STEVEN MCGRATH v. TOWNSHIP OF WALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6041-09T4

STEVEN MCGRATH AND

ELISE MCGRATH, His

Wife,

Plaintiffs-Appellants,

v.

TOWNSHIP OF WALL,

Defendant-Respondent.

___________________________________________________

September 26, 2011

Submitted September 6, 2011 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5387-08.

Hobbie, Corrigan & Bertucio, P.C., attorneys for appellants (David P. Corrigan, of counsel; Shantika F. Prather, on the brief).

Grossman & Heavey, attorneys for respondents (Richard J. Bolger, on the brief).

PER CURIAM

Plaintiffs Steven and Elise McGrath appeal from the grant of summary judgment to defendant, Township of Wall (Wall).1 The motion judge concluded that plaintiffs failed to raise a disputed material fact as to Wall's liability under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3.

Viewed in a light most favorable to plaintiff, see R. 4:46-2, the motion record reveals that on April 21, 2008, plaintiff was working as a landscaper on private property located at 1536 Toboggan Run in Wall. During the performance of his duties, he stepped off the curb abutting the property and onto the roadway. Plaintiff's foot landed in a hole in the pavement that was concealed by an accumulation of leaves. He was injured as a result.

At deposition, plaintiff acknowledged that he had landscaped this particular property for eighteen years, including the last service provided in fall 2007. The date of the accident was the first time he had returned to the property in 2008. Plaintiff testified that he could not recall ever seeing any pothole adjacent to the curb line. The day after the accident, plaintiff called Wall's road department to report the existence of the hole.

Photographs of the area attached as exhibits to plaintiff's opposition to Wall's summary judgment motion reveal an area adjacent to the curb where the asphalt road bed was in a state of disrepair, and the underlying base materials were loose. While there is an obvious declivity, it is difficult to ascertain how deep it was. Immediately next to the hole are two areas of macadam that differ from the roadway's surface.

Robert Hendrickson, the foreman of Wall's road department, testified at deposition that he held that position for twenty-one years. In general, the duties of his department included plowing snow on the roads, and generally maintaining them, including "resurfac[ing] portions" and fixing potholes. The road department also picked up brush and debris left by the roadside "once a month." Garbage was picked up by members of Wall's sanitation department twice per week.

Hendrickson also testified that residents and other departments, e.g., sanitation, police and fire, would report problems to the road department. He would dispatch a repair crew that would address the problem in compliance with departmental standards previously-issued. Hendrickson testified that Toboggan Run was paved in the 1970s and no problems were reported in the area of Toboggan Run for eight years prior to plaintiff's accident. After the accident, the road department received notice of the condition and dispatched a crew to repair it.

Plaintiff's expert, William Poznak, P.E. & L.S., furnished a report. Based upon his review of the photographs, Poznak concluded that the condition "took quite some time to develop. This [wa]s evidenced by the worn, exposed edges, coupled with the base materials also disintegrating." Based upon his review of Hendrickson's deposition testimony, Poznak observed that the "municipality could easily have noted [the] pavement condition during the process of sweeping and snow removal of [the] roadway pavement area." Poznak ultimately concluded:

[Plaintiff's] accident and injury could easily have been avoided if the roadway surface void had been filled. Further, since said condition existed for [quite] some time, representative[s] of the municipality, after observing same, should have had this void filled and patched.

In an extensive oral decision, Judge Paul A. Kapalko initially concluded that plaintiff "raise[d] a colorable argument" that the declivity was "a dangerous condition . . . for individuals . . . reasonably expect[ed] [to] be utilizing the street." The judge further determined "that a jury could conclude . . . the pothole's existence proximately caused plaintiff's injuries given [that] the pothole itself is not level [and] is depressed below the street level." Judge Kapalko also determined that plaintiff's use of the street as a pedestrian was entirely forseeable.

The judge then considered "the more difficult question . . . of notice," since it was undisputed that Wall did not have actual notice of the condition. Judge Kapalko reasoned that Poznak's opinion failed to "approximate the length of time the condition was present," and there was no testimony "which suggest[ed] . . . how long the condition was present." Summarizing plaintiff's own testimony, i.e., that he had regularly serviced the property throughout 2007 without noticing the condition, and the accident occurred on the first day he serviced the property in 2008, the judge reasoned that "the length of time that it was taking for this [condition] to develop . . . [was] at the outside between some time in October of 2007, and April 21[,] 2008. Roughly a period of six months."

After citing extensively to Hendrickson's deposition testimony, Judge Kapalko noted that "it [wa]s not surprising that no public worker reported [the condition] based upon their routine work . . . . [T]he property owner, himself, made no complaint." The judge further observed, "There's no indication how long those leaves ha[d] been present in that curbside area, and had obscured that particular pothole from view." Judge Kapalko concluded:

These are all types of variables that could make it unreasonable, and impossible to impute to public employees the responsibility to identify every minor crack, and pothole in a municipality of this size over a matter of months.

. . . .

Based upon the evidence presented and viewed in a light most favorable to the non-moving party, I m . . . satisfied there exists no triable issue of . . . fact as to whether defendant's actions were palpably unreasonable.

After further citing case law regarding palpably unreasonable conduct by a public entity, the judge observed:

Defendant has offered evidence that the roads are inspected on a monthly basis for brush cleanup . . . and look[ed at] on a daily basis for potholes, and repairs as needed.

Plaintiff offers nothing but a criticism that defendant failed to locate this particular pothole and fill it.

Judge Kapalko granted Wall's motion for summary judgment, and this appeal ensued.

Plaintiff essentially argues that the judge erred in granting summary judgment because "genuine issues of material fact exist." He further contends that the judge misapplied summary judgment standards by failing "to consider the underlying evidentiary materials in the light most favorable to plaintiff[] and made inappropriate findings of fact . . . ."

We have considered these arguments in light of the motion record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Kapalko in his comprehensive oral decision. We add only the following comments.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Ibid.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether 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 disputed issue in favor of the non-moving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. We owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The TCA "re-establishes sovereign immunity and provides that 'public entities shall only be liable for their negligence within the limitations of th[e] act . . . .'" Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 457 (2009) (quoting N.J.S.A. 59:1-2). "The guiding principle of the [TCA] is that 'immunity from tort liability is the general rule and liability is the exception.'" Coyne v. State, 182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)).

Regarding liability for dangerous conditions on public property, the Court has said:

[I]n order to impose liability on a public entity pursuant to [N.J.S.A. 59:4-2], a plaintiff must establish the existence of a "dangerous condition," that the condition proximately caused the injury, that it "created a reasonably foreseeable risk of the kind of injury which was incurred," that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity's conduct was "palpably unreasonable."

[Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 125 (2001) (quoting N.J.S.A. 59:4-2).]

"Th[e]se requirements are accretive; if one or more of the elements is not satisfied, a plaintiff's claim against a public entity alleging that such entity is liable due to the condition of public property must fail." Polzo v. Cnty. of Essex, 196 N.J. 569, 585 (2008). "In the absence of actual notice, a public entity will be liable for a dangerous condition 'only if the 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.'" Id. at 581 (quoting N.J.S.A. 59:4-3(b)).

In this case, there was no actual notice of the presence of the pothole that caused plaintiff's accident. Moreover, except that the pothole was not detected, there was no proof demonstrating Wall's failure to exercise due care to detect any dangerous condition. Hendrickson's testimony regarding the various agencies that would report dangerous conditions during the performance of their routine tasks certainly indicated that Wall exercised due diligence in this regard.

But, even if we assume a disputed fact existed as to constructive notice of a dangerous condition along the curbline of Toboggan Run, we agree with Judge Kapalko that plaintiff failed, as a matter of law, to demonstrate that Wall's conduct was palpably unreasonable.

In large part, plaintiff's claim is that a jury could find Wall acted in a palpably unreasonable manner because patching the roadway was simple and inexpensive. In our opinion, this argument limits the duty upon a plaintiff to demonstrate that the public entity's conduct, viewed in its entirety, was palpably unreasonable. In other words, the ease by which the dangerous condition can be ameliorated may be evidence of palpably unreasonable conduct, see e.g., Roe v. N.J. Transit Rail Operations, Inc., 317 N.J. Super. 72, 82 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999), but it is not necessarily the determining factor.

Palpably unreasonable conduct "means 'behavior that is patently unacceptable under any circumstance' and . . . it must be 'manifest and obvious that no prudent person would approve of [the public entity's] course of action or inaction.'" Pandya v. State, 375 N.J. Super. 353, 372 (App. Div. 2005) (alteration in original) (quoting Holloway v. State, 125 N.J. 386, 403-04 (1991)). We acknowledge that in most circumstances, "[p]alpable unreasonableness is a question of fact." Vincitore, supra, 169 N.J. at 130.

Nevertheless, "[i]n appropriate cases . . . the question of palpable unreasonableness may be decided by the court as a matter . . . for summary judgment." Harry A. Margolis & Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:4-2 at 134 (2011). In Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002), for example, we affirmed the grant of summary judgment noting that absent actual or constructive notice, the conduct of the public entity could not be found to be palpably unreasonable.

In Carroll v. N.J. Transit, 366 N.J. Super. 380, 384 (App. Div. 2004), the plaintiff was injured when he slipped on dog feces while descending the steps of the defendant's train station. Initially, we rejected the plaintiff's argument "that [the] defendant's mode of operation -- namely, inspecting only once a day and sweeping the platform prior to the steps -- was 'patently unreasonable' and likely created the dangerous condition, therefore relieving him of his burden to otherwise prove actual or constructive notice on the part of defendant." Id. at 389. Specifically addressing the plaintiff's burden of proof regarding palpably unreasonable conduct, we noted:

The proposition that it was palpably unreasonable for the worker to sweep the platform before the steps is completely unsupported by any evidence in this record. So too is the similar labeling of defendant's inspection routine. Plaintiff presented no proofs on the standard of care for inspections of subway or rail stations. And, as previously noted, the record is devoid of any evidence of a history of similar incidents or complaints, or a demonstrable pattern of conduct or practice to suggest the need for a more frequent inspection schedule. As such, plaintiff's claims of palpable unreasonableness presented no jury question.

[Id. at 390-91.]

In this case, there was no proof that the extensive procedures Wall employed to detect and address dangerous conditions on its property were inadequate. Adopting plaintiff's contention as to his burden on this issue would mean a jury question exists whenever the costs of remedial procedures are modest, and the entity, despite having adequate procedures in place, simply fails to detect the dangerous condition. Such a standard would run afoul of the TCA's "guiding principle . . . that immunity from tort liability is the general rule and liability is the exception." Coyne, supra, 182 N.J. at 488 (quotation omitted).

Affirmed.

1 Because Elise McGrath's cause of action is wholly-derived from her husband's, we shall use the singular, "plaintiff," throughout the balance of this opinion and refer to Steven McGrath.