KAREN PIREN v. CITY OF TRENTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0704-07T20704-07T2

KAREN PIREN,

Plaintiff-Appellant,

v.

CITY OF TRENTON,

Defendant-Respondent.

__________________________________________________________

 

Argued October 14, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-2634-05.

Jeffrey S. Intravatola argued the cause for appellant (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Intravatola, of counsel and on the brief, Matthew G. Rosenfeld, on the brief).

Peter J. Cohen, Assistant City Attorney, argued the cause for respondent (R. Denise Lyles, Director of Law, City of Trenton, attorney; Mr. Cohen, of counsel and on the brief).

PER CURIAM

Plaintiff Karen Piren appeals from an order dated September 7, 2007, denying her motion for reconsideration of an order dated June 22, 2007, which granted summary judgment in favor of the City of Trenton. We affirm both orders.

On October 8, 2003, plaintiff suffered a slip and fall from stepping into a pothole or depression while crossing the street at the intersection of Willow and Hanover Streets. Both of plaintiff's elbows were fractured in the fall. As a result of the accident, plaintiff missed four weeks of work and an additional two weeks in only a limited capacity, as she could not drive.

Plaintiff was treated by Dr. Elliot Decker on October 13, 2003. Dr. Decker's notes indicated that plaintiff "may require physical therapy," she "may not regain full range of motion," and she "may have some permanent ongoing symptoms." A follow up evaluation one month later revealed that plaintiff had some residual stiffness, but there was no further displacement and there was some evidence of early healing.

On September 29, 2005, just short of two years after the fall, plaintiff filed a complaint naming as defendants the City of Trenton, John Does 1-10, and ABC Corporations 1-10 in Mercer County Superior Court, Law Division. She sought compensatory damages for the injuries resulting from her October 2003 fall. At the request of plaintiff's attorneys, she was examined on December 15, 2005, by Dr. Jon W. Ark of Princeton Orthopedic Associates. In his report, Dr. Ark recorded that plaintiff's left elbow "is slightly limited compared to the right in that she has hyperextension of her right arm at fifteen degrees and on the left at only five degrees. She has otherwise full pronation and supination." Plaintiff reported she had very slight discomfort about the radial head.

On November 2, 2006, plaintiff was examined at the request of the City of Trenton. The examining physician, Dr. Barry J. Snyder, reported that plaintiff felt like she had recovered "almost full mobility of both elbows." Dr. Snyder observed that "[w]ith only a five-degree difference of extension and flexion of her elbows, both fall within the normal range of motion defined by the American Medical Association." Further, Dr. Snyder noted that "[s]ubjective complaints of discomfort are reasonable for such injuries, but there are no objective findings of permanent physical impairment resulting from the injury." Dr. Snyder concluded that plaintiff "has reached maximum medical improvement and does not require continued treatment or restricted activities."

On May 25, 2007, the City of Trenton filed a motion for summary judgment. Following oral argument on June 22, 2007, Judge Paul T. Koenig, Jr. granted that motion for summary judgment. Plaintiff's subsequent motion for reconsideration was denied on September 7, 2007. It is from that order that plaintiff appeals.

On appeal, plaintiff makes the following arguments:

POINT I: THE TRIAL COURT COMMITTED AN ERROR IN GRANTING DEFENDANT SUMMARY JUDGMENT AND DENYING THE MOTION FOR RECONSIDERATION BECAUSE THE PLAINTIFF HAS ASSERTED A VIABLE CAUSE OF ACTION PURSUANT TO THE "DANGEROUS CONDITION" PROVISION OF THE NEW JERSEY TORT CLAIMS ACT, N.J.S.A. 59:4-2.

POINT II: THE TRIAL COURT ERRED IN FINDING THAT THE CITY OF TRENTON'S RIGHT TO DETERMINE THE ALLOCATION OF RESOURCES UNDER N.J.S.A 59:2-3 PROHIBITED A FINDING OF PALPABLE UNREASONABLENESS, AS THE DEFENSE FAILED TO ASSERT THE SAME AND MEET ITS BURDEN OF PROOF NECESSARY TO SUCH A FINDING.

We have carefully considered those arguments and conclude they lack sufficient merit to warrant a reversal.

"Reconsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). "Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either (1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. This is not such a case. The standard for summary judgment is also well established. Judgment must 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 of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In reviewing the record, all inferences are drawn in favor of the opponent to the motion. The court must determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

An appellate panel applies the same standard as the trial court in reviewing the grant of a motion for summary judgment. The appellate court first decides whether there is a genuine issue of material fact, if there were none, the court will decide whether the lower court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Here, plaintiff contended to the trial court that she was injured as a result of a dangerous condition on public property. In order to establish liability under the New Jersey Tort Claims Act (the Tort Claims Act or the Act), N.J.S.A. 59:1-1 to 12-3, for conditions upon public entity property, the plaintiff must demonstrate the following criteria:

(1) that the property was in a dangerous condition at the time of the injury,

(2) that the injury was proximately caused by the dangerous condition,

(3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred,

(4) 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, and

(5) the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

[N.J.S.A. 59:4-2 (emphasis added).]

The preceding criteria in this statutory cause of action was not "enacted for the purpose of creating liability." Fleuhr v. City of Cape May, 159 N.J. 532, 539 (1999) (citing Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 110 (1996)). Rather, it was "enacted for the purpose of reestablishing the general rule immunizing public entities from liability for injuries to others." Ibid. (citing Brooks v. Odom, 150 N.J. 395, 402 (1997)); see also New Jersey Statutes Annotated, comment on N.J.S.A. 59:4-2 (2006) (appreciating the complexity of municipal maintenance).

Here, plaintiff contends that she has established a basis for liability because the condition of the property was unsafe, and the risk of injury was foreseeable since the City had listed the street in question as one needing repair. Plaintiff further posits that it was error for the motion judge to make a factual determination as to the non-existence of a "dangerous condition" as a matter of law. However, we agree with Judge Koenig's determination that plaintiff failed to meet the threshold burden of proof that a "dangerous condition" existed at the time of the incident.

The Tort Claims Act 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." N.J.S.A. 59:4-1(a). Our Supreme Court has instructed that the motion judge is required to make a "preliminary determination as to whether the alleged condition is in fact a dangerous one within the meaning of the statute. Otherwise the legislatively-decreed restrictive approach to liability would be illusory." Polyard v. Terry, 160 N.J. Super. 497, 508 (App. Div. 1978) (overruled on other grounds by Lee's Hawaiian Islanders, Inc. v. Safety First Products, Inc., 195 N.J. Super. 493 (App. Div. 1984)). Thus, not every defect in a public roadway, even where caused by negligent maintenance, will be found actionable. Speziale v. Newark Housing Authority, 193 N.J. Super. 413, 416 (App. Div. 1984) (quoting Polyard, supra, 160 N.J. Super. at 508).

This court recognizes that even when the trial judge makes this determination, giving all of the plaintiff's evidence favorable inferences, that it still must consider "the declared legislative policy which shapes the application and interpretation of the Tort Claims Act." Id. at 417 (quoting Polyard, supra, 160 N.J. Super. at 506); see also Bombace v. Newark, 125 N.J. 361, 372 (1991) (in construing the Act, the court respects legislative policy which establishes immunity as the general rule).

In the present case, Judge Koenig viewed the evidence as a whole and found that a reasonable factfinder could not have concluded that plaintiff demonstrated the property was in a dangerous condition. Vincitore v. New Jersey Sports and Exposition Authority, 169 N.J. 119 (2001). His determination gave considerable, but not dispositive, weight to the fact that plaintiff was not in a crosswalk. He explained:

The photograph from plaintiff's deposition that there was an oval shaped, elongated depression in the street, in an area not designed or designated as a crosswalk, is problematic for the plaintiff. While there may be foot traffic, jaywalkers and so forth, the street is not a sidewalk, or a walking path and accordingly, the Court here finds the declivity was not a dangerous condition for the manner in which the street is typically used. Despite the fact -- jumping ahead. Despite the fact that the street needed to be repaved, it's not being repaved so that it's a running track or a walking track for pedestrians. It's being repaved for automobiles. This is a street.

Judge Koenig found (1) plaintiff was not in a crosswalk when she was injured; (2) the pothole was not a dangerous condition for the purposes a street is typically used; and (3) while it is foreseeable that pedestrians would cross at a crosswalk, it is "less foreseeable that they cross where they wish, and where the plaintiff fell." The motion judge further found it was of no moment that this street was on the list of streets to be repaved since the pothole did not create a dangerous condition for the manner in which a roadway is typically used. Thus, even if the declivity was within the crosswalk, the court is still charged with making a "preliminary determination as to the existence of a dangerous condition." Speziale, supra, 193 N.J. Super. at 417.

In Atalese v. Long Beach Twp., 365 N.J. Super. 1, 8 (App. Div. 2003), we reversed an order granting a summary judgment motion because we found that reasonable minds could differ as to whether a three-quarter inch discrepancy on a paved area, designated for pedestrian and bicycle traffic, constituted a "dangerous condition." That case can be distinguished from the one under review because the paved area there created a substantial and foreseeable risk of injury to those using the area in a manner consistent with its intended purpose.

Plaintiff argues that her fall was foreseeable due to the streets close proximity to businesses and permitted street parking. In Hawes v. New Jersey Dep't of Transp., 232 N.J. Super. 160, 164 (Law Div.), aff'd, 232 N.J. Super. 159 (App. Div. 1988), we affirmed the grant of a summary judgment motion by holding a pedestrian responsible for a minimum of due care. There, the decedent was struck and killed by a train and his estate claimed that unprotected railroad tracks constituted a dangerous condition because the State knew people regularly crossed those tracks. Id. at 164.

The trial court found:

common sense dictates that a person using due care would make certain no trains were approaching before walking across a railroad track. Exercising even a minimum of care, a person should be able to eliminate any chance of being hit by a train. Accordingly, [the railroad's] property did not constitute a dangerous condition.

[Ibid.]

In Hawes, the court focused on the due care exercised by the individual at the time of being on the public property. The reasonable user requirement contained in N.J.S.A. 59:4-1(a) "presupposes some uniform standard of behavior with regard to persons utilizing public property." Lopez v. N.J. Transit, 295 N.J. Super. 196, 203 (App. Div. 1996). A dangerous condition will be found only where the property poses a substantial risk of injury when it is used in a reasonably prudent manner in a foreseeable way. Id. at 202.

Here, plaintiff admitted that she knew the "streets are in disrepair in that area," and that the streets "are lousy over there." One who exercises "due care" would pay attention to where they are walking across a street that they know is in "disrepair" and "lousy."

Plaintiff claims that upon her motion for reconsideration the judge should have considered the additional photographs of the street she proffered as evidence of its disrepair. We disagree. Judge Koenig properly found that plaintiff's photographs, taken three and four years after the accident, failed to demonstrate sufficiently the condition of the property at the time of the incident. The motion judge recognized that the surface condition of streets may change from year to year, and as a result, the additional photographs did not make plaintiff's case any more, or less, compelling.

Plaintiff contends that she has met the "onerous burden" by showing that the City knew the street was in need of repair and its failure to fix the pothole/declivity was "palpably unreasonable." However, reviewing the facts in the light most favorable to plaintiff, we are confident that reasonable minds cannot conclude that the City of Trenton was "palpably unreasonable" in not repaving a street immediately upon learning of the defect.

The term "palpably unreasonable" within the meaning of N.J.S.A. 59:4-2(b) is distinguished from ordinary negligence:

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.

[Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003) (quoting Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979)).]

It is a term which implies "behavior that is patently unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). One reviewing panel characterized the standard as an act or omission so "manifest and obvious that no prudent person would approve of its course of action or inaction." Furey v. County of Ocean, 273 N.J. Super. 300, 313 (App. Div. 1994). We find no acts or omissions by the City that rise to the level of "palpably unreasonable" within the meaning of the statute. We further recognize that the City of Trenton has the right and a duty to allocate its resources in a manner it deems prudent.

N.J.S.A. 59:2-3 provides:

a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;

b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in

carrying out their ministerial functions.

[N.J.S.A. 59:2-3(a)-(d).]

Pursuant to this resource allocation immunity, Judge Koenig determined sua sponte that "[t]he City has the authority and absolute responsibility to determine the scheduling of maintenance work, repaving streets," and "is entitled to determine which project gets done first" in light of its limited resources.

Plaintiff argues that under applicable case law, when the City asserts a defense of discretionary activities under N.J.S.A. 59:2-3 that it must "demonstrate that the items given a higher priority were more critical." Brown v. Brown, 86 N.J. 565, 578 (1981). Plaintiff also argues that the City must prove that competing demands not only existed but that they were the proximate cause of the condition. Lopez v. City of Elizabeth, 245 N.J. Super. 153, 156 (App. Div. 1991).

 
Nonetheless, as a threshold issue plaintiff cannot establish that a dangerous condition existed on the street. We find summary judgment was proper and, therefore, decline to address the allocation of resources immunity as that affirmative defense was not at issue during the motion for summary judgment. Affirmed.

(continued)

(continued)

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