VERA I. BAIER v. THE EAST BRUNSWICK POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3427-08T3

VERA I. BAIER and

FRANK BAIER, her husband,

Plaintiffs-Appellants,

v.

THE EAST BRUNSWICK POLICE

DEPARTMENT, and THE TOWNSHIP

OF EAST BRUNSWICK,

Defendants-Respondents.

_____________________________________________

 

Argued March 1, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2700-07.

Matthew P. Pietrowski argued the cause for appellants (Levinson Axelrod, attorneys; Mark V. Kuminski, on the brief).

Jennifer A. Passannante argued the cause for respondents (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Ms. Passannante, of counsel and on the brief).

PER CURIAM

Plaintiffs Vera I. Baier and Frank Baier, her husband, appeal from a summary judgment dismissal of their claim against defendants the East Brunswick Police Department and the Township of East Brunswick (collectively "East Brunswick") for failure to meet the requirements of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We affirm.

On December 22, 2006, Vera tripped on a piece of uneven sidewalk on a concrete ramp outside the Municipal Building in East Brunswick. Vera did not see the uneven sidewalk until her toe caught on the "lip" of the indentation, causing her to fall. The indentation was approximately one-fourth to one-half of an inch deep and spanned a twelve-inch diameter. The fall caused several injuries, including fractures, lacerations, and chipped teeth.

Plaintiffs filed a timely TCA notice of claim and then sued East Brunswick. East Brunswick answered. After a period of discovery, East Brunswick moved for summary judgment. Plaintiffs opposed the motion.

These are the additional facts presented to the judge on summary judgment. James White, Business Administrator, testified in his deposition that there were no accidents reported in the area of the fall within the previous eleven years. White said that he and other public employees traverse the same sidewalk every day to access the municipal buildings. All employees were aware that they should report potentially hazardous conditions so repairs can be made.

James Bravo, Public Works Supervisor, testified that the twelve-inch patch of sidewalk had been removed in 1995 or 1996 so that a sump pump line could be installed in the Police Department's basement. A trench was dug below the sidewalk, a PVC pipe was installed and compacted "quarry blend" (crushed stones) was placed to fill the hole. The top layer of concrete was then replaced. It was even with the other slabs at that time. Bravo did not know when the sidewalk began to sink, but testified that a potential cause was the "freeze and thaw cycle, nature." After Bravo learned of plaintiff's fall, he sent a repair team out to fix the sunken slab. The workers removed the slab, put in a couple inches of quarry fill, and re-cemented the area.

William Poznak, P.E. & L.S., a civil engineer and construction official, submitted an expert report for plaintiffs. He describes the sidewalk as having a one-quarter to one-half inch indentation that was a "hazardous impediment . . . within the path of one's travel." Poznak provided no further details, except that, "said condition is as follows: 1. palpably unreasonable; 2. a nuisance to the public; [and] 3. the repair of same would require very little time, effort[,] and expense."

Poznak provided two additional one-page supplemental reports, but these erroneously were not included in East Brunswick's brief, nor did plaintiffs include them in the opposition brief. Thus judge did not consider these two supplemental reports when deciding East Brunswick's motion for summary judgment.

In the July 2, 2008 supplemental report, Poznak wrote as follows:

As previously noted, this area of ramp was cut away and trench excavated. Unfortunately, the fill had not been properly compacted, and therefore, began to sink over an extended period of time. Thus, the concrete slab above accordingly sank.

Evidently, employees of the Municipality had proceeded over this walk when going to or from work. Therefore, said Municipality had considerable advance notice of the sunken section in question.

In the August 5, 2008 supplemental report, Poznak opined:

The asphalt patch in question, which was initially constructed over the pipe trench, sunk due to the same condition as noted in my prior reports.

Further, there obviously had been no inspection of the fill material installed and compacted prior to the patch placed thereon. It must be noted, that if said fill had been properly compacted, the patch over same would not have sunk.

The judge heard arguments and granted East Brunswick's motion. He found that East Brunswick did not have actual or constructive notice of the broken sidewalk and that East Brunswick was not "palpably unreasonable."

While preparing their appeal, plaintiffs realized that neither they nor East Brunswick had attached Poznak's two supplemental reports to the summary judgment briefs. Plaintiffs moved to supplement the record. We denied the motion, but allowed plaintiff to move for remand to seek reconsideration in the trial court. No. M-5764-08 (App. Div. July 10, 2009). Plaintiffs did so pursuant to Rules 4:49-2 and 4:50-1. The judge denied the motion for reconsideration, reasoning that the supplemental expert reports amounted to a "net opinion," that there were no facts showing that East Brunswick had actual or constructive notice of the sunken sidewalk, and that East Brunswick's actions regarding the alleged dangerous condition were not "palpably unreasonable." He concluded that even taking the two supplemental reports into consideration, summary judgment had been appropriately granted. Plaintiffs amended the notice of appeal to include the denial of the reconsideration motion.

On appeal, plaintiffs argue that the supplemental reports create a question of fact "as to whether [East Brunswick's] employees created the dangerous condition or had constructive notice of the defect" and that the judge incorrectly excluded them as net opinions. We disagree.

An expert's bare conclusions, unsupported by facts or data, are "net opinions" and inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The net opinion rule requires an expert "to give the why and wherefore of [the] opinion, not just a mere conclusion." Vitrano v. Schiffman, 305 N.J. Super. 572, 577 (App. Div. 1997).

The standard of review for a motion for reconsideration is well-known. Such a decision is left solely to the trial judge's discretion. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002). We will only reverse if we find there was an abuse of discretion. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). Moreover, we give substantial deference to a trial court's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998). Generally, we will not disturb an evidential ruling "unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. l991). "Even where there may have been error, reversal is required only when an unjust result occurred." Ibid.

Here, Poznak's report provided absolutely no factual basis for his determination that East Brunswick's faulty prior repair had caused the sidewalk to sink. He provided no explanation as to why he believed the quarry fill was faulty, nor did he provide any guidelines to demonstrate the type of industry standards that the sidewalk should have been measured against. Given that the reports provide a "mere conclusion" without providing the "why and wherefore" for that conclusion, Vitrano, supra, 305 N.J. Super. at 577, we find no abuse of discretion below.

Plaintiffs also contend that "even if the supplemental reports are not taken into consideration, the circumstantial proofs create a question of fact [for the jury] regarding [East Brunswick's] constructive notice of the dangerous condition." We disagree.

A court will grant summary judgment if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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 or order as a matter of law." R. 4:46-2. When "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged dispute in favor of the non-moving party," summary judgment must be denied. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). However, a court should not hesitate to grant the motion for summary judgment if the evidence "is so one-sided that one party must prevail as a matter of law." Id. at 540. We use the same summary judgment standard that is used by trial courts. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). The "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The TCA, N.J.S.A. 59:1-1 to 12-3, is intended to broadly limit the liability of public entities. Alston v. City of Camden, 168 N.J. 170, 176 (2001). The overarching purpose of the TCA is to provide "immunity for public entities with liability as an exception." Gilhooley v. County of Union, 164 N.J. 533, 538 (2000). Thus, the TCA "should be strictly construed to permit lawsuits only where specifically delineated." Gerber v. Springfield Bd. Of Educ., 328 N.J. Super. 24, 34 (App. Div. 2000).

Pursuant to the TCA:

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 and 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 entity took action to protect against the condition or the failure to take such action was not palpably unreasonable.

[N.J.S.A. 59:4-2 (emphasis added).]

Actual notice will be found if a claimant proves the public entity had "actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a). On the other hand, constructive notice may be imputed where "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." N.J.S.A. 59:4-3(b).

Both actual and constructive knowledge can be established if the plaintiff produces evidence that there were prior accidents or prior complaints about the dangerous condition. See Wymbs v. Twp. of Wayne, 163 N.J. 523, 534 (2000). Further, as provided in the TCA itself, courts have considered the length of time the dangerous condition existed to determine whether the public entity had actual or constructive knowledge. See Maslo v. City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002) (finding no actual or constructive notice where a one-inch sidewalk differential existed and plaintiffs expert opined it "must have been in existence for at least a year"); Lodato v. Evesham Twp., 388 N.J. Super. 501 (App. Div. 2006) (finding constructive notice was an issue for the jury where plaintiff established a raised sidewalk existed for at least eighteen years and township had repaired sidewalks in vicinity).

Plaintiffs argue that the circumstantial evidence allows an inference that East Brunswick's improper construction of the concrete patch created the dangerous condition because the sinking occurred in the exact location where East Brunswick previously dug a trench. Plaintiffs are essentially asking this court to apply the doctrine of res ipsa loquitur and infer East Brunswick's negligence. Such an inference is impermissible pursuant to the TCA. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 339-40 (App. Div. 2000) ("[R]es ipsa loquitur is not normally available in an action against a public entity grounded upon a dangerous condition of public property."). The TCA require "proofs that go beyond" a "more probable than not" inference. Ibid.

Plaintiffs also argue that East Brunswick had constructive knowledge of the defective sidewalk because municipal employees used the sidewalk daily to walk to and from the buildings. We disagree.

To succeed on a claim pursuant to the TCA, a plaintiff must overcome the substantial burden imposed by the requirement that the defendant's failure to take measures to protect against the dangerous condition was "palpably unreasonable." N.J.S.A. 59:4-2. Although "palpably unreasonable" is not defined in the TCA, it has been held to be behavior by a public entity that is so "manifest and obvious that no prudent person would approve of its course of action or inaction." Coyne v. State, Dep't. of Transp., 182 N.J. 481, 493 (2005). It is "behavior that is patently unacceptable under any given circumstances." Wymbs, supra, 163 N.J. at 532.

Whether the conduct of a public entity was palpably unreasonable is ordinarily a question for the jury to decide. Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 451 (App. Div. 1993). However, "like any other fact question before a jury, [the palpably unreasonable determination] is subject to the court's assessment whether it can reasonably be made [based on] the evidence presented." Ibid.

Here, though East Brunswick employees did traverse the defective sidewalk to access the municipal building, it is unclear how long the defect existed and how noticeable it actually was. Poznak indicated only that the sidewalk sunk "over an extended period of time." No previous were any accidents reported. As the judge noted, plaintiff herself did not notice the sidewalk defect until she tripped on it. Thus, we agree with the judge that plaintiff has not proven that East Brunswick was "palpably unreasonable" in failing to repair the sidewalk. See, e.g., Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998) (affirming summary judgment to township where plaintiff fell on one-inch declivity in parking lot and no prior injuries were reported); Gaskill v. Active Envtl. Tecs., Inc., 360 N.J. Super. 530, 537 (App. Div. 2003) (affirming summary judgment where plaintiff herself had not noticed one-inch raised metal grate protruding from sidewalk).

 
Affirmed.

(continued)

(continued)

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A-3427-08T3

August 12, 2010