ZACHARY A. KAVANAUGH v. CAMDEN COUNTY COLLEGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ZACHARY A. KAVANAUGH,

Plaintiff-Appellant,

v.

CAMDEN COUNTY COLLEGE,

Defendant-Respondent.

________________________________

October 22, 2014

Argued: October 15, 2014 Decided

Before Judges Reisner and Haas.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-970-12.

Kenneth G. Andres, Jr., argued the cause for appellant (Andres & Berger, P.C., attorneys; Mr. Andres, of counsel and on the brief; Abraham Tran, on the brief).

Anthony S. McCaskey argued the cause for respondent (LeClairRyan, attorneys; Peter B. Van Deventer, Jr., of counsel; Mr. McCaskey, of counsel and on the brief; Gene K. Kaskiw, on the brief).

PER CURIAM

Plaintiff appeals from the September 12, 2013 order of the Law Division granting defendants' motion for summary judgment and dismissing plaintiff's personal injury negligence action. Because we find that material disputed issues of fact existed, we reverse and remand for further proceedings.

We recite the record in the light most favorable to plaintiff, the non-moving party. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)). Plaintiff was a student at the college operated by defendant. On March 2, 2010, at approximately 7:50 a.m., plaintiff parked his car in a campus parking lot. After walking across the lot, he stepped onto the sidewalk and slipped and fell on an accumulation of ice. Plaintiff fractured his right ankle in the fall.

Two campus security officers were patrolling the area and noticed plaintiff sitting on the ground, holding his ankle. The officers attended to plaintiff and called for an ambulance to come to the scene. The officers "slipped once or twice while trying to help" plaintiff. One of the officers called their "base" and "reported that we needed someone to come and treat the area." Shortly thereafter, defendant's facilities department employees arrived and "salted and sanded" the spot where the fall occurred. An ambulance took plaintiff to the hospital.

It had snowed several days prior to the March 2, 2010 incident. Defendant's facilities department had plowed the snow in the parking lot into piles near the spot where plaintiff slipped and fell. According to a weather report submitted by the defendant, the temperature went above freezing the day prior to the incident, but dropped to below freezing overnight and into the morning of the accident.

At her deposition, the director of defendant's facilities department testified that the department was responsible for maintaining defendant's parking lots and sidewalks to ensure the safety of pedestrians. The director stated that defendant's policy was to "treat walking surfaces for freeze and refreeze problems."1 The director testified that the department typically learned of areas that needed to be treated from maintenance workers or security personnel who saw icy conditions while touring the grounds of the college.

Defendant did not have any records "which would tell us what was done to maintain the parking lot or sidewalk in the area where [plaintiff] fell on March 2, 2010." The director stated

I can tell you our normal procedures. . . . What we normally do -- what our ground folks would normally do during the course of the day, especially when they first come in, is that they do trash pick up, they look for areas that may have -- if we had refreeze over the night, they go out and they either salt or use calcium on the areas that may have -- that may need it.

However, the director was not able to testify that this procedure was followed on March 2, 2010. The area where plaintiff fell was not treated on the day of the accident.2 The director stated that "between seven and nine" groundskeepers were on duty that morning, but she was not able to provide specific information as to their actual activities that day.

Defendant had a "2009 Snow Plan" that was to be implemented in the event of a predicted, overnight snow storm of between four and six inches that "ended early enough to be cleaned up in time for the start of classes and with no additional icing, all snow equipment installed, salt truck preloaded and working properly without breakdowns, and a prescheduled start time with no call outs." The plan identified which maintenance worker would operate a specific piece of equipment, such as a plow truck or snow thrower, to clear the snow. However, no snow event occurred the evening prior to the March 2, 2010 accident. The snow plan provided no direction to workers as to their assignments in the event of icy conditions developing from accumulated snow melting and then re-freezing as ice. The director did not testify that the plan was implemented by her department on the morning of the accident.

Plaintiff filed a complaint against defendant, claiming that his injury was caused by defendant's negligence. After the completion of discovery, defendant filed a motion for summary judgment. Defendant raised a number of arguments under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12.3. Among other things, defendant alleged: it had no notice of any hazardous condition on its property; its actions in maintaining the property were not palpably unreasonable; it was immune from suit "for its discretionary decisions;" and plaintiff's injuries were not permanent and, therefore, he was not entitled to damages for pain and suffering. Defendant also argued that it was "entitled to common-law snow removal immunity for public entities." Plaintiff opposed the motion.

Following oral argument, the motion judge granted defendant's motion for summary judgment and dismissed the complaint. The judge's decision was limited solely to the question of whether defendant's actions in maintaining the campus were palpably unreasonable. In a brief oral decision, the judge stated

Under the Tort Claims Act, the standard is immunity unless a cause of action is shown in compliance with the requirements of the Act.

In this case, as I said, and we agree, the plaintiff fell at 7:50 in the morning.

The campus is many acres, 320 acres, 20 some thousand students. It appears, undisputed, that there was a plan to deal with snow -- snow and ice.

And from what I've just read, there was six to eight grounds keepers on duty that morning starting at approximately 6 a.m.

Inferentially, they were out looking at the grounds to see whether there was any problem. And presumably, because of the weather, looking for weather[-]related problems.

Were they negligent? I don't think so. But even if they were, that's not the standard. The standard is whether or not the actions of the defendant were palpably unreasonable.

And I do not see how one can say that sending out six to nine or seven to nine grounds keepers to look for problems at 6:00 in the morning, before the students start flooding the sidewalks, that . . . doing that is palpably unreasonable.

To the contrary, it appears to be a reasonable thing to do given the limited resources, given the condition of the weather and given the area which the[y] had to patrol.

[(Emphasis added).]

The judge did not address any of defendant's other arguments in support of its motion for summary judgment. This appeal followed.

On appeal, plaintiff argues the judge erred in granting summary judgment because there were disputed issues of material fact concerning whether defendant's actions were palpably unreasonable. We agree.

When reviewing an order for summary judgment, we utilize the same standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is appropriate where "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). When determining whether there is a genuine issue of material fact, the court must 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).

N.J.S.A.59:4-2 prescribes when a public entity may be liable for a dangerous condition on public 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 [or her] employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under [N.J.S.A.] 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.]

Thus, liability only attaches if the plaintiff can show

[1] that the property was in a dangerous condition at the time of the injury; [2] that the injury was proximately caused by the dangerous condition; [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; and [4] that a public employee created the dangerous condition or that the public entity had notice in time to protect against the condition itself.

[Kolitch v. Lindedahl, 100 N.J. 485, 492 (1985).]

In addition, "there can be no recovery unless the action or inaction on the part of the public entity in protecting against the condition was 'palpably unreasonable.'" Id. at 492-93.

The determination of palpable unreasonableness "'like any other fact question before a jury, is subject to the court's assessment whether it can reasonably be made under the evidence presented.'" Maslo v. Jersey City, 346 N.J. Super. 346, 351 (App. Div. 2002) (quoting Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)). However, "ordinarily the question of whether a public entity acted in a palpably unreasonable manner is a matter for the jury." Polzo, supra, 209 N.J. at 75 n.12; see also Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 265 (App. Div. 2011) (reversing grant of summary judgment, holding issue of palpable unreasonableness of housing authority's snow and ice removal activities was for the jury), certif. denied, 209 N.J. 98 (2012).

The "palpably unreasonable" standard is beyond ordinary negligence. "[T]he term implies behavior that is patently unacceptable under any given circumstance." Kolitch, supra, 100 N.J. at 493. Indeed, "for a public entity to have acted or failed to act in a manner that is palpably unreasonable, 'it must be manifest and obvious that no prudent person would approve of its course of action or inaction.'" Ibid. (quoting Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd o.b. 79 N.J. 547 (1979)). We have stated that "[t]he test requires consideration of what the [public entity] did in the face of all of the attendant circumstances, including, of course, the extent of the known danger and what it considered to be the need for urgency." Schwartz v. Jordan, 337 N.J. Super. 550, 555 (App. Div.), certif. denied sub nom Schwartz v. Plainsboro Twp., 168 N.J. 293 (2001).

Applying these standards here, we are constrained to conclude that the judge erred in granting defendant's motion for summary judgment. Contrary to the judge's findings, the facilities department director was not able to testify as to what specific duties, if any, the groundskeepers actually performed on the date of the incident. All she was able to relate was that there were "between seven and nine" workers on duty that morning and what they "normally" would be asked to do. The judge stated he "inferred" from this vague testimony that the groundskeepers "were out looking at the grounds to see whether they was any problem" and "presumed" that "because of the weather, [they were] looking for weather[-]related problems." The judge also stated "there was a plan to deal with . . . snow and ice" and, therefore, it could be assumed that the plan was followed.

However, it was not the court's function on a motion for summary judgment "'to weigh the evidence and determine the outcome[,] but only to decide if a material dispute of fact exist[s].'" Parks v. Rogers, 176 N.J. 491, 502 (2003) (quoting Gilhooley v. Cnty. of Union, 164 N.J. 533, 545 (2000)). In addition, the judge was required to view the record "in the light most favorable to the non-moving party[,]" rather than drawing inferences in favor of the moving party. Brill, supra, 142 N.J. at 540.

The director's inability to provide testimony as to the workers' specific duties that day, and the absence of any records detailing their work assignments, could readily be construed by a jury to mean that defendant did not act reasonably in addressing the icy conditions that caused plaintiff to slip and fall. Defendant did not produce testimony or a certification from any of the groundskeepers who were allegedly on duty that morning. There was no evidence as to what any worker actually did that day and nothing to indicate whether anyone ever checked the parking lot where the incident occurred, or anywhere else on the campus, for icy conditions. If, as defendant sought to imply, the workers "normally" would be out checking for icy conditions, and had been doing so for almost two hours prior to plaintiff's fall, an inference could be drawn that defendant's efforts were palpably unreasonable because its workers did not find and ameliorate the icy conditions that existed near the pile of snow in the parking lot where the accident occurred.

Contrary to the judge's finding, the director never testified that defendant's snow plan was implemented that morning. On its face, the plan only applied when there was a predicted, overnight snow storm. That did not occur here. The plan also assigns specific workers to specific pieces of equipment, such as plows and snow throwers. There is nothing in the record to indicate that any of this equipment was used, or even appropriate, to clear ice. Because the material facts surrounding defendant's actions that morning were clearly disputed by the parties, summary judgment on the issue of whether defendant's actions were palpably unreasonable was not appropriate.

While the current record does not support granting defendant's motion for summary judgment on the issue of palpable unreasonableness, we do not preclude defendant, on remand, from renewing its motion with additional proofs, if available, concerning the actual tasks performed by its employees that day. In addition, we direct the Law Division to fully consider all of the immunity defenses defendant raised in its prior motion.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Defendant "use[s] a product called calcium, mixed with sand" to treat its parking lots and sidewalks. The director explained that "[t]he sand would give you traction as you're walking" and the calcium melts the ice, while also "protect[ing] the grassy areas, the flowers . . . [and] the sidewalks" from the corrosive effects of using an alternative salt product.

2 The director stated that on March 1, 2010, the day before the accident, "we had to survey the area because of the condition of the weather." She "remember[ed] talking to the supervisor about . . . the grounds and what's happening with the grounds . . . and I remember that most of the folks were out and about and they weren't hanging around in the warehouse, because the weather was so that they could really move around, so that's what I remember." The director did not state that the parking lot where plaintiff fell was treated on March 1, or what the workers did that day at any other location on campus. As noted above, she was also not able to provide any specific information concerning what happened on March 2, 2010, the day of the accident.