JULIAN RAMSEY v. LINDENWOLD BOROUGH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1092-10T2

JULIAN RAMSEY,

Plaintiff-Appellant,

v.

LINDENWOLD BOROUGH, MICHAEL

POLIS and THERESA HOWARD,

Defendants-Respondents.

_________________________________________________

December 23, 2011

 

Argued September 20, 2011 - Decided

 

Before Judges Payne, Simonelli and Hayden.

 

On appeal from Superior Court of New Jersey,

Law Division, Camden County, L-1372-08.

 

Philip L. Blackman argued the cause for

appellant (Schwartz & Blackman, attorneys;

Mr. Blackman, on the brief).

 

Michael J. Jubanyik argued the cause for

respondents Michael Polis and Theresa Howard

(Law Office of Debra Hart, attorney; Mr.

Jubanyik, of counsel and on the brief).

Robert J. Gillispie, Jr., argued the cause for respondent Lindenwold Borough (Mayfield, Turner, O'Mara, Donnelly & McBride, P.C., attorneys; Francis X. Donnelly, of counsel; Mr. Gillispie, on the brief).

PER CURIAM

On March 14, 2006, plaintiff Julian Ramsey tripped and fell on a sidewalk in the Borough of Lindenwold that adjoined property owned by Michael Polis and Theresa Howard. The sidewalk had been raised approximately three inches by the roots of a parkway tree in the area of plaintiff's fall. Ramsey filed suit against the homeowners and the Borough but, upon completion of discovery, summary judgment was granted to Polis and Howard by order dated May 14, 2010.

On July 16, 2010, the Borough filed a motion for summary judgment, claiming that it was entitled to that relief on the basis of N.J.S.A. 59:2-3d, which provides:

A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.

On July 21, 2010, prior to a decision on its summary judgment motion, plaintiff's claim against the Borough was arbitrated, and the arbitrators found the Borough eighty percent liable, awarding damages of $144,000. Four days before the expiration of the thirty-day deadline for seeking trial de novo, the Borough sent a trial demand to the court by regular mail. Although its request was received by plaintiff's counsel two days later, it was not received by the court until five days after the deadline, and it was returned as untimely.

The Borough then moved for an order permitting the demand to be filed nunc pro tunc or declaring the late filing to have been timely. On September 16, 2010, the motion was granted on the ground that counsel could reasonably have expected a notice filed four days before a deadline to have been timely delivered, and that the delay constituted an extraordinary circumstance permitting the late filing. Plaintiff's cross-motion to confirm the arbitration award was denied. Additionally, on September 16, the Borough's motion for summary judgment was argued and granted.

Plaintiff has appealed from the orders granting summary judgment and from the order deeming the demand for a trial de novo to have been timely filed nunc pro tunc as of August 20, 2010. We affirm as to all orders except the order granting summary judgment to the Borough.

I.

On appeal, plaintiff claims that the court erred in granting summary judgment to the defendant homeowners. We disagree, determining that even when all favorable inferences from the record are construed in plaintiff's favor, he has not established a basis for their liability. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (establishing standards for consideration of summary judgment motions); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (applying Brill standards on appeal).

The general rule is that a residential property owner owes no duty to keep a sidewalk abutting his property in repair. Norris v. Borough of Leonia, 160 N.J. 427, 431 (1999) (citations omitted). Although the Court has created an exception to the rule of nonliability in the case of abutting commercial landowners, Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), it had "consistently declined to extend the liability rule to abutting residential and non-profit owners." Nielsen v. Lee, 355 N.J. Super. 373, 376 (App. Div. 2002), certif. denied, 176 N.J. 73 (2003).

Residential property owners only may be held liable in tort for sidewalk injuries under limited circumstances. In Yanhko v. Fane, 70 N.J. 528 (1976), the Court held that: "It is well settled that an abutting owner is not liable for the condition of a sidewalk caused by the action of the elements or by wear and tear incident to public use, but only for the negligent construction or repair of the sidewalk by himself or by a specified predecessor in title or for direct use or obstruction of the sidewalk by the owner in such a manner as to render it unsafe for passersby." Id. at 532 (citations omitted). Additionally, a landowner who plants a tree on his property may be held liable for sidewalk injuries if the roots of that tree cause the sidewalk to crack, thereby creating an unsafe condition. Deberjeois v. Schneider, 254 N.J. Super. 694, 703 (Law Div. 1991), aff'd, 260 N.J. Super. 518 (App. Div. 1992).

Municipal sidewalk ordinances that require a residential landowner to maintain an adjacent sidewalk do not create a duty running from the property owner to a pedestrian unless the ordinance specifically states that it creates civil liability. Yanhko, supra, 70 N.J. at 536.

In the present case, the record discloses that defendants Polis and Howard owned the house adjoining the location of plaintiff's fall from 1992 to mid-2006. In his deposition, Polis stated that he had never replaced or made repairs to the sidewalk, and that the sidewalk was in the same condition in 2006 as it had been when he and Howard bought the house. Polis acknowledged that he swept cut grass and fallen leaves from the sidewalk, as well as occasionally removing trash and debris that blew onto the sidewalk and into his yard, but that was the extent of his activity with respect to the sidewalk. Howard testified that neither she nor Polis had hired anyone to work on the tree that had caused the sidewalk to lift.

Nonetheless, plaintiff contends that tort liability should attach to defendant homeowners because they "were aware of the dangerous and unsafe condition of the sidewalk." Plaintiff also notes defendants' testimony that they occasionally swept leaves and debris from the sidewalk. However, neither fact is sufficient to confer liability on the part of the homeowners.

See Rose v. Slough, 92 N.J.L. 233, 234 (E. & A. 1918) (finding no duty to repair). Nor does liability arise as the result of Borough ordinance 181-29, which pertains only to the removal from sidewalks by abutting landowners of snow, ice and grass, weeds and other impediments,1 not to raised surfaces. As a consequence, summary judgment was properly granted to the homeowners.

II.

Plaintiff also challenges the court's order granting the Borough's motion to file its trial demand nunc pro tunc and denying plaintiff's motion to confirm the arbitration award.

Pursuant to Rule 4:21A-1(a)(2), court-ordered nonbinding arbitration of plaintiff's claim against the Borough was held on July 21, 2010, resulting in an award in plaintiff's favor. Pursuant to Rule 4:21A-6(b)(1), the Borough's notice of demand for trial de novo was due on August 20, 2010. Defense counsel's legal assistant certified that on August 16, 2010 she sent the completed notice by regular mail from Cherry Hill, addressed to the civil case manager's office in Camden, a mere five miles away. Plaintiff's counsel acknowledged having received a copy of the trial demand on approximately August 18. However, the case manager received the notice on August 25, 2010, and on that day mailed the notice back to defense counsel as untimely. Counsel received the rejected notice on August 27, 2010. On August 31, 2010, defense counsel filed a motion to have the demand for trial de novo filed nunc pro tunc as of August 20, 2010 or to regard the late filing as timely. A cross-motion for confirmation of the arbitration award was filed.

On September 16, 2010, the court addressed the pending motions, determining on the basis of our decision in Flagg v. Twp. of Hazlet, 321 N.J. Super. 256, 258-59 (App. Div. 1999) that some limited flexibility existed with respect to relaxation of the filing deadline in cases such as this. However, in accordance with Hartsfield v. Fantini, 149 N.J. 611, 616-18 (1997), evidence of ordinary attorney neglect was not sufficient to warrant relaxation; extraordinary circumstances needed to be demonstrated. The judge then found that

mailing a notice four days before [a deadline] does not constitute neglect. An error beyond the attorney's control by the postal authorities, or by the court staff

. . . occurred here[.] [A]ccordingly extraordinary circumstances do exist here to allow the request for a trial de novo to be deemed timely filed nunc pro tunc.

 

We affirm on the basis of the court's oral opinion.2

III.

Also on September 16, 2010, the court granted summary judgment to the Borough, determining that its conduct was immunized by N.J.S.A. 59:2-3d. Our review of the record leads us to the conclusion that the judge was mistaken in that regard.

The Borough premised its motion on an affidavit and deposition testimony given by Robert Lodovici, the Borough's Director of Public Works since 1988. In his affidavit, Lodovici stated that a Shade Tree Division existed within the Public Works Department. He calculated the Shade Tree Division's budget. Lodovici continued:

9. In 2006, the year I understand that plaintiff Julian Ramsey alleges his accident to have occurred, the annual budget for the Shade Tree Division was approximately seventeen thousand dollars ($17,000.00).

. . .

 

10. Fourteen thousand dollars ($14,000.00) of this amount was earmarked for a contract with Clean Cut Tree Service to trim and remove trees and grind out stumps and three thousand one hundred dollars ($3,100.00) was allocated for miscellaneous expenses.

 

11. While the Public Works Department undertakes trimming or removal actions with respect to trees themselves, pursuant to funds in the budget allocated for this purpose, the Public Works Department has never undertaken to repair sidewalks damaged by tree roots nor to remove tree roots under a sidewalk itself. Any tree and/or stump removal stops at the plane where the sidewalk itself begins.

 

12. In these situations, homeowners are specifically informed that the Borough and/or the Public Works Department undertakes no responsibility for sidewalk repair and that the homeowners must undertake any repairs themselves.

 

* * *

 

15. As stated, due to a lack of adequate funds, Lindenwold has never, to my knowledge, allocated any money for the repair or maintenance of sidewalks along the forty miles of streets within its borders.

 

In his affidavit, Lodovici then discussed complaints, stating that if a resident complained about a tree uplifting or otherwise damaging a sidewalk, the complaint would be investigated, and if the tree were dead or damaged it would be removed. "The homeowner would also be specifically told that the sidewalk was the homeowner's responsibility." If a homeowner called to complain solely about a sidewalk, no complaint form would be filled out. "The complainant would simply be told that sidewalks were not the Borough's responsibility."

Additionally, in his deposition, the following exchange occurred:

Q. During the period of 1988 when you're the director of public works up until March and including March of '06, what work, if any, would the borough do with regard to defective sidewalks?

 

A. None.

 

Q. When I say that, such as if it's uneven or it has an elevation, the sidewalk in front of a residence, those are the kinds of sidewalks I'm talking about.

 

A. The sidewalk is the responsibility of the homeowner. The borough doesn't do any work on sidewalks which are considered private property.

 

Lodovici testified further in response to a question regarding what he said when homeowners contacted him about repairing sidewalks:

A. There may have been a few calls, maybe they weren't knowledgeable as to whose responsibility it was and we would just inform them that it was their responsibility.

 

The exchange continued:

Q. How did you find out that it was the homeowner's responsibility to repair any dangerous sidewalk or any condition of a sidewalk that's been elevated?

 

A. When I took the position as director the old director had informed me of the responsibilities of the homeowner and the responsibilities of the Public Works Department.

 

* * *

 

Q. You were told from day one when you first started in '86, around '86, that the homeowner is responsible for anything to deal with the sidewalk in front of their house; is that correct

 

A. Yes.

 

Q. when you're dealing with residential?

 

A. Yes.

 

Q. Did he tell you what did he ever indicate what that was based on?

 

A. No.

 

Q. Did you ever during the course of 1988 through today, ever have an understanding or someone showed you something as to what you base [the conclusion that] the homeowner in a residential property is responsible for the sidewalk in front of their hours?

 

A. No, I've never seen anything. It has been related to me over time that the responsibility of the sidewalk is the responsibility of the homeowner.

 

Although Lodovici testified that he believed "there is a resolution" placing the responsibility for the maintenance of sidewalks on private homeowners, he had no idea when it had been passed, and had never seen it. No such resolution or ordinance has been produced in connection with this litigation.

The evidence, viewed in a light most favorable to plaintiff, therefore suggests that Lodovici, the person formulating the budget for the Public Works Department, did not exercise his discretion in the face of competing demands in determining not to seek funds to maintain the Borough's sidewalks. N.J.S.A. 59:2-3d. The evidence, fairly viewed, can be construed to suggest that Lodovici simply did not regard the maintenance of sidewalks, which he regarded as private property, as within the Borough's responsibilities.3

The Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14-4, is intended to broadly limit the liability of public entities. Alston v. City of Camden, 168 N.J. 170, 176 (2001). Its overarching purpose is to provide "immunity for public entities with liability as an exception." Thus, the TCA should be "strictly construed to permit lawsuits only where specifically delineated." Gerber ex rel. Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 34 (App. Div. 2000) (citing Polyard v. Terry, 160 N.J. Super. 497, 506 (App. Div. 1978), aff'd, 79 N.J. 547 (1979)).

N.J.S.A. 59:4-2 permits public liability for injury proximately caused by a condition of its property if the property was in a dangerous condition when the injury occurred; either an employee of the public entity negligently or wrongfully created the dangerous condition or the public entity had actual or constructive notice of the condition; and if the action the entity took to protect against the condition, or its failure to act, was not palpably unreasonable. Polzo v. Cnty. of Essex, 196 N.J. 569, 578-79 (2008). However, N.J.S.A. 59:2-3d provides grounds for immunity from liability "for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources . . . unless a court concludes that the determination of the public entity was palpably unreasonable." The Borough successfully relied upon this provision in obtaining summary judgment in this matter.

In claiming immunity from a TCA claim, the burden was on the Borough to demonstrate competing demands for limited public resources. Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985) (citing Ellison v. Housing Auth. of S. Amboy, 162 N.J. Super. 347, 351 (App. Div. 1978)).

We have characterized a public entity's resource demand defense pursuant to N.J.S.A. 59:2-3d as one that:

requires the [entity] to show that it faced competing demands, and that it exercised its discretion to determine "whether and how to utilize or apply existing resources." N.J.S.A. 59:2-3d. That involves deliberation and judgment: examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

 

[Lopez v. City of Elizabeth, 245 N.J. Super. 153, 156-57 (App. Div. 1991) (citing Miree v. U.S., 490 F. Supp. 768, 774 (N.D. Ga. 1980)).]

 

In support of its claim that it is entitled to resource demand immunity, the Borough relies on Mitchell v. City of Trenton, 163 N.J. Super. 287, 291 (App. Div. 1978). It argues on the basis of that case that it was properly granted judgment in its favor as a matter of law. However, it should be noted that Mitchell was decided before the Court determined, definitively, that the TCA abrogated common-law sidewalk immunity. See Norris, supra, 160 N.J. at 440-42. Moreover, testimony given by Trenton's Director of Public Works in support of immunity clearly established a conscious decision on Trenton's part, premised on budgetary considerations, not to undertake the curb repairs that were at issue in that case, id. at 290, whereas in the present case it is unclear whether the Borough understood that it had a duty to repair that it could not economically fulfill or whether it believed that it had no duty.

We find more persuasive the reasoning of Judge Brody in Guerriero v. Palmer, 175 N.J. Super. 1 (Law Div. 1979). In that opinion, the judge recognized the applicability of the TCA to municipal liability for injuries caused by the dangerous condition of sidewalks. However, when considering the municipality's assertion of a resource allocation defense pursuant to N.J.S.A. 59:2-3d, the judge contrasted the evidence before him to that presented in Mitchell, noting that in Mitchell the Director of Public Works had specifically testified at trial to the resource allocation considerations that had led to the deterioration of Trenton's curbs. Id. at 6. However, Judge Brody observed that such evidence was missing in the case before him. In denying summary judgment to the municipality, he advised that it had not "come forward with some evidence beyond the inference that repairing this sidewalk was an expense it chose not to incur." Ibid.

Similarly, in Lopez, supra, 245 N.J. Super. at 156-57, a pothole case, we declared inadequate as support for a resource allocation defense the response of the sole inspector employed by the city's Department of Public Works to the question why only one inspector existed: "To my knowledge, you only have funds for one." We stated:

It is clear . . . that "you only have funds for one" is insufficient evidence to permit a jury to conclude that the City faced competing demands and decided to use its manpower for something more pressing than inspecting potholes. There was no proof of competing demands or limited available manpower, or of a discretionary decision made to establish priorities.

 

[Id. at 157.]

 

See also Smith v. Nieves, 197 N.J. Super. 609, 614 (App. Div. 1984) (finding no basis to consider the merits of a resource allocation defense when no evidence was presented by the defendant municipalities "to demonstrate the existence and nature of competing demands, the availability of resources and the factors which may have influenced their allocation.").

In summary, our review of the record leads us to conclude that the Borough has failed to meet its burden of demonstrating the applicability of N.J.S.A. 59:2-3d to this case. In that regard, the evidence suggests that the Borough customarily has taken the position that residential sidewalks are private property that abutting residents have a duty to maintain. However, that position is contrary to established precedent. See Yanhko, supra, 70 N.J. at 534; Guerriero, supra, 175 N.J. Super. at 5. In support of its position the Borough cites to its ordinances. However, no ordinance relating to the ownership or maintenance of residential sidewalks appears in the record. The only ordinance produced relates to the removal of snow, ice and debris.

Alternatively, the Borough relies on the affidavit of its Public Works Director to establish that it exercised its discretion not to allocate its limited resources to sidewalk maintenance. However, there is no evidence in the record that would suggest that any measured consideration was given by the Borough to this issue. As a consequence, we conclude that the evidence presented was insufficient to warrant summary judgment, which is reversed.

Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.

1 Plaintiff testified at his deposition that he did not see the uneven sidewalk before he fell, and therefore he inferred that the defect was concealed by leaves or debris. However, he had no clear recollection as to what, if anything, obstructed his view of the walkway.

2 We note that a similar result was reached by the Law Division in De Rosa v. Donohue, 212 N.J. Super. 698 (Law Div. 1986), a case in which the trial demand was mailed six days before the thirty-day period would lapse but was not received until two days after the deadline. There, the court found that "[i]t should not have taken more than two or three days for the notice to reach its destination." Id. at 702. The court then determined that the plaintiff "had the right to rely on the delivery of the notice to the civil case manager within six days of its posting. The failure of the notice to reach its destination until eight days after its mailing was 'extraordinary.'" Id. at 703 (citing Mazakas v. Wray, 205 N.J. Super. 367, 371 (App. Div. 1985)).

3 We acknowledge that the record contains a form letter from the Borough of Lindenwold Shade Tree Commission, an entity that was abolished in 2002, acknowledging a complaint regarding damage to a sidewalk caused by tree roots and stating: "Unfortunately, due to budget constraints, the Borough is not in a position to pay for sidewalk repairs." However, this letter, at most, raises an issue of fact as to the basis for the Borough's position.