DONALD T. POLZO v. COUNTY OF ESSEX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1553-09T31553-09T3

DONALD T. POLZO, AS EXECUTOR FOR

THE ESTATE OF MATHI KAHN-POLZO,

and DONALD T. POLZO, individually,

Plaintiff-Appellant/

Cross-Respondent,

v.

COUNTY OF ESSEX,

Defendant-Respondent/

Cross-Appellant,

and

TOWNSHIP OF MILLBURN, STATE OF

NEW JERSEY, and PUBLIC SERVICE

ELECTRIC AND GAS,

Defendants.

___________________________________

 

Argued May 26, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8986-02.

E. Drew Britcher argued the cause for appellant/cross respondent (Britcher, Leone & Roth, L.L.C., attorneys; Mr. Britcher, of counsel; Jessica E. Choper and Mindy Michaels Roth, on the brief).

Jeffrey B. Beacham argued the cause for respondent/cross-appellant (McGivney & Kluger, P.C., attorneys; Mr. Beacham, of counsel; Michael R. Sarno, on the brief).

PER CURIAM

This appeal arises out of a fatal cycling accident. The trial court granted partial summary judgment dismissing the complaint after concluding no genuinely disputed issue of fact existed as to whether Essex County (the County) had constructive notice of the allegedly dangerous condition on the roadway's shoulder. We reverse and remand for trial as to whether the County maintained a dangerous condition of its property pursuant to N.J.S.A. 59:4-2(a) only. We affirm the grant of partial summary judgment on the question of the County's liability based upon constructive notice under N.J.S.A. 59:4-2(b).

On August 18, 2001, plaintiff's decedent, Mathi Kahn-Polzo (Kahn-Polzo), was cycling on the shoulder of Parsonage Hill Road, a county road located in Millburn. She was the last in a line of five cyclists riding on the shoulder when she reportedly fell off her bicycle after it traveled over a circular depression approximately two feet in diameter and one and one-half inches in depth. Plaintiff filed a complaint individually and as executor for Kahn-Polzo's estate on September 12, 2002. He named as defendants, the County, the State of New Jersey, and Millburn Township. Subsequently, the court granted plaintiff leave to file an amended complaint in which he added Public Service Electric and Gas Company as a defendant. With the exception of the County, all of the remaining public entity defendants were eventually dismissed from the complaint following successful summary judgment motions. In an order dated September 23, 2005, the motion judge granted summary judgment dismissing the complaint against the County after finding that no reasonable jury could conclude that the County's actions were palpably unreasonable. On appeal, in an unpublished opinion, we reversed. Polzo v. Essex, No. A-111-05 (App. Div. Aug. 22, 2007). We held that the evidence, "[w]hen viewed most favorably for plaintiff[,] . . . establishes the depression in the roadway 'existed for such a period of time and was of such an obvious nature' that it should have been discovered by the County." Id. at ___ (slip. op. at 7). We also concluded that:

plaintiff's proofs were sufficient to raise a question of fact as to whether the County was palpably unreasonable for failing to repair the depression when it allegedly checked for potholes and repaired them along the entire length of Parsonage Hill Road on July 12, 2001 approximately five weeks prior to the decedent's tragic accident.

[Ibid.]

The Supreme Court granted defendant's petition for certification and reversed. Polzo v. County of Essex, 196 N.J. 569, 574 (2008). Noting that the County, for purposes of summary judgment, did not object to the admissibility of the engineering report prepared by Dr. Ira S. Kuperstein on behalf of plaintiff, the Court nonetheless concluded that the report, "standing alone," was "insufficient to sustain plaintiff's burden[]" of establishing a prima facie case of constructive notice sufficient to survive summary judgment:

On its face, Dr. Kuperstein's report appears to provide no explanation for any of his conclusions: it does not explain the basis for his conclusion that the depression/declivity "would have existed for a significant period of time[;]" it does not support, in any manner whatsoever, the statement that the depression/declivity existed for "months if not years[;]" and it does not cite to or otherwise explain the relied-upon "recorded changes[.]" In sum, Dr. Kuperstein's opinion concerning whether the County was on constructive notice of the depression/declivity may suffer from the very ills that condemn a net opinion: it can be said to present solely a bald conclusion, without specifying the factual bases or the logical or scientific rationale that must undergird that opinion.

[Id. at 581-84.]

The Court noted that the "threshold question - - whether the County was on constructive notice of the alleged dangerous condition - - was side-stepped by the motion court and too expansively determined by the Appellate Division." Id. at 586. The Court vacated both determinations and remanded the matter to the trial court for consideration of the issue of constructive notice. Ibid.

The remand order directed the motion judge to review the record as presented by the parties and permitted the court, in its discretion, to allow the parties to supplement the record. Id. at 586-87. However, in a footnote, the Court clarified the extent to which the record could be supplemented: "Because the issue of the sufficiency of plaintiff's expert report was not explored below, the motion court on remand should allow supplementation limited to the extent it would have allowed had the admissibility or weight of Dr. Kuperstein's report been challenged in the first instance." Id. at 586 n.7. (emphasis added).

From that supplemental record, the Court directed the motion judge "to determine whether plaintiff's proofs satisfy all of the elements required for a claim against a public entity for the alleged dangerous condition of public property." Id. at 586-87.

Following the remand, on December 11, 2008, plaintiff served upon the County a notice to take oral depositions of "[a]ny [p]erson or [p]ersons who received or recorded the information, prepared the work order and filled out any part of the form for Complaint Number 3713 dated July 6, 2001" for Parsonage Hill Road in the area where Kahn-Polzo died. Additionally, plaintiff noticed defendant to produce copies of any video or photographic logs of Parsonage Hill Road taken within the five-year period prior Kahn-Polzo's August 18, 2001 accident. These additional discovery requests were similar to discovery requests served upon defendant previously and for which plaintiff sought an order compelling defendant to provide the outstanding discovery or, alternatively, suppressing defendant's answer and defenses at the time of trial. In an order dated August 5, 2005, the court denied the motion, stating in its reasons incorporated in the order:

No compliance with [Rule] 1:6-2(a) - No listing of Discover[y] End Date (which was 9/15/03)[.] No compliance with [Rule] 1:6-2(c). No listing of trial date (9/12/05)[.]

No compliance with [Rule] 4:24[.] - Motion must be made returnable before end of discovery.

This case is very peculiar. There is probably a very good explanation for the extraordinary delay, but to a judge who has never seen this case before, there is no explanation why this application should be entertained [two] years after discovery ended and one month prior to trial. If counsel had complied with [Rule] 1:6-2(a) and [Rule] 1:6-2(c)[,] it would have been obvious that some explanation was required.

Notwithstanding the August 5, 2005 order, plaintiff again moved for an order striking defendant's answer and compelling defendant to produce all outstanding discovery, as well as county employee Burton for deposition. By order dated April 17, 2009, the court denied plaintiff's motion in all respects except as to Dr. Kuperstein's third supplemental report, served upon defendant on January 29. The court ruled that it would accept the report. The order afforded the County the opportunity to depose Dr. Kuperstein, allowed the County to submit a rebuttal expert report, and extended the discovery end date to August 30, 2009. Plaintiff moved to appeal the April 17, 2009 order, which we denied by order dated June 15.

The County once again moved for summary judgment. In an oral opinion rendered following argument on the County's motion, the court granted summary judgment, finding that "[p]laintiff has not met the burden that there was constructive notice . . . of a dangerous condition" and "plaintiff's proofs were not sufficient to raise any questions of fact as to whether the County was palpably unreasonable in failing to repair the depression."

The court first found that Dr. Kuperstein's report was not a net opinion when considered together with his deposition testimony, which the court found explained why the depression in the roadway was a dangerous condition, namely, its size and configuration "would cause a bicycle to destabilize going 15 or 20 miles an hour." The court was also satisfied that plaintiff had established a prima facie case of proximate cause. It based this finding upon: (1) Dr. Kuperstein's opinion that the depression could cause a bicycle to destabilize; (2) the fact that Dr. Kuperstein ruled out other causes for Kahn-Polzo's fall; and (3) the fact that the condition of the depression as described by Dr. Kuperstein made it reasonably foreseeable that there was a risk of the kind of injury sustained by Kahn-Polzo.

Despite these findings, the court concluded that there was insufficient evidence to withstand summary judgment on the question of whether the County had constructive notice of the allegedly dangerous condition at least six weeks prior to Kahn-Polzo's accident. The court reasoned that the depression at issue, which Dr. Kuperstein opined was approximately one and one-half inches in depth and two feet in diameter at the time of the accident, was not of such an obvious nature that the County, in the exercise of due care, should have discovered the condition and its dangerous character at least six weeks earlier. The court also rejected Dr. Kuperstein's testimony that the County lacked an inspection program as a net opinion, noting that Dr. Kuperstein "didn't say what the program should be." The court explained further that Dr. Kuperstein "didn't talk about reasonable methods[,] that when you inspect[,] you do have to get down, you do have to have a ruler, you do have to appreciate and look at how steep it is . . . ." The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT I

PLAINTIFF HAS PROVIDED SUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION THAT PROXIMATELY CAUSED PLAINTIFF'S FATAL FALL.

POINT II

THE TRIAL COURT'S DENIAL OF PLAINTIFF'S REQUEST TO ENGAGE IN ADDITIONAL DISCOVERY WAS AN ABUSE OF ITS DISCRETION AND DEPRIVED PLAINTIFF OF ESSENTIAL PROOFS.

POINT III

WITH AMPLE EVIDENCE THAT THE CONDUCT OF DEFENDANT WAS PALPABLY UNREASONABLE, THE ISSUE OF PALPABL[E] UNREASONABLENESS SHOULD NOT HAVE BEEN DECIDED BY THE TRIAL COURT ON A MOTION FOR SUMMARY JUDGMENT.

POINT IV

THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT TO AVOID A MANIFEST DENIAL OF JUSTICE BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER THE DEFENDANT HAD CONSTRUCTIVE KNOWLEDGE AND WHETHER THE DEFENDANT'S CONDUCT WAS PALPABLY UNREASONABLE.

Our analysis begins with a reiteration of the basic principles of appellate review, namely, that our consideration of a trial court's order granting summary judgment is de novo, using the same standard as the trial court under Rule 4:46-2(c). Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). See also Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Therefore, we assume plaintiff's version of the facts is true and we give plaintiff the benefit of all favorable inferences. Id. at 536. We therefore first determine whether a genuine issue of material fact is present and, if not, evaluate whether the trial court's ruling on the law was correct. Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258 (1987).

Because the shoulder of the roadway where plaintiff sustained her fatal injuries was owned and controlled by a public entity, the County, any recovery against it is governed by the provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Under the TCA, "public entities are immune from tort liability unless there is a specific statutory provision imposing liability." Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002) (citing Collins v. Union County Jail, 150 N.J. 407, 413 (1997)). Among the circumstances where immunity does not attach is a dangerous condition of public property. See N.J.S.A. 59:4-2.

To recover against a public entity for a dangerous condition of its property, a plaintiff must prove: (1) "the property was in [a] dangerous condition at the time of the injury"; (2) "the injury was proximately caused by the dangerous condition"; (3) "the condition created a reasonably foreseeable risk of the kind of injury which was incurred"; and (4) "either: (a) a negligent or wrongful act or omission of an employee within the scope of [] employment created the dangerous condition, or (b) a public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." Ibid. See also Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003); Kolitch v. Lindedahl, 100 N.J. 485, 492 (1985). "Additionally, there can be no recovery unless the action or inaction on the part of the public entity in protecting against the condition was 'palpably unreasonable,' a term nowhere defined in the Act." Kolitch, supra, 100 N.J. at 492-93. The failure to establish each of the elements set forth in N.J.S.A. 59:4-2 bars a claimant from recovery. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 124-25 (2001). See also Carroll v. N.J. Transit, 366 N.J. Super. 380, 386 (App. Div. 2004).

We are persuaded that the record establishes no genuinely disputed issue of fact of actual or constructive notice to the County of a dangerous condition. Because there is no dispute that the County did not have actual notice of the depression at issue here, we focus our discussion upon the question of constructive notice.

"[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." Carroll, supra, 366 N.J. Super. at 387 (citing N.J.S.A. 59:4-3(b)).

In Carroll, we rejected the plaintiff's argument that the defendant had notice, actual or constructive, of a defective condition and, accordingly, granted summary judgment in the defendant's favor. Id. at 389. The plaintiff slipped and fell on dog feces left on a stairwell step in a New Jersey Transit station. Id. at 384. Addressing constructive notice, we stated that "[the] plaintiff could not even meet the fundamental requirement of constructive notice under N.J.S.A. 59:4-3(b), namely that the condition could have existed for such a period of time that the public entity should have discovered it." Id. at 388. Noting the record was devoid of prior complaints about dog feces or other slippery substances on the stairs, we held the lack of evidence precluded a finding of constructive notice. Id. at 388-89.

In this case, discovery revealed that the County, based upon a complaint of potholes on Parsonage Hill Road on July 6, 2001, "checked and [did] pot holes [for the] entire length" of Parsonage Hill Road on that date. It is unclear whether the inspection and repairs along the roadway included the shoulder of the roadway where Kahn-Polzo fell. Dr. Kuperstein, in his last report prepared following the Supreme Court's remand, opined that the depression was caused by an "erosion of the underlying subsurface, as opposed to a 'pothole' caused by portions of the road surface becoming dislodged and removed through snow plow and other actions." Further, based upon photographs taken on the day of the accident, he expressed the opinion that the depression was approximately one and one-half inches in depth and that by time he inspected the area in February 2004, the depression was approximately three inches in depth, double its size, two and one-half years later.

From the depression's characteristics at these two points in time, Dr. Kuperstein reached the conclusion that the depression existed for approximately two years prior to Kahn-Polzo's accident, would have been similar in appearance for a two-year period prior to Kahn-Polzo's accident, and would have been "easily identifiable to any reasonable inspection of the area." Dr. Kupestein failed, however, to provide any explanation as to how he arrived at the conclusion that two years before the accident, the depression "would have been in a similar state as seen on the date of the accident . . . ." This is particularly fatal because he attributes the depression to "erosion," which bespeaks a gradual process as opposed to any particular traumatic event. Moreover, he acknowledged in his deposition testimony that he did not know for a fact that the depression grew at a linear rate. The failure to provide any factual basis for his conclusions once again results in an opinion which the Supreme Court earlier noted "does not cite to or otherwise explain the relied-upon 'recorded changes'[.]" Polzo, supra, 196 N.J. at 583. Hence, the trial court properly concluded that no genuinely disputed issue of fact existed as to whether there was constructive notice of the depression by the County. This determination, however, does not end our analysis.

In reversing our decision, the Supreme Court stated: "We address only the sufficiency of the plaintiff's proofs in respect of the question of whether constructive notice of a dangerous condition on public property can be imputed to the public entity." Id. at 574. Thus, the Supreme Court's inquiry focused upon a cause of action arising out of a dangerous condition of public property under subsection (b). N.J.S.A. 59:4-2(b). The Court did not address the additional basis upon which we reversed the trial court's grant of summary judgment:

Furthermore, plaintiff's proofs were sufficient to raise a question of fact as to whether the County was palpably unreasonable for failing to repair the depression when it allegedly checked for potholes and repaired them along the entire length of Parsonage Hill Road on July 12, 2001--approximately five weeks prior to decedent's tragic accident.

[Polzo, supra, No. A-111-05 (slip op. at 7).]

Dr. Kuperstein, in his July 29, 2004 report, stated:

It has been long and clearly recognized that safe and accepted engineering and maintenance practices and procedures mandate a pro-active response to pavement defects (e.g. depressions, potholes, cracks). For example, the lead page of the 'Pothole Primer'* presents a 'Suggested Pothole Repair Program[,]' wherein the first three steps include: "1. Train a "Pothole Supervisor" to recognize problem areas in your [jurisdiction]; 2. Conduct an inventory . . . ; and, 3. Develop a maintenance schedule . . . , establish a regular program of . . . surface treatment."** However, Salvatore R. Macaluso has testified that in Essex County[,] "Everything is based on a phone call . . . . [A]nd, if he had knowledge of the subject particular depression in 2001, it would be one that he would have repaired . . . .

________

*[Robert A. Eaton, et al., U.S. Army Corps of Engineers, Pothole Primer, A Public Administrator's Guide to Understanding and Managing the Pothole Problem, (1989), available at http://www.dot.state.il /.us/blr/p009.pdf.]

**n.b. Additional relevant or related information has long been presented in A.A.S.H.T.O. [American Association of State Highway and Transportation Officials] publications (e.g. 'An Informational Guide for Physical Maintenance of Pavements[,]' 1963; and, 'Guidelines on Pavement Management[,]' 1985.

Separate and distinct from liability premised upon actual or constructive notice of a dangerous condition under N.J.S.A. 59:4-2(b), liability for a dangerous condition of public property may also be based upon a negligent act or omission by a public employee acting within the scope of the employee's employment. N.J.S.A. 59:4-2(a). In that context, actual or constructive notice is not an issue. Ibid. The standard of care is not ordinary negligence but whether the act or omission was palpably unreasonable. Pico v. State, 116 N.J. 55, 63 (1989).

During oral argument, plaintiff's counsel argued not only constructive notice but whether the County's failure to have a maintenance program beyond responding to complaints was conduct that was palpably unreasonable:

[A] [j]ury is permitted to consider the nature of a particular program for road maintenance, road repair that existed in a given [m]unicipality, given government entity. And in this instance, we've been advised there essentially isn't one. There is nothing that is done unless a complaint is made. And so, the [j]ury would be permitted to consider that, not only on whether or not constructive notice did or should exist, but likewise, on the palpably unreasonable standards.

There was testimony from the County's road superintendent, Salvatore Macaluso, that the roadway depression, as it existed at the time of the accident, was of the type that would have been repaired had the County been aware of it. As the Supreme Court noted, this testimony was irrelevant to the question of constructive notice. This testimony, however, is relevant to whether the failure to have a routine inspection program beyond responding to complaints was palpably unreasonable. In the absence of any routine inspection program, a jury reasonably could conclude that it is the failure to have a maintenance program that called for routine inspections of the roadway and shoulder that could likely result in an injury of the kind sustained by Kahn-Polzo, and that the failure to have such a program was palpably unreasonable. N.J.S.A. 59:4-2.

The net opinion rule "forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Polzo, supra, 196 N.J. at 583. We are satisfied that Dr. Kuperstein's opinion that safe and accepted engineering practices and procedures mandate a pro-active response to pavement defects was not a net opinion. Rather, he supported his opinion with reference to recognized standards. In doing so, a genuinely disputed issue of fact existed as to whether the County created a dangerous condition of public property by its failure to have a routine inspection program in place, whether that failure proximately caused the resulting accident to Kahn-Polzo from which she sustained her fatal injuries, and whether the failure to have such a program was palpably unreasonable.

In view of our decision, we determine that it is unnecessary to address the arguments advanced in Points III and IV. However, as to Point II, we find the court did not abuse its discretion in denying plaintiff's motion to essentially re-open discovery beyond that which the Supreme Court deemed necessary to address Dr. Kuperstein's opinion. Plaintiff, through the remand proceedings, essentially attempted to revisit the earlier August 5, 2005 order. It is unclear whether the August 5 order was ever the subject of a motion for reconsideration or an issue in plaintiff's direct appeal following the initial grant of summary judgment to the County. Hence, although plaintiff attempted to revisit that ruling indirectly through his January 2009 motion to strike or, alternatively, to compel discovery, we discern no error or abuse of discretion on the part of trial court in declining to do so.

Reversed and remanded for trial solely upon the question of the County's liability, if any, pursuant to N.J.S.A. 59:4-2(a). Affirmed as to the grant of partial summary judgment pursuant to N.J.S.A. 59:4-2(b). We do not retain jurisdiction.

 

By orders dated February 7 and February 21, 2003, the State of New Jersey and Township of Millburn, respectively, were granted summary judgment and are not parties to this appeal.

An amended complaint was filed December 16, 2003, adding Public Service Electric and Gas as a defendant. However, the record before us on appeal does not reflect a disposition as to Public Service Electric and Gas.

Plaintiff's motion is not part of the record on appeal.

(continued)

(continued)

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A-1553-09T3

August 24, 2010