CATHERINE SCHMIDT v. CITY OF BAYONNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0467-05T10467-05T1

CATHERINE SCHMIDT,

Plaintiff-Appellant,

v.

CITY OF BAYONNE,

Defendant-Respondent,

and

LILY LUCIA,

Defendant.

___________________________________

 

Argued: May 1, 2007 - Decided May 21, 2007

Before Judges Coburn, Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-5124-03.

Ronald M. Gutwirth argued the cause for appellant.

Nita G. Raval argued the cause for respondent (Florio & Kenny, attorneys; Ms. Raval and Lisa J. Jurick, on the brief).

PER CURIAM

Plaintiff Catherine Schmidt appeals from summary judgment dismissal of her complaint against the City of Bayonne ("City") for injuries sustained when she tripped in a hole in the roadway while walking to her parked car. The court found the City was entitled to immunity under the Tort Claims Act (TCA) for failing to inspect property pursuant to N.J.S.A. 59:2-6 and in exercising its discretion in determining how to utilize existing resources and funds for repair of public property under N.J.S.A. 59:2-3, and that plaintiff failed to establish a prima facie case of dangerous condition liability under N.J.S.A. 59:4-2. Accordingly, the judge did not rule on defendant's motion to dismiss plaintiff's complaint for failure to meet the monetary threshold to recover pain and suffering damages pursuant to N.J.S.A. 59:9-2d. We reverse and remand.

At 1:30 a.m. on September 29, 2001, plaintiff stepped off the curb onto the gutter portion of the street in front of her daughter's residence at 313 Avenue C, Bayonne, intending to walk to her parked automobile. As she stepped onto the street between the front of her car and the back of another, her left foot became trapped in a "hole" that was "almost exactly the size of [her] foot" and "maybe two inches deep," causing her to fall. Plaintiff suffered a fracture of the left distal fibula, requiring an open reduction and internal fixation with bone grafting. The hardware was removed approximately one year later.

Plaintiff filed suit against the City, alleging it was negligent in failing to maintain and supervise the roadway to ensure it was free from dangerous and hazardous conditions. The City moved for summary judgment, asserting immunity and defenses under the Tort Claims Act. The record presented to the court consisted of the deposition testimony of the following persons: plaintiff; her daughter; Michael Feuer, the City's Construction Official; Mark Smith, the City's Director of Law Enforcement for the Police Department; Michael Colombo, the City's Public Works Superintendent; Frank Carine, the City's Director of the Department of Public Works; and Terrence Malloy, the City's Chief Financial Officer. The certification of Gary Chmielewski, the City's Project Manager for the Quality of Life Office, was also presented, along with the 2000-2001 budget, construction permits issued by the City to owners of Avenue C during 2000, and an itemized list of street repairs for 2000 through 2004. Both parties presented expert engineering reports obtained in 2004, and plaintiff submitted photographs of the place where she fell that were taken by her daughter immediately following the accident and photographs of the area taken by her expert during an inspection on June 26, 2004. Plaintiff also submitted medical documentation of her injuries.

Plaintiff's expert, Michael G. Natoli, P.E., observed wide-spread deterioration of the asphalt roadway pavement resulting in surface depressions and large potholes. He noted that asphalt had been placed within the pothole cavity region following the accident, which slightly lessened the pothole surface area hazard, but that the pavement had deteriorated causing a re-appearance of the trip hazard of approximately one and one-half inch, as had existed at the time of the accident. Natoli's August 17, 2004, report further states:

2. A review of photographs illustrating the roadway pavement conditions prevailing at the time of the incident reveals the following:

a. The subject pothole formation had advanced to the point of removal of a pavement layer, exposing the underlying (prior) pavement surface (see Photos 2, 3 & 4). In essence, the pavement deterioration had advanced to the point of removal of the asphalt pavement layer (through spalling action) resulting in a hazardous pothole formation. The pothole exhibits a vertical end treatment (as formed along the pothole periphery) exposing the public to a hazardous walking surface condition (see Photos 3).

b. Further evaluation of the photographs reveals that the pothole formation is "widespread" within the roadway pavement areas (see Photos 2, 3 & 4). In essence, extensive deterioration present within the roadway area results in a large pothole surface area, which measures approximately 1-2ft. in width, in excess of 10ft. in length and 1-2in. in depth creates a distinct tripping hazard. As such, the asphalt pavement deterioration results in a large surface depth formation (pothole) which exposes the public to a reasonably foreseeable and dangerous risk of injury.

3. The plaintiff, Ms. Catherine Schmidt, proceeded to step down from the sidewalk level into the roadway. Therefore, as the plaintiff's foot beared onto the roadway pavement level, the pothole formation results in a protruding pavement edge condition which ensnared the plaintiff's foot (caused her foot to become "stuck") restricting the natural movement of same. This restriction caused the plaintiff to trip, lose her balance and fall down to violently impact the roadway pavement surfaces, thus causing her injury to occur. Moreover, the plaintiff states that at the time of the incident the protruding asphalt pavement edge section measured "several inches" in height.

In view of the above, it is reasonably foreseeable that the deterioration resulting in large pothole formations present within the roadway pavement areas existing at the time of the incident created extremely hazardous and unsafe conditions for the public.

Natoli contended the pothole formations prevailing within the roadway pavement areas at the time of the incident clearly deviated from applicable safety standards, including the Standard Practice for Safe Walking Surfaces and the Standard Specifications for Road and Bridge Construction. He estimated the cost of materials for repairs to the subject pothole to be less than $20.

Natoli concluded that the "extent of asphalt pavement deterioration at the time of the accident had progressed to a point; whereby, the pavement areas are a distinct hazard to pedestrians." He opined, "based on reasonable engineering probability that the advanced stage of deterioration present at the time of the accident had occurred over a period of no less than three (3) years. Hence, sufficient notice was made to correct this condition prior to plaintiff's injury." Furthermore, "by failing to mitigate the substantial hazard renders the failure to make the repairs palpably unreasonable." He also opined that plaintiff's injury would have been avoided had the asphalt roadway pavement been properly maintained and resurfaced to attain a planar riding/walking surface.

There was no claim that defendant had actual notice of the alleged dangerous condition prior to the accident. Plaintiff's daughter had never noticed the hole prior to the accident nor known of anyone who had fallen in that area and thus, had never submitted a complaint to defendant about a pothole or other problem with the condition of the roadway in the area where her mother fell. In opposition to summary judgment, however, in addition to the expert's report, plaintiff contended the City's records and DPW supervisors' testimony raised debatable questions as to the issues of constructive notice and the City's use of resources that would preclude summary judgment under the TCA on immunity or liability grounds. For example, plaintiff relied on Carine's testimony regarding the asphalt crew's responsibility to inspect and repair potholes in the streets, particularly after snowstorms; his acknowledgement that Avenue C was a main street in the City and that the entire street was checked for potholes by the asphalt crew in 2000 and 2001; and his department's policy to repair all potholes in response to specific citizen's complaints. In fact, Carine stated, "when we're talking about potholes I would say any pothole could be a hazard" and that "would be something that [he] would expect the [DPW] to deal with if [he] had notice of it." Plaintiff also referenced Chmielewski's responsibilities of inspecting and assessing which streets should be repaved with State grants, and included notifying the asphalt crew about potholes in the streets that needed to be repaired. Plaintiff further argued the City's performance of approximately twenty repairs on Avenue C in 2000 and 2001 provided an additional basis of constructive notice of the dangerous condition of the roadway abutting the site where plaintiff fell and notice of the need for repair of adjacent areas.

In granting the motion for summary judgment, the court determined that: (1) although there appeared to be "large uneven areas" in the photographs, the pictures and plaintiff's testimony of a "two-inch depression in the rain gutter portion of the roadway" did not demonstrate a dangerous condition as required for liability under N.J.S.A. 59:4-1a and 4-2 and 4-3; (2) plaintiff's expert report and the fact that the street crew inspected and repaired defective roadways was insufficient evidence of actual or constructive notice of the condition prior to the accident because of its location in an area often covered by parked cars as required for liability under N.J.S.A. 59:4-2; (3) the City was entitled to immunity for failing to inspect "every inch of every municipal roadway and/or curb site" pursuant to N.J.S.A. 59:2-6; (4) the City was entitled to immunity in exercising its discretion in determining how to utilize existing resources and funds for repair of the twenty-five miles of roadway pursuant to N.J.S.A. 59:2-3; and (5) the City's failure to take any action to repair the portion of the rain gutter of the street was not palpably unreasonable. The court's ruling was memorialized in an order of September 2, 2005, dismissing plaintiff's complaint with prejudice.

On appeal, plaintiff challenges the court's findings with respect to liability and immunity under the TCA. She contends she presented prima facie proof of dangerous condition liability pursuant to N.J.S.A. 59:4-2, inspection immunity under N.J.S.A. 59:2-6 is inapplicable, and the court erred in granting summary judgment to defendant on the basis of discretionary immunity pursuant to N.J.S.A. 59:2-3 because the palpable unreasonableness of the City's resource allocation constituted a factual issue for a jury. We agree and reverse the entry of summary judgment.

The TCA sets forth the conditions in which a public entity may be found liable for negligence. N.J.S.A. 59:4-2; Feinberg v. State, Dep't of Envtl. Prot., 137 N.J. 126, 133 (1994). It is well settled that the TCA favors a public entity's immunity; thus, when both liability and immunity exist under the TCA, immunity prevails. Coyne v. State, Dep't of Transp., 182 N.J. 481, 488-89 (2005); Gilhooley v. County of Union, 164 N.J. 533, 538 (2000). Therefore, before reaching the issue of liability, a court must first determine whether the entity should be afforded any of the TCA's immunities. Coyne, supra, 182 N.J. at 489. The burden is on the public entity to prove immunity under the TCA. Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985). To succeed on a summary judgment motion, the public entity must present "proof of a nature and character [that] would exclude any genuine dispute of fact." Ibid. (quoting Ellison v. Hous. Auth. of S. Amboy, 162 N.J. Super. 347, 351 (App. Div. 1978)). If the entity satisfies that burden, "summary judgment is warranted and, indeed, desirable, as a matter of judicial economy." Ibid.

In determining whether there exists a genuine issue of material fact that precludes summary judgment under Rule 4:46-2, the motion judge is 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). Summary judgment is appropriate when the evidence "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). However, accepting as true all evidence supporting the party opposing the motion and according him or her the benefit of all favorable inferences, if reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5 (1969).

On appeal, we apply the same standard as the trial court and, in effect, conduct a de novo review of the facts on the record and determine whether the motion judge's ruling of the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

The trial court's conclusion that N.J.S.A. 59:2-6 immunized the City for its employees' negligent inspection of roadways was erroneous because that section bars claims predicated on negligent inspection of property neither owned nor controlled by the public entity. See Chatman v. Hall, 128 N.J. 394 (1992); Cadmus v. Long Branch Bd. of Educ., 155 N.J. Super. 42 (Law Div. 1977). Moreover, N.J.S.A. 59:2-6 expressly provides: "[N]or shall this section exonerate a public entity from liability for failure to protect against a dangerous condition as provided in chapter 4." The Legislative Comments state that "[t]he inclusion of the reference to Chapter 4 is intended to indicate that this immunity shall not apply when dangerous conditions on public property are involved. In those cases Chapter 4 of this act provides the controlling principles of liability." Legislative Comment on N.J.S.A. 59:2-6.

We are also satisfied that the discretionary immunity defense of N.J.S.A. 59:2-3 should not have been granted as a matter of law because the palpable unreasonableness of the City's resource allocation constituted a factual issue for the jury. This section immunizes the public entity from liability for an injury resulting from discretionary decisions made in connection with uniquely governmental functions. Under N.J.S.A. 59:2-3, the entity has the burden of proving that a discretionary decision was made. Vanchieri v. New Jersey Sports and Exposition, 104 N.J. 80, 88 (1986); see also Costa v. Josey, 83 N.J. 49, 59 (1980) ("immunity is contingent upon proof that discretion was actually exercised at that level by an official who, faced with alternative approaches, weighed the competing policy considerations and made a conscious choice").

N.J.S.A. 59:2-3 states, in pertinent part:

c. A public entity is 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 the maintenance of facilities, the hiring of personal and, in general, the provision of adequate governmental services;

d. 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. . . .

Because the entity has the burden of proving the applicability of an immunity, it also has the burden of proving that its actions were not palpably unreasonable. Brown v. Brown, 86 N.J. 565, 578-79 (1981); c.f. N.J.S.A. 59:4-2 (the plaintiff has the burden of proving "palpable unreasonableness" to establish dangerous condition liability). In other words, under N.J.S.A. 59:2-3d, the entity must show that the decision of whether and how to allocate existing resources, which thereby resulted in the creation or persistence of a dangerous condition, was not palpably unreasonable, while under N.J.S.A. 59:4-2, the plaintiff must show that the entity's failure to protect against the dangerous condition was palpably unreasonable.

The issue of palpable unreasonableness is typically a fact question for a jury. Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 112 (App. Div. 1998); Daniel v. State, Dep't of Transp., 239 N.J. Super. 563, 600 (App. Div.), certif. denied, 122 N.J. 325 (1990). However, in certain circumstances, the issue may be disposed of as a matter of law, as in Mitchell v. City of Trenton, 163 N.J. Super. 287 (App. Div. 1978). In Mitchell, the plaintiff presented proofs before the jury which established that she sustained injuries when she fell into a hole in a broken portion of street curbing at a cross walk in Trenton. Id. at 289. There was evidence suggesting that the curbing may have been broken for as long as ten months before the fall. Ibid. At the conclusion of the plaintiffs' case, the Director of DPW, out of the jury's presence, testified that his department was responsible for the repair of city streets, but had never undertaken to repair curbing, largely because no money had ever been allocated for that purpose. Id. at 290. He explained that the City's total annual budget for all street repair was $300,000, of which $40,000 was allocated for pothole repairs and asphalt patching, which was insufficient to repair all of the road defects and thus, there was never any surplus for other projects, such as curbing. Ibid. He further explained that half of the 298 miles of curbing in Trenton was in disrepair, and that based on the current cost of $6 to repair a foot of curbing, there were insufficient funds available for the repairs. Ibid.

The trial court granted Trenton's motion to dismiss at the close of plaintiffs' proofs based on the discretionary immunity afforded by N.J.S.A. 59:2-3d. Ibid. We affirmed, holding that the trial court properly concluded that Trenton's decision not to allocate resources for the repair of the curbing was not "patently unreasonable" as a matter of law under this provision, as reasonable minds could not differ in this case as to the application of the statutory standard. Id. at 291-92.

In the present case, however, when the evidence is viewed in the light most favorable to plaintiff, reasonable minds could differ as to whether the City sustained its burden of proving it was not palpably unreasonable in allocating its existing resources and thereby entitling it to discretionary immunity for failure to inspect or make repairs to the area where plaintiff fell. Contrary to Mitchell, where Trenton had a policy not to repair any curb defects due to the city's limited budget, Bayonne repaired potholes upon receipt of specific complaints and Carine appeared to concede that if he had received a complaint about a pothole, he would have made the necessary patch repair. Then, again, a distinction was made between "potholes" and minor imperfections or wear and tear on the roadway, which would only be repaired based on a "cost benefit analysis" and availability of funds. Since there were factual issues regarding the condition of the roadway in which plaintiff fell, which may impact the determination of whether the City's inspection and roadway repair decisions were palpably unreasonable, the judge erred in summarily dismissing plaintiff's complaint on discretionary immunity grounds.

To impose liability on a public entity for injury caused by the condition of its property, a plaintiff must prove, by a preponderance of the evidence, that: (1) the property was in a "dangerous condition" at the time of injury; (2) the condition was the proximate cause of the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury which was incurred; (4) the public entity had actual or constructive notice of the condition a sufficient time prior to the injury to protect against the condition; and (5) the action taken to remedy the condition or the inaction of the entity was "palpably unreasonable." N.J.S.A. 59:4-2; Wymbs v. Township of Wayne, 163 N.J. 523, 531-32 (2000).

The TCA defines a "dangerous condition" as "a condition of property 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. 59:4-1a. A "dangerous condition" under the TCA refers 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) (citations omitted). The trial court's finding that the photographs did not establish the existence of a dangerous condition or a "large pothole" ignored the description of the pothole in Natoli's expert report and did not take into consideration plaintiff's testimony that the indentation in the roadway was sufficient to cause her foot to become lodged in the hole. A reasonable juror could find, based on the pictures and description of the condition by plaintiff and her expert, that a condition existed which created a substantial risk of injury. Plaintiff's expert described the condition as a "trip hazard" and contended that the City failed to comply with two standards routinely relied on by professional engineers in determining the safety of walkway and roadway surfaces. Although the pictures in the appellate record are poorly reproduced, it appears the depression in the street where plaintiff tripped runs at least several car lengths down Avenue C.

Furthermore, since the condition is in an area along the curb where cars are parked, a jury could find the area is equivalent to a walking surface, although it may actually be a rain gutter, for purposes of analyzing the foreseeability of its use and risk of the condition. Plaintiff also presented evidence tending to show that she used the property in the manner in which it was intended to be used, as a walkway for ingress and egress to her parked vehicle. See Vincitore v. Sports & Exposition Auth., 169 N.J. 119, 125 (2001) ("the standard is whether any member of the general public who foreseeably may use the property would be exposed to the risk created by the alleged dangerous condition").

A public entity has "actual notice" if it has "actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3a. It possesses "constructive notice" if the dangerous condition existed for such a period of time and was so obvious that in the exercise of due care, the entity "should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3b. Again, giving plaintiff all favorable inferences, her expert report can be interpreted to mean that the deterioration creating the dangerous condition occurred over three years prior to the September 2001 accident based on Natoli's review of the photographs taken by plaintiff's daughter immediately following the accident and his inspection of the roadway in June 2004. Natoli based his opinion on the length of time the pothole existed by observation of the asphalt pavement, which did not reveal tire imprints or other markings that would have been present if the deterioration was caused by traumatic indentation rather than long-term exposure to roadway traffic.

In addition, plaintiff presented additional evidence sufficient to raise a debatable question of constructive notice, including: the repeated inspections by DPW and patrolling by police officers of the area, two inspections by construction officials of the surrounding property, and evidence of the various repairs done in the area to Avenue C.

Finally, a plaintiff must overcome the "steep burden" of proving the action or inaction of the public entity was "palpably unreasonable." Coyne, supra, 182 N.J. at 493. The term "palpably unreasonable" is behavior that "is patently unacceptable under any given circumstances." Kolitch, supra, 100 N.J. at 493; see also Wymbs, supra, 163 N.J. at 532. To be palpably unreasonable, "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 (citations omitted).

The question of whether an entity's conduct is palpably unreasonable is generally a fact question for the jury. See Vincitore, supra, 169 N.J. at 130. A jury's findings regarding the length of constructive notice based on testimony elicited from City officials and employees, experts, and a review of records indicating multiple repairs in the area, may affect its determination of whether the City's failure to repair the condition was palpably unreasonable. Furthermore, although defendant's expert insists that "rain gutters" are permissible according to the American Association of State Highway and Transportation Officials' Policy on Geometric Design of Highways and Streets, the jury should make the determination whether the condition was indeed a rain gutter, whether the City abided by such guidelines, whether such guidelines are mandatory for roadways in Bayonne, and whether the public entity should have maintained such rain gutters in anticipation of potential deterioration. Those considerations, and other findings made by a jury concerning plaintiff's proof of the remaining requirements for liability under N.J.S.A. 59:4-2 create genuine issues of material fact of whether the failure to repair the condition was palpably unreasonable.

This case is distinguishable from those cases where a trial court disposed of the issue on summary judgment. Unlike Muhammad v. New Jersey Transit, 176 N.J. 185, 200 (2003), where the Court found NJT did not act palpably unreasonable by not informing each of the employees of the independent contractor of the danger and risks involved of removing asbestos from the roof of the garage where it had previously advised the contractor of the unsafe condition of the roof, here the City did not admit to any knowledge of a potential dangerous condition. Unlike Carroll v. New Jersey Transit, 366 N.J. Super. 380, 390-91 (App. Div. 2004), where the Court found no palpable unreasonable conduct because the plaintiff presented no evidence as to the standard of care for inspections or defendant's pattern of conduct that would suggest the need for more frequent inspections to prevent slipping on dog feces on subway steps, here plaintiff presented evidence as to existing standards for roadways and walkways from which a jury could determine that the failure to abide by such standards was "patently unacceptable." Moreover, as previously discussed, plaintiff presented sufficient evidence to raise factual questions with respect to whether the City's allocation of resources for inspection and repair of roadways and, specifically, the area where plaintiff fell, was palpably unreasonable.

In summary, inspection immunity under N.J.S.A. 59:2-6 is inapplicable, and summary judgment should not have been granted to defendant based on discretionary immunity under N.J.S.A. 59:2-3 or for failure to establish dangerous condition liability under N.J.S.A. 59:4-2.

Reversed and remanded for further proceedings.

 

The complaint also names as defendants the Bayonne Public Works Department, which is not a separate legal entity; and several Hudson County entities, which we assume plaintiff did not pursue when she ascertained that Avenue C was a municipal street. The complaint also named abutting property owner Lily Lucia as an additional defendant, which subsequently was administratively dismissed for lack of prosecution.

Plaintiff also argues that she has established a permanent substantial loss of a bodily function that precludes the entry of summary judgment. The trial court did not rule on defendant's motion to dismiss plaintiff's complaint for failure to meet the injury threshold under N.J.S.A. 59:9-2d, so this issue will not be addressed on appeal.

(continued)

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A-0467-05T1

May 21, 2007