DEREK PHILLIPS et al. v. CITY OF CAMDEN

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2469-04T3

DEREK PHILLIPS and SHARON
WARD-PHILLIPS,

Plaintiffs-Appellants,

v.

CITY OF CAMDEN,

Defendant-Respondent.

 

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September 26, 2005

Submitted September 13, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Number L-3207-03.

F. Michael Daily, Jr., attorney for plaintiffs.

Lewis Wilson, City Attorney, attorney for respondent (Mark M. Cieslewicz, Assistant City Attorney, on the brief).
 
PER CURIAM

Plaintiffs Derek Phillips and Sharon Ward-Phillips appeal from the December 17, 2004 order of the Law Division granting summary judgment in favor of defendant City of Camden and dismissing their complaint. We affirm.
Plaintiffs' complaint alleged that plaintiff Derek Phillips was injured when he stepped off of the sidewalk into a pothole in the roadway and fell. During his discovery deposition, he testified that he was walking to the bus stop to take the bus to his job, as he normally did, that he stepped from the sidewalk into the road in an effort to avoid a group of other people, and that the pothole in which he fell was in the roadway near the curb. He conceded that he had been using the same route to get to the bus stop for approximately three years and that he had never noticed the pothole prior to the day on which he fell in it. In addition, he admitted that he had no information about how long the pothole had been there before he fell and no knowledge that its existence had ever been reported to the City. Plaintiff Sharon Ward-Phillips, who did not witness the incident, also admitted in her deposition testimony that she had not noticed the pothole prior to the date of her husband's fall. She had no information about how long it had been there and no knowledge as to whether anyone had notified the City that it existed or that the roadway was in need of repair.
Following discovery, defendant moved for summary judgment, contending that the complaint was barred by the applicable provisions of the Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. Judge Kassel granted the motion for reasons he set forth at length in his oral decision on December 17, 2004. He based his decision on three separate grounds.
First, the judge concluded that summary judgment was appropriate because plaintiffs had not presented evidence that the pothole was a dangerous condition of public property. See N.J.S.A. 59:4-2. Relying on the statutory definition of dangerous condition, namely, that the condition is a defect that "creates a substantial risk of injury," N.J.S.A. 59:4-1(a), he concluded that the evidence presented concerning the pothole was insufficient. In particular, he found that the pothole was a minor condition of the roadway, "routine" in nature. He found that it was therefore comparable to "a slight declivity and some exposed aggregate [which is] . . . not at all uncommon in highways" of the type that this court has previously found to be insufficient to constitute a dangerous condition within the meaning of the Tort Claims Act. See Polyard v. Terry, 160 N.J. Super. 497, 509 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979).
Second, Judge Kassel concluded that summary judgment was appropriate because plaintiffs could not carry their burden of demonstrating that the municipality had actual or constructive notice of the condition of the roadway. N.J.S.A. 59:4-3; see, e.g., Norris v. Borough of Leonia, 160 N.J. 427, 447-48 (1999); Maslo v. City of Jersey City, 346 N.J. Super. 346, 348-49 (App. Div. 2002). In the absence of evidence that the municipality had actual notice of the condition, or that it had existed for such a long period of time and under circumstances that would rise to the level of constructive notice, see, e.g., Chatman v. Hall, 128 N.J. 394, 418 (1992); Carroll v. New Jersey Transit, 366 N.J. Super. 380, 388 (App. Div. 2004), summary judgment is appropriate. In light of the fact that plaintiffs have not offered any evidence to the effect that the municipality had any notice of the pothole, and in light of the fact that they are without any information tending to demonstrate that the condition had persisted for so long or was otherwise known to the municipality so as to fall within the constructive notice doctrine, the judge concluded that there could be no relief under the Tort Claims Act.
Finally, Judge Kassel found that summary judgment was appropriate because plaintiffs had offered no evidence that would establish that the municipality's failure to act so as to find and fix the pothole was palpably unreasonable. N.J.S.A. 59:4-2; see Muhammad v. New Jersey Transit, 176 N.J. 185, 194-96 (2003).
We note that on appeal from an order granting summary judgment, we apply the same standard that governs the analysis by the motion judge. See Prudential Property & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998); Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). We therefore must first determine whether, giving plaintiffs the benefit of all reasonable inferences, defendant demonstrated that there are no genuine issues of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We then analyze whether the motion judge's application of the law was correct. See Prudential Property & Cas. Ins. Co. v. Boylan, supra, 307 N.J. Super. at 167.
On appeal, plaintiffs reiterate the arguments that they offered in opposition to the motion in the Law Division. In particular, they assert that the motion judge erred in failing to recognize that the pothole itself was more extensive than the one the court considered in Polyard, see Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div. 2003), and in failing to appreciate that the large number of potholes on city streets in and of itself supports a finding of constructive notice.
We have considered these arguments in light of the record and the applicable legal precedents and have concluded that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We therefore affirm for substantially the reasons expressed by Judge Kassel on the record on December 17, 2004.

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Affirmed.

A-