CHARLES CEPHAS v. WASHINGTON TOWNSHIP BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6255-07T26255-07T2

CHARLES CEPHAS and

MARGARET CEPHAS, h/w,

Plaintiffs-Appellants,

v.

WASHINGTON TOWNSHIP BOARD OF

EDUCATION, WASHINGTON TOWNSHIP

CENTER FOR PERFORMING ARTS,

NELSON B. COONEY & SONS, INC.,

and TORCHIO BROTHERS, INC.,

Defendants-Respondents,

and

HALLIDAY DANCE and GARRISON ARCHITECTS,

Defendants.

__________________________________________

 

Argued November 4, 2009 - Decided

Before Judges Skillman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-2204-01.

Mitchell Lee Goldfield argued the cause for appellants.

Mary Jane Lidaka argued the cause for respondents Washington Township Board of Education and the Washington Township Center for Performing Arts (Berry, Sahradnik, Kotzas & Benson, P.C., attorneys; Ms. Lidaka, on the brief).

Arthur E. Donnelly, III, argued the cause for respondent Nelson B. Cooney and Sons, Inc. (Romando, Tucker, Zirulnik and Sherlock, attorneys; Mr. Donnelly, on the brief).

Law Offices of Styliades, Jackson, and Burghardt, attorneys for respondent Torchio Brothers, Inc. (Lewis K. Jackson, on the brief).

PER CURIAM

Plaintiff Charles Cephas sustained injuries resulting from a fall at defendant Washington Township Center for Performing Arts (CPA). He appealed from the July 21, 2008 Law Division order granting summary judgment to the CPA and defendants Washington Township Board of Education (BOE), Nelson B. Cooney & Sons, Inc. (Cooney) and Torchio Brothers, Inc. (Torchio). We affirm as to Cooney and affirm in part and reverse in part as to the BOE.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In 1996, the New Jersey State Department of Education (DOE) and Department of Community Affairs (DCA) approved the plans and specifications for the CPA's design and construction, which included the steps, the overhead lighting and the step and aisle lighting in the interior auditorium (the plans). Torchio was the general contractor for the CPA's construction, and Cooney was the electrical contractor who installed the auditorium lighting.

The auditorium has two levels, a lower level near the stage and an upper level. The levels are separated by two steps. There are lights on the front of each step. The auditorium also has three aisles leading from the back to the stage, with running lights along each side of the aisle. There is no dispute that the construction of the steps and aisles, and the installation of the overhead and step and aisle lights, conformed with the plans; that the local electrical inspector and fire marshal approved the work; and that the Township of Washington (Township) issued a certificate of occupancy on April 17, 2000 certifying that the CPA "has been constructed in accordance with the New Jersey Uniform Construction Code[.]"

According to plaintiff, at 3:30 p.m. on May 27, 2000, he arrived at the CPA to film his grandson's tap dance recital. He and other family members entered the auditorium from the rear center door after the performance had commenced. The auditorium was dark, but the stage lights were on and plaintiff could see the seats and aisle lights. Plaintiff walked about five seats down the aisle and instead of sitting with his family members, he decided to get closer to the stage in order to film the performance. Plaintiff was looking at the stage as he proceeded down the aisle. He could see the aisle lights, which were illuminated, but he did not see the steps. He also did not see any ushers or anyone with flashlights. After walking about ten to fifteen rows down the aisle, plaintiff fell, fracturing his right femur.

Dennis Martell, a full-time teacher employed by the BOE, supervised the students operating the sound and lighting systems during the performance. He was responsible for controlling the overhead lights, which he operated at full blackout during performances. He explained that because the lights on the steps were located in front of the steps, you could not see the steps or step lights from the rear of the auditorium with the overhead lights blacked-out, even with the aisle lights on. In other words, the aisle looked like one continuous aisle from the back of the auditorium to the stage. Accordingly, Martell recommended to anyone leasing the CPA to supply ushers with flashlights and place them at the steps in each aisle "[b]ecause people had fallen down the [steps] and this was just a safety precaution so people could walk down the [steps], not that it helped."

Martell received no complaints that the auditorium was too dark, and never considered it too dark. However, he considered the steps dangerous because you could not see them when the lights were at full blackout. He admitted that with the lights at ten percent, rather than at full blackout, you could see the steps from the back of the auditorium.

Earl Huff, an audio visual coordinator/technician employed by the BOE, supervised the student technical crew during performances. He agreed that the steps were not visible with the overhead lights at full blackout and that they were minimally visible with the stage lights on.

According to Rebecca Keith, the CPA's general manager, there were no complaints about the auditorium lighting before or after plaintiff's accident, and she believed that the lighting during performances was sufficient. However, after plaintiff's accident, she determined that the auditorium was too dark when the overhead lights were at full blackout during performances. As a result, the BOE established a policy requiring the overhead lights to be operated at no lower than ten percent during performances. The BOE also placed reflective tape on the steps, which made the steps visible during performances.

Plaintiff's expert engineer, Ervin Leshner, opined that the unsafe design and improper lighting in the auditorium caused plaintiff's fall. He concluded that the BOE was "negligent in operating a public facility that was hazardous due to violations of building codes and safety engineering practice."

In granting summary judgment, the judge found that the plans included the steps and lights; that the steps and lights were constructed and installed in conformance with the plans without deviation; that the lighting system and installation of the running lights along the aisles were considered during the design phase and received final approval; and that the fire inspector and fire marshal approved the project. The judge also found that the BOE had no actual or constructive notice of a dangerous condition, and that plaintiff failed to establish the existence of such a condition.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we consider, as the Law Division did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). Summary judgment must be granted "if 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 a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then decide whether the lower court's ruling on the law was correct. Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).

We reject plaintiff's contention that summary judgment is precluded by defendants' failure to present the plans to the court, and by Cooney's alleged failure to certify or authenticate its motion exhibits. Defendants provided the plans to plaintiff. Defendants also provided an unrebutted expert's report, which included the expert's review of the plans and his conclusion that design immunity applied. Plaintiffs do not dispute receiving the plans, they never challenged their authenticity, and they do not dispute that the aisles, steps and lighting were contained in and constructed in accordance with the plans. Thus, there was no reason to submit the plans to the trial judge. Also, we are satisfied that Cooney properly authenticated all of the documents that required authentication.

A public entity bears the burden to plead and prove immunity under the Tort Claims Act. Wymbs v. Twp. of Wayne, 163 N.J. 523, 539 (2000). To establish plan or design immunity, the public entity must show that "the design feature in question was contained in the construction plans, those plans were approved by the public entity, and the construction was undertaken in accordance with the plans." Leibig v. Somerville Senior Hous., 326 N.J. Super. 102, 108 (App. Div. 1999).

There is no dispute that the plans included the auditorium steps, aisles and lighting; that the DOE and DCA approved the plans, and that the steps, aisles and lighting were constructed in accordance with those plans without deviation. Accordingly, the trial judge properly granted summary judgment based on plan or design immunity.

We reach the same conclusion with respect to plaintiff's contention that the BOE negligently constructed the steps. Although a public entity is not entitled to plan or design immunity for the negligent construction of its facility, McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 449 (App. Div. 1977), plaintiffs present no evidence of negligent construction. To the contrary, the facts establish that the BOE relied on the plans in constructing the CPA. Even if the plans were improper, the BOE is still entitled to immunity for any alleged negligent construction. Ibid.

We do not reach the same conclusion as to plaintiff's claim of negligent operation of the CPA. A public entity is not entitled to plan or design immunity for the negligent operation of its facilities. Birchwood Lakes Colony Club v. Medford Lakes, 90 N.J. 582, 602 (1982). Here, the evidence indicates that the BOE employee responsible for the overhead lighting during the performance completely blacked out the lighting, making the steps invisible to someone walking down the aisle toward the stage. If the steps were in a dangerous condition at the time of plaintiff's injury, and if the lack of illumination within the auditorium made this condition more dangerous, a genuine issue of material fact exists as to whether plaintiffs have a viable claim against the BOE under N.J.S.A. 59:4-2a.

Affirmed as to Cooney; affirmed in part and reversed in part as to the BOE.

The CPA is now known as the Commerce Bank Arts Center.

Plaintiffs settled their claims against Torchio prior to oral argument of this appeal.

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A-6255-07T2

January 13, 2010