RONALD AND SUSAN SLUSKY v. HIGHLAND PARK BOARD OF EDUCATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-610-04T10610-04T1

RONALD AND SUSAN SLUSKY,

Plaintiffs-Appellants,

v.

HIGHLAND PARK BOARD OF EDUCATION,

Defendant-Respondent,

and

FARIDY, VEISZ, AND FRAYTAK;

FARIDY, THORNE, AND FRAYTAK;

ALBERT GARLATTI CONSTRUCTION

COMPANY; and McQUAY INTERNATIONAL

COMPANY,

Defendants.

 

Argued: December 21, 2005 - Decided February 2, 2006

Before Judges Fall, Parker and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Number MID-L-4746-02.

David C. Apy argued the cause for appellants (McCarter & English, attorneys; Mr. Apy, of counsel, and Ronald D. Slusky and Carey Francis, on the brief).

Arthur R. Thibault, Jr. argued the cause for respondent (Apruzzese, McDermott, Mastro & Murphy, attorneys; Mr. Thibault, of counsel and on the brief).

PER CURIAM

Plaintiffs Ronald and Susan Slusky appeal from an order entered on August 27, 2004, granting summary judgment in favor of defendant Highland Park Board of Education, dismissing their complaint seeking compensatory damages, consequential damages, interest, counsel fees, costs and permanent injunctive relief remediating an alleged noise nuisance maintained by the Board on its property. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

In the spring of 1998, pursuant to a contract entered into between the Board and defendant Albert Garlatti Construction Company, an extension to the Highland Park High School was constructed and a new air conditioning chiller unit was installed on the roof of the school. The unit was manufactured by defendant McQuay International Company.

Plaintiffs reside at 309 North Fourth Avenue in Highland Park. Their property is located near the property line of the high school, with its backyard abutting the school property. Shortly after installation of the chiller unit, plaintiffs lodged complaints with the Board concerning the amount of noise that it generated. Attempts to remediate the problem to the satisfaction of plaintiffs, including installation of acoustical panels on the unit in August 1999, were unsuccessful.

During the summer of 2000, the Board requested that its architect submit proposals to determine how the sound emanating from the chiller unit could be further reduced. The Board's Finance and Facilities Committee was presented with a cost estimate from the architect to develop recommendations for further baffling the sound from the chiller unit. The architect's proposal provided for payment by the Board of $12,450, plus $200 for site visits during any construction undertaken. The architect's fee did not include the cost of construction, bidding costs, permit fees or printing costs; the total estimated cost was approximately $40,000. The Board determined not to pursue the project because of the costs involved, concerns that the roof may be unable to support the weight of any enclosure constructed around the chiller unit, and uncertainty as to whether the project would achieve the desired result of satisfying plaintiffs if undertaken.

By letter to the Business Administrator of the Highland Park Public Schools dated November 8, 2000, Health & Safety Services, Inc. provided the results of its measurement of the sound levels emanating from the subject McQuay chiller unit at three separate locations, as follows: (1) from the "[r]oof adjacent to unit[,]" 78.4 decibels; (2) from the "[e]dge of roof, new gym side[,]" 71 decibels; and (3) from the "Parent/Teacher Hut (Red Snack Stand)[,]" 58 decibels. The letter stated, in pertinent part:

All sound levels associated with the operation of the High School Cafeteria Ventilation system are below the OSHA recommended levels. Sound level record data from the Parent/Teacher Hut were 58 [decibels], which is considered, by standard industrial practices, to be . . . background levels.

The letter contained no noise measurements at the border line of plaintiffs' property.

On July 5, 2001, the Board retained Lewis Goodfriend & Associates to conduct a noise measurement study with respect to the McQuay chiller unit. Goodfriend took measurements of the noise levels from the chiller unit at the property line of plaintiffs' property and the high school. Measurements were also taken of the decibel levels when the chiller unit was non-operational. Goodfriend reported that the noise level during operation of the unit was below both the day-time and night-time limits of State and local noise regulations.

Plaintiffs retained The Noise Consultancy, LLC to perform their own testing of the noise levels. On September 9, 2002, Noise Consultancy conducted two sets of noise measurements from the backyard deck of plaintiffs' property. The first set of measurements indicated that the sound level on the deck was between 48 and 50 decibels; the second measurements indicated that the noise level was between 49 and 51 decibels. In its report, Noise Consultancy stated that the sound emanating from the McQuay chiller unit was "a highly unnatural acoustical environment that pervades [plaintiffs'] rear deck."

The sound-level ordinance of the Borough of Highland Park states that the maximum permissible level of noise from any public space received at an adjoining residential property was at the 50 decibel level. The State also regulates noise levels through regulations promulgated by the Department of Environmental Protection (DEP). Those regulations state that the permissible level of noise received at an adjoining property from 7:00 a.m. to 10:00 p.m. is 65 decibels, and that from 10:00 p.m. to 7:00 a.m., continuous airborne sound cannot exceed the 50 decibel level.

After filing a timely notice of claim with the Board pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, plaintiffs filed a complaint in the Law Division on May 15, 2002, against the Board, the architects who designed the system, the manufacturer of the air conditioning system, and its installer, contending that the noise constituted a continuing tort. The complaint alleged negligence by the Board (count one); creation and maintenance of a nuisance by the Board (count two); negligence of the architects in the design of the air conditioning system (counts three and seven); negligence of the contractor in installation of the system (count four); defective product design by the manufacturer (count five); placing a defective product in the stream of commerce against the wholesalers or retailers (count six); individual negligence of representatives of the Board in the purchasing and installation of the air conditioning system (count eight); trespass against the Board and its individual representatives on the basis that the noise constitutes a trespass (count nine); and infliction of emotional distress by all defendants (count ten).

During the summer months of 2003, the Board determined that the McQuay chiller unit was not properly cooling the high school building; the Board authorized its replacement. Following bidding, the Board replaced the McQuay unit in December 2003 with a Trane chiller unit. In doing so, the Board took into consideration plaintiffs' concerns of the noise levels, and paid a premium for extra noise reduction features on the Trane unit. The parties agree that the Trane unit emitted noise at lesser decibel readings. Plaintiffs' appeal is thereby limited to claims arising from the Board's operation of the McQuay chiller unit.

On or about July 29, 2004, the Board filed a motion seeking summary judgment dismissing all causes of action contained in the complaint against it. The motion was argued in the Law Division on August 27, 2004. By that time, the claims against all defendants except the Board had been dismissed, either by summary judgment or voluntarily by plaintiffs. In granting summary judgment in favor of the Board, the judge stated in pertinent part:

According to plaintiffs the noise from the unit proximately caused injury when the unit was being used with due care in the manner in which it was foreseen to be used, and defendant's property was in a dangerous condition regardless of the noise level. This is the premise on which plaintiffs base their allegation. This premise is simply not true. Plaintiffs cannot show that there is a dangerous condition on the property. A dangerous condition specifically speaks to a condition of the property itself. One example might be . . . a pothole in a street which is known to the public entity and not repaired and which may cause damage to others utilizing that street.

The air conditioning unit is not a condition of the property itself. It is the noise that is being emanated from the property that the plaintiff declares it to be a dangerous condition. Moreover, as much as plaintiffs try to convince this court there is no dangerous condition within the meaning of the Tort Claims Act.

In essence, as I've indicated, public entities are immune from liability unless liability is imposed by the Tort Claims Act, which I refer to as the TCA.

* * * *

Count two of the complaint is grounded upon nuisance. Nuisance is a tort. The plaintiffs must show at least a prima facie basis as to the moving party that the elements exist which entitle them to recovery. Nuisances are of two types, private and public. Plaintiffs allege a private nuisance. Plaintiff has not met [their] burden here on a motion for summary judgment even with all due inferences being granted to the non-moving party, in this case the plaintiff[s].

Additionally, the Board is shielded by the TCA as are members of the Board of Education for discretionary [actions]. The Board reacted to plaintiffs' complaints by replacing the old air conditioner with a new one, although it may be in dispute as to whether or not it was replaced as an attempt to appease the plaintiffs or because the old one had failed and a new one needed to be installed. The action also caused a reduction, however, in the decibel level which at plaintiffs' property line is within governmental standards.

The members of the Board of Education as a public entity [are] shielded from liability for the exercise of discretion in not purchasing any further sound barrier. . . . See N.J.S.A. 59:3-2.

With respect to count nine for trespass, the defendant is correct that sound does not constitute a trespass. . . .

* * * *

Further, plaintiffs rely on Kosich v. Poultrymen Service Corp., 136 N.J. Eq. 571 (N.J. Ch. 1945), for the proposition that annoyances that materially interfere with ordinary comfort constitute trespass. However, that court noted that in "absence of a statute[,] noise becomes actionable only when it passes limits of reasonable adjustment to the conditions of the locality and the needs of the maker to the needs of the listener. What those limits are cannot be fixed by any definite measure, quantity, or quality. They depend on the circumstances of a particular case." However the court notes that that case is not applicable in the matter before me today.

The reason it's not applicable is because there are measures that have been established by governmental entities, codes, not only by the State, but also by the municipality - - reasonable decibel levels which[,] [if] exceeded, would deem to be interference with the enjoyment of adjoining properties. That is not the case here. The decibel level is less than that which is permitted at the property line. . . .

* * * *

Kosich relied on the concept that there was no implementation or a stated . . . permissible level, where there is now. Therefore, . . . that case is distinguishable.

Further, the [Kosich] Court noted that "while my neighbor may stand by my fence on his own lot and breathe across it over my land and they permit the smoke and smell of his kitchen to pass over it and they talk, laugh, and sing or cry, so that his conversation . . . is heard in my yard he has no right to shake my fence ever so little or to throw sand, earth, or water upon my land in ever so small a quantity. To do so is an invasion of property, and a trespass, and to continue to do so constitutes a nuisance."

Although plaintiffs cite this same passage in support of their position it clearly says that noise and odors, etc., may permissibly cross over onto my land . . . Therefore plaintiffs' reliance is again misplaced . . . Summary judgment is therefore granted to the defendant against the plaintiff in counts one, two, eight and nine. Count ten is dismissed with the acknowledgement of plaintiffs that strict liability does not apply.

On appeal, plaintiffs present the following arguments for our consideration:

POINT I

Plaintiffs' Evidence, When Viewed in a Light Most Favorable to the Plaintiffs, Established a Prima Facie Case that the Noise From the Board's Chiller Unit Constituted a Nuisance.

A. Summary Judgment Was Improper Because Plaintiffs Presented Significant Credible Objective Evidence that the Noise Violated the Highland Park Ordinance.

B. Summary Judgment Was Improper Because Plaintiffs Presented Significant Credible Subjective Evidence that the Noise Was a Nuisance.

C. The Board's Evidence Was Insufficient to Establish as a Matter of Law: 1) that the Board's Failure to Install a Noise Barrier was an Exercise of Discretion, or 2) that the Decision was "Not Palpably Unreasonable" Even if the Board Did Exercise Discretion.

POINT II

The Motion Judge's Rationale for Dismissing the Negligence Claim Was Flawed and Does Not Support Dismissal of the Claim.

Plaintiffs argue that entry of summary judgment in favor of defendants was inappropriate because the motion judge engaged in impermissible fact-finding when he found that the Board had not acted in a "palpably unreasonable" manner by not erecting an enclosure to deal with the sound from the chiller unit. They also argue that they had submitted sufficient evidence to demonstrate that the chiller unit violated the Borough's noise-level ordinance and that this should have precluded summary judgment in favor of defendants. Last, they argue that the rationale of the judge for dismissing their negligence claim was flawed.

The standard of appellate review of a grant of summary judgment is the same as that before a trial court: whether, "viewing all of the competent evidential material presented to the trial judge in a light most favorable to the non-moving party, the evidence is so one-sided that a reasonable fact-finder must resolve the disputed issue of material fact in favor of the movant." Mercer v. Weyerhauser Co., 324 N.J. Super. 290, 317 (App. Div. 1999) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

Rule 4:46-2 provides that summary judgment is appropriate 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." Summary judgment cannot be defeated where the opposing party relies on mere allegations or offers only facts which are immaterial or of an insubstantial nature. See Judson v. People's Bank and Trust Co. of Westfield, 17 N.J. 67, 75 (1954).

In Brill, supra, the defendant's argument was similar to that of the plaintiffs in this appeal. 142 N.J. at 520. There, the defendant argued that the grant of summary judgment in favor of the plaintiffs was improper because the trial judge had engaged in improper "weighing of the facts," or fact-finding. Id. at 528. In addressing that argument, the Court stated:

Read together, Matsushita, Liberty Lobby, and Celotex adopted a standard that requires the motion judge to engage in an analytical process essentially the same as that necessary to rule on a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. at 251-52, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214. That weighing process requires the court to be guided by the same evidentiary standard of proof - by a preponderance of the evidence or clear and convincing evidence - that would apply at the trial on the merits when deciding whether there exists a "genuine" issue of material fact.

[Brill, supra, 142 N.J. at 533-34.]

New Jersey courts are instructed to apply the following test in order to determine summary judgment motions:

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. Liberty Lobby, supra, 477 U.S. at 249, 106 S. Ct. at 2511, 91 L. Ed. 2d at 212. The import of our holding is that when the evidence "is so one-sided that one party must prevail as a matter of law," Liberty Lobby, supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214, the trial court should not hesitate to grant summary judgment.

[Id. at 540.]

Because there is a dispute, although marginal, in the expert reports submitted by the parties, and since plaintiffs are entitled to have all reasonable inferences construed in their favor, the entry of summary judgment can be sustained only if it rested on the law, rather than an evaluation of the facts.

In any event, all of the claims advanced by plaintiffs in their complaint must be viewed through the lens of the Tort Claims Act. That is because public entities are immune from suit unless the claim is covered by one of the Act's exceptions to immunity. N.J.S.A. 59:2-1. A public employee is not liable for an injury where a public entity is immune from liability for that injury. N.J.S.A. 59:3-1. The public entity, however, may be liable for an injury proximately caused by a public employee within the scope of employment. N.J.S.A. 59:2-2.

Public entities and their employees are not liable for an injury resulting from the exercise of judgment or discretion vested in the entity or the employee. N.J.S.A. 59:2-3(a); N.J.S.A. 59:3-2(a). Public entities and their employees are also not liable "for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services." N.J.S.A. 59:2-3(c). Finally,

[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.

[N.J.S.A. 59:2-3(d).]

Public employees are granted the same immunity. N.J.S.A. 59:3-2(d). Public entities may, however, be liable for injuries caused by a dangerous condition of public property. N.J.S.A. 59:4-2. A "dangerous condition" is "a condition of property that creates a substantial risk of injury when the 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(a). Liability will only be imposed if the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred, the public entity had notice of the condition, and it had sufficient time prior to the injury to have taken measures to protect against the dangerous condition. N.J.S.A. 59:4-2. If the entity took action to protect against the condition, the public entity will be immune unless the curative action was palpably unreasonable. Ibid.

Plaintiffs also contend that the Board was negligent in failing to require the architect to specify a quiet chiller unit for the newly-constructed addition to the high school. However, a public entity is immune from liability for the creation of this condition under N.J.S.A. 59:4-6, which provides:

Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by . . . the governing body of the public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.

No public employee created the condition of which plaintiffs complain. Rather, the chiller unit was manufactured by McQuay, specified by the architect, and installed by the general contractor. Therefore, the public entity cannot be vicariously liable for any employee negligence in the creation of the complained-of condition.

The condition first occurred during the summer of 1998 and plaintiffs complained about it shortly thereafter. By August of 1999 the Board had acted on the advice of its architects and installed baffles on the chiller unit to reduce the noise. There is no claim that any public employee was negligent with respect to that effort. Rather, the claim is that the condition was not abated, and public employees were negligent in not further remediating the condition. However, those actions or inactions involved the exercise of discretion and are immune from liability pursuant to N.J.S.A. 59:3-2(a) and -2(c). Thus, the only exception under which plaintiffs can proceed in this action is the liability exception for dangerous conditions of public property.

The motion judge found that the chiller unit at issue did not constitute a dangerous condition of public property. We agree. Although whether property constitutes a "dangerous condition" is generally a fact question, that determination is subject to a judicial preliminary assessment of whether a fact-finder could reasonably conclude from the prima facie evidence presented by the plaintiffs that the property was in a dangerous condition. See Vincitore v. Sports & Expo Auth., 169 N.J. 119, 124 (2001). A dangerous condition refers only to "the physical condition of the property itself and not to activities on the property." Levin v. County of Salem, 133 N.J. 35, 44 (1993). Use of public property alone cannot create a dangerous condition absent the existence of a physical defect of the property itself. Ibid.

At this point, we note our disagreement with the conclusion of the motion judge that the chiller unit was not a physical condition of the property. The unit is a fixture that runs with the land and is thus public property. Notwithstanding, plaintiffs have failed to establish that the noise generated by the McQuay chiller unit constituted, as a matter of law, a "dangerous condition." The level of noise was at most at or slightly above the noise level specified by the ordinance as the maximum, and no other neighbors of the high school lodged complaints or concerns regarding the noise. Therefore, we find that no reasonable jury could conclude that the noise created a substantial risk of injury to anyone.

Moreover, even if plaintiffs were able to establish a prima facie case of the existence of a "dangerous condition" and, viewing the facts in a light most favorable to plaintiffs, they still have failed to establish that the action taken by the Board, or the failure of the Board to take the action requested by plaintiffs, was "palpably unreasonable." N.J.S.A. 59:4-2b. To be "palpably unreasonable," it "must be manifest and obvious that no prudent person would approve of its course of action or inaction." Black v. Borough of Atlantic Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993).

Plaintiffs bear the burden to present prima facie evidence that the conduct of the Board was palpably unreasonable. Muhammad v. New Jersey Transit, 176 N.J. 185, 195 (2003); Holloway v. State, 125 N.J. 386, 403 (1991); Carroll v. New Jersey Transit, 366 N.J. Super. 380, 387 (App. Div. 2004). Proof that the conduct of the public entity in failing to remedy the dangerous condition was palpably unreasonable is part of a plaintiff's prima facie cause of action. Muhammad, supra, 176 N.J. at 194. Although not defined in the Act, the Court has concluded that the "term implies behavior that is patently unacceptable under any given circumstances." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985); accord Muhammad, supra, 176 N.J. at 195-96. To meet that burden, "it must be manifest and obvious that no prudent person would approve of its course of action or inaction." Kolitch, supra, 100 N.J. at 493 (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)).

Although whether conduct or inaction was palpably unreasonable is normally a jury question, like any other fact question before a jury, it is subject to the court's assessment as to whether it can reasonably be established under the prima facie evidence presented. Maslo v. City of Jersey City, 346 N.J. Super. 346, 351 (App. Div. 2001); Black v. Borough of Atlantic Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993).

Here, plaintiffs contend that the Board's decision not to install an enclosure around the chiller unit establishes a prima facie case that such conduct was palpably unreasonable. We disagree. Plaintiffs were the only neighbors of the high school to complain about the noise from the chiller unit. In response to the plaintiffs' complaint about the noise, the Board installed some baffling and acoustical panels on the chiller unit. After plaintiffs continued to complain about the unit, the Board investigated the possibility of enclosing the McQuay unit. However the costs of such an enclosure, the question of whether the roof would support the weight of an enclosure structure, along with the fact that there were no guarantees with respect to its effect on the sound, resulted in a decision that such an enclosure was not feasible. Viewing the evidence in a light most favorable to plaintiffs, it cannot be reasonably concluded that the conduct or inaction by the Board constituted conduct that was patently unacceptable under any given circumstance, or that no prudent person would approve of the course of action or inaction taken. Moreover, plaintiffs have failed to demonstrate actual injury from which a claim of palpable unreasonableness could flow, since the noise level was at most at or only slightly above State and local standards. This is particularly so since the installation of the Trane unit has resolved the noise issue to the satisfaction of plaintiffs.

 
Affirmed.

Fictitiously named defendants have been eliminated from the caption.

This letter was not part of the summary judgment record submitted to the trial court.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

(continued)

(continued)

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A-0610-04T1

February 2, 2006