GEORGE R. BUNERO v. CITY OF JERSEY CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GEORGE R. BUNERO,

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY,

Defendant/Third-Party

Plaintiff-Respondent,

v.

CARLOS DASILVA, JERSEY CITY

MUNICIPAL UTILITIES AUTHORITY,

and UNITED WATER OF JERSEY CITY, INC.,1

Third-Party Defendants/

Respondents.

____________________________________________

December 3, 2015

Argued November 4, 2015 Decided

Before Judges Yannotti and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6181-11.

Phillip C. Wiskow argued the cause for appellant (Gelman Gelman Wiskow & McCarthy, LLC, attorneys; Mr. Wiskow, on the brief).

Michael Dougherty, Assistant Corporation Counsel, argued the cause for respondent City of Jersey City (Jeremy Farrell, CorporationCounsel, attorney;Mr. Dougherty, on the brief).

Thomas A. Morrone argued the cause for respondent United Water (Chasan Leyner & Lamparello, PC, attorneys; Mr. Morrone, of counsel; J. Nicholas Strasser, on the brief).

Respondents Carlos DaSilva and Jersey City Municipal Utilities Authority have not filed briefs.

PER CURIAM

Plaintiff George R. Bunero appeals from an order entered by the Law Division on April 25, 2014, granting summary judgment in favor of defendant, City of Jersey City (the "City"). We affirm.

I.

This appeal arises from the following facts. On July 4, 2010, plaintiff was riding his motorcycle on Communipaw Avenue in Jersey City. Plaintiff's motorcycle was struck in the rear by a motorcycle which was being ridden by Carlos DaSilva ("DaSilva"), and plaintiff's motorcycle was propelled to the side of the road. The wheels of plaintiff's motorcycle ran up against the curb and the right floorboard skidded across the top of the curb. Plaintiff's right leg struck the nozzle cap of a fire hydrant, which was located on the sidewalk adjacent to the road, and he sustained an open compound fracture of his right leg.

Plaintiff filed a complaint against the City, pursuant to the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3, alleging that the City had created or allowed a dangerous condition to exist on its property, which caused plaintiff's injuries. The City filed an answer denying liability. The City also filed a third-party complaint, naming DaSilva and certain other parties as third-party defendants. Default was entered against DaSilva after he did not respond to the third-party complaint. It appears that the City's claims against several third-party defendants were later dismissed by stipulation or motion, leaving only DaSilva, the Jersey City Municipal Utilities Authority ("MUA") and United Water as third-party defendants.2

After the completion of discovery, the matter was submitted to arbitration. The arbitrator entered an award for plaintiff, and the City filed a demand for a trial de novo. The City thereafter filed a motion for summary judgment, arguing that plaintiff had not submitted sufficient evidence to support its claim against the City.

The record before the trial court on the summary judgment motion does not disclose when the fire hydrant at issue was installed at its location along Communipaw Avenue. However, it appears that the hydrant has been at that location since sometime before 1939.

In support of his claim, plaintiff produced a report prepared by Thomas A. Boorady ("Boorady"), a professional engineer at Gerald Zakim Associates, LLC. In his report, Boorady noted that in 1938, the American Water Works Association ("AWWA") published an article which stated, among other things, that no portion of the pumper or hose nozzle cap on fire hydrants should be placed less than six inches or more than twelve inches from the gutter face. According to Boorady, in 1970, the AWWA published a statement recommending a set-back of two feet from the curb line to the point of the hydrant nearest the curb. Boorady stated that the "two foot offset" remained the "standard" in 2010.

Boorady also stated that the distance from the subject hydrant's nozzle cap to the curb line on Communipaw Avenue was 1.5 inches. He opined that the City had improperly located or failed to relocate the subject hydrant. Boorady said the hydrant's pumper outlet is about 4.5 inches less than the six-inch minimum standard that AWWA published in 1938. He also opined that the placement of the hydrant was inconsistent with the "two feet" standard that the AWWA recommended in 1970.

In addition, Boorady reviewed certain "construction details" prepared for the City, which related to newly-relocated fire hydrants. Boorady said these "construction details" require a minimum of eighteen inches between the curb face and the hydrant valve. He stated that these current "standards" also require that there be a minimum of two feet between the curb face and the centerline of any newly-relocated fire hydrant.

In support of its motion for summary judgment, the City presented, among other evidence, the transcript of the deposition of Chuck F. Lee ("Lee"), a professional engineer who works for the City. Lee testified that, based upon the City's diagrams and his own analysis, the City probably could not have installed the subject fire hydrant further from the roadway, due to the adjacent property line and the location of the water main. Lee stated that "[y]ou can't put the hydrant on top of the water pipe."

The judge considered the City's motion on April 25, 2014, and after hearing oral arguments by counsel, placed an oral decision on the record. The judge concluded that the fire hydrant at issue did not constitute a dangerous condition of property, and the hydrant did not create a reasonably foreseeable risk of the kind of injury that occurred. The judge also determined that plaintiff failed to establish that the City's actions regarding the hydrant were palpably unreasonable.

The judge therefore concluded that plaintiff had not presented sufficient evidence to support his claim against the City under the TCA, and granted the City's summary judgment motion. The judge memorialized her decision in an order dated April 25, 2014. This appeal followed.

II.

On appeal, plaintiff argues that the motion judge erred by granting summary judgment to the City. Plaintiff contends he presented sufficient evidence to support his claim against the City under the TCA, and the motion judge erred by concluding otherwise.

When reviewing an order granting or denying summary judgment, we apply the same standard that the trial court applies in ruling on a summary judgment motion. State v. Perini Corp., 221 N.J. 412, 425 (2015) (citing Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). Summary judgment may be granted when "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. 4:462(c).

In determining whether there is a genuine issue of material fact, the court "'consider[s] 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.'" Perini, supra, 221 N.J. at 425 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

We note, however, that when reviewing a trial court's order granting or denying summary judgment, an appellate court "owe[s] no deference to [the trial court's] interpretation of law that flows from established facts." Ibid. (citing Kearny, supra, 214 N.J. at 92). See also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The TCA was enacted to re-establish immunity for public entities in New Jersey, after it had been abrogated by the Supreme Court. Kahrar v. Borough of Wallington, 171 N.J. 3, 9 (2002). The TCA is founded on the general principle "that public entities are immune from tort liability unless there is a specific statutory provision imposing liability." Id. at 10 (citing Collins v. Union Cty Jail, 150 N.J. 407, 413 (1997)).

In this case, plaintiff asserts a claim under the TCA, alleging that the fire hydrant that he struck constituted a dangerous condition of the City's property. The TCA provides in pertinent part that

[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) 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 [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.]

III.

We are convinced that the motion judge erred by determining as a matter of law that that the subject fire hydrant was not "in dangerous condition at the time of the injury." The TCA defines the term "dangerous condition" as a condition "that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1. Substantial risk is a risk "that is not minor, trivial or insignificant." Polyard v. Terry, 160 N.J. Super. 497, 509 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979).

Here, the evidence proffered by plaintiff was sufficient to raise a genuine issue of material fact as to whether the subject hydrant constituted a dangerous condition as that term is defined in N.J.S.A. 59:4-1. According to plaintiff's expert, the nozzle cap of the fire hydrant is 1.5 inches from the curb line on Communipaw Avenue, which is less than the six inches recommended by AWWA in 1938.

Moreover, the fire hydrant is closer to the curb line than the two-feet "offset" that AWWA recommended in 1970. In addition, the City's current standard requires a minimum of two feet between the curb face and the center line of any newly-relocated fire hydrant. While the City's current standard is not specifically applicable to existing fire hydrants, it suggests that any fire hydrant which is closer than two feet to the curb face may create a substantial risk of injury.

Thus, plaintiff presented sufficient evidence from which a reasonable jury could conclude that the hydrant's proximity to the curb line posed a danger to a person on a motorcycle who veers close to the curb line. A jury also could conclude that it was reasonably foreseeable that a motorcyclist who rode his vehicle close to the curb could lean over and strike the hydrant. Simply put, a jury could find that the hydrant "created a reasonably foreseeable risk of the kind of injury which was incurred." N.J.S.A. 59:4-2.

In deciding that the subject hydrant was not a dangerous condition, the motion judge relied on Levin v. Cty. of Salem, 133 N.J. 35 (1993). In that case, the plaintiff brought suit against a public entity after he sustained injuries by jumping from a bridge and landing in shallow water. Id. at 38. According to the plaintiff, the bridge constituted a dangerous condition because the public entity had allowed it to be used for recreational purposes, thereby entitling him to relief under the TCA. Id. at 37-38.

The Supreme Court held that the bridge could not be deemed a dangerous condition because the plaintiff's injury was due to his dangerous conduct, rather than any physical condition of the property. Id. at 47-50. The Court added, however, that "a physical defect in the property, for example, a missing window, combined with the foreseeable neglect or misconduct of third parties, may result in the imposition of liability on the public entity because the combination renders the property unfit." Id. at 49.

We are convinced that Levin does not support the grant of summary judgment in this matter. Here, plaintiff presented sufficient evidence that the fire hydrant may have created a dangerous condition because it had been placed too close to the curb line, and had not been relocated further from the roadway. Combined with the foreseeable "neglect or misconduct" of motorists who veer too close to the curb line, a reasonable jury could find that the hydrant created a substantial risk of injury of the kind that occurred in this matter.

Furthermore, the trial court's determination that the fire hydrant was not, as a matter of law, a dangerous condition, also is inconsistent with Ball v. N.J. Bell Tel. Co., 207 N.J. Super. 100 (App Div. 1986). There, the decedent was killed when his automobile struck a telephone pole that was located on the border of a highway's exit ramp. Id. at 103. The plaintiff brought suit against various public entities and the utility company, alleging that "the decedent died as a result of the negligence of [the] defendants in placing and maintaining a telephone pole on the traffic side of a guardrail." Ibid. The trial court granted summary judgment to the public entity defendants. Id. at 104.

We held that the trial court correctly found that the county and municipality were not liable under the TCA because these entities did not own the property where the telephone pole was located. Id. at 106-08. The property was owned and controlled by the State. Id. at 107. We also held that the trial court erred by finding that the State was entitled to immunity under N.J.S.A. 59:2-5 for licensing activities. Id. at 108-09.

We stated that there was no evidence showing that the State had issued a permit for the placement of the pole at the location at issue. Id. at 109. We noted, however, that the record was unclear as to when the telephone pole and guardrail were placed in their respective positions. Ibid. We observed that, if the telephone pole was in place on the traffic side of the guardrail when the guardrail was erected, the State may be liable for creating a dangerous condition. Ibid.

Ball thus indicates that, while a structure may not be inherently dangerous, its location may create a dangerous condition to motorists, and that the condition may "create[] a reasonably foreseeable risk of the kind of injury which was incurred." N.J.S.A. 59:4-2. We therefore conclude that plaintiff presented sufficient evidence to raise genuine issues of material fact as to whether the fire hydrant was a dangerous condition, and whether the hydrant created a reasonably foreseeable risk of the injury plaintiff sustained.

IV.

Plaintiff further argues that the motion judge erred by determining that a reasonable jury could not find that the City's action or inaction with regard to the alleged dangerous condition was "palpably unreasonable." Plaintiff argues that that judge erred by deciding this issue as a matter of law. We disagree.

Under Brill, an issue of fact may be decided as a matter of law, if the evidence, viewed in a light most favorable to the non-moving party, is insufficient "to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)).

A plaintiff has the burden of demonstrating that a public entity acted in a palpably unreasonable manner with regard to an alleged dangerous condition, which is a more onerous showing than ordinary negligence. Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). The term palpably unreasonable "implies behavior that is patently unacceptable under any given circumstance." Ibid. To establish that a public entity has acted in a palpably unreasonable manner, the plaintiff must show that it is "manifest and obvious that no prudent person would approve of [the public entity's] course of action or inaction." Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003) (citations omitted).

Here, the motion judge correctly determined as a matter of law that a reasonable jury could not find that the City's actions regarding the subject fire hydrant were palpably unreasonable. It is undisputed that the hydrant has been at its location on Communipaw Avenue since at least 1939. Plaintiff presented no evidence that the hydrant has been the cause of any incident or injury in that time.

In addition, Lee testified that there are approximately three thousand fire hydrants in the City, but he could not say how many were located in close proximity to a roadway, like the hydrant at issue in this matter. Lee conceded that, under the City's standard apparently established in 1989, relocated hydrants must be a minimum of two feet from the road.

However, the City's failure to move the subject hydrant further back from the curb line was not palpably unreasonable, particularly in view of Lee's testimony that there was insufficient space at the location to move the hydrant. Although plaintiff insists that movement of the fire hydrant further back from the curb line was not an impossibility, plaintiff failed to show that the City's failure to do so was a course of action or inaction that "no prudent person would approve of." Ibid.

The Court's decision in Polzo v. Cty of Essex, 209 N.J. 51 (2012), supports our conclusion. In that case, a bicyclist traveled over a depression in a county road, lost control of the bicycle and fell to the pavement, suffering serious injuries. Id. at 56-57. The plaintiff asserted a claim under the TCA against the County of Essex (the "County"), alleging that it was liable for the dangerous condition. Id. at 57.

The Supreme Court held that the County did not create the condition merely because it did not have a routine road inspection program in place. Id. at 66. The Court concluded that the County did not have actual or constructive notice of the condition. Id. at 75. The Court also concluded as a matter of law that the County's failure to repair the depression was not palpably unreasonable. Id. at 75-78.

The Court noted that the County had a responsibility to maintain "an extensive network of roads," including the road where the accident occurred. Id. at 77. Furthermore, the County had not been informed of any prior complaints regarding the depression, there were no reported injuries due to that condition, and the shoulder of a road is "generally intended for emergency use, not ordinary travel." Ibid. The Court stated that repairing the subject depression in the roadway's shoulder "might not have been deemed a high priority," particularly when viewed in light of the County's "considerable responsibility for road maintenance in a world of limited public resources." Id. at 77-78.

Here, the same principles apply. As we have noted, the City has thousands of fire hydrants on its properties. It is unclear how many of those hydrants are in close proximity to roadways, like the subject hydrant along Communipaw Avenue. Even so, the subject fire hydrant has been at its location for more than seventy years, apparently without any reported complaint or injury.

The City undoubtedly has "considerable responsibility" for maintenance of its properties and has "limited public resources" for that purpose. Ibid. Moreover, Lee testified that the hydrant could not be moved further from the curb because there was insufficient space in that area.

We are convinced that, viewing the evidence in a light most favorable to plaintiff, a reasonable jury could not find that the City's failure to move the hydrant further away from the roadway was palpably unreasonable.

Affirmed.

1 United Water of Jersey City, Inc. should have been identified as United Water Operations Contracts, Inc. in the third-party complaint. At the time its appellate brief was filed, however, the company had merged into United Water Environmental Services, Inc. This party will hereinafter be referred to as "United Water."

2 We note that DaSilva later filed a complaint against plaintiff, which was briefly consolidated with this case and then settled. The City was not a party to that action.