DIONNA TUCKER v. COUNTY OF UNION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DIONNA TUCKER,
 

Plaintiff-Appellant,

v.

COUNTY OF UNION,

Defendant-Respondent.

________________________________

October 29, 2013

Submitted October 7, 2013 Decided

Before Judges Parrillo and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2569-11.

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

Robert E. Barry, Union County Counsel, attorney for respondent (Norman W. Albert, First Deputy County Counsel, on the brief).

PER CURIAM

Plaintiff Dionna Tucker appeals from the summary judgment dismissal of her personal injury negligence complaint against defendant County of Union for failure to satisfy the requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -14-4 (Act). We affirm.

Because this matter comes to us from the motion court's grant of summary judgment in favor of defendant (the moving party), we view the evidence in the light most favorable to plaintiff. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012).

On August 26, 2006, plaintiff was jogging on the paved fitness circuit and walking path bordering a pond in Rahway River Park that was owned and maintained by defendant. She tripped and fell into a depression on the edge of the path when she moved to the far left to avoid joggers approaching from the other direction. The depression was caused by broken macadam and covered by leaves shaken from trees in a recent rainstorm. Plaintiff had walked the macadam path a year "or two" before the accident, and had not seen any declivity.

Plaintiff suffered a distal tibula and fibula fracture. She underwent a closed reduction and casting and ultimately, an open reduction and internal fixation to the left ankle on September 5, 2006, and then a second surgical procedure to remove the hardware on January 5, 2010. Her treating physician found that the fractures had healed successfully after the second surgery when the hardware was removed. On November 8, 2011, an independent medical examination revealed that the fractures had healed in anatomic alignment; that plaintiff had regained full range of motion in her ankle in all directions; that she had a mild to moderate degree of permanent physical impairment; and that she could resume regular activities of daily living without restriction.

Following discovery, defendant moved for summary judgment dismissal of plaintiff's complaint on the grounds that plaintiff failed to establish that the County had actual or constructive notice of the dangerous condition pursuant to N.J.S.A. 59:4-3 and that plaintiff's injury failed to satisfy the injury threshold of N.J.S.A. 59:9-2(d). After considering plaintiff's opposition and hearing oral argument, the motion judge granted summary judgment in favor of defendant, reasoning:

This court does not find, based on the evidence presented, that Plaintiff has met the substantial burden of proving that Defendant had notice of the declivity. There is no dispute that Defendant had not received complaints or reports of previous accidents about the depression. Therefore, any potential argument lies within the realm of constructive notice. Plaintiff relies solely on photographs of the three-inch wide declivity on the edge of the pathway as proof that the condition was open and obvious. No expert report supports her position that the declivity existed for a substantial period of time. At oral argument, Plaintiff asserted that a layperson, using general knowledge, could conclude that the declivity had existed for at least a year or two prior to the accident.

This Court declines to assume knowledge of such facts without an expert report.

. . . .

Indeed, while the photocopies of the photographs attached to the opposing submission appear to show macadam which was probably not of recent vintage, a layperson would have to be clairvoyant to be able to predict its age with any degree of reliability.

As noted, the court also based its summary judgment dismissal on plaintiff's failure to vault the Act's injury threshold, concluding:

While the plaintiff in the case at hand did in fact undergo a similar open reduction internal fixation surgery as the Gilhooley [v. County of Union, 164 N.J. 533 (2000)] plaintiff, a key difference is that [plaintiff] has had all her hardware removed with little impairment. The only lasting effect from the accident is that she must wear [orthotic] shoes, a far cry from internal wires and pins. Her treating physician . . . opined that Plaintiff's injury had healed successfully since the second surgery, and the defendant's medical expert . . . opined that Plaintiff could resume regular activities without restriction, although though there was a mild to moderate degree of permanent physical impairment. Other than subjective complaints of pain, Plaintiff has not disputed these facts.

This appeal follows.

We review the "grant of summary judgment relief de novo" and are governed by the same standard governing the motion court under Rule 4:46-2(c). Khandelwal v. Zurich Ins. Co., 427 N.J. Super. 577, 585 (App. Div.), certif. denied, 212 N.J. 430 (2012). Thus, the "'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. . .'" McDade v. Siazon, 208 N.J. 463, 473 (2011) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010)).

We start our substantive review with N.J.S.A. 59:4-2, which establishes several elements that must coalesce before a public entity will be held liable for a dangerous condition in its property:

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 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 action the entity took 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).]

The notice requirements for a "dangerous condition" are set forth in N.J.S.A. 59:4-3, and in pertinent part states:

a. A public entity shall be deemed to have

actual notice of a dangerous condition

. . . if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.

b. A public entity shall be deemed to have constructive notice of 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.

[Ibid. (emphasis added).]

Here, as the motion judge correctly noted, there is no proof of actual notice to the County. There is, for instance, no evidence that the County received complaints about the dangerous condition, see, e.g., Norris v. Borough of Leonia, 160 N.J. 427, 447 (1999), or that there were prior accidents at the site, see, e.g., Wymbs v. Township of Wayne, 163 N.J. 523, 536-37 (2000). Thus, 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." N.J.S.A. 59:4-3(b).

Measured against that yardstick, the only evidence proffered by plaintiff that the alleged dangerous condition qualified for constructive notice is her bald assertion that the three-inch declivity on the edge of the pathway was open and obvious and existed for a substantial amount of time. Her lay opinion, without more, is simply insufficient to sustain plaintiff's burden.

Clearly, the "mere '[e]xistence of an alleged dangerous condition is not constructive notice of it.'" Polzo v. Cnty. of Essex, 196 N.J. 569, 581 (2008) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). By the same token, however, a reasonable inference of notice is created where a condition has existed for a sufficient length of time and was open and obvious. For instance, in Chatham v. Hall, 128 N.J. 394 (1992), the Court found sufficient evidence to defeat the township's summary judgment motion where local residents complained at least one year before the accident of a very large pothole that ran across much of the street and both the injured party and the truck driver, whose car hit the hole and struck the plaintiff, had noticed the hole for a couple of months. Id. at 399-400. The Court reasoned that the length of time the hole existed and the size of the hole created a reasonable inference that the defendant had either actual notice or constructive notice. Id. at 418.

In Lodato v. Evesham Township, 388 N.J. Super. 501 (App. Div. 2006), where the plaintiff fell over a sidewalk slab raised by a tree root, we also found the evidence sufficient to present a jury question on the township's constructive notice. Id. at 512. In that case, we determined that the tree roots that raised the sidewalk were "so apparent" and had existed ever since the homeowners purchased their home almost eighteen years before the accident, and that similar conditions existed throughout the neighborhood. Ibid.

In Polzo, supra, a bicyclist died after striking a declivity in the road. 196 N.J. 574. Decedent's wife brought an action against the County alleging that the declivity in the shoulder of the roadway constituted a dangerous condition giving rise to liability. Ibid. The report of the plaintiff's engineering expert opined that since the depression "could or should have been noticed for a significant period of time" the County had constructive knowledge of the dangerous condition. Id. at 582. The Court held that the expert's report, which provided no explanation for any of its conclusions, id. at 583, was insufficient, by itself, to sustain the plaintiff's burden of showing that the County had constructive knowledge of the dangerous condition, id. at 584.

Here, plaintiff has presented no competent evidence much less expert proof as to the length of time the declivity existed. If an expert's report that baldly concluded a depression must have existed for a sufficient period of time was deemed insufficient to raise a question of a public entity's constructive notice, then a fortiori plaintiff's equally unsupported lay opinion also fails to meet the constructive knowledge standard. Not only was there no proof of the depression's duration, plaintiff herself admitted that she walked the macadam path a year or two before her accident and had not seen any declivity. And nothing in the summary judgment record suggests that any complaints or accidents concerning the alleged dangerous condition were ever reported to the County in the interim. Consequently, we are satisfied that no reasonable jury could have concluded that the County had actual or constructive notice of the depression a sufficient time prior to the injury to have taken measures to protect against the hole, see N.J.S.A. 59:4-2, and therefore the grant of summary judgment in favor of defendant was proper.

As noted, another basis for the grant of summary judgment was plaintiff's failure to satisfy the injury threshold of the Tort Claims Act, namely to present any competent evidence of a "permanent loss of bodily function." N.J.S.A. 59:9-2(d). We concur in this determination as well, substantially for the reasons stated in the motion judge's written statement of reasons of August 16, 2012. Suffice it to say, plaintiff sustained a left ankle fracture that had healed successfully after post-operative surgery to remove the hardware in her ankle. She regained full range of motion in her ankle "in all directions." Although the defense expert reported the injury as a "mild to moderate degree of permanent physical impairment," there was no objective medical proof of a permanent injury with substantial impairment.