LISA BARTON v. BURLINGTON COUNTY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3805-04T53805-04T5

LISA BARTON,

Plaintiff-Appellant,

v.

BURLINGTON COUNTY, MOUNT HOLLY

TOWNSHIP, a/k/a TOWNSHIP OF MOUNT

HOLLY, a/k/a TOWN OF MOUNT HOLLY,

STATE OF NEW JERSEY, RICHARD A.

ALAIMO ASSOCIATES AND LOFTUS

CONSTRUCTION, INC.,

Defendants-Respondents.

_____________________________________________________________

 

Argued: September 20, 2006- Decided October 30, 2006

Before Judges Cuff, Winkelstein and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1932-02.

Michael A. Galpern argued the cause for appellant (Locks Law Firm, attorneys; Christine Klimczuk, on the brief).

Kara A. Pullman argued the cause for respondent Mount Holly Township, a/k/a Township of Mount Holly, a/k/a Town of Mount Holly (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Pullman and Paul C. Johnson, on the brief).

PER CURIAM

Plaintiff, Lisa Barton, appeals from the grant of summary judgment dismissing her complaint against defendant, Mount Holly Township (Mt. Holly). After thoroughly reviewing the motion record, and for the reasons set forth below, we now reverse and reinstate plaintiff's complaint.

In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div. 2006). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. We decide first whether there was a genuine issue of material fact. Atlantic Mutual Ins. Co., supra. If there was not, we then decide whether the lower court's application of the law was correct. Id. at 231. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

[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.

We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.

On August 24, 2000, plaintiff attended a seminar at the Burlington County Courthouse in Mt. Holly. As she walked back to her car from the courthouse, she crossed a pedestrian bridge that led to the parking lot. She stepped down from the surface of the bridge onto the adjoining sidewalk, fell and sustained injuries. The height of the step ranged from nine to ten and one-half inches. There were no signs warning of the step nor handrails present, and the actual sidewalk below sloped away at an angle from the bridge.

The bridge was constructed in 1966 along with two other bridges that led to other parking areas around the courthouse. It is owned and maintained by Mt. Holly. In August 1995, Mt. Holly hired Richard A. Alaimo Associates (Alaimo), an engineering firm, to evaluate the structural conditions of the three bridges. Alaimo also served as the Mt. Holly's engineer, from 1993 to 2000. Alaimo prepared a report that recommended Mt. Holly implement a cycle of complete inspections of the bridges; it also recommended the repair of some concrete damage, including the general area of the step, resulting from wear, tear and aging of the bridge and sidewalk surfaces. In January 1996, Alaimo prepared the "Specifications, Proposal and Contract Documents for Maintenance, Painting and Concrete Repair of Three Bridges, Contract No. 1196-5A." Loftus Construction, Inc. (Loftus) was awarded the contract to perform the repair work on the bridge and sidewalk in question.

Loftus was required to repair sliding plate joints at each end of each bridge, repair the deck, curb and sidewalk of each bridge, and repair cracks on the bridges' substructures as directed by Alaimo. The contract also incorporated appended plans prepared by Alaimo that included a "Step Repair Detail" plan that specified the height between the existing step and the existing sidewalk to be "six inches +/-."

Plaintiff's expert engineer opined that the step height of nine or more inches clearly violated various safety standards. He further opined that the contract plans indicated the existing six inch step height was to be preserved but it was not. He also indicated that despite the unsafe height of the step, various safety precautions could nonetheless have been installed at modest expense.

The motion judge granted Mt. Holly summary judgment relying upon various provisions of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. While accepting the condition to be dangerous, she concluded that Mt. Holly was entitled to the general immunity provided by the TCA because plaintiff failed to demonstrate defendant acted in a "palpably unreasonable manner." See N.J.S.A. 59:4-2. She also noted that there was little in the record to support the conclusion that Mt. Holly had actual or constructive notice of the condition. Ibid.; see also N.J.S.A. 59:4-3. Lastly, she concluded that Mt. Holly was entitled to the specific plan or design immunity accorded by N.J.S.A. 59:4-6. We conclude the motion judge erred with respect to each of these determinations.

N.J.S.A. 59:4-2 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 . . .; 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.

Actual and constructive notice are defined in N.J.S.A. 59:4-3.

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.

Although the motion judge did not explicitly find Mt. Holly lacked notice of the condition, we address the issue nonetheless. Plaintiff's proofs reasonably allowed for two alternative factual conclusions regarding the step height. Either the step height was nine to ten and one-half inches before the repair work commenced in 1996 and it remained unchanged after the work was completed; or, the step height prior to the repair work was an "existing" six inches as reflected on the Step Repair Detail plan and was increased after the work was completed. Either conclusion, in our opinion, presents a jury question on the issue of actual or constructive notice.

If the height of the step was always nine to ten and one-half inches, then the condition was actually known or should have been known at the time the repair plans were prepared and the work commenced. Mt. Holly owned the bridge and had the obligation to maintain it. It authorized the safety study that led to the repair plan. It is certainly inferable that it, or its representatives, had actual knowledge of the height of the step. Alternatively, "in the exercise of due care, [the step height] should have [been] discovered" by Mt. Holly or its representatives at the time of its approval of the work performed by Loftus. N.J.S.A. 59:4-3b.

Conversely, if the repair work performed by Loftus actually increased the height of the step, actual or constructive notice could be inferred based upon Alaimo's obligation as Mt. Holly's engineer to inspect and approve the work actually done, and Loftus's testimony that any increase in the height would have been brought to Alaimo's knowledge "directly or indirectly." In either case, the proofs, in the light most favorable to the plaintiff, present a jury question on the issue.

Our Supreme Court has defined palpably unreasonable conduct as "behavior that is patently unacceptable under any given circumstance . . . [F]or a public entity to have acted or failed to act in a manner that is palpably unreasonable, 'it must be manifest and obvious that no prudent person would approve of its course of action or inaction.'" Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (quoting Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497 (App.Div. 1978), aff'd o.b., 79 N.J. 547 (1979)). While plaintiff must demonstrate the public entity's conduct was palpably unreasonable to support a prima facie cause of action, the resolution of the issue is usually a fact question to be resolved by the jury. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001).

We conclude that a fact question was sufficiently presented and summary judgment was not appropriate. The favorable evidence would allow the reasonable conclusion that defendant failed to address the dangerous condition of the height of the step at any time between 1996, when the repairs were performed, and 2000 when plaintiff fell. This condition was obvious and static, not changing because of variations in weather or the passage of time. Plaintiff's expert opined that the condition could have been made safer with modest, inexpensive modifications. We have recognized that the failure to address a dangerous condition on public property through the use of such modest and inexpensive remedial efforts can be evidence of the public entity's palpably unreasonable conduct. See Roe v. N.J. Transit Rail Operations, 317 N.J. Super. 72, 82 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999). The evidence presented a jury question as to whether Mt. Holly's action or inaction was palpably unreasonable.

Lastly, the motion judge's grant of summary judgment based upon the affirmative defense provided by the "plan or design" immunity provisions of the TCA was erroneous. That section provides,

Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.

[N.J.S.A. 59:4-6.]

"Application of plan-or-design immunity turns on whether the public entity has approved the feature in question so as to immunize it from challenge." Manna v. State, 129 N.J. 341, 353 (1992). "In other words, 'the public entity must establish that an approved feature of the plan sufficiently addressed the condition that is causally related to the accident.'" Ibid. (quoting Thompson v. Newark Housing Auth., 108 N.J. 525, 536 (1987)); accord Birchwood Lakes Colony Club v. Medford Lakes, 90 N.J. 582, 599, (1982); Costa v. Josey, 83 N.J. 49, 52 (1980); Ellison v. Housing Auth. of S. Amboy, 162 N.J.Super. 347, 351 (App. Div. 1978). Plan or design immunity is an affirmative defense that must be pled and proven by the public entity. Russo Farms v. Vineland Bd. of Educ., 144 N.J. 84, 111 (1996).

Applying these standards to the facts at hand, summary judgment was not appropriate. Initially, we note Mt. Holly produced no plans whatsoever regarding the original construction of the bridge in 1966. Therefore, to the extent it contends that the nine to ten and one-half inch step height was in conformance with the original design for the bridge, and thus, within the scope of the immunity, there is no evidence whatsoever to support that conclusion. Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 109 (App. Div.), certif. denied, 156 N.J. 407 (1998).

The only design plans introduced were those for the 1996 concrete repairs. The parties disputed the significance of the step height notation on the "Step Repair Detail Plan." Loftus and Alaimo both testified in depositions that the plan's notation was not a direction to the contractor to assure that the height of the step was six inches after repairs were completed. They contended that the plan's reference was not necessarily an accurate measure of the actual step height, though neither could say what the existing height was. Loftus contended that he did the repairs in conformance with the plans. He further testified that if an increase in the step height occurred, Alaimo would have known "directly or indirectly."

Countering this testimony, plaintiff's expert opined that a reasonable interpretation of the 1996 plans would allow for the conclusion that the step height was to remain as it existed, i.e., approximately six inches. Therefore, if the final repairs resulted in a step height fifty percent greater than the design, the work was not done in conformance with any approved plan or design. As such, a genuine factual dispute existed and Mt. Holly was not entitled to summary judgment because it failed to eliminate the reasonable conclusion that the improvements were not "prepared in conformity with standards previously so approved." N.J.S.A. 59:4-6; see also Luczak, supra, 311 N.J. Super. at 111.

The order granting summary judgment is reversed and the matter is remanded for further proceedings.

 

 

The State of New Jersey, by letter of April 21, 2005, indicated it would not participate in this appeal.

Alaimo settled with plaintiff prior to this appeal.

Loftus settled with plaintiff during the pendency of this appeal.

We note that if the condition was actually created through the repairs performed by Loftus, at Mt. Holly's behest, N.J.S.A. 59:4-2a might be implicated. In that case, actual or constructive notice need not be proven. See Atalese v. Long Beach Twp., 365 N.J. Super. 1 (App. Div. 2003).

(continued)

(continued)

11

A-3805-04T5

October 30, 2006