DONALD DUPREE v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5930-09T3

DONALD DUPREE,

Plaintiff-Appellant,

v.

CITY OF NEWARK,

Defendant-Respondent.

__________________________

April 1, 2011

Submitted March 21, 2011 - Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey,Law Division,Essex County, Docket No. L-8222-08.

Alan Berliner, attorney for appellant.

AnnaP. Pereira,Corporation Counsel, attorney for respondent (Avion M. Benjamin, Assistant Corporation Counsel, on the brief).

PER CURIAM

Plaintiff Donald Dupree appeals from a July 9, 2010 order dismissing on summary judgment his complaint against defendant City of Newark. We affirm.

I

These are the most pertinent facts. On November 1, 2007, while crossing Broadway in Newark, plaintiff stepped into a hole in the street, fell, and broke his ankle. The hole was part of a water main, known as a "valve box," and it was missing its cover. According to Andrea Adebowale, the Supervising Engineer for the Newark Department of Water and Sewer Utilities, valve boxes are normally "covered by a metal cap" but "vehicles sometimes break or dislodge the caps as they drive over them."

In a certification, Adebowale attested that the City has 500 miles of water mains with tens of thousands of valve boxes. She stated that the City did not have the resources to inspect the boxes on a regular basis, but the City performed repairs in response to reports from residents or municipal employees. Adebowale reviewed her department s records of "complaints and repair calls" for the past five years and found no record of any notice to the City concerning the missing valve cap at the location where defendant fell. According to Adebowale, the City had no notice about this missing cap until after plaintiff s accident occurred.

At his deposition, Dexter Cobb, the City s acting supervisor for street repair, testified that he was in charge of a ten-person crew responsible for repairing potholes. When his employees were not otherwise engaged in repairs, they would ride around the streets looking for potholes. However, he confirmed that the City primarily relied on citizen complaints to alert them of problems such as potholes. He testified that missing valve covers were a "common problem" on the City s streets. He had no record of any complaints made to his section, the Division of Traffic and Signals, concerning the hole in which defendant fell. That hole was repaired after defendant s fall.

A witness to the accident, William Rivera, testified that there were "a lot of potholes" in the area where defendant fell. For that reason, he used to "hate" driving on that section of Broadway. He did not testify that he had ever seen this specific open water valve. Neither Rivera nor plaintiff testified that they ever complained to the City, prior to the accident, about the presence of potholes or any other type of holes in the street. Plaintiff presented no expert report concerning water valve caps in general or this cap in particular, or concerning the applicable standard of care for street maintenance or valve box maintenance. Nor did he present any evidence concerning how long this valve box cap had been missing.

In an oral opinion placed on the record on July 9, 2010, Judge John C. Kennedy concluded that plaintiff had not presented evidence that the City had actual or constructive notice of the missing valve cap, as required by the Tort Claims Act (TCA), N.J.S.A. 59:4-2b. He considered that under the TCA, to show constructive notice plaintiff needed to prove "'that the condition has existed for such a period of time, and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.'" [quoting N.J.S.A. 59:4-3b]. The judge reasoned that plaintiff presented no expert testimony concerning the missing valve cap and how long it had been missing.

The judge further reasoned that although there was evidence that Broadway had many potholes, that did not constitute actual or constructive notice as to "a missing valve cover." There was no other proof as to how long the cover had been missing. Judge Kennedy therefore concluded that plaintiff could not prove actual or constructive notice, as defined in N.J.S.A. 59:4-3b.

II

We review the trial court s grant of summary judgment de novo, using the standards set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). Having reviewed the record in light of that standard we find no basis to disturb Judge Kennedy s decision.

Under the TCA, a plaintiff injured as the result of a dangerous condition on public property cannot prevail without also proving that:

a. 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 section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

[N.J.S.A. 59:4-2a, -2b.]

Plaintiff concedes that the City did not have actual notice of the missing valve cap, but contends the City had constructive notice. We disagree. To prove constructive notice, a plaintiff must show "that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3b. "[T]he mere '[e]xistence of an alleged dangerous condition is not constructive notice of it.'" Polzo v. County of Essex, 196 N.J. 569, 581 (2008) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)).

In this case, plaintiff produced no evidence as to how long the valve cap had been missing. It could have been missing for months or it could have been knocked off by a passing car minutes before plaintiff started crossing the street. Given this record, plaintiff could not establish constructive notice. See Carroll v. N.J. Transit, 366 N.J. Super. 380, 388-89 (App. Div. 2004).

Relying on N.J.S.A. 59:4-2a, plaintiff also contends that the City was negligent in failing to have a "routine inspection program" for its water valve boxes. However, plaintiff presented no expert testimony or other evidence concerning the standard of care for the maintenance of municipal streets in general or water mains in particular. Summary judgment was properly granted.

Affirmed.