PHYLLIS MOORE et al. v. COUNTY OF UNION

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3419-04T5

PHYLLIS MOORE and
HARRY MOORE, her
husband,

Plaintiffs-Appellants/
Cross-Respondents,

v.

COUNTY OF UNION,

Defendant-Respondent/
Cross-Appellant,

and

GREGORY R. KNISS,
KOTULA ELLEN M. KNISS, and
TOWNSHIP OF CLARK,

Defendants.
________________________________________________________________

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May 26, 2006

Argued April 26, 2006 Decided

Before Judges Wefing and Graves.

On appeal from Superior Court of New Jersey,
Law Division, Union County, L-5465-02.

Paul F. Fenmore argued the cause for appellants/
cross-respondents.

William T. Donegan, Deputy County Counsel,
argued the cause for respondent/cross-
appellant (Robert E. Barry, Union County
Counsel, attorney; Mr. Merman, on the brief).

PER CURIAM
In this appeal, we consider plaintiff's See footnote 1 claim against the County of Union under the Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3. See footnote 2 Plaintiff appeals from an order granting summary judgment to the County, and the County cross-appeals the denial of its motion to dismiss the complaint for failure to comply with the notice of claim and complaint filing provisions of N.J.S.A. 59:8-8. After considering the evidentiary materials in the light most favorable to plaintiff, we are satisfied that a rational fact finder could not conclude that the County's actions or inactions were palpably unreasonable. We therefore affirm the order granting summary judgment to the County. Because summary judgment was properly entered in favor of the County, we need not address the merits of the County's cross-appeal.
On the morning of August 18, 2002, plaintiff Phyllis Moore was "power walking" on a sidewalk, which runs parallel to Madison Hill Road in Clark. Plaintiff, who was sixty years old at the time, fell after she stepped off the sidewalk into a depression in the grassy strip located between the sidewalk and the roadway in front of property known as 280 Madison Hill Road, where defendants Gregory and Kotula Ellen Kniss reside. The portion of the sidewalk next to the grassy strip where plaintiff fell has been described as missing a "half moon" section, which was apparently omitted to accommodate a tree. At some point, however, the tree was removed. Plaintiff does not claim that she fell due to any defect in the sidewalk itself.
At her deposition, plaintiff testified that she had walked on the sidewalk next to where she fell about once or twice a week, prior to the accident. Plaintiff stepped into the depression next to the sidewalk with her left foot and then fell forward and landed on her face and right hand. An x-ray revealed a fractured left ankle. Plaintiff testified that the fall caused her to experience pain in her left knee, and she also aggravated a previous back injury.
Two or three days after the accident, plaintiff's son placed a bottle into the area where plaintiff fell, and he took a photograph in an apparent effort to show the approximate depth of the depression. The depth of the depression, however, was never measured at or near the time of plaintiff's fall and it is unclear from the record exactly how deep the depression was when plaintiff fell. Plaintiff's expert, Richard Pender, states that, as of November 21, 2002 (over three months after plaintiff fell), the depression that plaintiff fell into was "an average of 3 inches below grade."
The Knisses moved into their home at 280 Madison Hill Road in May 1997. Since then, the Knisses have mowed the grassy strip between the sidewalk and road and raked leaves that have fallen onto it. Both Mr. and Mrs. Kniss each testified that they never noticed any depression or hole near the portion of the grassy strip where plaintiff fell. In addition, Mr. Kniss does not know of anyone falling because of the depression.
Plaintiff's expert, Richard Pender, opined in his report that whoever removed the dead tree in front of the Knisses' home created "a tripping hazard," and should have replaced the "cutout section" of the sidewalk with a full-size section. Pender concluded as follows:
At some point in time, the tree . . . located within the sidewalk cutout was removed.

When the tree was removed, that portion of the sidewalk was not restored to the grade of the remainder of the [sidewalk]. The apex of the cutout section . . . extends into one[-]third . . . of the sidewalk slab. The alteration, by way of tree removal, created a tripping hazard because the grade was not restored.

The grass which now fills the cutout section . . . creates the illusion that grade level support exists where it really does not.

. . . .

In this case, Mrs. Moore actually stepped into a space where there wasn't any support at the height her body anticipated it would be and as a consequence her stride was broken and a fall resulted.

. . . [T]he sidewalk should have been repaired as a part of the tree removal job. It is standard practice in the industry that the sidewalk be repaired or restored to the proper elevation once a tree, stump, and roots are removed in proximity to the sidewalk.

. . . The removal of the tree altered the sidewalk from its original condition and created a tripping hazard.

In a subsequent report addendum dated May 19, 2004, after Union County Shade Tree Bureau Superintendent Richard Nigro was deposed, Pender noted that it was not Bureau policy to compact the wood chips used to fill a hole left by a ground tree stump. Pender concluded that the wood chips "will rot and decompose leaving a sunken area as is the case in the cause of this accident." Pender, however, did not provide an opinion as to whether the Bureau policy was palpably unreasonable.
Superintendent Nigro also serves as the Custodian of Records for the Bureau. Nigro testified that the Bureau is responsible for tree removal along county roads, although sometimes a homeowner will remove a tree. According to Nigro, the Bureau purged all of its paper records produced before 1995, and none of the Bureau's available records show that the County removed a tree located in front of the Knisses' home. Nigro also does not have any personal knowledge of any work performed on a tree at that location.
Nigro explained that the Bureau's dead tree removal policy is to grind the stump down to eight to ten inches below grade and then fill the resulting hole with "[t]he chipped grindings and the dirt that's thrown up from when you grind it." It is not Bureau policy to subsequently inspect the hole to see if the wood chips have settled, and the County does not maintain the grassy areas between sidewalks and curbs that are parallel to a county road. According to Nigro, there is no record that the County was ever notified of a depression next to the sidewalk where plaintiff fell.
At a hearing held on September 24, 2004, the trial judge entered summary judgment in favor of the County, reasoning as follows:
[I]n order for the county to be liable for plaintiff's injuries, the plaintiff must show that the county either created a dangerous condition or had actual or constructive notice that such a condition existed under N.J.S.A. 59:4-2.

. . . .

For all we know, the homeowners could have dug the hole to put something, you know, a Christmas deco[ration] I don't know. I mean, people create holes all the time.

. . . .

Even though the plaintiff . . . argues that there would have been constructive notice, the record is devoid of any proof that would reflect what type of tree was removed, how big the tree was, how long this hole may have been in existence, and whether therefore, that simply based on the fact that wood chips may have been placed in there, that this was a situation where the county was clearly aware of these particular problems, and in this particular instance knew that this depression was here and was given the opportunity to remedy the situation.

Consequently, the court finds that based on the issue of lack of notice . . . the court will grant Union County's motion for summary judgment.

Our task is to determine whether there is a genuine issue of material fact that bars summary judgment. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Appellate review of a summary judgment order is "akin to that of the trial court, that is, we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to [plaintiff]." Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005) (internal quotation marks omitted). Summary judgment is appropriate if "the evidence is so one-sided that one party must prevail as a matter of law . . . ." Brill, supra, 142 N.J. at 540 (internal quotation marks omitted).
The polestar of the Tort Claims Act is that public entity immunity is the general rule and liability is the exception. Coyne, supra, 182 N.J. at 488; Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998). In light of that guiding principle, courts construe the Act to permit a finding of liability against a public entity only where specifically permitted by the Act. Frugis v. Bracigliano, 177 N.J. 250, 275 (2003). To withstand a motion for summary judgment, a plaintiff asserting liability under N.J.S.A. 59:4-2 must demonstrate that a reasonable jury could find the following five elements: (1) a dangerous condition existed at the time of plaintiff's injury; (2) plaintiff's injuries were proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kinds of injuries that plaintiff sustained; (4) the public entity created the dangerous condition or had notice of it a sufficient time prior to plaintiff's injury to have taken measures to protect against it; and (5) the public entity's failure to take action to protect against the dangerous condition was palpably unreasonable. Saldana v. Dimedio, 275 N.J. Super. 488, 502-04 (App. Div. 1994).
A judge considering a motion for summary judgment as to a claim under the Act should take into account "the declared legislative policy which shaped the application and interpretation of the Act and the Commission's Comment to N.J.S.A 59:4-2 that recognize[d] the difficulties inherent in a public entity's responsibility for maintaining its vast amounts of public property." Maslo v. City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002) (internal quotation marks omitted) (alteration in original); see also Norris v. Borough of Leonia, 160 N.J. 427, 452 (1999) (O'Hern, J., concurring) ("The majority of municipalities have within their bounds miles of sidewalks, and it would be inconsistent with the Act to hold a municipality liable for injuries that result from the natural deterioration of those sidewalks." (internal quotation marks omitted)).
Although the Act does not define the phrase "palpably unreasonable," it "means more than ordinary negligence, and imposes a steep burden on a plaintiff." Coyne, supra, 182 N.J. at 493; see also Gaskill v. Active Envtl. Techs., Inc., 360 N.J. Super. 530, 536-37 (App. Div. 2003) ("Palpable unreasonableness connotes a more obvious and manifest breach of duty than mere negligence . . . ." (internal quotation marks omitted)). In discussing the phrase palpably unreasonable, the Court has stated that it "implies behavior that is patently unacceptable under any given circumstance. . . . [I]t must be manifest and obvious that no prudent person would approve of [the public entity's] course of action or inaction." Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003) (internal quotation marks omitted); see also Williams v. Town of Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979) ("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.").
The plaintiff bears the burden of proving that the public entity acted in a palpably unreasonable manner. Muhammad, supra, 176 N.J. at 195. Whether the conduct of a public entity was palpably unreasonable is ordinarily for the jury to decide. Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 451 (App. Div. 1993). The determination of palpable unreasonableness "presents a jury question in the sense that it is no longer specifically assigned to the judge." Id. at 452. "However, the finding, 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." Ibid.; see also Maslo, supra, 346 N.J. Super. at 350. ("[T]he question of palpable unreasonableness may be decided by the court as a matter of law in appropriate cases.").
In Gaskill v. Active Environmental Technologies, Inc., supra, the Township of Mount Holly had planted trees in the outer edges of a sidewalk and installed grates around the trees. 360 N.J. Super. at 533. Over a period of nine years, the roots of one tree "had grown up and pushed the grate, causing the bolt to give out and raise the grate" one inch above the level of the abutting sidewalk. Ibid. Plaintiff fractured her elbow when she tripped and fell over the raised grate while walking on the sidewalk. Ibid. The court affirmed summary judgment in favor of Mount Holly, concluding that the plaintiff had failed to establish a prima facie case that Mount Holly's failure "to rectify the allegedly dangerous condition prior to the incident was palpably unreasonable." Id. at 537.
We recognize, of course, that plaintiff is entitled to the benefit of all favorable interests, and there is some evidence that the County may have created the depression where plaintiff fell by removing a tree, grinding the stump down to below grade, and filling the hole with wood chips. As noted by plaintiff's expert, the depression may have resulted from the natural decomposition of the wood chips. Nevertheless, we conclude that plaintiff has failed to establish a prima facie case that the Bureau tree removal policy is "patently unacceptable under any given circumstance." Muhammad, supra, 176 N.J. at 195. And a reasonable jury could not conclude that the Bureau's failure to inspect the grassy area between the sidewalk and the street was palpably unreasonable. See Norris v. Borough of Leonia, 160 N.J. 427, 452 (1999) (O'Hern, J., concurring); Sims v. City of Newark, 244 N.J. Super. 32, 42-43 (Law Div. 1990).
Although we affirm for different reasons than those expressed by the trial court, that fact does not impact our decision. Isko v. Plan. Bd. of Livingston, 51 N.J. 162, 175 (1968) ("It is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance."), abrogated on other grounds, Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546, 565 (1991).
Affirmed.

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Footnote: 1 As Harry Moore's claims are derivative, we refer to Phyllis Moore as plaintiff.
 
Footnote: 2 Plaintiff has "amicably resolved" her claims against the Knisses.


A-3419-04T5