CINDY BOLGER v. CITY OF BAYONNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2215-08T12215-08T1

CINDY BOLGER,

Plaintiff-Appellant,

v.

CITY OF BAYONNE,

Defendant-Respondent.

_________________________________________________

 

Argued September 23, 2009 - Decided

Before Judges Cuff and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

L-345-07.

Mitchell D. Perlmutter argued the cause for

appellant (Zavodnick, Perlmutter & Boccia,

LLC, attorneys; Mr. Perlmutter, on the brief).

Nita G. Raval argued the cause for respondent (Florio & Kenny, LLP, attorneys; Ms. Raval, of counsel, and Christopher K. Harriott, on the brief).

PER CURIAM

Plaintiff, Cindy Bolger, appeals from an order of summary judgment entered against her in her personal injury suit against the City of Bayonne. We reverse.

Plaintiff's claim arises from events occurring on May 12, 2005 in the vicinity of Fitzgerald Park in Bayonne, which is located between 26th and 27th Streets on the east side of Avenue C. City Hall is located immediately adjacent to the park between 27th and 28th Streets, fronting Avenue C. The city's Public Works, Parks and Recreation Department is located in City Hall.

At approximately 6:00 o'clock, plaintiff picked up her two daughters from their grandparents' home and proceeded with them through Fitzgerald Park to their residence. While in the park, the older daughter met friends and requested that the three stop. Plaintiff initially refused, but as they exited the park, she relented. The older daughter returned to her friends in the park; plaintiff and the younger daughter sat on a bench facing Avenue C.

Before plaintiff and the younger daughter sat down, plaintiff recognized that the front slat on the seat of the bench was broken, leaving a bolt exposed. She testified in deposition that the other benches in the vicinity were occupied; plaintiff's sister testified that the remaining benches were in worse condition than the one upon which plaintiff sat. In order to avoid injury to her daughter, plaintiff sat near the break. Her daughter sat on the intact end of the bench, with a Shop-Rite bag between them. Because she wished to keep track of her older daughter, plaintiff turned in her seat to face the park, and she sat in her habitual manner with one leg tucked beneath her.

After approximately ten minutes, plaintiff decided to leave, and she sent the younger daughter to summon the older one. As plaintiff stood up from the bench, the lace from the sneaker on the foot that had been tucked beneath her caught on the protruding bolt. As a consequence, plaintiff fell on her face, sustaining injury.

Following emergency room treatment, plaintiff returned to the park with her husband, who took six photographs of the bench. The next day, they returned, and the husband took additional photographs. Further photographs were taken later in the year. On appeal, we have been supplied with color laser copies of some or all of the photographs. However, they cannot be accurately correlated with deposition testimony and the parties' expert reports and do not clearly depict the condition of the wooden slats and bolt at the time of the accident and thereafter. It appears that Bayonne concedes that the photographs taken several months after plaintiff's accident demonstrate that, in the interim, the bench was painted while in its broken condition. The parties disagree whether the bench had been painted in its broken condition prior to the accident.

On or about January 17, 2007, plaintiff filed suit against the City of Bayonne, claiming that the city had failed "to use reasonable care to inspect and make the premises reasonably safe for the plaintiff" and that it created or maintained a nuisance. An answer was filed on Bayonne's behalf, which asserted thirty-six separate defenses, including discretionary activity immunity pursuant to N.J.S.A. 59:2-3c and -3d, which provide:

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.

Additionally, Bayonne claimed that no liability could be imposed upon it for failure to protect against a dangerous condition of its property pursuant to N.J.S.A. 59:4-2 because the conditions precedent to the imposition of such liability had not been met.

By motion argued on November 21, 2008, Bayonne sought summary judgment. The motion transcript reveals that, prior to oral argument, the judge planned to deny summary judgment, having determined from the black and white photographs in the record that the bench had been repainted in is broken condition before the accident occurred. However, during oral argument, she was given color laser prints of the bench that she interpreted as depicting a raw, unpainted break in the wood. She therefore reserved decision, authorized further briefing, and in an order dated December 10, 2008, she granted summary judgment to Bayonne. Her succinct findings of fact and conclusions of law were as follows:

The City of Bayonne is immune from suit under NJSA 59:2-3 having exercised judgment and/or discretion in whether to provide resources and manpower to maintain this and other public park benches. Based on photographs, there is no genuine issue of material fact to be resolved at trial. There is indisputable proof by way of color photographs that the bench in question was not repainted in its broken condition before this accident.

A timely appeal from the judge's order was filed.

I.

As a preliminary matter, we address the evidence of the condition of the bench on the date of the accident. The photographs in the record demonstrate scuffing of the bench's paint and show evidence of wear that would support the conclusion that the bench had not been repainted that Spring before the accident took place. However, that fact does not necessarily preclude a determination that the bench had been repainted in a broken condition at some earlier time. In this regard, we note that the break in the bench slat did not resemble a saw cut, with a cleanly-cut vertical face and an intact horizontal surface. The vertical face was jagged. Abutting that face, and extending along the midpoint of the horizontal plane of the slat, there was a deep v-shaped notch or gash. Additionally, at least one foot of the side of the slat facing toward the back of the bench had been torn off in an irregular fashion leaving a gaping space of varying dimensions between the first and second slats. In her certification opposing summary judgment, plaintiff described the appearance of this portion of the slat as follows:

the front seat plank is broken well before the plank meets the raised bolt. I estimate that the broken part of the seat plank extends at least one foot from the raised bolt as the plank goes from one bolt to the other bolt. The front seat plank is thinner by about an inch. The thinned part of the seat plank is painted green. So, in other words, the seat plank was painted in a broken condition before my accident.

Although we make no factual findings on this issue, we observe that the photographs can be interpreted as depicting the condition that plaintiff described, thus supporting her claim that, after the break, the horizontal surface of the slat had been painted, even if the vertical break, itself, may not have been. The previously described gash may have been painted, as well. We further note that the photographs can be interpreted as depicting the concrete surface supporting the seat as painted an unblemished white, even in the area of the break, thereby providing support for an argument that the concrete portions of the bench were painted at a time when a part of the slat was missing. As a final matter, we recognize that the cap on the bolt at issue would have been painted green in the ordinary course, as it formed a part of the horizontal surface of the bench. The quality of the photographic reproductions contained in the record does not permit us to determine whether the shaft of the bolt has been painted.

Because of the brevity of the motion judge's opinion, we are unable to determine whether she considered the conditions that we have discussed in determining that there was "undisputable proof" that the bench had not been repainted prior to plaintiff's accident. In any event, we find issues of fact to exist in this regard that require resolution by a jury. Insofar as the motion judge premised summary judgment on the absence of any evidence of repainting, we conclude that she was mistaken and that, viewing the evidence in a light most favorable to plaintiff, a jury issue has been presented. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

II.

We turn next to the issue of the existence of discretionary activity immunity pursuant to N.J.S.A. 59:2-3c or -3d. To establish the foundation for such immunity, Bayonne offered the deposition testimony of Michael Columbo, who for nine years had been superintendent of public works and parks in Bayonne's Department of Public Works, Parks and Recreation. He described his duties in connection with Bayonne's parks as follows:

Well, basically I give the job orders out to my personnel to, you know, maintain the parks. Okay? As far as cutting the grass, the cleaning of the garbage, and every once in a while when I have personnel, because I'm short personnel here and there, so when I have personnel, to also maintain, you know, I would say the playground equipment, benches, cases of that matter.

Columbo testified that Bayonne had twenty parks of varying sizes and that his maintenance crew usually consisted of three employees. Additionally, he hired a seasonal painting crew that painted park benches in the Spring and Fall. The Spring painting preceded the opening of the parks, which occurred in June.

The department had no schedule for maintenance, no formal mechanism for reporting items in need of repair and no work orders with the exception of those generated by "the girls" upon receipt of citizen complaints. Columbo testified that considerable vandalism occurred in the parks, and a chronic shortage of workers existed, "so we try to get to what we can." He continued: "We'll more or less here and there we'll try to do periodic inspection and we would send out a maintenance crew to repair certain stuff when they can, but we don't keep on a schedule or nothing like that. It's just a daily thing, that they would go out and, if they see something, they would repair it." Columbo stated that if he had seen a bench in the condition of that upon which plaintiff sat, he would instruct his crew "when you have an opportunity down the line, to try to repair the bench." The replacement of a bench slat could be done in-house.

Columbo testified further that he assumed that the benches in Fitzgerald Park had been painted in the Spring of 2005 because that park was "by City Hall and we try to make it, you know, look as good as possible." If paint crews saw a vandalized bench, they were supposed to report it so that repairs could be made, but he admitted "they're supposed to do a lot of things but you know. You know." Columbo testified that he had no direct knowledge of the damage to the bench at the time of plaintiff's accident.

Bayonne also offered the certification of Gary Chmielewski, the current Director of its Department of Public Works. Chmielewski certified that there was frequent vandalism of benches in Bayonne's parks and along its streets. He certified additionally:

Due to a shortage in manpower in BAYONNE'S Department of Public Works, I do not have adequate staffing to respond to all complaints/maintenance issues in all of the City-owned parks and, instead, must exercise my discretion to allocate manpower and resources for repairs on a priority basis.

On appeal, plaintiff argues that evidence of resource scarcity, combined with evidence of the ad hoc procedures utilized in 2005 by the Department of Public Works was insufficient to provide a foundation for discretionary activity immunity under N.J.S.A. 59:2-3. Plaintiff argues that "to gain the benefit of N.J.S.A. 59:2-3(c) or (d), the governmental entity must show an exercise of discretion by competent evidence to direct resources away from a problem."

When a public entity claims entitlement to an immunity under Title 59, it has the burden both of pleading the immunity and of proving that the immunity is applicable. Vanchieri v. N.J. Sports & Expo. Auth., 104 N.J. 80, 87 (1986). Here, Bayonne has claimed the applicability of both N.J.S.A. 59:2-3c and -3d. We explained the difference between the two provisions in Lopez v. City of Elizabeth, 245 N.J. Super. 153 (App. Div. 1991), a case in which a pedestrian stepped into a pothole, fell, and injured herself. We stated:

There is a real difference between the public entity immunities of N.J.S.A. 59:2-3c and 2-3d. The former typically involves decisions whether or not to hire people or procure material or equipment. Such decisions are made at a relatively high level of government and have traditionally been free of tort liability. The latter are lower level operational decisions how to deploy resources that are on hand. Whether to hire another pothole inspector is a N.J.S.A. 59:2-3c decision. Whether to have him first inspect the north side or the south side of town is a 59:2-3d decision.

[Id. at 158.]

In Lopez, we also noted that the immunities established by Title 59 operate to protect government, which "has the power to act for the public good . . . almost without limit," from unlimited liability arising from a perceived "duty to do everything that might be done." Id. at 164 (quoting N.J.S.A. 59:1-2). In the context of N.J.S.A. 59:2-3, we observed:

N.J.S.A. 59:2-3 particularly recognizes that government has no choice but to govern. 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. . . . That is why high level discretionary policy decisions whether to burden the taxpayers to furnish equipment, material, facilities, personnel or services are absolutely immune. See N.J.S.A. 59:2-3d; Massaker v. Petraitis, 173 N.J. Super. 459 (App. Div. 1980). 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.

[Lopez, supra, 245 N.J. Super. at 164.]

In the present case, Columbo testified that in 2005, the Public Works Department had approximately 110 employees, three of whom were assigned to maintain the city's parks. There is no evidence in the record as to how or why it was determined to allocate employees in this fashion. Evidence of "deliberation and judgment: examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed" is lacking. Id. at 157 (citing Miree v. United States, 490 F. Supp. 768, 774 (N.D.Ga.1980), quoted with approval in Kolitch v. Lindedahl, 100 N.J. 485, 495 (1985)).

Moreover, this is not a case in which plaintiff alleges that a lack of personnel was a direct cause of her injury. Compare Vanchieri v. N.J. Sports & Expo. Auth., 201 N.J. Super. 34, 43-44 (App. Div. 1985) (applying N.J.S.A. 59:2-3c to immunize the Sports Authority and its contractee, Wackenhut, from a claim that insufficient security had been a proximate cause of plaintiff's injury following a football game), rev'd on other grounds, 104 N.J. 80 (1986) (finding immunity inapplicable to Wackenhut); Massaker v. Petraitis, 173 N.J. Super. 459, 465 (App. Div. 1980) (in a case in which a judgment creditor lost its priority because its judgment was not timely docketed, applying N.J.S.A. 59:2-3c to immunize Essex County from liability arising out of its failure to hire sufficient clerks to eliminate the docketing backlog). Rather, this case presents the other side of the coin to which the court in Lopez referred, arising from the manner in which scarce resources were allocated, thereby more directly implicating N.J.S.A. 59:2-3d, than -3c.

Our review of the present record discloses no reasoned global decision to withhold resources from park bench maintenance, in general, in favor of another competing interest. Compare Mitchell v. City of Trenton, 163 N.J. Super. 287, 291-92 (App. Div. 1978) (holding that the city's decision not to allocate money to repair defective curbing was immunized by N.J.S.A. 59:2-3d). As we have stated previously, the park maintenance operations of the Department at the time, as they related to repair of park benches, appear from Columbo's testimony to have proceeded in an unplanned and almost wholly reactive manner, without conscious allocation of resources. The record further discloses no particularized decision relating to the bench at issue. Indeed, evidence of such a decision would be unlikely to arise in light of Columbo's testimony that he was unaware that the bench was broken.

Moreover, even if a showing had been made that the city had consciously determined to forego bench repairs in favor of another operation such as bench painting, a jury issue nonetheless likely would remain as to whether "the determination of the public entity was palpably unreasonable." N.J.S.A. 59:2-3d; Lopez, supra, 245 N.J. Super. at 162. As a consequence, we find the motion judge's legal conclusion that the immunities of N.J.S.A. 59:2-3 applied to Bayonne was improper. Factual support for a conclusion that a conscious exercise of discretion occurred is absent from the present record, and even if it were present, a jury issue would likely remain with respect to whether Bayonne's resource allocation determination was palpably unreasonable.

III.

Absent immunity, N.J.S.A. 59:4-2 governs the liability of a public entity for injuries resulting from dangerous conditions on public property. It provides, in relevant part:

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 . . .

* * *

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.

Plaintiff argues on appeal that evidence in the record raises a jury issue in this case as to whether the conditions of N.J.S.A. 59:4-2 have been met, and that the motion judge erred when granting summary judgment on this issue. We agree.

N.J.S.A. 59:4-1a 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." "Whether property is in a 'dangerous condition' is generally a question for the finder of fact." Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 123 (2001).

The meaning of "due care" was addressed by the Court in Garrison v. Twp. of Middletown, 154 N.J. 282 (1998). The Garrison Court's analysis was later summarized by the Court in Vincitore as follows:

Garrison . . . describes a three-part analysis. The first consideration is whether the property poses a danger to the general public when used in the normal, foreseeable manner. The second is whether the nature of the plaintiff's activity is "so objectively unreasonable" that the condition of the property cannot reasonably be said to have caused the injury. The answers to those two questions determine whether a plaintiff's claim satisfies the Act's "due care" requirement. The third involves review of the manner in which the specific plaintiff engaged in the specific activity. That conduct is relevant only to proximate causation, N.J.S.A. 59:4-2, and comparative fault, N.J.S.A. 59:9-4.

[Vincitore, supra, 169 N.J. at 126.]

Viewing the evidence in the present case in light of Garrison's first consideration, we reject Bayonne's position that the bench did not pose a danger to the general public when used in the normal, foreseeable manner. Bayonne claims in support of its argument that the defect in the bench was minimal, and thus it could not be considered a dangerous condition. However, we cannot accept as a matter of law Bayonne's view that the damage was as negligible as Bayonne characterizes it to be. Furthermore, we have held that not all small defects are minor, trivial or insignificant. A "defect cannot be viewed in a vacuum. Instead, it must be considered together with the anticipated use of the property to determine whether the condition creates a substantial risk of injury and, therefore, qualifies under the statute as dangerous." Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div. 2003). In our view, whether the vandalized bench posed a danger to the general public when used in a normal, foreseeable manner is a matter for the jury's consideration, and cannot be determined adversely to plaintiff as a matter of law. Further, addressing Garrison's second consideration, we do not regard the fact that plaintiff knowingly sat near the break, that she turned in her seat to watch her daughter in the park, and that she tucked one leg under the other when doing so as precluding liability as a matter of law in this case.

N.J.S.A. 59:4-2 requires that the dangerous condition be a proximate cause of the plaintiff's injury. Here, is was indubitably so. The fact that plaintiff's shoelace became caught on the exposed bolt was a direct cause of plaintiff's subsequent fall. Moreover, a jury could conclude that the presence of a bolt extending up from the sitting surface of a bench created a reasonably foreseeable risk that some item of clothing would become entangled on it, thereby causing an injury of the type sustained by plaintiff.

Whether actual or constructive notice of the dangerous condition existed likewise raises issues for the jury's consideration. As we have previously held, the photographic evidence in this case provides grounds for a jury to conclude that the bench at issue had been painted in its broken condition, albeit probably not in the Spring of 2005. Further, Columbo testified that his employees "clean[ed] . . . the garbage" from the parks. The pictures show a trash receptacle located adjacent to the damaged bench. These facts support a position that Bayonne had actual knowledge, through its employees, of the condition of the bench.

Further, if the bench had been painted the preceding Fall while in a broken condition, a jury could conclude that the condition had persisted for a sufficient length of time for Bayonne to have discovered it. Polzo v. County of Essex, 196 N.J. 569, 586 (2008). Testimony that the park was located adjacent to City Hall and thus subject to enhanced scrutiny is also relevant to the issue of constructive notice, as is testimony by plaintiff's sister that the broken condition of the bench had persisted for a considerable, although unquantified, period of time.

At a final matter, we address the statutory requirement that plaintiff demonstrate Bayonne's failure to take action to protect against the condition was palpably unreasonable. "Palpable unreasonableness connotes a 'more obvious and manifest breach of duty' than mere negligence . . . and 'implies behavior that is patently unacceptable under any given circumstance.'" Gaskill v. Active Envt'l, 360 N.J. Super. 530, 536-37 (App. Div. 2003) (quoting, successively, Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979) and Kolitch, supra, 100 N.J. at 493). "[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, supra, 100 N.J. at 493 (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)). Generally, the existence of palpable unreasonableness, as with other elements of a N.J.S.A. 59:4-2 claim, is a question of fact for the jury. Furey v. County of Ocean, 273 N.J. Super. 300, 312, certif. denied, 138 N.J. 272 (1994); Vincitore, supra, 169 N.J. at 130.

Plaintiff argues in this respect:

The fact that [] Bayonne was oblivious to the conditions of the bench that existed right across from its main offices and continued to paint it over, even after receiving a notice of claim in this case [] shows that they acted with complete disregard to it, which is more than palpably unreasonable . . . Bayonne's failure to have the most basic system to inspect parks, report problems, and [to] cordon off unsafe areas are all indicative of palpably unreasonable conduct.

We find plaintiff's arguments, coupled with the potential evidence that we have discussed in this opinion, sufficient to create a jury issue with respect to palpable unreasonableness, as well as the other elements of her claim. A similar conclusion was reached initially by the trial judge who, when she believed that the bench had been painted in its broken condition, observed:

[If] they had the manpower, the inclination, the resources, and the time and frankly the notice to paint the bench, they could have fixed the bench . . . that whole idea that they allocated resources and exercised discretion on how under [N.J.S.A. 59:]2-3 to paint it but not to fix it had me pretty angry.

And then the idea that if you got to the dangerous condition analysis you got down to the last factor which is measures taken by the public entity in failure or failure to take measures were [palpably] unreasonable . . . I was hung up on how unreasonable palpably unreasonable it is for them to paint the bench and not fix it.

Accordingly, we reverse the order of summary judgment entered in this matter, and remand the case for trial.

Reversed.

(continued)

(continued)

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A-2215-08T1

 

October 23, 2009