STATE OF NEW JERSEY v. BERNADETTE THEIME

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0310-07T20310-07T2

CARL SPINCOLA,

Plaintiff-Appellant,

v.

CITY OF UNION CITY and/or

UNION CITY HOUSING AUTHORITY,

Defendants-Respondents.

______________________________________

 

Argued December 2, 2008 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

L-0329-06.

Sanford Young argued the cause for appellant

(Franzblau Dratch, attorneys; Mr. Young, on

the brief).

Lawrence D. Minasian argued the cause for

respondents (Greenberg Minasian, attorneys;

Mr. Minasian, on the brief).

PER CURIAM

Plaintiff Carl Spincola appeals from the order of the Law Division granting defendant the Union City Housing Authority's (Housing Authority) motion for summary judgment. This is a slip and fall case in which plaintiff alleges that he was seriously injured as a result of the deteriorated conditions of the internal stairs in a residential property managed by defendant.

In ruling in defendant's favor, the motion judge concluded that the Housing Authority was entitled to the immunity provided by the Tort Claims Act (TCA) under the allocation of resources defense, N.J.S.A. 59:2-3d. The court further found that plaintiff failed to prove that defendant acted palpably unreasonably in failing to repair the stairs. N.J.S.A. 59:4-2b.

After reviewing the record and considering prevailing legal standards, we reverse. These are the relevant facts.

I

On March 14th, 2005, plaintiff went to visit his cousin who lived in a public housing building located at 307 Bergenline Avenue, in Union City. Plaintiff was accompanied by his mother. According to plaintiff, as he walked down the lower interior stairway ahead of his mother, the heel of his shoe caught the third or fourth step. This caused him to fall head-first down the remaining steps.

Union City Police Officer A. Vega responded to the 911 call reporting the accident. In his report, Officer Vega noted "the stairs to be in poor condition and in need of repair." Emergent medical personnel transported plaintiff to St. Mary's Hospital in Hoboken. Plaintiff was admitted to St. Mary's Hospital on an overnight basis; he was treated for head contusions and diagnosed with a fracture of his right wrist. He underwent surgery of the wrist on March 22, 2005. His recovery included out-patient physical therapy.

According to plaintiff, his injuries prevented him from returning to work as a security guard for approximately thirty-one weeks, causing a loss of income of $12,400. He further claims that his injuries will limit his future ability to secure and maintain employment. Documentation provided in discovery shows that his medical treatment cost approximately $53,000.

Plaintiff retained Wayne Nolte, Ph.D., P.E., as his expert on liability. In a report dated July 12, 2005, Nolte describes the stairs as follows:

The interior stairway at 307 Bergenline Avenue extends from the ground floor entrance to the first floor level. This stairway contains six (6) tread surfaces and seven (7) risers.

The entranceway contains a small vestibule that is eighty-one inches (81") wide and forty-one inches (41") deep. This vestibule leads to the set of steps extending up to the first floor. This stairway is forty-one inches (41") wide. The risers on this stairway vary from seven inches (7") to seven and one-half inches (7-1/2") high, the lower step being the smallest. The others are seven and three-eights inches (7-3/8") to seven and one-half inches (7-1/2").

The tread surfaces on this stairway are approximately eleven inches (11") deep. Each tread surface is fronted by a metal edge guard that is three inches (3") wide. The metal edge guards are worn to a smooth, rounded condition.

The tread surfaces of the step are concrete. The concrete was painted at one time, but due to traffic on the stairway, the paint has worn off. In addition, the surface of the concrete has separated from the step, leaving holes in the tread surface.

Based on his inspection of the site, Nolte offered the following opinions:

1. The subject stairway was in a hazardous and dangerous condition [at the time of the accident].

2. The hazardous and dangerous condition consists of the missing concrete on the treated surfaces and the worn, rounded metal edge guards.

. . . .

7. The accident experienced by [plaintiff] is the type of accident to be expected from the hazardous and dangerous conditions on this stairway.

8. [Plaintiff] was caused to fall as a result of the hazardous and dangerous conditions on this stairway.

According to deputy director Waldo Morin, the Housing Authority manages the property located at 307 Bergenline Avenue, on behalf of its owner, the United States Department of Housing and Urban Development (HUD). The property is a twelve-unit residential brick structure, approximately fifty years old, consisting of three walk-up floors.

There were two official inspections of the property in the year before plaintiff's accident. One inspection conducted by HUD on August 4, 2004, and one conducted by the Housing Authority inspector on December 7, 2004. Morin also testified that he conducted unofficial inspections about once a month. Any violations discovered upon inspection are specified in inspection reports; none of the reports produced in discovery mention the conditions of the stairs as an issue. A HUD inspection conducted ten months after the accident found that the stairs were "Broken/Damaged/Missing Steps" and had "at least 6 damaged bull nose edge of steps."

HUD provides annual appropriations to the Housing Authority for maintenance and administration. The funds for maintenance are intended to cover the cost for basic upkeep, such as painting the railings or removing graffiti. Larger repair projects are funded through the annual modernization budget. These larger projects include replacing the metal treads and resurfacing the cement on the steps. The modernization budget is based on a five-year plan, which the Housing Authority updates and submits to HUD on an annual basis. Submission of the five-year plan is a condition for HUD funding.

The record shows, however, that the plan the Housing Authority submitted bears little resemblance to how funds are actually spent. According to Morin, the projected cost for any construction or repair item listed in the five-year plan is arbitrarily selected, un-tethered to the actual cost of the item listed. Thus, when Morin was asked how he determined the projected cost for an upgrade to the common area lobby, he responded: "[T]hat's a number we put there. . . . We have to put an amount from 1 cent to a million dollars."

Morin gave the following explanation with respect to how the cost for the building's heating system, specifically the boilers, were reflected in the five-year plan.

Q. So even if repairs [to the boilers] weren't necessary, you would still put them in the [five-year] plan, is that correct?

A. Even if there's no, not necessarily there. It has to be in the five-year plan. Everything - every component of repair of the housing authority is on the five-year plan. Everything. Everything from step to windows to roof to everything that we have in the authority. From the apartments inside out, every single line item is listed there. We don't know when we're going to need it, but it's listed there. You have to identify in that report. . . . Just an example, we just did boilers two years ago. . . . We just put in - this new year we added boilers. Did it new, but we had a boiler. Let's see. Eight months from now boiler breaks or something happens, it's there. It doesn't mean that we ask them because the boiler's going to fail or the boilers are broken. We just put them up, and as soon as we put them up, we include it in the five-year plan because we know that maybe five years from now it's a rolling plan. Every year you just keep adding.

II

The matter came before the trial court on defendant's motion for summary judgment. The principle argument advanced by defense counsel concerned N.J.S.A. 59:4-2, which provides that

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.

After considering the record recited here, the motion judge found that plaintiff had not proven defendant had actual notice, prior to the accident, that the stairs needed repairs. Specifically, the judge noted that

Factually in this case the Union City Housing Authority is funded by HUD, and HUD, according to the record, does conduct its independent inspections, and HUD inspected on August 22nd, 2004 and then again on January 6th, 2006. August 22nd, '04 inspection did not result in any direction to the Housing Authority that there was any problem with that stair, that anything needed to be done, or that repairs were necessary. And then December 7th, 2004, the Housing Authority itself did an inspection, and they did not find that that stair presented a hazard or needed to be repaired.

The motion judge then noted that before the accident the Housing Authority had determined to allocate resources, on a priority basis, for the replacement of the boilers. Coupled with the absence of evidence showing that the stairs presented a dangerous condition, the court concluded that defendant's failure to repair the stairs was not palpably unreasonable.

On appeal, plaintiff argues that defendant is not entitled to the allocation of resources defense because it did not prove that it made discretionary expenditure decisions with regard to the building's stairs before the accident. Plaintiff also argues that the motion judge usurped the jury's function by deciding that defendant's conduct with respect to the stairs was not palpably unreasonable as a matter of law. We agree on both counts.

We first address the allocation of resources defense.

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.

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

This immunity is predicated upon the self-evident notion "that government has no choice but to govern." Lopez v. City of Elizabeth, 245 N.J. Super. 153, 164 (App. Div. 1991). As Judge Cohen explained so well almost two decades ago:

A private person or firm that cannot afford the people and equipment to do a good job can withdraw rather than perform in a dangerous way. Government rarely has that option. It cannot withdraw from law enforcement if its police force is too small, from fire protection if its trucks are in poor repair, or from maintaining streets if it cannot afford to keep them in perfect condition. That is why high level discretionary policy decisions whether to burden the taxpayers to furnish equipment, material, facilities, personnel or services are absolutely immune. That is also why operational governmental decisions to devote existing resources to one activity at the expense of another are immune unless palpably unreasonable. N.J.S.A. 59:2-3d. The two adjoining statutory provisions exist to protect hard but necessary governmental choices. Often, they treat two sides of the same coin. If the municipal council decides it can afford only three road workers, the department head may have to decide whether to have them fix potholes or repaint faded lines on the roads, because there is not time for both. These two provisions recognizing and protecting government's dilemma are intended to operate in its favor, and not to enhance an injured person's case that arises from imperfect governmental choice.

[Ibid. (Internal citations omitted.)]

Here, the record shows that the condition the stairs were in at the time of plaintiff's accident was not the result of a conscious decision by defendant to allocate resources to a higher priority project. Indeed, defendant asserts that it was not even aware that the stairs needed repair until it was revealed in a HUD inspection conducted ten months after the accident.

The motion judge's reliance on the Housing Authority's so-called five-year modernization plan is misplaced. As discussed ante, the five-year plan was viewed by at least one senior manager as a meaningless bureaucratic exercise, devoid of reality, and intended only to placate HUD requirements. This plan does not reflect that the Housing Authority decided to forego repairing the stairs in favor of the more pressing need of replacing the boilers. Thus, the record does not support the applicability of the allocation of resources defense. See Daniel v. State Dep't of Transp., 239 N.J. Super. 563, 599-600 (App. Div. 1990).

We next address the motion judge's finding with respect to notice. Specifically, the judge found that plaintiff did not show that defendant was aware, before the accident, of the hazardous conditions of the stairs. We agree that defendant did not have actual notice of these conditions. Based on the evidence presented, however, we are satisfied that a rational jury could impute notice to defendant through the doctrine of constructive notice.

Under N.J.S.A. 59:4-3b, a public entity may be charged with constructive notice if "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." Plaintiff has come forward with sufficient evidence to survive summary judgment on this question.

According to Nolte, plaintiff's liability expert, the hazardous condition the stairs were in at the time of the accident were the result of neglect over a substantial period of time. The loose concrete, and general dilapidated state of the stair treads posed an obvious danger to residents and visitors of the building, and were readily discoverable through the exercise of reasonable care by those responsible for the maintenance of the building.

We now address the question of palpable unreasonableness. "In order to be palpably unreasonable under New Jersey law, actions must be the result of 'capricious, arbitrary, whimsical or outrageous decisions of public servants.'" Waldorf v. Shuta, 896 F.2d 723, 738 (quoting Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979)). "The New Jersey Supreme Court has concluded that the term palpably unreasonable implies behavior that is patently unacceptable under any given circumstances." Ibid. (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).

It is now well-settled that, absent a compelling record, the question of palpable unreasonableness is to be decided by the trier of fact. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001); Brown v. Brown, 86 N.J. 565, 580 (1981); Furey v. County of Ocean, 273 N.J. Super. 300, 313 (App. Div. 1994). In light of our rejection of the allocation of resources defense, we discern no reason to deviate from a rule that has been so consistently enforced. Thus, whether the Housing Authority's conduct in failing to repair the stairs was palpably unreasonable remains an issue of fact to be determined by a jury, guided by the appropriate principles of law.

 
Reversed and remanded.

(continued)

(continued)

12

A-0310-07T2

April 17, 2009