COLLEEN A. PAZOS v. BOROUGH OF SAYREVILLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0454-09T20454-09T2

COLLEEN A. PAZOS

and SIGFREDO PAZOS,

Plaintiffs-Appellants,

v.

BOROUGH OF SAYREVILLE,

SAYREVILLE BOARD OF EDUCATION,

SAYREVILLE WAR MEMORIAL HIGH

SCHOOL,

Defendants-Respondents.

______________________________

Telephonically argued March 23, 2010 - Decided August 17, 2010

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6993-07.

Anthony J. Vinhal argued the cause for appellants (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Vinhal, on the brief).

John L. Antonas argued the cause for respondents (Law Offices of Peter J. Barnes III, LLC, attorneys; Peter J. Barnes, III, on the brief).

PER CURIAM

Plaintiff, Colleen A. Pazos, was injured as the result of a fall that occurred on August 30, 2005, while she was attending her son's freshmen football scrimmage at Sayreville War Memorial High School. Plaintiff stated that as she was leaving the game, she walked down a small hill behind a water table that had been set up for the players, stepped into a hole, lost her balance, fell and struck her head on the water table and injured her ankle.

Plaintiff filed a personal injury action against defendants, pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. She now appeals from the August 18, 2009 order of the trial court granting summary judgment to defendants dismissing her complaint. We affirm.

The facts pertinent to our decision may be summarized as follows. At her deposition, plaintiff testified that she "[m]omentarily" saw the hole as she was falling because her right foot "was stuck in it." She was unable to describe either the depth or the diameter of the hole. Plaintiff "clearly noticed that the field was in lousy condition. But the specific spot where [her] foot went into the hole [she] had not noticed until after [she] fell."

The high school athletic director, John Kohutanycz, testified in deposition that he was aware that people would sit and congregate in the sloping area adjacent to the field near the location where plaintiff fell, and that spectators exiting the field would pass by that location. Kohutanycz testified that at no time prior to the date of plaintiff's accident did he notice any "safety concern or dangerous condition in that area[.]" Nor did he subsequently notice any such conditions when he was "shown the area where the incident occurred." Kohutanycz described the area in question as "grassy." He stated that he would consider "holes" or "depressions" in the field to be a "potential safety problem or concern[,]" but he observed no such "depression in the area where the accident occurred[.]"

Plaintiff submitted an expert report by Michael G. Natoli, an engineer. The report, dated February 6, 2009, describes Natoli's visit to the accident site on July 14, 2007, almost two years after the accident.

Natoli stated:

At the subject accident location, the surface depression hazard has been mitigated due to the placement of soil and seed providing the grass cover eliminating the prior depression hazard . . . . In essence, the remedial efforts were performed subsequent to the accident and prior to this investigation.

Based upon his observations and information he obtained from plaintiff regarding her recollection of the accident, Natoli reached the following conclusions:

The investigation concludes that the prior surface depression hazard exhibited in the exterior walking surfaces yielded unsafe conditions for pedestrians. Therefore, it is my opinion based on reasonable engineering probability that the prior surface depression formation present within the exterior walking surfaces is a cause of the plaintiff's injury.

. . . [T]he unmarked surface depression (hole formation) present within the landscaped walking surface, eluded the plaintiff's perceptive view. Hence, as the plaintiff walked the surface depression's deep cavity region caused the plaintiff's foot to drop abruptly. . . .

. . . .

The above fall incident occurred due to negligence on behalf of the defendant. The observed hole formation present within the walking surface areas created extremely hazardous conditions for pedestrians. Based on reasonable engineering probability, long-term exposure to the elements resulted in surface water runoff percolating downward into the soil mass which results in the localized settlement of the soil layer creating a "drawdown" effect and the accompanying prior hole (depression) formation. This condition occurring over time results in the extensive hole depression, depth formation observed which exposed pedestrians to a reasonably foreseeable and dangerous risk of injury. . . .

[(Emphasis added).]

Natoli submitted a series of photographs which he took during his site inspection. Specifically, he identified "[p]hotograph 12" as "illustrat[ing] the remedial efforts performed at the subject accident location which involved 'filling in' the prior surface depression (hole formation), which alleviates pedestrian exposure to a walking surface hazard." Natoli added that the "hazard is further heightened by the grass growth within the landscaped areas which prevented the plaintiff from properly viewing the depression walking surface hazard." Napoli further opined that "plaintiff's injury would have been avoided had the exterior walking surfaces been properly maintained in accordance with applicable codes, standards and reasonable safety practice." Natoli also appended photographs of the site taken by plaintiff's husband in November 2005.

Defendants moved for summary judgment on or about May 14, 2009. Among the exhibits appended to their motion were plaintiff's interrogatory answers in which she stated, as part of her "version of the accident[,]" that as she "was walking behind the table, her foot fell into what she believed to be a gully, got caught, causing her to lose her balance and fall . . . ." Defendants also appended excerpts of the depositions of plaintiff, Kohutanycz, and David Waits, the high school's athletic trainer, who assisted plaintiff immediately after her accident.

In opposition to defendants' motion plaintiff submitted Natoli's report, excerpts from Kohutanycz's deposition, and three photographs taken by plaintiff's husband in November 2005.

The trial judge heard oral argument on July 17, 2009, and rendered a written decision on August 18, 2009. In reviewing the evidence, the judge noted that "[p]rior to this accident, there were no other incident reports on file, no borough or school employee was notified of the defect and it was not a recurring condition." The judge concluded:

Summary judgment in this case is appropriate because [defendants] w[ere] given no notice of the dangerous condition, actual or constructive, which is required under N.J.S.A. 59:4-3. The athletic director . . . walked the area in question . . . without discovering any issues. Furthermore, as a public entity, Sayreville is given immunity for its discretionary decisions such as the allocations of funds and personnel to maintenance. N.J.S.A. 59:2-3. The [p]laintiff has not offered any evidence that Sayreville had any notice of a dangerous condition.

On appeal, plaintiff contends that she provided sufficient evidence to establish a prima facie case of liability, and that the existence of genuine issues of material fact precluded granting summary judgment to defendants. We disagree.

In reviewing a trial court's grant of summary judgment, our review is de novo, and we apply the same standards as did the trial judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is properly granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to . . . judgment . . . as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). "Because this appeal arises in the context of a summary judgment application, we are obliged to view the facts in the light most favorable to the non-moving party." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., __ N.J. __ , __ (2010) (slip op. at 3).

N.J.S.A. 59:4-2 places upon plaintiff the burden to establish

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 . . . [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The term "dangerous condition" is defined 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). There must be a defect in the "'physical condition of the property itself'. . . ." Levin v. County of Salem, 133 N.J. 35, 44 (1993) (quotation omitted).

While the trial judge did not specifically address the element of "dangerous condition[,]" we are satisfied that plaintiff failed to establish this threshold requirement. No evidence of record establishes with any degree of certainty the nature of the "hole" or "depression" or "gully" into which plaintiff stepped. Plaintiff was unable to describe the depth or diameter of the "hole." Her expert first visited the accident site two years later and, therefore, was compelled to speculate as to the nature of the "hole formation present within the walking surface areas" that he claimed (1) existed on the date of the accident; and (2) had been "mitigated due to the placement of soil and seed providing the grass cover eliminating the prior depression hazard . . . ."

None of the photographs taken by plaintiff's husband or by Natoli depicted the actual conditions that existed on the date of plaintiff's accident. Natoli's photographs are patently irrelevant to conditions in existence on that date. The photographs taken by plaintiff's husband three months after the accident show no evidence of any "hole" or other type of depression at the accident site.

We are satisfied that Natoli's opinions are based on sheer speculation, and not on any discernable "facts or data" as required by N.J.R.E. 703. Therefore, we consider his report to constitute a classic "net opinion." A "witness qualified as an expert by knowledge, skill, experience, training, or education may testify . . . in the form of an opinion or otherwise." N.J.R.E. 702. However,

[a]s construed by applicable case law, N.J.R.E. 703 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial. Under the "net opinion" rule, an opinion lacking in such foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible. The rule requires an expert "to give the why and wherefore" of his . . . opinion, rather than a mere conclusion.

[Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (citations omitted).]

Natoli's report describes conditions in place two years after plaintiff's accident, leading him to hypothesize as to both the conditions in existence two years earlier and the intervening changes to the topography of the area. His opinion lends no support to plaintiff's burden to establish a "dangerous condition" as the cause of her accident.

There is no question that plaintiff fell and injured herself at the football field. We concur with defendants, however, that "[s]ince plaintiff can not identify the dangerous condition that she claims caused her injury, she is unable to satisfy a critical element of . . . N.J.S.A. 59:4-2, namely, that the property was in a dangerous condition at the time of the injury." In the absence of such a showing, plaintiff lacks any basis on which to assert that defendants had "constructive notice of a dangerous condition" as contemplated by N.J.S.A. 59:4-3.

We are satisfied that summary judgment was properly granted to defendants in this matter.

 
Affirmed.

Plaintiff Sigfredo Pazos asserted a per quod claim.

Photograph 12 is appended to Natoli's report and contains the following notation: "General view of the storm water catch basin present within the sideline areas. Note the absence of surface depressions within the regions abutting the catch basin is [sic] attributed to remedial repair efforts." His photographs 13 and 14 contain similar notations.

Although plaintiff's arguments implicitly dispute the trial judge's finding with respect to immunity, plaintiff has not presented an argument specifically challenging that finding; therefore, we do not address it.

(continued)

(continued)

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