DORIS P. LABAW et al. v. COUNTY OF MERCER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4677-05T54677-05T5

DORIS P. LABAW and ALFRED

LABAW, her husband,

Plaintiffs-Appellants,

v.

COUNTY OF MERCER, MERCER COUNTY

T.R.A.D.E. TRANSPORTATION,

Defendants-Respondents.

________________________________

 

Argued March 5, 2007 - Decided March 15, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-0447-04.

Kevin M. Shanahan argued the cause for appellants.

Lillian L. Nazzaro, Assistant County Counsel, argued the cause for respondents (Arthur R. Sypek, Jr., Mercer County Counsel, attorney; Ms. Nazzaro, on the brief).

PER CURIAM

Plaintiffs, Doris and Alfred Labaw, appeal from a trial court order granting summary judgment and dismissing their complaint against defendant under the New Jersey Tort Claims Act. We reverse and remand for further proceedings.

Our review of a trial court order granting summary judgment is de novo, employing the Brill standard. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Brill requires that we consider the evidence in the light most favorable to the non-moving party. Brill, supra, 142 N.J. at 523. Accordingly, having reviewed the record, we discuss the facts with that legal standard in mind.

Plaintiff Doris Labaw (plaintiff), age sixty-eight, fell and was injured while exiting from a van used to provide transportation for elderly clients of a Mercer County agency known as "T.R.A.D.E." She sued the County under the New Jersey Tort Claims Act, contending that the van was in a dangerous condition, pursuant to N.J.S.A. 59:4-1 and -2. In support of her case, plaintiff served defendant with a report from Ned Einstein, an expert with "over thirty (30) years of experience in the public transportation industry and its paratransit sector."

Einstein's twelve-page report offered opinions on a variety of alleged deficiencies in both the van and the manner in which the van operator interacted with plaintiff during her attempt to exit the van. The report could most charitably be described as rambling, and it addresses a variety of issues that are irrelevant to this case. However, viewed in the light most favorable to plaintiffs, the report can fairly be construed as presenting the following relevant opinions: (a) the van from which plaintiff fell is a "stock" or standard van typically sold for family transportation; (b) while the van itself contained no "latent defects" it did not meet the standard of care for passenger safety in the paratransit industry; (c) agencies that use vans for public transportation, particularly transportation of elderly or disabled persons, do not use "stock" vehicles in their unmodified state; rather, the industry standard is to have the vans retrofitted or "converted" to minimize the danger that passengers will fall while entering or exiting; and (d) in particular, the industry standard requires a van to be retrofitted to have a wide running board, instead of the very narrow running board found on the "stock" van, so that exiting passengers can place both feet on the running board at the same time. According to Einstein:

While such [unmodified] vehicles may suffice for family usage, they are not considered appropriate for the public transportation of even . . . non-disabled, non-elderly individuals. Instead, public transportation vehicles are "converted" to contain stepwells designed to facilitate safe boarding and alighting, including: deepened step treads; uniform riser heights and step tread depths; raised roofs . . . and a variety of handrails. . . .

Einstein opined that the vehicle's running board "was wholly inadequate for alighting purposes when used by a normal passenger. It was particularly inappropriate - and dangerous -for use by an elderly or disabled passenger." He then explained why it was dangerous and opined that plaintiff's accident "was not merely foreseeable, it was easily and obviously observable and overtly predictable to any professional in the field with a rudimentary knowledge of vehicle characteristics and the needs of the passengers intended to be transported in them." He also noted that properly converted vans were so commonly used by paratransit agencies in the local area that defendant should have known that its van was obviously inadequate "and patently and obviously dangerous, for the use to which [defendant] deployed it."

Einstein's statement that the vehicle did not "contain any latent defects" came in the context of a paragraph in which he explained that the manufacturers of such "stock" vans sell them with the expectation that entities that use them for public transportation will have them converted before using them for that purpose. Hence his statement, viewed in the light most favorable to plaintiffs, was not an opinion exculpating defendant but only exculpating the manufacturers. His opinion then went on to explain why the vehicle was unreasonably dangerous for the purpose for which defendant was using it.

Relying on Levin v. County of Salem, 133 N.J. 35 (1993), the trial judge concluded that plaintiffs' proofs could not support a finding that the van was in a dangerous condition. We conclude that Levin is not on point, because it turned on the fact that the plaintiff was not using the public property (there, a bridge) for its intended purpose, but rather was using it as a diving platform. Id. at 43-48. In this case, plaintiff was using defendant's van for its intended purpose, and plaintiffs' expert report could support a conclusion that the van was in a dangerous condition for purposes of public transportation. See King v. Brown, 221 N.J. Super. 270, 274-75 (App. Div. 1987) (noting pedestrian bridge "may become dangerous when converted to use by vehicular traffic if its structure cannot support the additional load"). Moreover, viewed in the light most favorable to plaintiffs, the expert's comment that the van did not contain "any latent defects" is not fatal to plaintiffs' case because the comment was directed at the manufacturer of the van and not at defendant.

Under the New Jersey Tort Claims Act, a "[d]angerous condition" of public property is one "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. The expert's opinion concerning the industry standard for converting stock vans for public transportation purposes, and the allegedly unduly narrow stepwell and running board of the van, together with his explanation as to the danger it presented for passengers such as plaintiff, was sufficient to meet that standard. We intimate no view as to whether a jury will find his opinion convincing. We decide only that his opinion was sufficient to withstand defendant's summary judgment motion.

 
Reversed and remanded.

Mercer County T.R.A.D.E. Transportation is not a separate legal entity but is a part of County government. Therefore we refer to the County and T.R.A.D.E. as "defendant."

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A-4677-05T5

March 15, 2007