YELENA KATS v. TOWNSHIP OF WAYNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1184-07T31184-07T3

YELENA KATS and KONSTANTIN

KATS, her husband,

Plaintiffs-Appellants/

Cross-Respondents,

v.

TOWNSHIP OF WAYNE,

Defendant-Respondent/

Cross-Appellant,

and

BOROUGH OF POMPTON LAKES

and COUNTY OF PASSAIC,

Defendants-Respondents.

_______________________________________

 

Argued January 6, 2009 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1495-05.

Andrew T. Cupit argued the cause for appellants/cross-respondents (Law Offices of Andrew T. Cupit, attorney; Mr. Cupit, on the brief).

Bruce A. Seidman argued the cause for respondent/cross-appellant Township of Wayne (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Seidman, on the brief).

John B. Monahan argued the cause for respondent Borough of Pompton Lakes (O'Toole, Fernandez, Weiner & Van Lieu, L.L.C., attorneys; Mr. Monahan, of counsel and on the brief).

Eric M. Winston argued the cause for respondent County of Passaic (Wisniewski & Associates, L.L.C., attorneys; John S. Wisniewski, of counsel; Kenneth R. Ebner, Jr., on the brief).

Dennis A. Maycher argued the cause for intervenor/cross-respondent Law Offices Dennis A. Maycher, P.C.

PER CURIAM

Plaintiffs Yelena Kats (Yelena) and Konstantin Kats (Konstantin) appeal from orders entered by the trial court on September 25, 2007, granting summary judgment in favor of defendants Township of Wayne (Township), Borough of Pompton Lakes (Borough), and County of Passaic (County). The Township cross-appeals from the provision of the September 25, 2007 order that denied its motion for the imposition of counsel fees and costs pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8. For the reasons that follow, we affirm.

I.

We briefly summarize the relevant facts, which are drawn from the record presented to the trial court. At approximately 5:19 a.m. on April 8, 2003, Eleuterio Bonilla (Bonilla) was traveling northbound on Hamburg Turnpike in Passaic County. Bonilla lost control of his vehicle as he was crossing the Norton House Bridge, which runs over the Ramapo River and connects the Township and the Borough. Bonilla's car struck a sign and utility pole in front of George's Market on the Pompton Lakes side of the bridge. It is undisputed that the County owns the bridge where the accident occurred.

Officers Frank Jaconetta (Jaconetta) and Jamil Aburomi (Aburomi) of the Borough's police force responded to the scene. Jaconetta arrived first and spoke with Bonilla. Bonilla told the officer that he was attempting to make a turn when his vehicle slid on ice. The officers inspected the roadway for ice but apparently they did not check the northbound lanes of the bridge upon which Bonilla had been traveling. Jaconetta initially concluded that Bonilla lost control of his vehicle because he had been traveling too fast. Jaconetta and Bonilla went into George's Market and Aburomi returned to the Borough's police headquarters.

At about 5:32 a.m., Yelena was traveling northbound on Hamburg Turnpike in Passaic County. Yelena's vehicle slid on ice on the bridge and struck a utility pole. She sustained injuries to her face, pelvis, knee, leg and foot. Yelena's accident occurred near the spot where the Bonilla accident occurred.

Officer Jaconetta was inside the market at the time of Yelena's accident. Jaconetta contacted Officer Aburomi and asked him to return to the scene. Aburomi returned and found spots of black ice in the northbound lanes of the bridge. Aburomi informed Jaconetta and they closed the bridge.

On April 6, 2005, plaintiffs filed a complaint against the Township, Borough, and the County. Plaintiffs alleged that Yelena lost control of her vehicle due to a dangerous condition that existed on Norton House Bridge, which caused the bridge "to be slippery and dangerous to vehicular traffic." Plaintiffs further alleged that the dangerous condition was due to the "negligence, recklessness, carelessness, inaction and failure to warn of the defendants[.]" They asserted that Yelena had sustained permanent injuries in the accident. Yelena's husband, Konstantin, also asserted a claim for the loss of his wife's services and consortium.

After the completion of discovery, defendants filed motions for summary judgment. They argued that they were entitled to immunity under the Tort Claims Act (the TCA or the Act), N.J.S.A. 59:1-1 to 12-3, specifically N.J.S.A. 59:4-7, the provision of the TCA that confers immunity for injuries that result solely from the effect that weather conditions have upon the use of public streets and highways. In its motion, the Township also sought the imposition of counsel fees and costs under Rule 1:4-8 and N.J.S.A. 2A:15-59.1. The Township argued that plaintiffs did not have a reasonable factual basis for any claim against the Township.

Plaintiffs opposed the motions, arguing that weather immunity did not apply because the icy condition of the bridge was not the sole cause of Yelena's accident. Plaintiffs also argued that the Township's motion for counsel fees and costs should be denied because they had a reasonable basis for pursuing their claims against the Township.

The trial court heard the motions on September 25, 2007 and placed its decision on the record. The court found that defendants were entitled to immunity under N.J.S.A. 59:4-7 because "[t]he accident was caused by the weather." The court also declined to award the Township counsel fees and costs pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8. The court entered orders memorializing its decisions and this appeal followed.

II.

We turn first to plaintiffs' appeal from the orders granting defendants' motions for summary judgment. Plaintiffs contend that the trial court erred by finding that weather immunity shields the County, Township and Borough from liability. Plaintiffs maintain that weather was not the sole cause of Yelena's accident. We disagree.

In reviewing an order granting summary judgment, we apply the same standard that is applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must determine whether the evidential materials before the trial court "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).

The TCA states that, except as otherwise provided in the Act, "a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." N.J.S.A. 59:2-1a. The Act further states that the "liability of a public entity established by [the TCA] is subject to any immunity" that the public entity may have under the law. N.J.S.A. 59:2-1b.

The TCA additionally states that, "[e]xcept as otherwise provided by [the] [A]ct, a public employee is liable for injury caused by [his] act or omission to the same extent as a private person." N.J.S.A. 59:3-1a. However, like the liability of a public entity, the liability of a public employee is subject to any immunity provided by law. N.J.S.A. 59:3-1b.

Thus, under the TCA, "'immunity is the dominant consideration.'" Rochinsky v. State of N.J., Dep't of Transp., 110 N.J. 399, 408 (1988) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 498 (1985) (O'Hern, J., concurring)). Even if the Act permits liability to be imposed upon a public entity or employee, any such liability will be negated by a corresponding statutory or common-law immunity. Id. at 408-09.

Here, plaintiffs have asserted various grounds for imposing liability upon the County, Township and Borough. They maintain, among other things, that the County is liable for plaintiffs' injuries because those injuries were allegedly caused by a dangerous condition on the County's property. N.J.S.A. 59:2-1. They assert that the County, Township and Borough are liable because they negligently failed to patrol and inspect the bridge prior to Yelena's accident. Plaintiffs further assert that the Borough's police officers are liable because they negligently failed to inspect and close the bridge after the Bonilla accident or warn motorists of the dangerous condition.

However, as we have pointed out, even if plaintiffs were able to prove these claims, the liabilities of the public entities are subject to the immunities provided in the TCA, including the immunity under N.J.S.A. 59:4-7 for injuries "caused solely by the effect on the use of streets and highways of weather conditions." The trial court found that plaintiffs' injuries were "caused solely" by the effect of weather conditions on the bridge. In our judgment, the court's determination was correct as a matter of law.

Our conclusion is consistent with the Supreme Court's decision in Pico v. State, 116 N.J. 55 (1989). There, a local policeman called the State Department of Transportation (DOT) to report icy conditions on a State-owned road. Id. at 57. The message was conveyed to the foreman of the DOT's maintenance yard, who indicated that he would handle the problem. Id. at 57-58. Several hours later, the plaintiff was driving on the road and her car skidded on a patch of ice. Id. at 58. She pulled over, got out to make a telephone call, and was struck by another vehicle that skidded due to the icy conditions. Ibid.

The Court held that the State was immune from liability under N.J.S.A. 59:4-7 because plaintiff's injuries were caused solely by the weather conditions. Id. at 61-64. The Court rejected the argument that the State could be liable because the DOT's foreman said he would take care of the icy conditions on the roadway. Id. at 61. The Court observed that the State had not salted or sanded the road where the accident occurred. Ibid. The Court found that "the sole cause of the accident was the icy condition in its natural state." Ibid.

The Court held that the State could not be liable in these circumstances, noting that "[m]otorists and pedestrians who venture into snow and ice storms will inevitably confront risks not experienced by those who remain indoors." Id. at 62. The Court stated:

The Legislature has determined that as between the public entity and the injured pedestrian or motorist, the entity is not to bear the cost of those risks. Implicit in that determination is the value judgment that the cost of the risk is to be borne directly or indirectly by the injured party, not by taxpayers. If the public entity should aggravate the risk or fail to give an adequate warning of a palpably dangerous condition that it has created, then it may be liable.

[Ibid.]

In this case, it is undisputed that Yelena was injured as a result of an icy condition on the roadway "in its natural state." Id. at 61. The dangerous conditions of the roadway were therefore due solely to the weather. Moreover, the public entities had not aggravated the risk or failed to give a warning of a dangerous condition they had created. Thus, defendants were entitled to immunity under N.J.S.A. 59:4-7.

This conclusion is also consistent with our recent decision in Dickson v. Twp. of Hamilton, 400 N.J. Super. 189 (App. Div.), certif. denied, 196 N.J. 461 (2008). In that case, the plaintiff was injured when her car skidded on black ice. Id. at 192. The road was owned, controlled and maintained by the State although the Township had law enforcement responsibilities on the portion of the road where the accident occurred. Ibid. Prior to the accident, there had been five motor vehicle accidents on the road due to icy conditions. Id. at 193.

The Township's police officers had responded to each accident and submitted information to the Township's police dispatcher. Ibid. The police did not close the road or place warning signs on the roadway. Ibid. Before the accidents, the DOT had been informed of the conditions on the highway but the Township's dispatcher did not call the DOT again after each accident. Id. at 193-94. After the initial call, the DOT sent a work crew out to treat various roads, including the road where the plaintiff's accident occurred. Id. at 194. A salt truck was in the area when the plaintiff's accident occurred. Id. at 199.

In Dickson, we held that the Township was entitled to weather immunity under N.J.S.A. 59:4-7. We determined that the plaintiff's accident was caused solely by the weather conditions and the Township did not take any action that had increased the danger of the ice in its natural state. Id. at 198. We rejected the plaintiff's assertion that, because the Township knew of the icy conditions on the road, it had a duty to notify the State after each of the five accidents that preceded the plaintiff's accident. Id. at 199.

Here, plaintiffs argue, however, that the weather was not the sole cause of Yelena's accident. In support of that contention, plaintiffs rely upon cases where certain conditions to property, along with the weather, combined to cause the injuries. See Meta v. Twp. of Cherry Hill, 152 N.J. Super. 228, 230-32 (App. Div.), certif. denied, 75 N.J. 587 (1977) (no immunity under N.J.S.A. 59:4-7 where the plaintiff's car skidded on ice that had formed because a ditch at the side of road was filled with silt and vegetation); Robinson v. City of Jersey City, 284 N.J. Super. 596 (App. Div. 1995) (concluding that weather immunity did not apply when water from a broken pipe spilled onto the highway and froze); McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 443 (App. Div. 1977) (holding that weather was not the sole cause of the plaintiff's injury where accident resulted from ice that had formed as a result of run-off of water from a negligently-constructed driveway).

In Dickson, we rejected substantially the same argument that plaintiffs make in this case. There, we noted that Meta, McGowan and Robinson all involved "man-made conditions, well-known to the municipality, [which] created the water that froze into ice." Dickson, supra, 400 N.J. Super. at 200. We held that in those cases, "the municipality's prior knowledge of an unremediated dangerous condition at a specific location along with the weather conditions combined to cause the plaintiff's injury." Ibid. That was not the situation in Dickson and it is not the situation here.

Plaintiffs additionally argue that weather immunity does not apply because the ice on the bridge at the time of Yelena's accident may have been caused by the proximity of the bridge to the dam and waterfall at Pompton Lake. In support of this contention, plaintiffs rely upon a report of the Army Corps of Engineers, information regarding the dam, a resolution adopted by the Township, and publicly available information regarding other traffic accidents in the area. Because plaintiff did not raise this argument or present any of this evidence in the trial court, we decline to consider it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973).

We therefore conclude that the trial court correctly found that the County, Township and Borough are entitled to weather immunity under N.J.S.A. 59:4-7.

III.

We turn to the Township's cross-appeal from the provision of the September 25, 2007 order which denied its motion for the imposition of counsel fees and costs pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1, and the frivolous litigation rule, Rule 1:4-8.

The frivolous litigation statute provides that a court may require a party to pay the prevailing party reasonable litigation costs and attorneys' fees if the court finds that a complaint, counterclaim, cross-claim or defense of the nonprevailing party was:

(1) . . . commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) [t]he nonprevailing party knew, or should have known, that the complaint counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

[N.J.S.A. 2A:15-59.1b.]

The frivolous litigation rule generally provides that, by signing a pleading, motion or other paper:

an attorney or pro se party certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and

(4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.

[R. 1:4-8(a).]

The rule permits the court to impose sanctions if any pleading, motion or paper is signed with the intent to defeat the purpose of the rule. Ibid.

In November 2005, the Township filed a motion for summary judgment, seeking dismissal of the claims against it on the basis that it does not own, control or maintain the roadway or bridge where the accident took place. The trial court denied the motion without prejudice to its renewal after the completion of discovery.

After the time for discovery ended, counsel for the Township wrote to plaintiffs' counsel and asked plaintiffs to dismiss their claims against the Township. The Township's attorney asserted that there was no factual basis to impose liability upon the Township. He said that he would seek the imposition of sanctions under the frivolous litigation statute and rule if the claims against the Township were not withdrawn. Plaintiffs refused to withdraw their claims. The Township thereafter filed a motion seeking the imposition of counsel fees and costs upon plaintiffs and their attorneys, and the trial court denied the motion.

The Township argues that the trial court erred because the claims asserted against it were frivolous. We disagree. Here, plaintiffs asserted a claim against the Township on the theory that it had a duty to patrol the bridge and negligently failed to do so prior to the accident. In support of this contention, plaintiffs submitted a certification from Steven J. Edmond (Edmond), the County Engineer, who stated that police officers from the Township and the Borough shared traffic patrol responsibilities for the parts of the bridge within their respective jurisdictions. Edmond also said that the local police officers had the authority to close the roadway if conditions warranted.

Although we have concluded that the weather was the sole cause of Yelena's accident and her injuries, and that the Township and the other public entities may not be held liable for failing to patrol and inspect the bridge, plaintiffs had some evidence to support their claim against the Township. We are satisfied that plaintiffs did not pursue this claim in bad faith or for purposes of harassment, delay or malicious injury. We accordingly conclude that the trial court did not abuse its discretion by denying the Township's motion for sanctions.

Affirmed on the appeal and the cross-appeal.

 

Plaintiffs also named the State of New Jersey as a defendant but later agreed to dismiss their claims against the State.

(continued)

(continued)

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A-1184-07T3

February 2, 2009