.J. Super. 440 (App. Div. 1977), is misplaced. There, the plaintiff was involved in a one-car accident on State Highway 35 when he drove over an isolated ice patch on the highway. The ice patch had formed because water was draining from the driveway of a restaurant onto the highway. The ice patch was a recurring problem which had been reported to the State by the local police. When so alerted, the State would customarily salt or sand the area. There was no evidence that the State was notified of the ice patch on the day when the plaintiff was injured. But, because of the prior notices, we concluded "the State was certainly on constructive notice within the meaning of N.J.S.A. 59:4-3(b) that the condition would re-occur under predictable circumstances." Id. at 448.

The facts in McGowan do not exist here. There is no evidence in the record that APHA had received notice of ice on the sidewalk where plaintiff fell or that anyone else had fallen there. There was also no evidence that a special condition, such as the drainage from the driveway in McGowan, caused the ice formation to reoccur on a regular, predictable basis. Also, there is no evidence that the ice had been present for such a period of time or was so obvious that APHA should have discovered it.

Plaintiff relies on his expert's report to establish that the ice had been present on the sidewalk "for a long period of time." In this respect, the expert opined that because the "last form of recordable precipitate occurred on February 17, 2003," and plaintiff's accident occurred on February 21, 2003, "the ice formations have been in place for a long period of time." This opinion is simply not supported by the climatological data he relied on and is, therefore, a net opinion. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984). That data shows that on February 21, 2003, the high temperature for the day was well above freezing, ranging from 45 F to 55 F. The chart does not state when the high or low temperatures occurred. While Asbury Park is not listed in the chart, in nearby Long Branch/Oakhurst, the high was 49 F and the low was 21 F. Even assuming the freezing temperatures would occur shortly after sunset at 5:38 p.m., causing black ice on the sidewalk, that condition would have been, at best, three hours prior to the fall. That is not "for a such a period of time," that APHA reasonably should have discovered it, nor was it of "such an obvious nature." See N.J.S.A. 59:4-3b.

Plaintiff cannot create a fact issue to avoid summary judgment by way of an expert's net opinion. Smith v. Estate of Kelly, 343 N.J. Super. 480, 496-97 (App. Div. 2001).

 
The summary judgment granted APHA is affirmed. Its protected cross-appeal from the summary judgment granted the City of Asbury Park is dismissed.

(continued)

(continued)

11

A-0500-04T5

October 25, 2005