LORA SHERMAN v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4626-11T1

LORA SHERMAN and TIMOTHY

SHERMAN, husband and wife,

Plaintiffs-Appellants,

v.

RUTGERS, THE STATE UNIVERSITY

OF NEW JERSEY,

Defendant/Third-Party

Plaintiff-Respondent,

v.

NADASKAY KOPELSON ARCHITECTS,

Third-Party Defendant/

Fourth-Party Plaintiff,

v.

YU AND ASSOCIATES, INC.,

Fourth-Party-Defendant.

____________________________________________

A

August 30, 2013

rgued telephonically November 7, 2012 - Decided

 

Before Judges Axelrad and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10249-09.

 

Brett R. Greiner argued the cause for appellants (Levinson Axelrod, P.A., attorneys; Matthew P. Pietrowski, on the brief).

 

George J. Kenny argued the cause for defendant/third-party plaintiff-respondent (Connell, Foley, L.L.P., attorneys; Mr. Kenny, of counsel and on the brief).

PER CURIAM

Plaintiffs, Lora Sherman and Timothy Sherman, appeal from the order that granted summary judgment to defendant, Rutgers University, and dismissed their personal injury and per quod actions with prejudice. Plaintiffs contend the evidence they produced in opposition to the summary judgment motion filed by defendant established a triable issue as to whether a dangerous condition on defendant's property caused the trip and fall accident out of which their claims arose, and that the trial judge erred by ruling to the contrary. We affirm.

I.

The facts viewed in the light most favorable to plaintiffs are as follows.1 On December 4, 2008, plaintiff, her husband, their friend Steve, and Steve's thirteen-year-old son, attended a Rutgers-Louisville football game at the Rutgers Stadium on the New Brunswick campus in Piscataway. Plaintiff and her husband had been season ticket-holders for two or three years. On the night of plaintiff's accident, she, her husband, and their guests decided to leave the game at halftime, approximately 8:30. They began to walk along the same route they had taken when they had come to the stadium earlier that evening after parking their car. Plaintiff's husband and Steve were walking approximately five feet in front of her.

After the group exited the stadium through a gate at the northeast corner, they walked south, along the east side of the stadium parallel to the Hale Center. The Hale Center is an athletic building attached to the stadium. As the group walked along the sidewalk, plaintiff saw lights on at the top of the windows in the Hale Center and decided to take a closer look, because "[i]t looked like there might have been football players in there." Although she had been walking on the sidewalk, she "peeled off" from the others, turned right, and started to walk directly toward the windows in the Hale Center. It was dark. As she stepped toward the building, plaintiff was looking toward the window, rather than down at the sidewalk. Had she not made the right-hand turn to walk toward the building, the accident would not have occurred. As she walked toward the building, plaintiff tripped over a retaining wall and fell, dislocating both of her arms and sustaining severe fractures requiring surgery.

The retaining wall, which bordered the edge of the sidewalk closest to the Hale Center, was constructed of precast concrete pavers or blocks in a trapezoidal shape. Between the retaining wall and the exterior wall of the Hale Center was a drop-down into an open well. The retaining wall extended forty-three feet along the edge of the sidewalk nearest the Hale Center, and the top of the wall ranged in height from four to nine inches above the sidewalk on one side, and from twenty-four to thirty inches above the bottom of the well on the other. The distance from the inside face of the retaining wall to the exterior wall of the Hale Center ranged up to sixty-two inches. The exterior wall of the Hale Center is made of glass, opaque at the bottom, extending upward from five to eight feet, to keep people from looking into the building. The upper part of the glass-paneled wall allows light to pass through.

Robert Hoffman, a licensed professional engineer and senior project manager employed by defendant, testified during his deposition that the retaining wall and well were constructed as part of additions to the Hale Center built in 2002. The purpose of the retaining wall was to separate "the grades" between the walkway and the well. The grade at the bottom of the well was required "for the building flashing for the waterproofing of the exterior of the building." The architect who designed the additions to the Hale Center designed the retaining wall and well. No employees of defendant were involved in the design of the grade separation and well.2

Hoffman testified that the walkway where plaintiff fell was not a primary route to and from the stadium. He did not think the retaining wall was a tripping hazard because it was "far enough off the normal walkway that it shouldn't constitute a tripping hazard[.]" He acknowledged, however, that he was not a trained safety manager or trained safety engineer. As far as Hoffman knew, the retaining wall had been designed by the architect in accordance with the Building Officials and Code Administrators (BOCA) building code. To Hoffman's knowledge, the only lights that would illuminate the retaining wall were the lights inside the Hale Center "which would have come through the clear glass up above the spandrel glass."

Plaintiff's expert, Len Mc Cuen, a civil engineer and architect, inspected the scene on an August evening beginning "at twilight and extend[ing] until near full darkness." He reported that "the sidewalk along the building, as well as the [retaining wall] and well were provided with no lighting and were in darkness. They were difficult to see, even knowing they were there." He further reported that ambient lighting from the building interior was negligible, and that the nearest pole light was in a parking lot to the south and did not illuminate the retaining wall and well.

Mc Cuen cited "[t]hree distinct safety hazards" that were causes of plaintiff's accident: the retaining wall, which presented a trip hazard; the lack of a guard or guardrail at the "drop off just beyond the trip hazard[;] and inadequate substandard lighting[.]" Mc Cuen explained that these factors were "aggravated by the sharp drop in illumination compared to inside the stadium and the distracting view."

Mc Cuen stated that the three safety hazards violated various codes, but "were dangerous independent of any code or standard." He also opined that plaintiff "was acting in a safe and reasonable manner, and "could not reasonably have been expected to perceive, observe, or avoid these hazards, which were deceptive visually, particularly in the poor lighting and difficult visual environment."

As to defendant, Mc Cuen asserted that it "should have known that the situation they created was dangerous[,]" and "should have noticed the danger in which they were placing their visitors and foreseen that it would cause an accident such as this." According to Mc Cuen, allowing the condition "fell below standard accepted facility management practice for institutional and assembly usage facilities."

Mc Cuen believed the "[m]eans of eliminating the dangerous conditions were readily available and would have been inexpensive." He cited as examples installing guard railing, and, as a temporary measure, providing warnings and highlighting the retaining wall.

Although Mc Cuen believed the retaining wall and basin posed a safety hazard of severe magnitude, no other incidents of someone tripping over the paving wall had ever been reported. Plaintiffs commenced this personal injury action against defendant. After defendant and plaintiffs conducted discovery, defendant moved for summary judgment. The trial court granted defendant's summary judgment motion and dismissed the case with prejudice in an order dated April 13, 2012.

In granting the motion, the court began by assuming for purposes of the argument that the retaining wall and well was a dangerous condition, that is, "that somebody . . . is capable of being injured in this area." The judge then explained that the condition, if defective, was defective because of a design for which defendant was not responsible. Additionally, the court determined that the design defect was such that defendant would not "realize that there was a design defect."

The court also concluded that defendant's actions "in not addressing the situation" were not palpably unreasonable, because the defect was unrecognizable absent the advice of experts. The court explained, "I don t think there [is] anything palpably unreasonable about not picking up what appears to be a design defect." Plaintiff appealed.

II.

Plaintiff presents the following argument for our consideration:3

SUMMARY JUDGMENT WAS IMPROPERLY GRANTED IN FAVOR OF THE DEFENDANT BECAUSE A JURY COULD REASONABLY CONCLUDE THAT THE DEFENDANT IS LIABLE FOR THE DANGEROUS CONDITION THAT EXISTED ON ITS PROPERTY UNDER THE TORT CLAIMS ACT.

 

Plaintiff contends that she established a prima facie case of liability against defendant under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Specifically, plaintiff argues that she established all the elements for liability of a public entity for an injury caused by a dangerous condition of its public property under N.J.S.A. 59:4-2. Plaintiff maintains that when she fell, she was using the property in an objectively reasonable manner, that is, she "was simply using the property as intended, . . . walking along the walkway toward the windows." She asserts that "[h]er attempt to walk towards the windows to see inside the building was not objectively unreasonable." She points out that "defendant had an attractive display inside the building that was at eye level from the direction the plaintiff was walking."

Plaintiff also asserts that, contrary to the trial court's ruling, "[t]he fact that [the] building was designed by an architect . . . does not relieve . . . defendant of its duty to . . . plaintiff." Plaintiff points out that a public entity need not create the dangerous condition on its public property to be held liable.

Defendant counters that plaintiff was not using the sidewalk in an objectively reasonable manner. Rather, "plaintiff made her turn from a safe and lighted sidewalk and voluntarily proceeded into a darkened area, which was not designed as a walkway, where she admittedly was not looking where she was walking. She was not lured into that area by any actions of [defendant]." From those facts, defendant reasons that plaintiff "breached the objectively reasonable standard of due care applied to the public at large and created her own danger."

Defendant also argues that if the "defect" in public property results from negligent design, the architect or engineer, not the public entity, should bear the responsibility for creating a defective condition. Defendant suggests that otherwise, "there would be the anomalous result of the public body, who relied on the licensed professionals, being held liable for work which it had not performed, while the parties who created the condition would not bear any responsibility for creating a 'dangerous condition.'"

We review summary judgment de novo and apply the same standard as the trial court under Rule 4:46-2. Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), and review the legal conclusions of the trial court de novo, without any special deference, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Public entities are liable for their negligence "only . . . within the limitations of [the TCA] and in accordance with the fair and uniform principles established [t]herein." N.J.S.A. 59:1-2. The TCA was "designed to reestablish the immunity of public entities while relieving some of the harsh results of the doctrine of sovereign immunity." Alston v. City of Camden, 168 N.J. 170, 176 (2001) (internal quotations omitted). Consequently, "'the approach of the [TCA] is to broadly limit public entity liability.'" Ibid. (quoting Harry A. Margolis & Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:1-2 (2001)). "As the Comment to N.J.S.A. 59:2-1 . . . states, courts should employ an analysis that first asks 'whether an immunity applies and if not, should liability attach.'" Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 128 (1993). Courts should also exercise restraint in accepting novel causes of action against public entities. Attorney General's Task Force on Sovereign Immunity -- 1972, Comment to N.J.S.A. 59:2-1; Ayers v. Twp. of Jackson, 106 N.J. 557, 574 (1987).

The circumstances under which a public entity may be held liable for an injury caused by a condition of its property are contained in N.J.S.A. 59:4-2, which provides:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

 

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.

 

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

 

A "dangerous condition" is defined by N.J.S.A. 59:4-1 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." We agree with defendant that plaintiff failed to establish a prima facie case that defendant's property was in a dangerous condition.

To establish that defendant's property was in a dangerous condition, plaintiff was required to show, among other things, that she used the property with due care. The term "'used with due care' implies a standard of objective reasonableness." Garrison v. Twp. of Middletown, 154 N.J. 282, 291 (1998). When a plaintiff uses public property in a manner "that is not objectively reasonable from the community perspective," ibid., she is not using the property with due care. To answer the question of whether a plaintiff has used a public entity's property with due care, a court must undertake a two-fold analysis:

The first consideration is whether the property poses a danger to the general public when used in the normal, foreseeable manner. The second is whether the nature of the plaintiff's activity is 'so objectively unreasonable' that the condition of the property cannot reasonably be said to have caused the injury.

 

[Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 126 (2001).]

 

In this case, defendant's sidewalk extended in a north-south direction. The members of the general public, including football fans who attended defendant's home football games, used the sidewalk. Faculty, staff, and students also undoubtedly used the sidewalk. But the foreseeable use of the sidewalk by all of those persons was to get from one point to another by walking along the paved sidewalk. Plaintiff produced no evidence that when used in that manner, the sidewalk, even under the lighting conditions that existed on the night of plaintiff's accident, posed any risk of danger. To the contrary, when plaintiff, her husband, her friend, and her friend's son used the sidewalk for that purpose, they encountered no difficulty or risk of danger.

When plaintiff fell, she was not using the sidewalk to walk from one point to another in a north-side direction. Instead, she had turned and begun to walk perpendicular to the sidewalk, not toward an entrance to the building, but instead toward its opaque glass walls. She was not using the sidewalk or the property along the sidewalk in a normal, foreseeable manner. Had she used the sidewalk in the normal manner sidewalks are used, the accident never would have happened. She admitted as much in her deposition testimony when she said the accident would not have happened had she not peeled off from the others and taken a right-hand turn. Moreover, in the years that passed between the construction of the Hale Center renovations and plaintiff's accident, during which numerous football fans presumably walked along the walkway, defendant had received not one other report of an incident at the retaining wall and well.

Although we reject as contrary to the summary judgment standard defendant's contention that plaintiff walked from an illuminated sidewalk into the darkness, we recognize that the lighting was sufficient to permit plaintiff, her husband, and their friends to traverse the sidewalk without incident. And though plaintiff now argues that "defendant had an attractive display inside the building that was at eye level from the direction [she] was walking," plaintiff testified differently at her deposition. There, she said she saw lights on at the top of the windows and decided to take a closer look to see football players.

Considering all of those circumstances, we conclude as a matter of law that when measured against the two-fold due care analysis, plaintiff was not using defendant's property with due care in a manner in which it was reasonably foreseeable that the property would be used.

We further conclude, albeit for different reasons, that the trial court correctly found that defendant's conduct or omissions were not palpably unreasonable. Palpably unreasonable behavior is behavior "patently unacceptable under any given circumstance . . . ." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)). For behavior to be "palpably unreasonable," "it must be manifest and obvious that no prudent person would approve of [the] course of action or inaction." Ibid.

Here, the retaining wall and well were designed by an architect as part of a substantial renovation to the Hale Center. The walls opposite the sidewalk were opaque and contained no entryway into the building. In the years between completion of construction and plaintiff's accident, there was no reported incident of any injury involving the retaining wall and well. Those circumstances hardly support the proposition that it was manifest and obvious that no prudent person would have approved of defendant's course of action or inaction. A contrary result would contravene the principle underlying the TCA that courts should exercise restraint in accepting novel causes of action.

Plaintiffs' remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

1 For ease of reference, and because Timothy Sherman's claim is derivative, we refer to Lori Sherman as "plaintiff."

2 The architect was third-party defendant Nadaskay Kopelson and the site engineer was fourth-party defendant YU & Associates, Inc. Both were dismissed on summary judgment and are not involved in this appeal.

3 Plaintiff also raises as a point defendant's failure appeal from two of the trial court's rulings. This argument need not be addressed.