ROSANNE BALECZNY v. COUNTY OF BERGEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3155-08T23155-08T2

ROSANNE BALECZNY,

Plaintiff-Appellant,

v.

COUNTY OF BERGEN,

Defendant,

and

BOROUGH OF EAST RUTHERFORD,

UNITED WATER, INC., and/or

UNITED WATER, NEW JERSEY INC.,

PUBLIC SERVICE ELECTRIC & GAS CO.,

a/k/a PSE&G, CO.,

Defendants-Respondents.

__________________________________

 

Submitted: June 3, 2010 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4546-06.

Law Offices of Stanley Marcus, attorneys for appellant (Robert J. McKenna, on the brief).

Eastwood, Scandariato & Steinberg, attorneys for respondent Borough of East Rutherford (Peter A. Scandariato, on the brief).

Chasan Leyner & Lamparello, PC, attorneys for respondent United Water, New Jersey Inc. (Peter L. MacIsaac, on the brief).

Law Offices of William E. Frese, attorney for respondent Public Service Electric and Gas Company (Robert L. Sanchez, on the brief).

PER CURIAM

Plaintiff Rosanne Baleczny appeals from orders denying her request to vacate summary judgment dismissal of her personal injury complaint against the Borough of East Rutherford (the Borough) and United Water, New Jersey Inc. (United Water) and dismissing her complaint against PSE&G on the trial date. Plaintiff sought damages from defendants after she fractured her leg when she tripped over a three to four inch depression in the roadway adjacent to the curb, as she stepped off the sidewalk in front of 138 Park Avenue in the Borough after leaving work on September 23, 2004. We affirm.

Plaintiff alleged in her complaint that defendants created a dangerous condition in the roadway and negligently maintained or repaired the roadway or pipe underneath it, causing the depression to form. Viewed in a light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), the motion record reveals the following. A trench had been dug from the middle of Park Avenue to the curb in front of l38 Park Avenue. The trench had been filled in and repaved but where it met the curb a depression formed that caused plaintiff's fall. A photograph of the condition of the street at the time of the incident depicted that the depression was located near a water utility cover. Plaintiff's engineering expert, who examined the site two years after the accident, observed utility trenching within the roadway nearest to the curb and "[s]ettlement . . . within the utility trench cover." The engineer opined in his report that the settlement of the trench creating the depression was caused by the negligent compacting of the subgrade strata by the entity that excavated and refilled the trench, which he identified as "the municipality/utility company/contractor/ responsible entity."

In October and November 2007, the Borough and United Water, respectively, moved for summary judgment. The Borough relied, in part, on the certification of its municipal clerk who stated that the records revealed the Borough did not own, control or maintain the utility lines serving its residents, and had not been notified by any method as "to any alleged condition of the street, curb or sidewalk on or abutting Park Avenue and most specifically in the area of plaintiff's alleged fall prior to the receipt of plaintiff's Tort Claims Notice in the subject matter." The Borough also referenced deposition testimony supporting its claim of lack of notice of the condition. Plaintiff had stated in depositions that she saw a "sunken hole" in the street before her accident but she was not concerned about it and did not report it to anyone. An eyewitness also testified in depositions that sometime prior to the accident, she had fallen after stepping into the same hole but was not injured and had not reported it to anyone.

In support of its motion for summary judgment, United Water argued that in the approximate one and a half years the case was pending, plaintiff had presented no evidence that United Water had excavated and refilled the trench in the area where she fell. United Water pointed out that at no point in his report did plaintiff's expert indicate that United Water was responsible for "trench cover settlement." It contended plaintiff's case against it was pure conjecture based solely on the existence of a nearby utility cover bearing the word "water" and the Borough representative's generalized speculation in interrogatory answers, without detail or documentary evidence, that the depression was caused by United Water's failure to restore the roadway after a road opening. United Water also produced four schematic drawings that had been attached to its interrogatory answers that appeared to be the property of PSE&G and seemed to depict trench work on various portions of Park Avenue, including the area of plaintiff's fall. There is a July l5, 1994 date stamp on the first page and a reference to "w.o. #300299803" with an arrow pointing to the area between 115 and 111 Park Avenue, and at the bottom of the page containing 136 Park Avenue, there is a reference to "w.o. #300299593." Based on that, United Water argued that PSE&G or a non-United Water entity dug up the street where plaintiff fell.

In response, plaintiff argued the motions were premature as PSE&G, which had recently been added as a defendant by order granting plaintiff leave to file an amended complaint, had not yet filed an answer and that discovery would be extended after an answer was filed. R. 4:24-1(b). Plaintiff also argued the schematics, without interpretation by an engineering expert, were not competent proof on a motion for summary judgment. Plaintiff urged that, based on the photographs, it appeared the trench led directly to the water access plate, which permitted the reasonable inference that the trench was dug by United Water.

Following argument on December 7, 2007, the court found plaintiff failed to present documentary evidence or any other proof that either United Water or the Borough caused or created the depression in the roadway in which plaintiff tripped and fell. Nor was plaintiff able to make a showing of any "negligent or wrongful act or omission" of a Borough employee that created the dangerous condition or of prior actual or constructive notice of the condition on the Borough's part so as to impose liability under N.J.S.A. 59:4-2 of the Tort Claims Act. Accordingly, the court entered orders on that date granting summary judgment in favor of United Water and the Borough and dismissing plaintiff's complaint with prejudice.

In the interim, PSE&G filed an answer and plaintiff conducted discovery. In interrogatory answers, PSE&G produced documents referencing work order #300299593, including its February 21, 2007 application to the Borough for approval for a subcontractor, Kemsco Construction, Inc. (Kemsco), to perform street excavation at sites abutting ll5, 125 and 147 Park Avenue, evidencing that the schematics relied upon by United Water were for work done about two and a half years after the accident. Plaintiff then deposed Alan DeRosa, the Borough's superintendent of public works, who explained that around the time of the accident, the utility companies were required to obtain excavation permits but did not always do so, and Borough counsel confirmed that in response to his inquiry, he was informed no permits had been issued for the premises in question. DeRosa notified the police department after the accident "who would normally call into the utilities to have a repair made" but he did not know whether that was done. The street was repaired around 2006. According to DeRosa, who had answered the interrogatories, based on his knowledge through his employment, the Borough did not perform the work. He posited that it "would [] be fair to say" the only other entity that could have done the work was a utility company such as United Water or PSE&G.

On October 21, 2008, plaintiff moved to vacate the summary judgment orders and for an order "declaring that the doctrine of

alternative liability as announced in Anderson v. Somberg[, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975)] and as subsequently expanded applies herein shifting the burden of proof to defendants to exculpate themselves from liability for creating the condition that injured plaintiff." Plaintiff contended the only three entities that could have dug the trench were the Borough, United Water or PSE&G, all of which denied digging the trench or having any other liability. Relying on DeRosa's testimony, she claimed she could not identify which entity excavated and refilled the trench because such entity failed to obtain a permit. She also contended all potential tortfeasors were identified and before the court and urged that her engineering report demonstrated a prima facie case of negligence.

United Water and the Borough filed opposition, challenging the motion as untimely and procedurally improper, relying on Rules 4:49-2 and 2:5-6, requiring motions for reconsideration and appeals from interlocutory orders, respectively, to be made within twenty days after service of the order. The Borough also argued DeRosa's testimony confirmed that Borough employees did not dig the trench and emphasized that plaintiff's expert's report identified it as a "utility trench." Accordingly, the Borough asserted it engaged in no conduct as to the trench to activate the doctrine of alternative liability. United Water contended plaintiff presented no additional evidence that it was involved in the creation of the trench.

PSE&G argued Anderson is inapposite to the present case as plaintiff was not "helpless or anesthetized" and her injuries arising from a trip and fall did not "clearly bespeak negligence." See Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 340 (2000). PSE&G reiterated its discovery responses that it did not create the condition and had no gas services in and around the area of plaintiff's fall and further noted, with respect to electric, its discovery responses demonstrated that Kemsco performed some manhole-related work on Park Avenue subsequent to plaintiff's accident.

The court denied plaintiff's motion by order of December 8, 2008, with the written notation "[c]ase dismissed with prejudice on 12/7/07 no motion to reconsider nor appeal ever filed." On the January 20, 2009 trial date of plaintiff's case against PSE&G, counsel reiterated plaintiff's arguments from the prior motion, conceding plaintiff had no affirmative proof of negligence of PSE&G. On April 22, 2009, the court entered an order dismissing the complaint as to PSE&G finding plaintiff was unable to sustain her burden of proof. This appeal ensued.

On appeal, plaintiff argues the court erred in granting summary judgment to the Borough and United Water and in denying her motion to vacate the judgments and apply the doctrine of alternative liability. She further argues she was entitled to the opportunity to apply that doctrine to all three defendants and, thus, there would have been no basis to dismiss her complaint against PSE&G.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006).

We reject plaintiff's contention that the court failed to evaluate the evidence in the light most favorable to her. We are satisfied summary judgment was properly granted to the Borough and United Water as a matter of law. Assuming the depression constituted a "dangerous condition" under N.J.S.A. 59:4-1a, plaintiff failed to raise a debatable question of a negligent act by a Borough employee creating the condition or of actual or constructive notice of the condition as required by N.J.S.A. 59:4-2 to impose liability on a public entity. The record is devoid of any evidence, or even sufficient inference to raise a jury question, that the Borough participated in any modification to the roadway in question, performed any construction or repairs in that area prior to plaintiff's fall, or had actual or constructive notice of the "sunken hole."

Under the Tort Claims Act, public entities such as the Borough are immune from liability unless it is triggered by specific provisions. N.J.S.A. 59:2-1; see Mesgleski v. Oraboni, 330 N.J. Super. 10 (App. Div. 2000). In order to impose liability on a public entity, it must be shown that: (1) the desired immunity provision does not apply and (2) a specific liability provision is triggered. Henschke v. Borough of Clayton, 251 N.J. Super. 393, 399 (App. Div. 1991). Immunity provisions prevail over liability provisions. N.J.S.A. 59:2-1b. Plaintiff's theory of liability against the Borough was based solely on creating a dangerous condition and negligent maintenance or repair of the roadway, for which the trial court properly found immunity under N.J.S.A. 59:4-2.

Discovery also failed to yield any evidence that United Water created the condition that allegedly caused plaintiff's injuries. As the court noted, the mere fact the photograph depicts that the trench appears to lead to the curb location of a cover marked "water," even in the light most favorable to plaintiff, is not sufficient evidence to withstand summary judgment. R. 4:46-2.

Although the court did not appear to address plaintiff's alternative liability argument, we are satisfied from our review of the record and applicable law that the doctrine does not apply to the facts of this case. Res ipsa loquitur applies in situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of a defendant. Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 399 (2005). The doctrine is utilized where:

(l) the accident which produced a person's injury was one which ordinarily does not happen unless someone was negligent, (2) the instrumentality or agency which caused the accident was under the exclusive control of the defendant, and (3) the circumstances indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person.

[Ibid. (internal citations omitted).]

Furthermore, when all potential defendants have been joined, a plaintiff may shift the burden of proof to defendants once the following three elements have been established: (1) plaintiff must be "entirely blameless"; (2) the injury must be one that "bespeaks negligence" on the part of one or more of the defendants; and (3) all of the potential defendants who "participated in the chain of events causing plaintiff's injury must be represented." Estate of Chin by Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 465 (l999). See also Anderson, supra, 67 N.J. at 300. Generally, the cases that apply alternative liability involve the same set of highly fact-sensitive circumstances - a plaintiff who sued multiple defendants on multiple theories of liability, all possible defendants were before the court, it was clear that at least one of those defendants was responsible for the plaintiff's injuries, and the plaintiff was either helpless, anesthetized, or in a situation in which he or she clearly had less information than the defendants concerning the cause of the injuries. Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 101 (1999). See also Shackil v. Lederle Laboratories, Div. of Am. Cyanamid, Co., ll 6 N.J. 155 (l989).

Here, among other proof deficits, plaintiff was unable to produce any competent evidence that, of the three defendants, one was responsible for her injury or that all potential defendants were included in the suit. Anderson, supra, 67 N.J. at 298. Plaintiff's expert referred to the "sunken hole" as a "utility trench" but was unable to identify with any specificity when the depression was created or what entity created it. In fact, he assigned generic negligence to the "municipality/utility company/contractor/responsible entity." In addition, DeRosa acknowledged that street excavation work was performed without permits "from time to time" around 2004, and PSE&G's work order demonstrated that a private contractor performed excavation work along Park Avenue in 2007. Plaintiff therefore failed to demonstrate a reasonable likelihood that all potential defendants were before the court.

The court properly dismissed plaintiff's case as to PSE&G. Discovery revealed there was no gas service in front of 138 Park Avenue and that a private contractor performed manhole-related electrical work on Park Avenue about two years after the accident. Plaintiff conceded she had no affirmative proof of negligence as to PSE&G, the only remaining defendant in the case.

 
Affirmed.

Plaintiff also named the County of Bergen as an additional defendant but the claims against it were dismissed by summary judgment order of August 3, 2007.

Plaintiff did not assert or develop a case against the Borough for "fail[ing] to perform its required function of issuing permits for road excavation" or argue and present evidence that such "failure, in and of itself, led to the Borough's failure to inspect and require proper excavation and renovation of the [subject] trench." We will, therefore, not address these claims and their relationship to the Tort Claims Act. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (l973) (holding that issues not raised below will ordinarily not be addressed on appeal unless they are jurisdictional in nature or implicate public interest).

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A-3155-08T2

July 20, 2010